Opinion
NO. 2016-CA-000761-MR
03-02-2018
ROBIN MAPEL APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Robin C. Mapel Pro se Sandy Hook, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General Frankfort, Kentucky Julie Scott Jernigan Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM CARTER CIRCUIT COURT
HONORABLE REBECCA K. PHILLIPS, JUDGE
ACTION NO. 11-CR-00050 OPINION
AFFIRMING
** ** ** ** **
BEFORE: KRAMER, CHIEF JUDGE; JOHNSON AND MAZE, JUDGES. KRAMER, CHIEF JUDGE: Robin Mapel, proceeding pro se, appeals the Carter Circuit Court's order denying his RCr 11.42 motion to vacate his sentence. After a careful review of the record, we affirm because Mapel's ineffective assistance of counsel claims lack merit.
Kentucky Rule of Criminal Procedure.
I. FACTUAL AND PROCEDURAL BACKGROUND
On direct appeal, the Kentucky Supreme Court summarized the facts of this case as follows:
On the morning of November 8, 2008, Melissa Patrick called her mother to come get Melissa's toddler from her home. A few minutes later, she called again and asked if her mother would call Melissa's employer and say that she would not be coming to work because she was sick. When her mother asked what was wrong, Melissa began to cry and said that she could not explain. Her mother and stepfather lived nearby, and the stepfather came to Melissa's home to get the child. When he arrived, he saw Appellant [Robin Mapel], Melissa's boyfriend, standing at the window and Melissa sitting on the couch, dressed only in her underwear. When the stepfather asked what was going on, Appellant put a gun to Melissa's head. The stepfather started toward Melissa and Appellant struck him in the head with the butt of the gun, which prompted a physical altercation. During the altercation, Melissa grabbed the child and ran toward the door. Appellant fired two shots at them, with one striking Melissa in the upper arm.
Appellant pursued Melissa outside to the porch, where he put his knee on her back to restrain her while he reloaded the gun. The stepfather grabbed the child and retreated to his home nearby, and returned to Melissa's house with a rifle. When he arrived, Appellant was backing Melissa's car out of the driveway. The stepfather fired one shot from the rifle into the car and struck Appellant in the chest. He did not see that Melissa was also in the car. Melissa's mother called 911.
Appellant went to the home of Edgar King, who observed that Appellant had a chest wound, and had his girlfriend call 911. When King came back outside, he saw a 9-millimeter handgun lying on the floorboard, and that Melissa was dead, doubled over with blood everywhere. When police arrived and arrested Appellant, a 9-millimeter shell casing fell out of Appellant's clothing as he was being moved for medical attention.
At Melissa's residence, the police found blood on the floor and two bullet holes in the blinds over the sliding glass door. They also found blood on the porch and down the porch steps.Mapel v. Commonwealth, No. 2011-SC-000526-MR, 2013 WL 3155829, *1-2 (Ky. June 20, 2013).
Appellant was indicted for murder and kidnapping.
At trial, the medical examiner, Dr. Kristin Rolf, testified that the cause of Melissa's death was a brain injury due to a gunshot wound to the head. She removed two 9-millimeter bullets from Melissa, one from her brain and one from her upper arm. The wound to her head was located behind the bottom of her left ear. Black marks around the head wound indicated that the tip of the barrel of the gun had been very close to or touching the skin when the shot was fired. The medical examiner also found pieces of plastic in the head wound. On cross-examination, Appellant's counsel asked Dr. Rolf if the head wound could have been caused by suicide. Dr. Rolf stated that because the head wound was caused by a gun placed against the head, it was consistent with both homicide and suicide, and that she could not say with medical certainty that it was homicide.
The jury, however, convicted Appellant of murder and kidnapping, and recommended sentences of life without the possibility of parole for the murder charge and life for the kidnapping charge. The trial court sentenced Appellant to life without the possibility of parole.
Mapel appealed his conviction and sentence to the Kentucky Supreme Court. The Court affirmed the circuit court's judgment. See id. at *6.
Mapel moved to vacate his sentence pursuant to RCr 11.42. The circuit court denied his motion. Mapel now appeals, contending that he received the ineffective assistance of trial counsel when his trial attorneys: (a) failed to thoroughly investigate and properly present the case to the jury; (b) failed to investigate the gray plastic fragment; (c) failed to see that the car was not preserved as evidence; (d) failed to use the expert in a meaningful way to fully investigate the evidence available to him in preparation for trial; (e) failed to request a missing evidence instruction for the failure to preserve gunshot residue evidence for testing; (f) failed to request an instruction on acute stress disorder; (g) failed to object to incorrect language used in the indictment; and (h) prevented Mapel from testifying at trial.
II. STANDARD OF REVIEW
In a motion brought under RCr 11.42, "[t]he movant has the burden of establishing convincingly that he or she was deprived of some substantial right which would justify the extraordinary relief provided by [a] post-conviction proceeding. . . . A reviewing court must always defer to the determination of facts and witness credibility made by the circuit judge." Simmons v. Commonwealth, 191 S.W.3d 557, 561 (Ky. 2006), overruled on other grounds by Leonard v. Commonwealth, 279 S.W.3d 151, 159 (Ky. 2009). An RCr 11.42 motion is "limited to issues that were not and could not be raised on direct appeal." Id.
Mapel alleges various ineffective assistance of counsel claims. To prevail on a claim of ineffective assistance of counsel, a defendant must convince a reviewing court both that (1) his trial counsel's performance was deficient, and (2) that this deficiency resulted in prejudice to his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); accord Gall v. Commonwealth, 702 S.W.2d 37, 39-40 (Ky. 1985).
III. ANALYSIS
A, B, AND D. FAILURE TO INVESTIGATE THE CASE AND THE GRAY PLASTIC FRAGMENT, AND FAILURE TO USE THE EXPERT IN A MEANINGFUL WAY
Mapel's first, second, and fourth claims are intertwined, so we will discuss them jointly. Mapel alleges that he received the ineffective assistance of counsel when counsel failed to investigate the gray plastic fragment that was found in the victim's head wound. He contends that during the victim's autopsy, bullet fragments were removed from her skull. Those fragments were sent to the Kentucky State Police Forensic Laboratory, where they were examined by Dwight Deskins. Mr. Deskins's examination notes state that one of the fragments appears to be a small piece of gray plastic, and that the fragment is not consistent with an ammunition component for any of the submitted live cartridges. Mapel asserts that his attorneys "made no effort to find an explanation for the gray plastic fragment found," and that they waited almost two years--until twelve days before trial--to contact Mr. Deskins, who allegedly informed them that the gray plastic was from another source and was not part of a bullet. Mapel argues that the presence of the plastic indicates that the bullet passed through the car door before striking the victim in the head and that because the victim's stepfather fired at Mapel as he and the victim were in the car leaving the victim's house, the stepfather may have been the one who inadvertently shot the victim. He claims that his attorneys rendered ineffective assistance both by not discovering the source of the plastic fragment and by not effectively using the forensic expert hired by the defense.
The circuit court noted that the car had been impounded because it was part of the criminal action. Because the car was also part of the victim's estate, the estate's attorney (who also was the Morgan County Attorney at the time) wanted the vehicle to be released to the estate's creditor. James J. Barrett, who was one of Mapel's trial attorneys, testified at the RCr 11.42 evidentiary hearing that the estate's attorney corresponded with Mr. Barrett about the estate's wish for the vehicle's release. Defense counsel objected to the release. Mr. Barrett attested that the estate's attorney then sought an order from the district court for the vehicle's release, and the district court granted it without either defense counsel or the circuit court being notified that the motion for release had been filed. Regardless, the circuit court noted Mr. Barrett testified that the defendant's expert (Larry Dehus)
was skeptical that the plastic fragment came from the car. Mr. Barrett even said that Mr. Dehus was not very upset when he learned that the vehicle had been released and a comparison could not be made. Had Mr. Dehus believed the plastic truly came from the driver door as argued, a sample could have been taken from another vehicle of the same make and model, but no need to pursue this avenue was expressed by the expert.The circuit court continued, finding that the failure to conduct comparison testing on the car did not affect the outcome of the case. Specifically, the court noted:
[T]he plastic fragment was found in Ms. Patrick's head, but it was accompanied by a nine (9) millimeter bullet.
While the Defendant attempted to argue, or at least imply, that Ms. Patrick was shot by [Robert] Perkins, [who was Ms. Patrick's stepfather,] Mr. Perkins was not shooting nine (9) millimeter rounds. The Defendant was the one with the nine (9) millimeter handgun. He fired the handgun at Ms. Patrick when she tried to flee the home, he reloaded the handgun, and he entered the vehicle with the handgun. After Ms. Patrick had been shot, the handgun was found on the driver's side of the vehicle, with a nine (9) millimeter shell casing found on the Defendant's person. These facts compellingly demonstrate that counsel was not ineffective.
We find no error in the circuit court's analysis of these claims. Even if defense counsel had conducted further investigation into the plastic fragment and utilized the defense expert more, the result of Mapel's trial likely would not have been any different considering the strength of the evidence against him and considering that the expert was skeptical that the fragment came from the car door. Consequently, Mapel's first, second, and fourth claims of the ineffective assistance of counsel lack merit. See generally Strickland, 466 U.S. at 687, 104 S.Ct. at 2064.
C. FAILURE TO ENSURE PRESERVATION OF CAR AS EVIDENCE
Mapel next contends that he received the ineffective assistance of counsel when counsel failed to see that the car was not preserved as evidence. He alleges that one of his defense counsel received a letter from the attorney representing the victim's estate in the separate probate action, which stated that the estate wanted to release the victim's car to the creditor. Mapel asserts that this shows his attorney was aware that the estate wanted to release the car, and his defense counsel should have ensured that the car was not released.
Even if we were to assume for the sake of argument, that defense counsel performed deficiently in failing to preserve the car as evidence, Mapel still cannot prove that the result of his trial likely would have been different if the car had been preserved. This is because of the strength of the evidence against Mapel, as we discussed supra, and because the defense could have obtained a sample of plastic from a car door of a similar make, model, and color if the expert had requested it for testing purposes, which the expert did not. Accordingly, Mapel's claim that counsel rendered ineffective assistance by failing to ensure that the car was preserved as evidence lacks merit.
Alternatively, even if the evidence against Mapel had not been strong, the court nevertheless gave the jury a "missing evidence" instruction concerning the car. The "missing evidence" instruction that was given to the jury in the present case stated:
The Commonwealth has lost or released evidence involved in this case, specifically, the 2006 Chevrolet Cobalt automobile in which Melissa Patrick's body was found. In your deliberations, you may infer, but you are not required to infer, that this evidence, if available now, would be favorable to the Defendant's case.Therefore, because the "missing evidence" instruction permitted the jury to conclude that the missing car would have been evidence favorable to Mapel's case, Mapel cannot show that he was prejudiced by counsel's failure to ensure that the car was preserved. Consequently, this ineffective assistance of counsel claim lacks merit. See generally Strickland, 466 U.S. at 687, 104 S.Ct. at 2064.
E. FAILURE TO REQUEST MISSING EVIDENCE INSTRUCTION
Mapel next asserts that counsel rendered ineffective assistance when counsel failed to request a missing evidence instruction regarding the failure to preserve gunshot residue evidence for testing. Specifically, he contends that gunshot residue evidence should have been preserved from both himself and the victim for testing. He alleges that if the victim had been tested, and if she had a high level of gunshot residue, this would be an indication that she had committed suicide.
In Estep v. Commonwealth, 64 S.W.3d 805 (Ky. 2002), the Kentucky Supreme Court noted the following principles that have emerged from its evolving case law on the subject of "missing evidence" instructions:
First, the purpose of a "missing evidence" instruction is to cure any Due Process violation attributable to the loss or destruction of exculpatory evidence by a less onerous remedy than dismissal or the suppression of relevant evidence. . . . Second, the Due Process Clause is implicated only when the failure to preserve or collect the missing evidence was intentional and the potentially exculpatory nature of the evidence was apparent at the time it was lost or destroyed. . . . [A]bsent some degree of "bad faith," the defendant is not entitled to an instruction that the jury may draw an adverse inference from that failure.Estep, 64 S.W.3d at 810 (emphasis removed).
In the present case, the circuit court addressed this claim by finding that at the evidentiary hearing, "Mr. Barrett explained that he did not request such an instruction with regard to the omitted tests, for the facts did not qualify for such an instruction. Further elaborating, Mr. Barrett stated that the issue was one for cross-examination and not for an instruction."
The circuit court continued, noting that in Collins v. Commonwealth, 951 S.W.2d 569 (Ky. 1997),
the Kentucky Supreme Court held that unless bad faith on the part of the police can be demonstrated, a failure to preserve potentially useful evidence does not constitute a denial of due process. Collins, supra, at 572-73.We agree with the circuit court's assessment that Mapel demonstrated no bad faith on the part of the Commonwealth here, which he would need to demonstrate to be granted a missing evidence instruction.
Much like the facts herein, the Commonwealth in Collins conceded that agents of the Commonwealth were negligent in failing to collect and preserve evidence. However, the Court concluded that "mere negligence simply does not rise to the level of bad faith required by [Arizona v. Youngblood, 488 U.S. 51 (1988)]. . . ." [Collins] at 573. [Mapel] has demonstrated no bad faith herein. Rather, it appears clear from the record that [gunshot residue] testing was not completed (or other evidence was not collected) as the investigators simply did not believe the Defendant would survive the massive injury he suffered as a result of being shot by Mr. Perkins.
Counsel was not ineffective for failing to request the [gunshot residue] missing evidence instruction. The law is clear on this point, and the argument that such an instruction was appropriate is not well taken. Trial counsel accurately assessed the law, and in accordance with his duties as an officer of the Court, did not make an argument that he believed was contrary to the law.
Further, even if we were to assume that Mapel would have been entitled to a missing evidence instruction concerning the gunshot residue, he still cannot prove that his counsel rendered ineffective assistance by failing to request such an instruction. A missing evidence instruction would have only permitted, not required, the jury to assume that the missing evidence would have been favorable to Mapel's case. However, the evidence presented against Mapel during trial was very strong. The victim's stepfather saw Mapel fire two shots at the victim as she was trying to run away from Mapel. When the victim's body was later found, she had gunshots not only in her head, but also in her upper arm. Therefore, it is unlikely the jury would have chosen to assume the missing evidence was favorable to Mapel (i.e., the jury likely would not have assumed the missing evidence was proof that the victim committed suicide, considering the other evidence in the case). Consequently, this ineffective assistance of counsel claim lacks merit. See generally Strickland, 466 U.S. at 687, 104 S.Ct. at 2064.
F. FAILURE TO REQUEST ACUTE STRESS DISORDER INSTRUCTION
Mapel next argues that counsel rendered ineffective assistance when counsel failed to request an instruction on acute stress disorder. He asserts that testimony was introduced from "Dr. Bobby Miller, the Psychiatrist/Neurologist, . . . [that] Mapel's acute stress disorder, at the time of the alleged offense, likely impacted upon his decision-making ability and behavior." Mapel acknowledges that the jury was instructed on the defense of extreme emotional disturbance (EED), but he claims that EED is not the same thing as acute stress disorder. Mapel contends that EED is a legal term used as a defense, but acute stress disorder is a mental illness, which entitles him to exculpation from any criminal conduct. He states that Dr. Miller testified that he believed Mapel suffered from the temporary condition of acute stress disorder on the day of the shootings after he was shot in the chest by the victim's stepfather. Mapel asserts that Dr. Miller attested that he believed after Mapel was shot, Mapel's judgment became impaired, causing him to act uncontrollably, rather than from "pure evil malice of purpose of his own will."
In addressing this claim, the circuit court noted that it was "not sure what the Defendant is seeking that was not already given, for the jury was instructed on extreme emotional disturbance." During trial, the jury was instructed on EED as follows:
Extreme Emotional Disturbance is a temporary state of mind so enraged, inflamed, or disturbed as to overcome one's judgment, and to cause one to act uncontrollably from the impelling force of the extreme emotional disturbance rather than from evil or malicious purposes. It is not a mental disease in itself, and an enraged, inflamed, or disturbed emotional state does not constitute an extreme emotional disturbance unless there is a reasonable explanation or excuse thereof, the reasonableness of which is to be determined from the viewpoint of a person in the Defendant's situation under circumstances as the Defendant believed them to be.
We first note that in support of this claim, Mapel cites in his appellate brief to a report by Dr. Miller that Mapel attached as an appendix to his brief. The report states, inter alia, that "Mr. Mapel's Acute Stress Disorder, at the time of the alleged offense, likely impacted upon his decision-making ability and behavior." It also concludes that "Mr. Mapel's life[-]threatening physical injury, at the time of the alleged offense, likely impacted upon his decision-making ability and behavior." However, Mapel does not cite to where in the official trial record this report is to be found. He only cites to it as an appendix to his appellate brief. Additionally, in his brief, Mapel contends that Dr. Miller testified at trial concerning his diagnosis of acute stress disorder. Yet, Mapel does not provide specific citations to the trial's video record where we could watch such testimony. Because this part of his brief does not conform with CR 76.12(4)(c)(v), which requires "ample supportive references to the record" in support of the appellant's argument, we may strike this part of his brief. See CR 76.12(8)(a).
Kentucky Rule of Civil Procedure. --------
Regardless, even if we were to consider this claim and Dr. Miller's report was properly in the record, the claim still lacks merit. As noted above, Dr. Miller's report that was attached as an appendix to Mapel's brief concluded that "Mr. Mapel's life[-]threatening physical injury, at the time of the alleged offense, likely impacted upon his decision-making ability and behavior." The report also provided:
In Acute Stress Disorder the person has been exposed to a traumatic event in which the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or threat to the physical integrity of self or others. The person's response involved intense fear, helplessness or horror. Either while experiencing or after experiencing
the distressing event, the individual manifests dissociative symptoms such as:
- A subjective sense of numbing, detachment, or absence of emotional responsiveness.
- A reduction in awareness of his or her surroundings and feeling as if they are "in a daze" or "in shock."
- Derealization
- Depersonalization
- Dissociative Amnesia
. . . The disturbance causes clinically significant distress or impairment. The disturbance must occur within four weeks of the traumatic event. The disturbance lasts for a minimum of two days and a maximum of four weeks.
Mapel does not allege that acute stress disorder qualifies as "insanity," and he has not shown that it qualifies as a "mental illness" that warranted a separate jury instruction from the EED instruction. See McClellan v. Commonwealth, 715 S.W.2d 464, 467-68 (Ky. 1986) (discussing the differences between insanity, mental illness, and extreme emotional disturbance). Thus, we agree with the circuit court's assessment that Mapel was already given what he is now asking for because the EED jury instruction covered what Mapel ultimately seeks through this ineffective assistance of counsel claim. Furthermore, the EED instruction covered what Mapel seeks; therefore, his counsel did not render ineffective assistance by failing to secure a separate jury instruction on acute stress disorder. See generally Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. Consequently, this claim lacks merit.
Moreover, to the extent that Mapel contends that the circuit court committed palpable error in failing to instruct the jury on acute stress disorder, his claim could have and should have been brought on direct appeal. Because it was not appropriately brought for the first time in his RCr 11.42 motion, we will not consider it. See Simmons, 191 S.W.3d at 561, overruled on other grounds by Leonard, 279 S.W.3d at 159.
G. FAILURE TO OBJECT TO LANGUAGE IN INDICTMENT
Next, Mapel contends that he received the ineffective assistance of counsel when counsel failed to object to incorrect language used in the indictment. Specifically, he alleges that both counts of the indictment included language about him "killing her," i.e., Ms. Patrick, and that this violates his right against double jeopardy because the phrase "killing her" was used in both the capital murder and the capital kidnapping counts in the indictment. He asserts that his attorneys failed to notice that this was a double enhancement, which resulted in an impermissible increase in his sentence.
While addressing this claim, the circuit court noted Mr. Barrett testified "that he specifically researched the possibility of double jeopardy presented by the charges, and he found no basis to conclude that a double jeopardy issue existed." The court held that the Kentucky Supreme Court's decision in St. Clair v. Roark, 10 S.W.3d 482 (Ky. 1999), supports this position.
Mapel was convicted of the murder and kidnapping of Ms. Patrick, and he was sentenced to life without the possibility of parole. In St. Clair, the Kentucky Supreme Court held: "[T]here is no Blockburger [v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932)] violation in convicting a defendant of both the murder and the capital kidnapping of the same victim and imposing separate death sentences for each conviction." St. Clair, 10 S.W.3d at 487. Therefore, in accord with St. Clair, Mapel's double jeopardy (i.e., Blockburger) claim lacks merit. Because his double jeopardy claim lacks merit, Mapel cannot prove that counsel rendered ineffective assistance pertaining to his double jeopardy claim. Consequently, his ineffective assistance of counsel claim lacks merit. See generally Strickland, 466 U.S. at 687, 104 S.Ct. at 2064.
H. TESTIFYING AT TRIAL
Finally, Mapel alleges that counsel rendered ineffective assistance when counsel prevented him from testifying at trial. He asserts that of the three people who were present during the altercation, only one of them testified at trial (Mr. Perkins), and Mr. Perkins and Mapel did not like each other. Mapel contends that he wanted to testify concerning Mr. Perkins's prior abusive actions toward the victim.
The circuit court found that both of Mapel's trial attorneys testified during the evidentiary hearing in the present matter that they did not prevent Mapel from testifying at trial. Additionally, the court noted that Mapel chose not to testify during the evidentiary hearing; accordingly, the court had absolutely no evidence before it that Mapel's attorneys prevented him from testifying at trial. The court then denied Mapel's claim on the merits.
We agree with the circuit court's analysis of this claim. Upon reviewing the evidentiary hearing, Mapel's two attorneys testified that they did not prevent him from testifying during trial. Further, Mapel chose not to testify to the contrary during the evidentiary hearing. Consequently, because Mapel presented no evidence to support his claim that he received the ineffective assistance of counsel when counsel prevented him from testifying, this claim lacks merit.
Accordingly, the order of the Carter Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Robin C. Mapel
Pro se
Sandy Hook, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General
Frankfort, Kentucky Julie Scott Jernigan
Assistant Attorney General
Frankfort, Kentucky