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Court of Appeals of Kentucky.


NO. 2012–CA–000362–MR

Decided: May 31, 2013

BEFORE:  CAPERTON, COMBS AND DIXON, JUDGES. BRIEFS FOR APPELLANT:  Joshua A.K. McWilliams Frankfort, Kentucky BRIEF FOR APPELLEE:  Jack Conway Attorney General of Kentucky Courtney J. Hightower Assistant Attorney General Frankfort, Kentucky



Jeffrey C. Griffith appeals an order of the Hardin Circuit Court denying his RCr 11.42 motion to vacate his conviction due to ineffective assistance of counsel.   Finding no error, we affirm.

A jury convicted Griffith of second-degree assault and unlawful imprisonment.   Pursuant to the jury's recommendation, the trial court sentenced Griffith to ten years' imprisonment.   This Court affirmed Griffith's conviction in an unpublished opinion.   Griffith v. Commonwealth, 2008–CA–000458–MR (Feb. 6, 2009).   In resolving Griffith's direct appeal, this Court set forth the following facts:

On October 19, 2006, Griffith repeatedly struck his wife, Michelle, in an attack than spanned more than one hour.   At the time of the crime, the couple had been married for thirteen years and had two young sons.   During the year preceding the crime, the couple had sought marital counseling from three separate therapists, but Griffith became increasingly jealous and paranoid.   He began to tape record their many arguments.

On the night of the attack, Michelle took the children to a school-related activity and arrived home at approximately 8:45 p.m. When she arrived, Griffith started the tape recorder and an argument began.   During the argument, Griffith forcibly held Michelle down and lectured her.   He repeatedly struck her in the face, chest, jaw, and throat.   The pattern of lecture and physical abuse continued for over an hour.   Finally, when Griffith left the room to get a gun, Michelle ran to a neighbor's home and called the police.   Griffith claimed that he went into the bathroom to commit suicide but reconsidered.   Moments later he heard the police at the door and surrendered to them.   The tape recording of the episode was admitted in evidence.

Id., Slip. op. at 1.

Griffith filed an RCr 11.42 motion to vacate his conviction due to ineffective assistance of counsel.   Griffith alleged that his trial counsel, Hon. Chris McCreary, failed to fully present his mental health issues in relation to a defense of extreme emotional disturbance (EED).   The trial court appointed counsel and approved a request for expert funds for an evaluation of Griffith's mental condition.   Dr. Paul Ebben performed a psychological evaluation and tendered a report of his findings.   The trial court held an evidentiary hearing on the RCr 11.42 motion and heard testimony from Dr. Ebben, Griffith, and McCreary.   On February 3, 2012, the court rendered a lengthy written order denying Griffith's motion.   This appeal followed.

We evaluate claims of ineffective assistance of counsel pursuant to the standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).   To establish ineffective assistance, a movant must show that counsel made serious errors amounting to deficient performance and that those alleged errors prejudiced the defense.  Id. at 687.   The standard for reviewing counsel's performance is whether the alleged conduct fell outside the range of objectively reasonable behavior under prevailing professional norms.  Id. at 688.   To establish actual prejudice, a movant “must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.   A reasonable probability is a probability sufficient to undermine confidence in the outcome.”  Id. at 694.   We are mindful that “[a] defendant is not guaranteed errorless counsel, or counsel adjudged ineffective by hindsight, but counsel reasonably likely to render and rendering reasonably effective assistance.”  McQueen v. Commonwealth, 949 S.W.2d 70, 71 (Ky.1997).   There is a strong presumption that counsel performed competently;  consequently, it is the movant's burden to establish that the alleged error was not reasonable trial strategy.  Kimmelman v. Morrison, 477 U.S. 365, 381, 106 S.Ct. 2574, 2586, 91 L.Ed.2d 305 (1986).

Dr. Ebben's evaluation established that Appellant has a personality disorder with multiple features, including narcissistic, dependent, paranoid, borderline, and antisocial.   Based on Dr. Ebben's testimony, the trial court concluded that Appellant had this personality disorder at the time he assaulted his wife in 2006.   Dr. Ebben indicated that Appellant's personality disorder caused him to think that his wife was abusive, and it was a contributing factor in the assault.   In light of Dr. Ebben's diagnosis, Appellant argues here, as he did below, that it was unreasonable that McCreary failed to retain a mental health expert to testify in support of the EED defense at trial.

In McClellan v. Commonwealth, 715 S.W.2d 464, 468–69 (Ky.1986), the Kentucky Supreme Court explained:

Extreme emotional disturbance may reasonably be defined 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 therefor, the reasonableness of which is to be determined from the viewpoint of a person in the defendant's situation under circumstances as defendant believed them to be.

In the case at bar, McCreary presented an EED defense, and the jury was instructed accordingly.   The trial court noted that McCreary's closing argument indicated that Griffith's actions were the result of an extreme emotional disturbance.   Nevertheless, Griffith now contends that McCreary was deficient for failing to retain a mental health expert to explain to the jury that Griffith assaulted his wife because he suffers from a personality disorder, which manifested the extreme emotional disturbance.

The trial court made the following factual findings based on the testimony at the hearing:

McCreary considered the issues presented by Griffith's mental condition.   Although Griffith was forty years old at the time of the assault, prior mental health treatment and thus any record of such treatment was sparse.   McCreary (whose undergraduate degree was in psychology) reviewed Griffith's treatment records and discussed these issues with Griffith.   McCreary was aware of indications of narcissim and claims of post-traumatic stress disorder (‘PTSD’).  It should be noted that Dr. Ebben rejected a PTSD diagnosis.   Griffith insists that he had a special type of PTSD that escaped diagnosis.   An insistence by Griffith that Dr. Ebben described as curious.

Considering the evidence he had to contend with, McCreary was legitimately concerned about introducing newly obtained opinions, in the absence of a significant prior history of treatment.   McCreary did not think that the jury would be sympathetic to such an approach and may in fact have been ‘inflamed or enraged’ against Griffith for using such an explanation for his egregious actions.

McCreary correctly surmised that a more detailed analysis of Griffith's mental condition would not support an insanity defense.   McCreary also knew that he did not have to give any notice of an EED defense.   He felt that he could do better without emphasizing that aspect of the case.   McCreary felt that his best chance for his client was to minimize the extent of the victim's physical injury, rather than focus on the mental health issues.

The reality is that McCreary had to contend with the exceptional circumstances of his client having recorded his own conduct in severely beating his wife.   While Griffith may have had a personality disorder, that does not equate with EED. This beating was not a single blow in response to a single triggering event.   Griffith recorded his ability to plan and control his actions for a prolonged period of time.   The recording of the beating alone showed that it lasted for over an hour, and Griffith himself estimates that he hit his wife at least forty times.

After reviewing the record, we agree with the trial court's conclusion that Griffith failed to establish that he received ineffective assistance of counsel.   We must reiterate that “[a] defendant is not guaranteed errorless counsel, or counsel adjudged ineffective by hindsight․”  McQueen, 949 S.W.2d at 71.   Although Griffith is now dissatisfied with McCreary's performance, the record clearly reflects that McCreary acted reasonably under the circumstances and with intent to put forth the best possible defense.   McCreary thoroughly investigated the case, and he made a strategic decision not to emphasize Griffith's mental health issues.   In this case, McCreary's representation simply did not fall below the standard of reasonable professional assistance.   We conclude Griffith's allegations of ineffective assistance are without merit;  accordingly, the trial court properly denied Griffith's RCr 11.42 motion.

For the reasons stated herein, we affirm the Hardin Circuit court.