A sixteen-year-old girl waiting for a bus in Louisville was taken at gunpoint to Iroquois Park by a man who tried to rape her. She had a knife, and she cut him repeatedly and got away. Beoria A. Simmons Jr. turned up at a hospital with stab wounds that he said came from a robbery, and the police connected them to her report. The pistol found in his car had been used in three murders, and Simmons admitted that he had picked up each of the three women, had sex with them and killed them, and let his statement be tape recorded.
A Jefferson County jury convicted him of three murders, three rapes, an attempted murder, an attempted rape and four kidnappings, and he was sentenced to death six times, for each murder and for three of the kidnappings. The Supreme Court of Kentucky’s opinion of January 21, 1988, the substantive document here, sets out that evidence and affirms, dealing among other questions with his confession, the funding of defense experts and his evaluation at the state’s psychiatric center.
The earliest opinion, from 1986, is an order about his lawyers’ failure to file his brief on time, which threatened them with contempt. The last, decided February 23, 2006, affirms the denial of his motion for post-conviction relief, in which he argued that his trial lawyers had been ineffective in many respects. His death sentences were later commuted to life without parole in exchange for giving up his remaining appeals.
None of the three opinions names the women Simmons was convicted of killing, and the 1988 opinion describes the killings only through his own statement, which claimed that each woman demanded money after consensual sex; the jury’s verdicts of rape rejected that account. The commutation of his sentences came after these opinions and is not part of this record.
The opinions are public records of the Supreme Court of Kentucky. The court gave the sixteen-year-old who escaped her initials and surname; we have reduced the surname to an initial as well, and we have given an initial to a prospective juror. The psychiatrist and social worker who examined him, and the lawyers and judges, are named as the court named them.
The Caselaw Access Project text is printed complete. The 1988 opinion keeps its own spelling “consentual,” and one lawyer’s name appears as both Schadd and Schaad in the captions; both are left as printed. We closed words split across lines only where the whole word appears elsewhere in the text.
Beoria A. SIMMONS, Jr., Appellant, v. COMMONWEALTH of Kentucky, Appellee.
Supreme Court of Kentucky.
Nov. 26, 1986.
[OPINION BY STEPHENS, Chief Justice. type=majority]
OPINION AND ORDER
STEPHENS, Chief Justice.
On January 31, 1986, this Court entered an order in the above-styled action granting appellant’s motion for an extension of time to the extent that appellant was given until July 10, 1986 in which to file his brief and perfect his appeal. In the same Order we further provided that if appellant’s brief was not filed and the appeal was not perfected on or before July 10, 1986, counsel for the appellant, Honorable Daniel T. Taylor, Honorable Robert D. Schaad, and Honorable Gail Robinson, shall appear before this Court on August 26,1986, to show cause why they should not be held in contempt or sanctioned for their failure to timely file appellant’s brief and to perfect his appeal. Appellant’s counsel failed to comply with this Order and a hearing was held on August 26, 1986, at which time Mr. Taylor, Mr. Schaad and Ms. Robinson appeared and offered explanation.
We find the following facts to be true:
The transcript of evidence was filed on December 12,1985. Thereafter, on the day the brief was due appellants’ counsel filed a motion for a nine month extension of time in which to file his brief. The reasons for the requested extension included the length of the record on appeal, counsels’ case loads and counsel Robinson’s pregnancy. On January 31, 1986, this Court considered and granted appellant a six month extension of time and entered the aforementioned show cause order.
We are critical of counsel’s failure to request an extension of time until the day the brief was due. Nevertheless, at the hearing conducted August 26, 1986, counsel presented the Court with sufficient justification for their failure to timely file appellant’s brief. In this death penalty case, appellant’s counsel had received no prior extensions of time in which to file appellant’s brief, and they offered adequate response to the Order of this Court to show cause. Counsel testified that during the six months extension they had read the record on appeal, researched issues and committed portions of appellant’s brief to writing.
We find the response of appellant’s counsel to this Court’s Order entered January 31, 1986 to be sufficient to explain their failure to timely file appellant’s brief on or before July 10, 1986.
All sitting. All concur.
Beoria A. SIMMONS, Jr., Appellant, v. COMMONWEALTH of Kentucky, Appellee.
No. 85-SC-629-MR.
Supreme Court of Kentucky.
Jan. 21, 1988.
As Modified on Denial of Rehearing March 31, 1988.
Daniel T. Taylor III, Robert D. Schadd, Louisville, M. Gail Robinson, Asst. Public Advocate, Frankfort, for appellant.
Mary-James Young, Virgil W. Webb III, Asst. Attys. Gen., Frankfort, for appellee.
OPINION OF THE COURT
Beoria A. Simmons, Jr. was convicted of three murders, three rapes, one attempted murder, one attempted rape, and four kidnappings. He was sentenced to death for each of the three murders, to death for three of the kidnappings, 20 years’ imprisonment for the attempted murder, 10 years’ imprisonment for attempted rape, and 20 years’ imprisonment for the other kidnapping charge. All of the charges arose from assaults perpetrated upon four women in Louisville, Kentucky.
Sixteen-year-old K.D.H. was accosted by appellant at gunpoint as she stood waiting for a bus. He took her in his automobile to Iroquois Park in Louisville and attempted to rape her. She had a knife in her possession and slashed appellant repeatedly and made her escape. The attempted rape was reported to the police.
Meanwhile, the appellant had sought medical assistance at a hospital, where he claimed to have been injured by people who robbed him. The police, however, suspected a connection between the stab wounds suffered by appellant and the stabbing of an assailant which was reported by Ms. H.
Appellant’s pistol was recovered from his automobile, and ballistic tests showed that this weapon had been used in three earlier murders. The appellant gave a statement in which he admitted having sexual intercourse with the three other women and that he killed each of them. He also permitted his statement of his involvement in these crimes to be tape recorded.
In each of the three murders committed on separate occasions prior to the assault on Ms. H., the appellant stated that he picked up the victims on the street, that they rode around in his car for a while, and later engaged in consentual sexual relations, after which each of the women demanded money. In the ensuing argument about money, he shot each of the three victims, causing their death, and he left the bodies of two of them in a city park and the other was left lying where she was shot, in the vicinity of River Road in Louisville.
Appellant has a Bachelor’s Degree in social work, and at the time of his arrest was employed as a counselor at a halfway house for parolees.
Appellant has asserted 34 grounds for reversal of his conviction in his brief and addressed some of those issues at oral argument. This opinion will focus on all of the issues addressed by appellant’s counsel at oral argument plus others presented in the brief which, in the opinion of this court, merit discussion. Allegations of errors which we consider to be patently without merit will not be addressed herein.
FUNDS FOR EXPERT WITNESSES
Appellant first contends that he was denied due process of law when the trial court overruled his motions to advance funds for psychological and psychiatric examination and assistance. Appellant requested that funds be provided for the appointment of two independent psychiatrists, two independent psychologists, and one licensed clinical social worker to examine him.
An indigent defendant is entitled to reasonably necessary expert assistance. Young v. Commonwealth, Ky., 585 S.W.2d 378 (1979); K.R.S. 31.110. K.R.S. 31.185 provides that an indigent defendant is entitled to use state facilities for the evaluation of evidence. On a joint motion the appellant was transferred to the Kentucky Correctional Psychiatric Center for evaluation. He was examined there by a Dr. Ravani, a psychiatrist, and consulted with a social worker, Cheryl Stuckey.
Dr. Ravani reported to the court that appellant was competent to stand trial. Both Dr. Ravani and Cheryl Stuckey testified in behalf of appellant: Dr. Ravani at the guilt phase of the trial and Cheryl Stuckey at both the guilt and the sentencing phase. Although he was employed by the state, Dr. Ravani testified that he was not employed by the prosecution and that his only job was to give an independent answer concerning the mental status of the persons examined by him. He also stated that in a majority of cases referred to him, his report showed some degree of mental deficiency.
The appellant failed to show a necessity for the expert assistance he requested. He stated in general terms only that expert assistance was needed to prepare adequately for trial and possible sentence hearing. He did not state the names of any doctor or social worker that he desired to examine him, nor did he furnish any estimate of the cost. He further did not state what he expected to show or in what manner the requested assistance would be of any specific benefit to him. He made no challenge to the competency of Dr. Ravani or that Dr. Ravani was uncooperative with him or was not available for consultation.
The only objection that he made to the examination by Dr. Ravani pursuant to the court order, was that the information given to Dr. Ravani would not be treated with confidentiality, but, nevertheless, he used Dr. Ravani as a witness in his behalf. The Commonwealth presented no psychiatric evidence in support of any aggravating factor in these capital murder cases. See, Bowden v. Kemp, 767 F.2d 761 (11th Cir.1985).
The trial courts are not required to provide funds to defense experts for fishing expeditions. Hicks v. Commonwealth, Ky., 670 S.W.2d 837, 838 (1984). There is no violation of due process in the refusal to provide for expert witnesses where the defendant offers little more than an undeveloped assertion that the requested assistance would be beneficial. Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985).
We hold that appellant was provided competent expert psychiatric and social worker assistance, which he utilized in his trial, and that he failed to establish that further expert assistance was reasonably necessary for his defense.
JURY SELECTION
The appellant has postulated numerous alleged errors in the jury selection process. He contends that some jurors were improperly excused for cause when they expressed reservation about their ability to vote for the death penalty and that others were not excused for cause upon challenge by appellant when they indicated that they were prone toward the death penalty and could not consider the full range of punishment provided by law.
The determination of whether to exclude a juror for cause lies within the sound discretion of the trial court. We do not reverse the action of the trial court in the exercise of its discretion unless the exercise of discretion is clearly erroneous. Caldwell v. Commonwealth, Ky., 634 S.W.2d 405, 407 (1982).
We have read the entire transcript of the voir dire of the prospective panel members of whom appellant makes complaint. In the case of the jurors excused for cause by reason of their feelings about the death penalty, their testimony was such as to convince any reasonable person that they could not, under any circumstances, in any case whatever, vote to impose the death penalty. Because of this they would be prevented or substantially impaired in their ability to perform their duties as jurors, and it was not an abuse of discretion to strike them for cause. Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985).
Likewise, some of the jurors indicated their belief in the death penalty in a proper case, but a review of the entire voir dire does not reveal that any would inevitably impose the death penalty in every case nor that they could not consider the entire range of penalties established by law. The failure of the trial court to discharge those jurors for cause was not an abuse of discretion.
One juror, during voir dire, indicated that, if justified, he could impose the death penalty. Some time later during the jury selection process this juror appeared before the judge and stated that upon reflection he believed in the death penalty but did not believe that he could impose it in any case. The court then asked the juror if he would be unable, under any circumstance, to impose the death penalty, and the juror replied that he thought he could not. This juror was excused for cause, and we find no abuse of discretion in the trial court’s action.
Another juror, during preliminary voir dire questioning by the court, answered affirmatively that he could not, under any circumstance, consider imposing the death penalty. This juror was excused for cause. The appellant objected because he was not afforded an opportunity to rehabilitate the juror. The examination of jurors by counsel is a privilege, not a right. RCr 9.38. The juror’s response to questions of the trial judge was unequivocal, and we see no abuse of discretion on the part of the trial court.
Appellant contends that one prospective juror should have been discharged for cause for the reason that she was biased against the defense of insanity or mental illness. This juror’s response to voir dire questions showed her to be a mature and intelligent person who believed that insane persons are not responsible for their acts and that mental illness should be considered in mitigation of punishment. Although she expressed a personal feeling that insanity should not be a complete defense to crime, she did not state that she would be unable to follow the law and the instructions of the court, or that she could not in this or any other case be able to return a verdict of not guilty by reason of insanity. We find no error in the refusal to discharge this juror for cause.
Finally, appellant alleges that it was unDemocratic and un-American to excuse jurors for cause when they could not, in any case, under any circumstance, vote to impose the death penalty. The procedure used in this trial has been approved by our court in Buchanan v. Commonwealth, Ky., 691 S.W.2d 210 (1985) and by the United States Supreme Court in Lockhart v. McCree, 476 U.S. 162, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986).
ALLEGED DISCRIMINATION IN THE USE OF PEREMPTORY CHALLENGES
The Commonwealth’s Attorney exercised five of his peremptory challenges to excuse five of the seven black prospective jurors. The appellant excused one of the black prospective jurors, and one black person remained on the jury panel.
After the peremptories were exercised, 14 prospective jurors remained to provide a jury of 12 with 2 alternates. The following colloquy then took place:
“THE COURT: Is the Commonwealth satisfied with the jury?
“MR. D.: Yes, Your Honor.
“THE COURT: Is the Defendant satisfied with the jury?
“MR. TAYLOR: Yes, Your Honor.
“THE COURT: Would you please swear the jury?
“JUROR JOHNSON: May I approach the bench?
“THE COURT: Yes, sir.
(Discussion at the bench in whispered tones.)
“JUROR JOHNSON: If possible my company would prefer that I didn’t, if the trial lasted a long time, didn’t serve.
“THE COURT: Well, I appreciate what your company would prefer, but at this point it is beyond my capability.
“JUROR JOHNSON: Okay.
“THE COURT: All right, sir.
(Continuing in Open Court)
(Jury sworn to try the case.)
“THE COURT: Those other members of the panel that were not selected to serve as a jury in this matter, I want to thank you for your assistance. Without your assistance we would not have been able to pick a jury. I know it’s been a somewhat trying experience for you and I appreciate the patience that you’ve shown throughout the process of jury selection.
“Again, I thank you on behalf of the court system for your assistance in helping us select a jury for this case. At this time you’re excused from this court.
(Prospective jurors not seated left the courtroom.)
“THE COURT: Mr. D., would you come up, please, sir?
“MR. D.: Yes.
(Discussion at the bench in whispered tones.)
“MR. TAYLOR: At this time I want to object to the pre-emptories (sic) as exercised by the Commonwealth on the basis of racial exclusion, my client being a black person and the margin of blacks pre-emptorily (sic) struck by the Commonwealth, and move the Court to mis-try the case and reassign for trial.
“THE COURT: Motion is denied.”
We note that appellant’s objection to the use of peremptory challenges to jurors was not made until after the appellant had accepted the jury, and stated to the court that he was satisfied with the jury. It was not made until after the prospective jurors who were not accepted on the panel had been discharged from service by the court and had left the courtroom. The objection was not made until after the jury had been sworn.
The relief requested was not that the alleged discriminatory challenges be disallowed, but rather a mistrial was sought with a reassignment for trial.
Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), requires that upon timely objection to peremptory challenges for alleged discrimination, the court shall hold a hearing to determine if a prima facie case of discrimination can be made. Batson also noted, at footnote 24, that it made no attempt in the light of the variety of jury selection procedures in various states to outline the procedure to be followed to implement the decision.
In Kentucky, after challenges for cause, each party having the right to exercise peremptory challenges is furnished a list of qualified jurors equal in number to the number of jurors to be seated plus the number of the allowable peremptory challenges for all parties. Peremptory challenges are then exercised simultaneously by each party by striking names from the list and returning it to the judge. The jury is then chosen from the names that remain. RCr 9.36(2).
There is nothing to prevent a party from seeing the list of strikes of the opposing party after the strikes have been made and the list returned to the judge. If there is a challenge to be made to the exercise of peremptories in this state, it should be made when the list of strikes has been returned to the judge and before the jury has been accepted by the parties and sworn to try the case and before the remainder of the jurors have been discharged from service.
In this case the voir dire questioning of jurors consumed four days and is transcribed in nine volumes in the transcript on appeal. If appellant had made a timely challenge to the exercise of peremptories by the Commonwealth, the trial court could have held a hearing to determine if a prima facie case of discrimination existed, and if so, the steps set forth in Batson v. Kentucky, supra, could have been complied with without delay. If it were determined that the challenge of any juror was the result of discrimination, that challenge could have been disallowed and that juror would have remained on the panel.
As it happened, no objection was made here until after appellant had stated his satisfaction with the jury, the remaining jurors were discharged and had left the courtroom, and the jury was sworn to try the case. The only relief sought was a mistrial and a continuance of the case. We do not think the Commonwealth should be subjected to such delay and additional expenses as would be caused by a new trial when the appellant could have avoided the situation entirely by making a timely motion.
Batson v. Kentucky, supra, envisions that a timely motion should be made for protection under its ruling, and it has been so held in United States v. Erwin, 793 F.2d 656 (5th Cir.1986) and Swain v. State, 504 So.2d 347 (Ala.Crim.App.1986).
AGGRAVATING CIRCUMSTANCES
K.R.S. 532.025(3) provides that the death penalty shall not be imposed unless the jury shall find at least one of the statutory aggravating circumstances. Only one such aggravating circumstance must be shown beyond a reasonable doubt to sustain a death sentence. Bevins v. Commonwealth, Ky., 712 S.W.2d 932 (1986); Zant v. Stephens, 456 U.S. 410, 102 S.Ct. 1856, 72 L.Ed.2d 222 (1982). The jury found as aggravating circumstances in each of the three capital murders: (a) that at the time of the homicide the appellant was engaged in the commission of first-degree rape upon the victim, and (b) appellant’s act or acts of killing were intentional and resulted in multiple deaths.
In each of the three kidnapping cases in which the death penalty was imposed, the jury found as an aggravating circumstance that the appellant committed rape in the first degree upon the victim.
K.R.S. 532.025 lists the following statutory aggravating circumstances:
“(a)(2) The offense of murder or kidnapping was committed while the offender was engaged in the commission of ... rape in the first degree.
“(a)(6) The offender’s act or acts of killing were intentional and resulted in multiple deaths.”
Appellant contends that the statutory term “multiple deaths” must be construed to mean more than one death that occurs simultaneously, or in the alternative, that the statute is void for vagueness. It is obvious that the legislature did not use the words “simultaneous deaths” in the statute. The appellant solicits us to add those words in construing the intent of the General Assembly.
Ordinarily we construe statutes in the light of the plain meaning of the words contained therein, and resort to legislative intent only when words used in the statute are ambiguous. We see no ambiguity here. The statute refers to an act or acts which result in multiple deaths. Multiple means more than one, and it is beyond dispute that the acts of appellant resulted in more than one death.
Aggravating factors are those factors which would serve to enhance punishment to a higher degree. With respect to the vicious propensities of a defendant which are indicative of his danger to society, it is certainly no less compelling that on three different occasions he had committed a murder than if he had killed three people at one time. We interpret the act or acts of killing which result in multiple deaths to mean the deaths of more than one person, whether simultaneously or not.
The statute is not vague in its intent, and we believe that citizens who desire to obey it will have no difficulty in understanding it. Colten v. Commonwealth, Ky., 467 S.W.2d 374 (1971); affirmed, Colten v. Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972).
The appellant also contends that there was no evidence whatever that any of the deceased women were raped by appellant and that rape could not suffice as an aggravating circumstance in either the murder or the kidnapping convictions.
In his statements to the police and in his recorded statement, appellant admitted having sexual intercourse with the three victims. He contended in each case that the intercourse was with consent of the victim. The question presented is whether there was other evidence from which the jury could conclude that appellant accomplished the sexual intercourse by the use of forcible compulsion.
In each case, the victim is dead and could not testify, but the jury was entitled to consider all other circumstances in evidence which would indicate the use of force upon the victim.
First, the jury knew that Ms. H., the victim who escaped with her life, was abducted from the street and compulsively forced at gunpoint to get into appellant’s car, was beaten about the head as they drove to Iroquois Park, that appellant stated to her that he wanted to have sexual intercourse, that he forced her from the car and dragged her into the park where she fought him and finally escaped after stabbing him repeatedly.
Ms. H. explieity testified about the force used upon her and the appellant’s attempt to rape her. The bodies of the other three victims were found in secluded places, two of them in a park, and had multiple bruises upon their persons which indicated the use of force upon them and from which a jury could infer a struggle or resistance on their part. The fact that some of their undergarments were tom and scattered about the scene of the murder was inconsistent with voluntary intercourse. The other three victims were killed with the same pistol with which appellant abducted Ms. H. and attempted to rape her.
There was sufficient similarity and pattern in all four crimes to show the motive and intent of the appellant and to permit the jury to conclude beyond a reasonable doubt that the sexual intercourse between appellant and the victims was not consentual but was the result of forcible compulsion.
The rape of the victims was properly considered as an aggravating factor in both the kidnapping and the murder convictions.
SUPPRESSION OF EVIDENCE
The appellant contends that the trial court erred by refusing to suppress statements made by him when he was questioned by police officers at the hospital and by refusing to suppress evidence obtained through a search of appellant’s premises and his automobile.
The basis of the motion was that his statements and his consent to a search were not voluntarily given. The trial court held a suppression hearing, and testimony showed conclusively that appellant was admitted to the hospital with several superficial cuts which were cleansed and sutured. The cuts were not thought to be serious, but appellant was kept in the hospital 24 hours for observation and then was released.
The hospital notified the police that a person with stab wounds had been admitted, and a police officer went to the hospital to investigate. At that time the appellant was not suspected of any crime but was regarded as a victim. He told the investigator that he had been stabbed by people who attempted to rob him.
Later, this same officer investigated a reported attempted rape and discovered that the victim had escaped by stabbing her assailant numerous times. Appellant immediately became a suspect in the attempted rape. The police officers returned to the hospital, and after reading to appellant his constitutional rights, questioned him further. According to the treating physician, the appellant was alert and in control of his faculties, and his cuts were only superficial. To the officers he appeared to be alert and. to understand the nature of their visit. He told the officers that his gun was in his automobile and signed his consent for the search of the automobile.
The weapon recovered from appellant’s automobile proved to be the weapon used in three other unsolved murders. Appellant was further questioned and admitted his involvement in those cases.
Appellant’s reliance upon Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978) is entirely misplaced. In Mincey the suspect was questioned in a hospital while suffering from a gunshot wound, with tubes inserted in his nose and throat and a catheter into his bladder, and while he was in great pain. He continuously asked that questioning cease until he could consult a lawyer; he complained that he was confused and could not think straight, and his questioning was interrupted occasionally when he would lapse into periods of unconsciousness. In those circumstances the Supreme Court held that his statements were not voluntarily given. The circumstances in this case, unlike those in Mincey, do not indicate in any way that the statements given to the officers by appellant were involuntary. He was not suffering from any substantial injury; he was alert and understood what was happening; he was advised of his constitutional rights on each occasion before questioning commenced, and he willingly and freely gave his statement to the police.
We have reviewed all of the errors alleged by appellant and find them to be without merit.
Pursuant to the mandate of K.R.S. 532.075 we have reviewed the entire record of this case and have determined that the sentence of death was not imposed under the influence of passion, prejudice, or any other arbitrary factor and that the evidence supported the jury’s finding of the statutory aggravating factors enunciated in this opinion. We have compared the sentence in this case with other cases in which the death penalty has been imposed and which we have affirmed since 1970. Those cases are:
Scott v. Commonwealth, Ky., 495 S.W.2d 800 (1973)
Leigh v. Commonwealth, Ky., 481 S.W.2d 75 (1972)
Lenston and Scott v. Commonwealth, Ky., 497 S.W.2d 561 (1973)
Call v. Commonwealth, Ky., 482 S.W.2d 770 (1972)
Caldwell v. Commonwealth, Ky., 503 S.W.2d 485 (1972)
Tinsley and Tinsley v. Commonwealth, Ky., 495 S.W.2d 776 (1973)
Galbreath v. Commonwealth, Ky., 492 S.W.2d 882 (1973)
Caine and McIntosh v. Commonwealth, Ky., 491 S.W.2d 824 (1973)
Hudson v. Commonwealth, Ky., 597 S.W.2d 610 (1980)
Meadows v. Commonwealth, Ky., 550 S.W.2d 511 (1977)
Self v. Commonwealth, Ky., 550 S.W.2d 509 (1977)
Boyd v. Commonwealth, Ky., 550 S.W. 2d 507 (1977)
Gall v. Commonwealth, Ky., 607 S.W.2d 97 (1980)
McQueen v. Commonwealth, Ky., 669 S.W.2d 519 (1984)
White v. Commonwealth, Ky., 671 S.W.2d 241 (1984)
Harper v. Commonwealth, Ky., 694 S.W.2d 665 (1985)
Skaggs v. Commonwealth, Ky., 694 S.W.2d 672 (1985)
Kordenbrock v. Commonwealth, Ky., 700 S.W.2d 384 (1985)
Matthews v. Commonwealth, Ky., 709 S.W.2d 414 (1986)
Marlowe v. Commonwealth, Ky., 709 S.W.2d 424 (1986)
Bevins v. Commonwealth, Ky., 712 S.W.2d 932 (1986)
Halvorsen and Willoughby v. Commonwealth, Ky., 730 S.W.2d 921 (1986)
Smith v. Commonwealth, Ky., 734 S.W.2d 437 (1987)
Stanford v. Commonwealth, Ky., 734 S.W.2d 781 (1987)
We find the death penalty imposed herein is not excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant. The judgment is affirmed.
All sitting. All concur.
LEIBSON, J., concurs by separate opinion.
[OPINION BY LEIBSON, Justice, type=concurrence]
LEIBSON, Justice,
concurring.
I concur in the Majority Opinion.
Further, in my opinion there is no basis here for speculation that the Commonwealth might have been attempting to exercise peremptory challenges in a racially discriminatory manner. The Commonwealth did not strike all of the black jurors. Two were left on by the Commonwealth, and one served.
The worst danger from an all white jury is the potential for race being injected into the discussion in the jury room. The Commonwealth’s exercise of peremptory challenges did not create a situation where this type of wrongdoing could occur.
In these circumstances there is no reason to suspect that the Commonwealth was seeking to exercise peremptory challenges in a racially discriminatory manner or that failure to utilize the Batson procedure prejudiced the defendant.
Beoria Abraham SIMMONS, II, Appellant, v. COMMONWEALTH OF KENTUCKY, Appellee.
No. 1989-SC-0736-MR.
Supreme Court of Kentucky.
Feb. 23, 2006.
Rehearing Denied June 15, 2006.
David M. Barron; John Palombi, Assistant Public Advocates, Department of Public Advocacy, Frankfort, Counsel for Appellant.
Gregory D. Stumbo, Attorney General of Kentucky, Louis F. Mathias, Jr., Assistant Attorney General, Criminal Appellate Division, Frankfort, Counsel for Appellee.
[OPINION BY WINTERSHEIMER, Justice. type=majority]
WINTERSHEIMER, Justice.
This appeal is from a decision of the Jefferson Circuit Court which denied the motion by Simmons for RCr 11.42 relief. Originally, Simmons was convicted of three counts of first-degree murder, three counts of first-degree rape, one count of attempted murder, one count of attempted rape, and four counts of kidnapping. He was sentenced to death for each of the murders and for three counts of kidnapping; twenty years for the attempted murder; ten years for the attempted rape; and twenty years for the fourth kidnapping count. His convictions and sentences were affirmed on direct appeal. Simmons v. Commonwealth, 746 S.W.2d 393 (Ky.1988). Thereafter, he filed an RCr 11.42 motion requesting the trial court to vacate his convictions. After a 9-day evidentiary hearing, the trial judge denied the RCr 11.42 motion.
In this appeal, Simmons raises 15 assignments of alleged error arising out of the denial of the RCr 11.42 motion. We shall review each of the issues presented.
Standard of Review
We believe it is again useful to set out the standard of review of claims raised in a collateral attack pursuant to RCr 11.42, alleging ineffective assistance of counsel at the original trial. Such a motion is limited to issues that were not and could not be raised on direct appeal. An issue raised and rejected on direct appeal may not be relitigated in this type of proceeding by simply claiming that it amounts to ineffective assistance of counsel. Haight v. Commonwealth, 41 S.W.3d 436 (Ky.2001), which cites Sanborn v. Commonwealth, 975 S.W.2d 905 (Ky.1998), as well as other decisions of this Court.
The standards which measure ineffective assistance of counsel are set out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); accord Gall v. Commonwealth, 702 S.W.2d 37 (Ky.1985). In order to be classified as ineffective, the performance of counsel must be below the objective standard of reasonableness and so prejudicial as to deprive a defendant of a fair trial and a reasonable result. Strickland, supra. “Counsel is constitutionally ineffective only if performance below professional standards caused the defendant to lose what he otherwise would probably have won.” United States v. Morrow, 977 F.2d 222 (6th Cir.1992). The critical issue is not whether counsel made errors, but whether counsel was so thoroughly ineffective that defeat was snatched from the hands of probable victory. Morrow, supra. The purpose of RCr 11.42 is to provide a forum for known grievances, not to provide an opportunity to research for such grievances. Gilliam v. Commonwealth, 652 S.W.2d 856 (Ky.1983).
In reviewing a claim of ineffective assistance, the court must focus on the totality of evidence before the judge or jury and assess the overall performance of counsel throughout the case in order to determine whether the identified acts or omissions overcome the presumption that counsel rendered reasonable professional assistance. See Kimmelman v. Morrison, 477 U.S. 365, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986); Morrow; Haight, supra. A defendant is not guaranteed errorless counsel or counsel judged ineffective by hindsight, but counsel likely to render and rendering reasonably effective assistance. Haight; See also McQueen v. Commonwealth, 949 S.W.2d 70 (Ky.1997).
Strickland notes that, a court must indulge a strong presumption that the conduct of counsel falls within the wide range of reasonable professional assistance. The right to effective assistance of counsel is recognized because of the effect it has on the ability of the accused to receive a fair trial.
The 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 post-conviction proceeding. Haight, citing Dorton v. Commonwealth, 433 S.W.2d 117 (Ky. 1968). A reviewing court must always defer to the determination of facts and witness credibility made by the circuit judge. Haight; Sanborn, supra; McQueen v. Commonwealth, 721 S.W.2d 694 (Ky.1986).
This Court has also held that an RCr 11.42 motion must set forth all the facts necessary to establish existence of a constitutional violation and that the court will not presume that facts omitted from the motion establish existence of such a violation. Sanders v. Commonwealth, 89 S.W.3d 380 (Ky.2002). See also Hodge v. Commonwealth, 116 S.W.3d 463 (Ky.2003). A convicted defendant claiming ineffective assistance of counsel has the burden of: 1) identifying specific errors by counsel; 2) demonstrating that the errors by counsel were objectively unreasonable under the circumstances existing at the time of trial; 3) rebutting the presumption that the actions of counsel were the result of trial strategy; and 4) demonstrating that the errors of counsel prejudiced his right to a fair trial. See Strickland. That case states that “[n]o particular set of detailed rules for counsel’s conduct can satisfactorily take account of the variety of circumstances faced by counsel or the range of legitimate decisions regarding how best to represent a criminal defendant.” Id. at 688-89,104 S.Ct. 2052.
A careful review of all the questions raised indicates that the circuit judge correctly rejected all of the claims by Simmons following the nine-day evidentiary hearing and próperly overruled his RCr 11.42 motion. Simmons has failed to demonstrate that his counsel was ineffective, that he did not receive a fundamentally fair trial, or that any other grounds warrant the relief requested.
The specific facts involved in the original trial are carefully set out in Simmons, supra. Simmons was represented by Daniel T. Taylor, III.
I. Dehumanizing of Simmons
Simmons claims that his defense counsel at trial showed distaste for him by repeatedly dehumanizing him to the jury. He asserts that such actions violated the duty of defense counsel of zealous advocacy and deprived him of the right to effective assistance of counsel under both the federal and state constitutions. We must disagree.
During opening statement, the prosecution detañed the 12-count indictment against Simmons which had charged him with rape, kidnapping and murder of three different women, and attempting to kidnap, rape and murder an additional underage victim. The prosecution gave an explicit description of the details regarding each crime and set out considerable forensic evidence which it intended to present. In addition, there was a confession from Simmons, which although challenged, was not suppressed, and a positive identification by the one surviving victim.
A careful review of the record indicates that attorney Taylor was a very zealous advocate and when faced with the overwhelming evidence of guüt, selected a trial strategy that sought to keep Simmons from being executed. That strategy was to admit guüt and argue mental illness or insanity in an attempt to avoid a death sentence.
Almost all of the alleged dehumanizing references occurred in the opening statement by defense counsel. The clear theme to be presented to the jury was that the behavior of the defendant was due to mental ülness rather than that he was inhuman. Considering the overwhelming evidence referred to in the opening statement by the prosecution, it was a valid trial strategy to admit guüt initially and begin the process of trying to build a case that the defendant was mentally ill and that his life was worth saving.
An admission of guilt also reduced some of the power of the prosecution’s case as weU as giving a sense of reasonableness to the defense position. The nature of the case was such that defense counsel had to use provocative language to describe Simmons and equate him to other notorious serial killers. The Taylor strategy was not intended to dehumanize Simmons, but rather to exhibit him as an extraordinary offender who could aid scientific research into what causes such aberrant human behavior. This could only be achieved if Simmons was spared the death penalty.
In closing arguments, the defense counsel repeated the concept of human dignity and that he in fact had chosen a higher road by not insulting the jury and trying to fight an impossible factual case. By acknowledging guilt and seeking mercy by virtue of mental illness, the strategy remained to save the life of the defendant. Defense counsel acknowledged that Simmons had committed “unspeakable acts” nearly beyond tolerance, but then immediately asked the jury to put aside the emotional part of the case and use an intellectual approach to their decision.
A review of the record indicates that Taylor limited his disparaging remarks to either opening or closing argument and there are no references that could be considered derogatory or dehumanizing in the body of the trial. He also expressed regret for the remark he made about this individual being a pitiable monster. The record reveals an experienced defense counsel trying to sell the jury the story that his client was sick and that he had visions and that a verdict of guilty but mentally ill would be appropriate. At the RCr 11.42 hearing, Taylor indicated that he did not adopt a trial strategy intending to dehumanize the defendant.
Analysis of the entire trial indicates that the derogatory remarks were limited and were used as part of a strategy to attempt to save the life of the defendant. No prejudice, either actual or presumed, arose and Simmons received a fair trial and did not have ineffective assistance of counsel. The behavior of defense counsel in this case indicates that it is significantly different from that involved in Rickman v. Bell, 131 F.3d 1150 (6th Cir.1997). The conduct here was not shocking and professionally outrageous. None of the elements involved in Rickman, supra, arose in this case. Thus, it is clearly distinguishable and actually serves to show why the representation here was not ineffective.
II. Conflict of Interest
Simmons argues that the monster image presented in the opening statement and the friendship of his counsel with his allegedly abusive parents adversely affected the ability of defense counsel to discover and present compelling mitigating evidence. Specifically, Simmons asserts that the extreme distaste for him created an actual conflict of interest that prevented Taylor from humanizing him and developing mitigating evidence. In addition, he claims that counsel’s friendship with the Simmons family along with being paid by the parents resulted in a divided loyalty that adversely affected his defense. Thus, he contends he was deprived of his right to conflict free assistance of counsel. We disagree.
Counsel for Simmons continues to disagree with the strategy employed by trial defense counsel. The defense strategy at trial was to portray Simmons as a serial killer whose principal benefit to society would be saving his life for study rather than sentencing him to capital punishment. Defense counsel used provocative and sensational language regarding Simmons during his opening statement as well as closing arguments. Obviously, he did so in an attempt to save Simmons from a death sentence. The magnitude of the crimes demonstrates the reasonableness of such tactics. Defense counsel showed Simmons as a very human person. His loyalty to his client was not infringed upon by acknowledging the terrible circumstances of the crimes involved.
The allegations that defense trial counsel had a divided loyalty because he “became friends” with Simmons’ family and was paid by the parents is without merit.
A review of the evidence indicates that the allegations are clearly misinterpreted and misconstrued and there is no indication that Simmons or his parents ever suggested an abnormal family life. It is interesting to note that the father did not know defense counsel prior to retaining him and could not remember his name when he testified at the RCr 11.42 hearing. The fact that the parents paid for the representation of their son in a case where the adult child is facing a death sentence is certainly to be expected. There is no evidence that defense counsel allowed the parents to make critical decisions in the case. The father testified that he did not share in the decision-making and that all decisions were made between counsel and the son after their consultation. Defense counsel testified that his obligation was to the son and not to the parents. In the circumstances of this case, the relationship between Taylor and the parents did not create any conflict of interest. Cf. Mickens v. Taylor, 535 U.S. 162,122 S.Ct. 1237, 152 L.Ed.2d 291 (2002).
III. Unreasonable Strategy
Counsel for Simmons now argues that the defense offered an unreasonable strategy, presented harmful evidence and failed to develop and introduce mitigating evidence, particularly during the penalty phase of the trial. We disagree.
A careful examination of the record indicates that Taylor, an experienced criminal lawyer who had worked in the area of capital litigation, presented a reasonable strategy, albeit unsuccessful. The defense tried to have the jury view Simmons as an extraordinary and unique individual who was worthy of scientific study. It is reasonable to believe that the background of the defendant, contrasted with the horrible nature of his crimes, would intrigue the imagination of the jury to determine how an apparently normal person could commit such heinous crimes. See Waters v. Thomas, 46 F.3d 1506 (11th Cir.1995), which concluded that the “spare him for science” argument was reasonable trial strategy.
The tactic now suggested on this appeal would have been completely contrary to the defense theory. The variety of alleged physiological, social and family problems do not amount to such mitigating evidence as would have been beneficial to Simmons and would have compromised the theory that could have saved his life. It is interesting to note that during deliberations the jury asked a question that indicated they may have been considering a sentence of life imprisonment.
The complaint by counsel about the lack of expert testimony is also unpersuasive. Reliance on experts from KCPC was not ineffective assistance of counsel. The argument that there was cumulative prejudice resulting from the errors of the defense is unconvincing. The mere fact that appellate counsel disagrees with the strategy and tactics employed by a veteran defense lawyer does not result in ineffective assistance by that counsel. The colorful behavior of defense counsel was solely intended to save the life of the accused.
IV. Concession of Guilt
Simmons contends that he was denied effective assistance at trial when, despite a belief that he did not comprehend the ramifications of a guilty plea, defense counsel admitted guilt without ascertaining whether Simmons understood what the strategy would entail. We disagree.
As has been noted earlier, the strategy of defense counsel at trial was to admit guilt but try to save the defendant from execution. In order to avoid the death penalty, a concession of guilt when the evidence is overwhelming is not ineffective assistance of counsel. See Florida v. Nixon, 543 U.S. 175, 125 S.Ct. 551, 160 L.Ed.2d 565 (2004); Sanborn.
Defense counsel testified at the RCr 11.42 hearing that Simmons understood his options and realized what the defense would be, understood that he could testify but chose not to. Defense counsel also testified that he was attempting to “nudge just one member of the jury.” Counsel’s statement in opening that the defendant did not know what the defense would be was mere theatrics, again, in an attempt to influence just one member of the jury to accept his theory. Defense counsel specifically testified that Simmons knew what his defense was going to be, that he was repeatedly told, and that the ultimate goal was to save his life. An examination of the testimony of Simmons as to all the questions raised was limited and did not support any contention raised on this appeal.
The testimony of Simmons was vague in that his response to questions was usually answered by saying he did not recall. He did remember discussions about saving his life, and being informed that he could testify. He vaguely remembered discussing his being “saved for science.” The parents could not recollect any discussions about strategy, but the mother indicated that Taylor may have discussed how he was going to defend the action. The father recalled that Taylor stated he was going to try as hard as he could to save the son’s life, and the father also stated that he had memory problems. Simmons and his parents were present throughout the trial and the various hearings and no one expressed any concern about the strategy of the defense. Following the trial, Simmons sent a letter to Taylor thanking him and his staff for his efforts.
Finally, defense counsel did not shift the responsibility of the jury by mentioning that any sentencing decision was subject to appeal. The remark was simply to emphasize the importance of their decision and did not violate Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985).
V. Mitigation Instruction
Simmons argues that his trial counsel was ineffective for failing to object to mitigation instructions that did not allow the jury to give effect to the mitigating evidence and created the ethical dilemma of which contradictory instruction to follow. This issue is completely without merit.
After listing a number of mitigating circumstances that could be considered, the mitigation instruction included a catch-all provision stating that the jury could consider “[a]ny other extenuating or mitigating circumstances that you may find to exist.” The last component of the instruction then stated as follows:
In addition to the foregoing, you shall also consider those aspects of the defendant’s character and record, and those facts and circumstances of the particular offense(s) of which you will have found him guilty, about which he has offered evidence in mitigation of the penalties to be imposed upon him and which you believe from the evidence to be true.
The phrase “in addition to the foregoing,” makes it abundantly clear that the last component of the instruction is to be considered along with the mitigation evidence discussed in the first part of the instruction. The jury instruction did not preclude the jury from considering any aspect of the defendant’s character or record, nor any of the mitigating circumstances offered by Simmons. There was no error of any kind in the instruction.
VI. Sentencing Jury Instructions
Simmons asserts that trial defense counsel was ineffective for failing to object to sentencing instructions that shifted the burden of proof, created a presumption of death and even mandated death, when aggravators and mitigators are even. We disagree. The instructions were constitutionally proper and trial counsel was effective.
Simmons challenges Section 4(B) of the reasonable doubt instruction, which stated that “if upon the whole case you have a reasonable doubt whether the defendant should be sentenced to death, you shall recommend a sentence of imprisonment instead.” The same instruction was found to be sufficient to allow the jury to fix a punishment of life imprisonment in Parrish v. Commonwealth, 121 S.W.3d 198 (Ky. 2003). See also Perdue v. Commonwealth, 916 S.W.2d 148 (Ky.1995); Skaggs v. Commonwealth, 803 S.W.2d 573 (Ky.1990); Smith v. Commonwealth, 599 S.W.2d 900 (Ky.1980).
Considering the instructions as a whole, they were constitutionally sufficient. The preamble of the instructions noted that the jury was able to fix four possible punishments: 1) life; 2) life without probation or parole for 25 years; 3) a term of 20 years or any number of years greater than 20, up to and including life; or 4) death. There is no violation of KRS 532.025. The instructions do not mandate death upon a finding that aggravators and mitigators were equal. The instructions permitted the jury to properly consider the particular mitigating circumstances of the defendant.
VII. Jury Selection
Simmons alleges that the approach of trial counsel to voir dire was idiosyncratic, demonstrated no reasonable strategy and was highly damaging to his chance of receiving a sentence less than death. He states that trial counsel asked confusing questions throughout the examination of the jury that failed to elicit information helpful to determining whether a potential juror was qualified to serve. He claims that counsel failed to properly challenge the prosecution’s racially discriminatory use of peremptory challenges and failed to request a change of venue. Upon careful review, we find that all of the questions raised are without merit.
Defense counsel testified at the evidentiary hearing that he believed it was a matter of judgment not to ask certain questions, observing that he did not want to lose more than he would gain. He did not want to do anything that would unnecessarily inflame the jury. His decision was based on his trial strategy which was to save the life of Simmons.
Simmons complains that Taylor failed to timely challenge the racially discriminatory use of peremptory challenges until after the jury was sworn. This Court reviewed that question on direct appeal and found the objection was not timely. A concurring opinion correctly noted that there was no basis for a Batson claim other than mere speculation because the Commonwealth did not strike all of the black jurors. Simmons. Moreover, Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), was not the law at the time of the trial in February, 1985. Defense counsel testified that at the time of the trial he followed the then existing law, that being Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). The authority relied on by Simmons is unpersuasive.
Simmons also claims that trial counsel erred by failing to remove jurors who would automatically vote for the death penalty. None of the four jurors identified by Simmons indicated that they would not consider mitigating evidence and none indicated that they would automatically vote for the death penalty.
The argument that a change of venue should have been obtained is without merit. At the evidentiary hearing, Taylor testified regarding his 31 years of trial experience and his familiarity with the other courts of northern and western Kentucky. Based on his experience and his trial strategy, he determined that Simmons would do better in Jefferson County because juries there tended to be more liberal and less death penalty oriented. We find no error.
A careful review of the lengthy and detailed jury examination indicates that there was no error and certainly no cumulative error. Simmons did not demonstrate any extensive pretrial publicity or any showing that the jurors were predisposed toward the death penalty.
VIII.Unreasonable Strategy
Simmons maintains that defense counsel was ineffective for having an unreasonable trial strategy. He argues that presenting an insanity defense with no evidence supporting it and conceding the sufficiency of evidence claims on rape and kidnapping violated his right to an effective assistance. He recognizes that strategic decisions and insufficiency of evidence are not grounds for RCr 11.42 relief. However, he couches his argument to the effect that counsel was ineffective for basing his decision on intuition rather than a thorough investigation.
Once again, the strategy was based on 31 years experience as well as the particular facts of this case which indicated strong evidence of guilt. It is worth noting that the jury was instructed on both guilty but mentally ill and insanity. This Court has previously examined the evidence and found it sufficient to support both the rape and kidnapping charges. Simmons. This claim cannot be raised in a collateral attack.
IX.International Covenant
Simmons argues that his death sentence violated the “arbitrary deprivation of life” provisions of Article VI of the International Covenant on Civil and Political Rights. He asserts that this question cannot be waived because properly ratified treaties are supreme law. Buell v. Mitchell, 274 F.3d 337 (6th Cir.2001), observed that the International Covenant does not require its members to abolish the death penalty. As that court noted, the United States has agreed to abide by the covenant only to the extent that the 5th, 8th and 14th amendment ban cruel and unusual punishment. The court also observed that the agreement was not binding on courts of the United States.
In any event, the claim that he was deprived of his life arbitrarily is without foundation. He received a fundamentally fair trial in which a jury convicted him of capital murder. The jury verdict and sentence was affirmed by this Court and he has not been deprived of any legal right.
X.Delay in Execution
Simmons now contends that executing him after a delay of 19 years constitutes cruel and unusual punishment. We find this argument incredible and without merit. Any delay was necessary to permit Simmons to fully exercise all of his rights to challenge his conviction and sentence. The record indicates that much, if not all, of the delay is attributable to Simmons in not doing anything to expedite the review of his case by the circuit court. Similar arguments have been rejected in Sanborn.
XI.50 Page Limit
The denial of the motion for an extension of page limits on his brief in the RCr 11.42 action did not deny Simmons due process under either the state or federal constitution. Here, all of the material facts and legal arguments have been extensively presented in the pleadings, subsequent supplemental filings and in the briefs. There is no constitutional right to a certain number of pages in any appellate brief. See Sanborn; see also Bowling v. Commonwealth, 981 S.W.2d 545 (Ky.1998).
XII. Conflicts on Appeal
Simmons complains that claims ordinarily raised on direct appeal must be permitted in a RCr 11.42 motion when trial counsel serves as direct appeal counsel because this creates an inherent conflict of interest that prevents raising claims that ordinarily would be raised on direct appeal. We disagree.
Trial defense counsel was one of the three direct appeal lawyers on behalf of Simmons. The three counsel on appeal raised 34 issues in a 161 page brief.
As noted by the circuit judge, the RCr 11.42 motion contains many of the same questions that were dismissed by this Court on direct appeal, or some variation. Some of the arguments are raised again under the guise of ineffective assistance of counsel. As such, they cannot be discussed again and the circuit judge determined that only the issues with possible merit should be considered. The conclu-sionary allegations made by Simmons do not demonstrate any prejudice. Cf. Smith v. Robbins, 528 U.S. 259,120 S.Ct. 746, 145 L.Ed.2d 756 (2000). There is no error.
XIII. Reopen Direct Appeal
There is no basis on which this Court could reopen the direct appeal simply because of an allegation that defense counsel at trial was so ineffective that the direct appeal amounted to no appeal at all. Simmons contends that the failure to reopen the direct appeal would mean that he has no avenue to present claims that call into question the reliability of his conviction and death sentence. We find no reason to overrule Hicks v. Commonwealth, 825 S.W.2d 280 (1992), which holds that this Court will not reexamine an appeal reviewed and decided by this Court. This Court previously denied the motion of Simmons to reopen his direct appeal. There is no reason to change that decision.
XIII. All Ineffective Claims
Neither due process nor equal protection principles require that Simmons be allowed to raise all ineffective assistance of counsel claims in a collateral attack. RCr 11.42 motions are limited to the issues that were not and could not be raised on direct appeal. Hodge, swpra. An issue raised and rejected on direct appeal may not be reconsidered in an RCr 11.42 proceeding by simply stating that it amounts to ineffective assistance of counsel. Haight. See also Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985). A collateral attack is not a substitute for appeal and the principles governing direct appeals are not applicable to such motions. Hodge. We decline to overrule Haight.
XV. Cumulative Impact
The argument that cumulative impact of the alleged errors violates the constitutional rights of Simmons is without merit. The individual allegations of ineffective assistance of counsel presented here are not supported by fact and consequently have no cumulative effect whatsoever. Sanborn. See also Campbell v. United States, 364 F.3d 727 (6th Cir.2004).
There have been no violations of any federal or state constitutional provisions here. The claims presented do not undermine the reliability of the death sentence imposed.
The order of the circuit court denying RCr 11.42 relief is affirmed.
All concur.