Paul Kordenbrock v. Gene Scroggy, Warden, Kentucky State Penitentiary

919 F.2d 1091

Opinions

MERRITT, Chief Judge, announced the judgment of the Court in part VIII granting the Writ of Habeas Corpus as to both criminal liability and sentence, a judgment in which seven of the thirteen members of the en banc Court concur (Circuit Judges MERRITT, KEITH, BOYCE F. MARTIN, Jr., NATHANIEL R. JONES, MILBURN, DAVID A. NELSON, and RYAN), and in which one member concurs as to the sentence (Circuit Judge ALAN E. NORRIS).

As in many death penalty, habeas corpus cases, the problem presented here is not whether the prisoner is innocent of a homicide — the killing is conceded — but rather whether he received the full benefit of fair rules of constitutional procedure and a fair opportunity to offer to the jury mitigating circumstances that might dissuade them from imposing a sentence of death.

It is not the Court’s duty to determine whether Kordenbrock deserves or does not deserve the death sentence for his crime. The Court’s duty is to insist upon the observance of constitutional norms of procedure. The District Court, and the panel decision of our Court which has now been vacated by the grant of en banc review (see 6th Cir.R. 14), held that petitioner was not entitled to habeas relief. Because a majority of the en banc Court finds that the introduction and use of Kordenbrock’s confession was in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and was not harmless error, we now reverse.

I. Facts

Petitioner Kordenbrock and co-defendant Michael Kruse agreed to steal guns from an auto parts store in Florence, Kentucky. For two days before the robbery, they visited the store to observe the layout. The night before the robbery they stayed with a friend in Cincinnati where they drank alcohol, smoked marijuana, and snorted cocaine. The next morning at 8:00 Korden-brock drank two beers and took two Quaa-ludes.

After leaving the apartment, the two stopped to buy more Quaaludes. From there they proceeded to the auto parts store and arrived around 9:30 a.m. Kor-denbrock, who was holding a gun, ordered the owner of the store, Mr. Thompson, and an employee, Mr. Allen, to lie face down on the floor in the back of the store. Just then a customer came in with his son. Kruse pretended he was an employee and told the customer the store did not have what he wanted.

Kruse then broke the glass gun case. Immediately following that Mr. Allen either moved or attempted to get up. Petitioner shot both men. Mr. Allen later died, but Mr. Thompson survived. When Kruse had assembled the guns the two left the store.

They stopped at two different places to sell some of the guns. One of the men to whom they sold the guns recognized Kor-denbrock’s picture which appeared on the local news and cooperated with police in bringing about his arrest. Upon his arrival at the police station a group of police began to question him after giving him Miranda warnings. The interrogation began around 11:30 p.m. Joint App. at 1057; see also id. at 71-110.

A. The Miranda Warnings Violation

From the beginning of the interrogation, Kordenbrock was reluctant to talk with police, repeating the phrase, “I don’t know what to say.” Id. at 72, 75, 80. The officers, who already suspected that Korden-brock had shot the two men, encouraged him repeatedly to relate details of the crime, saying, “you’ve got a conscience Paul.” Id. at 73, 82, 83. After further coaxing petitioner admitted some aspects of the crime such as what type of car he drove the day of the shooting and where he had disposed of the gun.

In an effort to persuade Kordenbrock to give them more details of the actual shooting, the officers threatened him, saying that if he would not cooperate they were going to “book that girl

Footnotes

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[1]_for accessory to murder ... and put her in jail.” Id. at 86. The officers continued: “Anybody that you have been with since yesterday morning, we can go out and arrest.” Id. at 87. Still he resisted questioning, and indicated he wanted the questioning to stop: “I can’t say nothing,” id. at 91, “[cjan’t talk, right now I can’t talk.” Id. at 92. Instead of ceasing questioning, the officers continued with their threats: “Their ass is going to jail.... [I]n Ohio, they can keep them in jail for about three days without even charging them.... they’re going to be put through an ordeal they may not forget for a long time Paul and you can stop it. right now_” Id. at 93.

After these threats, Kordenbrock stated: “I did it_ [t]hat’s all I can tell you is that I did it.” Id. at 94. He then asked to call the girls to see if they were all right and wanted “to know that those girls aren’t going to be arrested” before he gave any more details. Id. However, when pressed further Kordenbrock made another attempt to cut off questioning: “I told you all I can stand tonight.... Sir, I can’t talk about it no more tonight.” Id. at 98. When the officers told petitioner they were going to write out his confession as he dictated it, he again responded: “Sir, I can’t tell you no more tonight.” Id. at 100. The officers, growing impatient, gave him “one more chance,” id., and he finally gave in: “I’ll tell you what you need to know, I don’t want you to go bother them girls_” Id. at 101.

Only then did Kordenbrock make the damning statements that undermined his defense of diminished capacity. The officer who was transcribing the statement said, “Paul, what I’m going to write here is — I, Paul Kordenbrock pulled the trigger aiming and firing the weapon into the two men’s heads — is that correct?” Id. at 105. That statement was included in the signed confession. The confession did not include the statements made during the interrogation that his “eyes were half closed,” and that he didn’t aim at any particular spot. Apparently, in order to get the ordeal over with, he told the officers to “[p]ut [the fact that he aimed at their heads] in there.” Id. The confession edited out facts that might support a defense of lack of premeditation and diminished capacity and simply read, “I then, Paul Kordenbrock, pulled the trigger, aiming and firing at their heads so they wouldn’t get up.” Id. at 112.

B. The State’s Refusal to Provide a Psychiatric Expert for the Defense

Kordenbrock pled guilty to first degree robbery and was then tried for capital murder and attempted murder. His defense was diminished capacity due to drugs and alcohol and emotional disturbance.² His lawyers, employed by the Office for Public Advocacy of the State of Kentucky, sought to enlist the aid of a psychiatrist to help prove these and other mitigating factors. At the request of the trial judge, one of Kordenbrock’s lawyers wrote to the Secretary of the Department of Human Resources to ascertain whether a state psychiatrist could perform this service. Joint App. at 161. The Secretary responded by letter that Department psychiatrists could only evaluate criminal defendants for their competency to stand trial and for the existence of mental disease or defect at the time the crime took place. The letter stated: “These evaluations are provided pursuant to court order and are supplied as a service to the court, and not to either the prosecution or the defense.” Id. at 162. The Secretary characterized these evaluations as “objective” and “determined that this Department will not be able to assist you with your request.” Id.

This letter made it clear that a state psychiatrist could not be used as a defense expert. The trial judge then entered an order stating that defense counsel could employ at state expense a psychiatrist, psychologist and a psycho-pharmacologist. Id. at 59. When the chief executive officer of the county in which the trial was to be held received the order, he refused to authorize payment: “The Boone County Fiscal Court will resist by all appropriate means the payment of any bill relative to the KOR-DENBROCK_ murder trial[].” Id. at

170. Apparently the county took the position that the state should pay for a defense expert, but the state had already refused, and continued to refuse, to pay for a psychiatric expert for the defendant.

Despite the fact that responsibility for payment was in dispute, defense counsel hired Dr. Nizny as a defense expert. Dr. Nizny examined Kordenbrock and made a report on his diagnosis and assessment of petitioner. However, Dr. Nizny, who was aware of problems other psychiatrists had encountered getting paid, refused to file his report until he received some sort of assurance that payment would be forthcoming. Once again the trial judge ordered the county to pay Dr. Nizny’s fees. When the county continued to refuse payment, the trial court, over defense counsel’s objection, ordered that petitioner be examined by a state psychiatrist. In response, the Director of Forensic Psychiatry Services wrote that “we will not be able to assist only the defense in this case. I will inform Judge Neace of our services to both the defense and the prosecution.” Id. at 165. Despite this letter, the trial judge again ordered that a state psychiatrist examine petitioner.

Dr. Bland, a state psychiatrist, met with Kordenbrock, but could not form an accurate opinion because Kordenbrock’s lawyers had told him not to cooperate with Dr. Bland. One of Kordenbrock’s lawyers stated that his reason for instructing petitioner in that manner was that he met with Dr. Bland and the doctor “indicated that he could not examine Paul as our defense psychiatrist because of the Secretary’s directive.” Joint App. at 166.

In the meantime defense counsel had located a forensic psychiatrist who was willing to examine Kordenbrock without an unqualified guarantee to payment. Defense counsel filed a motion for a continuance for the new doctor to have time to prepare a report. However, due to a misunderstanding between the doctor and counsel, the doctor withdrew from the case. Apparently defense counsel, now without a suitable expert, asked the trial judge for a continuance to locate another expert, or alternatively another order on the issue of payment for Dr. Nizny. The judge refused the continuance and refused to enter an order for payment until Dr. Nizny filed his report. The trial proceeded without a defense expert.

Kordenbrock was found guilty of murder and attempted murder. The jury recommended that he be sentenced to death. He appealed to the Kentucky Supreme Court asserting 29 possible errors, none of which the court found to have merit. Kordenbrock v. Commonwealth, 700 S.W.2d 384 (Ky.1985), cert. denied, 476 U.S. 1153, 106 S.Ct. 2260, 90 L.Ed.2d 704 (1986).

He next sought habeas relief before the District Court in Kentucky. The District Court held an evidentiary hearing both on the voluntariness of Kordenbrock’s confession and on the issue of his entitlement to a psychiatrist. Although the District Court found that the confession was taken in violation of his Miranda rights, the Court held that the introduction of the confession was harmless error. The District Court denied relief on all of the 23 grounds alleged. Kordenbrock v. Scroggy, 680 F.Supp. 867 (E.D.Ky.1988). A panel of this Court affirmed the District Court’s findings. Kordenbrock v. Scroggy, 889 F.2d 69 (6th Cir.1989). The suggestion for rehearing en banc was granted. Kordenbrock v. Scroggy, 896 F.2d 1457 (6th Cir.1990).

II. Use of Confession at Sentencing

During the interrogation Kordenbrock repeatedly stated: “I can’t tell you no more tonight.” Despite this attempt to stop questioning, the interrogation continued. When asked by the District Court Judge whether he interpreted that statement to mean that the accused wanted questioning to cease, Detective Stamper responded disingenuously, “No, I never drew that kind of conclusion whatsoever from the conversation we were having....” Joint App. at 1068. Both the District Court and a panel of this Court found that the confession was taken in violation of Miranda. Kordenbrock, 889 F.2d at 78. The state appears to concede this point based on Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975), in which the Supreme Court stated that the “right to cut off questioning” must be “scrupulously honored,” and that after an accused has invoked his right to silence the police may not “persist[] in repeated efforts to wear down his resistance and make him change his mind.” Id. at 104-06, 96 S.Ct. at 326-28. Both the Court below and the panel of this Court, however, found admission of the confession to be harmless error. Kordenbrock, 889 F.2d at 80.

Although it is true that “[t]he basic admission of guilt [of the killing] was ... not obtained in violation of Miranda,” id. at 78, Kordenbrock made, and the confession recites, extremely prejudicial and incriminating statements made after the interrogation should have ceased. There is no argument that the entire interrogation is inadmissible. He concedes that he committed the homicide. It is the statements concerning the shooting itself which he sought to suppress. His defense to murder was to admit to the jury from the outset of the trial that he had killed the store employee, but that he had done so while under the influence of drugs and alcohol. The statements recited in the confession as made during the interrogation were cold and calculating, made no reference to his drug use, and tended to show Kordenbrock in the worst possible light.

Thus the question is whether the admission of the statements during the guilt phase, and their readmission during the sentencing phase, were harmless error. We deal with the sentencing phase first. In Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), the Supreme Court formulated the harmless error rule in cases where constitutional violations have occurred. Although the Court declined to adopt a rule which would require reversal in all cases where errors of constitutional magnitude occurred, it adopted a stringent harmless error standard. The Court required the “beneficiary of a constitutional error [the state] to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” Id: at 24, 87 S.Ct. at 828 (emphasis added).

The Supreme Court recently affirmed that the Chapman harmless error standard applies to errors during the sentencing phase of a capital case: “The question ... is not whether the illegally admitted evidence was sufficient to support the death sentence, which we assume it was, but rather, whether the State had proved ‘beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.’ ” Satterwhite v. Texas, 486 U.S. 249, 258-59, 108 S.Ct. 1792, 1798-99, 100 L.Ed.2d 284 (1988) (quoting Chapman, 386 U.S. at 24, 87 S.Ct. at 828).

The harmless error inquiry is fact specific and requires an analysis of the particular facts at hand. In this case the portion of Kordenbrock’s confession taken after the Miranda violation — other than the inferences to be made from the fact of the robbery and shooting — was the only concrete, noncircumstantial piece of evidence the state had to prove the premeditation element of the crime. It tended to undermine at the sentencing hearing the claimed mitigating circumstances of diminished capacity due to the use of drugs and alcohol. The Court must entertain with an open mind the possibility that at least one member of the jury took the language of the confession seriously and relied on the harshness of its description to tip the balance in favor of the death penalty. It would be unreasonable to assume that not one member of the jury, in sentencing Kor-denbrock, gave weight to the confession when considering the death sentence. Both as an element of the offense and as a reason for imposing the death penalty, the state attempted to prove that Kordenbrock consciously formed an intent to kill independently and uninfluenced by any effect drugs and alcohol may have had on his mental and emotional state. Logically a juror could easily reason that the inadmissible statement that Kordenbrock fired “at their heads so that they wouldn’t get up” implies a mental process of deliberation and forethought sufficient to exclude drugs and alcohol as an immediate or direct cause of the homicide. The defense of diminished capacity turns in part on the factfinder’s reasoning about what impelled the defendant to kill: his intent, or the influence of drugs or alcohol on his behavior. Determination about intent and causation in such a case are complex depending on inferences to be drawn from the facts. The inadmissible statements in the confession tend to establish premeditation and are hence inconsistent with the impulsive, reactive and reckless behavior associated with events caused by the influence of drugs and alcohol.

As Judge Kennedy’s dissent points out, the circumstantial evidence surrounding the shootings supports a finding of intent to kill. If coupled with the circumstantial evidence that Kordenbrock shot both men execution-style from behind, Kordenbrock’s statements that he “pulled the trigger, aiming and firing at [the two men’s] heads so that they wouldn’t get up” could lead a juror to determine that Kordenbrock consciously formed an intent to kill unaffected by drugs or alcohol. If the jury did not hear these statements, however, the other evidence is not nearly so suggestive. Prior to the coerced confession, Kordenbrock told the police that his eyes were half-closed when he shot the two men and that he did not aim at any particular spot. These statements tend to support Kordenbrock’s diminished capacity defense, and a jury hearing this information instead of the coerced confession would certainly view the circumstantial evidence differently. One cannot say beyond a reasonable doubt that the coerced confession did not influence how at least one juror viewed the circumstantial evidence as to whether Korden-brock had the requisite intent to commit a capital crime.

We are unable to say beyond a reasonable doubt that the portion of the confession in question did not contribute to the sentence. Indeed, after some deliberation the jury asked if they could sentence Kor-denbrock to life without parole indicating an interest in imposing the harshest possible sentence short of death. The court said no. The jury was struggling with its decision, apparently uncertain which sentence to impose. If one member of the jury believed that the illegal portion of the confession (which included the words that Kor-denbrock “pulled the trigger, aiming and firing at their heads so that they wouldn’t get up”) tended to dispel arguments in mitigation, the constitutional error was harmful. It is impossible to say beyond a reasonable doubt that no juror held such a view.

III. Use of Confession To Establish Criminal Liability

We now turn to whether the admission of the illegally obtained confession was harmless error in the criminal liability or the guilt phase of the trial. First, the state argues on the question of criminal liability that Kordenbrock may not now raise any objection to the admission of the confession because he waived that right by personally confessing to the killing in his opening statement to the jury. (Kentucky judges sometimes allow, as in this case, the defendant to make an opening statement.) We find the waiver argument to be unpersuasive. The trial court overruled defense counsel’s objections to the admission of his confession before trial. Thus, before the trial even began Kordenbrock knew his confession was going to be admitted as evidence. The state’s attorney told the jury in his opening statement that Kordenbrock had confessed. Kordenbrock’s strategic decision to confess the homicide but not the element of premeditation to the jury in his opening statement was a response to the trial court’s pre-trial ruling. Kordenbrock asserted diminished capacity in his opening statement, a defense inconsistent with the state’s use of the confession to prove intent to murder. Given these facts we decline to reach the conclusion that Kordenbrock waived his right to object to the admission of the illegal portion of the confession.

Likewise, we reject the state’s argument that the Supreme Court’s decision in Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985), is applicable here. Elstad involved a young man who was questioned without being given Miranda warnings by police in his living room and confessed to a crime. After he was taken to the stationhouse and given proper warnings he again confessed. Elstad argued at trial that his second confession should not be admitted because it was the fruit of the first tainted confession. The Supreme Court refused to adopt defendant’s “cat out of the bag” theory and held that the Miranda warnings given defendant before the second confession removed the taint of the confession obtained in violation of Miranda. Id., 470 U.S. at 318, 105 S.Ct. at 1297.

Elstad is inapposite here. The state argues that the initial Miranda violation was cleansed by Kordenbrock’s second voluntary confession in open court. In Elstad the defendant furnished the police with virtually the same information about his crime in both confessions. Here Kordenbrock did not give the same highly incriminating confession at trial that he did during the police interrogation. He did not admit the same facts regarding premeditation. Korden-brock is not claiming as did the defendant in Elstad that the second confession was the fruit of the first tainted confession and should have been suppressed. On the contrary, Kordenbrock sought to persuade the jury in his opening statement of his version of how the crime occurred which tended to negate premeditation.

Having determined that Kordenbrock did not waive his right to object to the admissibility of his confession which was taken in violation of Miranda, the Court must again decide whether that admission was harmless error. The Chapman standard “requires] the beneficiary of a constitutional error to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” Chapman, 386 U.S. at 24, 87 S.Ct. at 828.

Under Kentucky law, the state must prove intent in order for the jury to return a verdict of guilty. Ky.Rev.Stat.Ann. § 507.020(1) (Baldwin 1984).³ Although Kordenbrock concedes based on overwhelming physical and testimonial evidence that he was at the scene of the crime and pulled the trigger, the most harmful piece of evidence the state had on the issue of his premeditated intent to kill was the unlawfully obtained confession. The store owner testified that Kordenbrock shot him and his employee after he heard some glass break. However, it does not necessarily follow that Kordenbrock held a clear intent, unaffected by drugs or alcohol, to kill the two men. At trial Kordenbrock claimed that he was under the influence of drugs and alcohol at the time of the shooting and that the shooting was a reflex action. Likewise, the fact that Kordenbrock and his co-defendant “cased” the store for two days prior to the robbery does not prove that Kordenbrock intended to kill the two men — it proves that he was planning to rob the store. See Owen v. Alabama, 849 F.2d 536, 540-41 (11th Cir.1988) (where confession was only piece of direct evidence to prove defendant’s intent to kill, admission of confession obtained in violation of Miranda not harmless error, even where evidence of defendant’s guilt for victim’s death was overwhelming).

Relying on Burks v. Perini, 810 F.2d 199 (6th Cir.1986) (unpublished opinion), the District Court found that Kordenbrock would have adopted the same trial strategy whether or not the confession had been admitted, thereby making the constitutional error harmless. Kordenbrock, 680 F.Supp. at 880. This reliance is misplaced. In Burks, admission of defendant’s confession taken in violation of Miranda was found to be harmless error because of the existence of strong independent evidence pointing to defendant’s guilt. Defendant testified that he had acted in self defense and that the admission of his confession had undermined his position. However, there was an eyewitness who testified that defendant was not acting in self defense. In this case there was independent evidence that Kordenbrock committed the crime, but there was no explicit evidence other than the confession that plainly tended to contradict Kordenbrock’s contention that he was under the influence of drugs and alcohol and did not intend to cause death. For this reason Burks is inapplicable.

Here the state pushed hard to get the illegal portion of the confession into evidence on the assumption that the confession would likely influence the jury. We agree with that assumption.

Thus, employing the Chapman harmless error rule, we find that the state did not prove, beyond a reasonable doubt, that the admission of the confession which was taken in violation of Miranda “did not contribute to the verdict obtained.” Chapman, 386 U.S. at 24, 87 S.Ct. at 828. The evidence of intent, inferable from the physical facts of the homicide, is strong but not so overwhelming as to make the jury’s verdict on intent a foregone conclusion beyond a reasonable doubt. In death cases such as this, if the Miranda and Chapman rules are to retain any vitality and not be overruled sub silentio, we must not allow police officers and prosecutors to use at trial evidence taken in clear violation of the Fifth and Sixth Amendments, evidence which could have affected the outcome of the case.

IY. Coerced Confession

Relying on the same facts that support his Miranda claim discussed in Parts II and III above, Kordenbrock claims alternatively that his confession was “involuntary” and therefore inadmissible under the due process clause as well as the Fifth Amendment. By threatening him that his failure to cooperate could result in the detention and interrogation of his girlfriend and others, Kordenbrock contends that police overbore his will in extracting a confession that was “not ‘the product of a rational intellect and a free will.’ ” Petitioner’s Brief at 63. Due process analysis in a confessions case requires a reviewing court to consider both the procedural fairness of and the compulsion level created by a particular police practice. See Gallegos v. Colorado, 370 U.S. 49, 50-52, 82 S.Ct. 1209, 1210-1212, 8 L.Ed.2d 325 (1962); see also McCall v. Dutton, 863 F.2d 454, 459 (6th Cir.1988) (“[Petitioner must prove that his will was overborne because of the coercive police activity in question.”), cert. denied, 490 U.S. 1020, 109 S.Ct. 1744, 104 L.Ed.2d 181 (1989).

In this case, however, it is unnecessary to submit to constitutional analysis the identical facts that a majority of this Court has held in Parts II and III to be violative of the Fifth Amendment privilege against self-incrimination under Miranda. The Supreme Court precedents interpreting the scope of that privilege set forth the legal consequences of Kordenbrock’s custodial interrogation. See Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981) (questioning must cease once suspect invokes right to counsel unless suspect initiates communication); Michigan v. Mosley, 423 U.S. 96, 104-06, 96 S.Ct. 321, 326-28, 46 L.Ed.2d 313 (1975) (invocation of “right to cut off questioning” protects suspect from “repeated efforts to wear down his resistance”); Miranda v. Arizona, 384 U.S. 436, 473-74, 86 S.Ct. 1602, 1627-28, 16 L.Ed.2d 694 (1966) (once warnings have been given, “[i]f the individual indicates in any manner ... that he wishes to remain silent, the interrogation must cease.”) Having found already that police violated Kordenbrock’s Fifth Amendment privilege as enunciated in the Miranda precedents, we need not reconsider whether those same facts can be constructed so as to establish another similar constitutional violation. Harmless error analysis would yield the same result in both instances. See ante Parts II and III. Accordingly, the Court finds no grounds for additional relief based on the due process clause.

V. Miscellaneous Claims

Kordenbrock raises a set of five other claims which the Court believes do not warrant relief. He claims that the prosecutor’s comments violated Caldwell v. Missis sippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985); that mitigating testimony was improperly excluded; that he was entitled to a change of venue because of adverse publicity; that the trial judge should have recused himself; and that his due process rights were violated by the erasure of his taped confession and the loss of a photo display and a vial of pills. We consider each of these arguments in turn.

A. Caldwell Violation

In Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985), state law placed the responsibility for imposing the death penalty with the jury. The prosecutor in Caldwell told the jury that their decision was not final and that their decision was automatically reviewable by the state supreme court. The Supreme Court held that “it is constitutionally impermissible to rest a death sentence on a determination made by a sentencer who had been led to believe that the responsibility for determining the appropriateness of the defendant’s death rests elsewhere.” Id. at 328-29, 105 S.Ct. at 2639-40.

During voir dire in this case the prosecutor told jurors that their “recommendation of death, if you gave one as a juror, with your fellow jurors, would not be binding upon the court, but that the [cjourt would give it great weight.” Petitioner’s Brief at 73. The prosecutor characterized the jury’s sentence as “a recommendation, that is all.” Id. at 74. Further, the instructions that the trial judge gave to the jury used the word “recommend” in reference to the sentence. Joint App. at 152.

The prosecutor’s conduct in this case does not violate Caldwell because Kentucky law itself provides that:

the judge shall give the jury appropriate instructions, and the jury shall retire to determine whether any mitigating or aggravating circumstances ... exist and to recommend a sentence for the defendant. Upon the findings of the jury, the judge shall fix a sentence within the limits prescribed by law.

Ky.Rev.Stat.Ann. § 532.025(l)(b) (Baldwin Supp.1989) (emphasis added). Thus, the prosecutor technically stated Kentucky law correctly. Similar state sentencing schemes dividing responsibility between judge and jury have been upheld. See, e.g., Walton v. Arizona,—U.S.-, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990) (judge makes findings on aggravation and mitigation and imposes sentence); Hildwin v. Florida, 490 U.S. 638, 109 S.Ct. 2055, 104 L.Ed.2d 728 (1989) (jury makes a recommendation without findings on aggravation and then judge imposes sentence).

In order to make out a Caldwell violation, Kordenbroek must show that the prosecutor improperly described the jury’s role under state law in order to water down their responsibility. Dugger v. Adams, 489 U.S. 401, 109 S.Ct. 1211, 1215, 103 L.Ed.2d 435 (1989). The Eleventh Circuit has held that to make out a constitutional violation under Caldwell there must be “some affirmative misstatement or misconduct that misleads the jury as to its role in the sentencing process.... [Ejmphasizing the ‘advisory’ role of the jury, or the fact that the jury is making a ‘recommendation’ to the judge, does not support a Caldwell claim.” Harich v. Dugger, 844 F.2d 1464, 1473-74 (11th Cir.1988), cert. denied, 489 U.S. 1071, 109 S.Ct. 1355, 103 L.Ed.2d 822 (1989). We find no misstatement of state law sufficient to trigger a Caldwell violation in the instant case.

Kordenbroek also turns to state law for relief. After the sentence and appeals in this case, the Kentucky Supreme Court in Tamme v. Commonwealth, 759 S.W.2d 51 (Ky.1988), held that in the future juries should be instructed to “fix” not “recommend” death sentences. But the court declined to apply the new rule retroactively which means that the prosecutor and the judge did not misadvise the jury concerning the division of sentencing authority.

Thus, although Kordenbroek raises an arguable point worthy of serious consideration, we do not believe that the prosecutor’s statements rise to the level of a Caldwell violation.

B. Trial Court’s Denial of Mitigation Witness

The trial court denied defense counsel’s request to call Dr. Stassen, an Associ ate Professor of Christian Ethics at the Southern Baptist Theological Seminary in Louisville, during the sentencing phase. Dr. Stassen met with petitioner for about 45 minutes and would have testified that petitioner was remorseful, that he no longer used drugs, and that he could possibly be rehabilitated. The District Court found the exclusion of this testimony both irrelevant and harmless beyond a reasonable doubt. Kordenbrock, 680 F.Supp. at 888-90.

Both Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), and Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982), require that juries be allowed to consider all relevant mitigating evidence with the limitation that “[njothing in this opinion limits the traditional authority of a court to exclude, as irrelevant, evidence not bearing on the defendant’s character, prior record, or the circumstances of his offense.” Lockett, 438 U.S. at 604 n. 12, 98 S.Ct. at 2965 n. 12. Although an expert in ethics, biblical studies and Christian theology, Dr. Stassen was not an expert on the subjects for which he was called to testify, and the exclusion of Dr. Stassen’s testimony did not constitute constitutional error on the part of the trial judge. The propriety of the District Court’s decision is bolstered by the fact that Reverend Feamster, Kordenbrock’s minister, was allowed to testify about his character.

C. Change of Venue

Kordenbrock claims that as a result of adverse publicity he was entitled to a change of venue. A jury psychologist conducted a poll on the opinions of people in surrounding counties who were eligible for jury service. In four out of five counties over 80% of the people polled had heard about the case and in three out of five counties almost 50% of the people polled thought Kordenbrock was guilty of murder. Petitioner’s Brief at 111-112; see also Joint App. at 171-182 (charts on effect of publicity).

In Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975), the Supreme Court delineated the standard for determining juror impartiality where there is widespread, extensive media coverage.

To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror’s impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.

Irvin v. Dowd, 366 U.S. 717, 723, 81 S.Ct. 1639, 1643, 6 L.Ed.2d 751 (1961), quoted in Murphy, 421 U.S. at 800, 95 S.Ct. at 2036.

The District Court held that despite the poll “not a single juror or alternate seated in the case at hand had formed any opinion on the guilt or innocence of petitioner.” Kordenbrock, 680 F.Supp. at 887. We find no error in the District Court’s findings that the jurors could render a verdict based on the evidence presented in court and that their capacity for impartiality was not compromised.

D. Recusal of Trial Judge

After the trial judge refused to grant Kordenbrock’s motion for a change of venue, Kordenbrock filed against the judge an application for a writ of prohibition to prevent the judge from hearing the case. The prosecutor in this case handled the proceeding representing the interests of the state and the trial judge. Joint App. at 63-66. Defense counsel then made a motion for the judge to recuse himself which was denied. Id. at 67.

In United States v. Harrelson, 754 F.2d 1153 (5th Cir.), cert. denied, 474 U.S. 908, 1034, 106 S.Ct. 277, 599, 88 L.Ed.2d 241, 578 (1985), the Fifth Circuit held that recu-sal was not necessary where there was no evidence of specific conduct by the trial judge which prejudiced defendant. Harrel-son, 754 F.2d at 1165. There is no basis in this record to base a finding that the judge was biased against Kordenbrock. Certainly the fact that the prosecutor handled the prohibition proceeding is not a basis for such a finding.

E. Destruction of Evidence

Lastly Kordenbrock claims that his due process rights were violated when the police erased his taped confession, lost a bottle of pills which were present while he was being interrogated, and lost the photo display which they showed to Mr. Thompson, the store owner, for purposes of identification.

In Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988), the Supreme Court held that “unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.” Id. 109 S.Ct. at 337. Apparently Detective Stamper’s secretary, who transcribed the confession, erased the tapes after consulting with the detective. Joint App. at 1065-66. From the facts it does not appear that police acted in bad faith in this respect.

Detective Stamper admitted that there was a bottle of drugs on the table in front of Kordenbrock during the interrogation, but did not order that the pills be tested, nor did he preserve the bottle. Joint App. at 1069-71. In California v. Trombetta, 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984), the Supreme Court held that in order to show that an error of constitutional magnitude occurred in destroying evidence, the evidence must have had exculpatory value and there must have been no other way to get comparable evidence. Id. at 488-89, 104 S.Ct. at 2533-34. In this case Kordenbrock was not prevented from presenting his defense of diminished capacity because the police failed to preserve and test the pills.

Kordenbrock argues further that the store owner’s identification of him was influenced by the overly suggestive nature of the photo display which the police failed to preserve. The Supreme Court set out five factors to consider in determining whether an identification was proper in Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972): (1) the opportunity for the witness to view the accused; (2) the witness’ attention; (3) the accuracy of the witness’ prior description; (4) the witness’ certainty; (5) the amount of time between the crime and the identification.

All five of the Neil factors are met in this case. Mr. Thompson, the store owner, had seen Kordenbrock enter his store twice before the robbery took place. His description of Kordenbrock was accurate, he was certain at the time of the identification, and the amount of time between the crime and the identification was relatively short — less than a month after the crime. Moreover, Kordenbrock has never denied that Thompson’s identification is correct, and any error in the photo display, if one had occurred, would be harmless beyond a reasonable doubt. There was no issue at trial about identification.

The fact that the photo display was lost does not help Kordenbrock’s case. The misplacement or destruction of the display does not entitle Kordenbrock to a presumption that a constitutional violation has occurred. Under the Trombetta test, the display would have not had any exculpatory value.

VI. Refusal to Provide Psychiatric Expert for Defense

A. Applicability of Ake v. Oklahoma

The Court holds that Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), should not be read to include a defendant who contests the mental element of the crime and the appropriateness of the death penalty due to diminished capacity. I respectfully dissent. In Ake the Supreme Court held that an indigent defendant is entitled under the due process clause to expert psychiatric assistance where a defendant’s sanity is a significant issue. The Supreme Court further held that a defendant did not have “a constitutional right to choose a psychiatrist of his personal lik-ing_” Id. at 83, 105 S.Ct. at 1096. The Supreme Court expressed concern that the indigent defendant have access to a “competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense.” Id. (emphasis added).

The Supreme Court did not address the precise issue of whether an indigent defendant would be entitled to a psychiatric expert when diminished mental capacity rather than insanity is the issue at trial, or when diminished mental capacity is the issue at the capital sentencing hearing. In Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985), the Supreme Court declined to reach an issue raised by petitioner that the state failed to appoint experts and investigators to aid him in his defense. The Court did not reject Caldwell’s argument that an expert may be constitutionally required on issues other than sanity. It stated that petitioner had not presented a strong enough case. Caldwell, 472 U.S. at 323 n. 1, 105 S.Ct. at 2637 n. 1. Caldwell’s motion requesting a ballistics expert did not adequately explain why such an expert was necessary. Id.

Two reasons argue that Ake covers cases where mental capacity is seriously in issue both on the question of the existence of the intent element of the crime and the question of mitigation of a sentence of death because of diminished capacity: first, the law from other circuits and second, the reasoning of the Court in Ake.4

Other circuits have read Ake to apply to nonpsychiatric experts. See Little v. Armontrout, 835 F.2d 1240 (8th Cir.1987) (en banc), cert. denied, 487 U.S. 1210, 108 S.Ct. 2857, 101 L.Ed.2d 894 (1988); Moore v. Kemp, 809 F.2d 702, 711-12 (11th Cir.) (en banc), cert. denied, 481 U.S. 1054, 107 S.Ct. 2192, 95 L.Ed.2d 847 (1987) (Eleventh Circuit “assume[d], for sake of argument, that the due process clause could require the government, both state and federal, to provide nonpsychiatric expert assistance to an indigent defendant upon a sufficient showing of need.”).

In Little, the Eighth Circuit held that the indigent defendant in that case was entitled to the assistance of a nonpsychiatric expert where mental state was not a factor and the death penalty was not possible. The dispute in Little arose from the victim’s identification of the defendant, which occurred only after the victim was hypnotized. The defendant in Little was denied funds to hire his own hypnotist expert and was convicted largely due to the victim’s identification. Judge Arnold, writing for the Eighth Circuit en banc, read Ake to include nonpsychiatric testimony:

The question in each case must be not what field of science or expert knowledge is involved, but rather how important the scientific issue is in the case, and how much help a defense expert could have given.

Little, 835 F.2d at 1243. In Little the court required such expert assistance even where the death penalty is not possible.

Nor do we draw a decisive line for due-process purposes between capital and noncapital cases. To be sure, the defendant’s interest in staying alive is greater and different in kind from his interest in avoiding a prison term, but the latter interest, in our opinion, still outweighs the state’s interest in avoiding the relatively small expenditure that would be required.

Id. at 1243-44.

Other courts have also addressed the question of what Ake requires and when its strictures would be applicable, but no circuit has disagreed with the Eighth Circuit’s principle that the question should turn on “how important the scientific issue is in the case.” Id. at 1243. See United States v. Crews, 781 F.2d 826, 833 (10th Cir.1986) (indigent defendant raising an insanity defense entitled to aid of psychiatrist); United States v. Sloan, 776 F.2d 926, 929 (10th Cir.1985) (“when an indigent accused makes a clear showing ... that his mental condition will be a significant factor at trial,” judge must furnish expert).

The Supreme Court’s position in Ake arises from its earlier admonition that “the State must, as a matter of equal protection, provide indigent prisoners with the basic tools of an adequate defense or appeal, when those tools are available for a price to other prisoners.” Britt v. North Carolina, 404 U.S. 226, 227, 92 S.Ct. 431, 433, 30 L.Ed.2d 400 (1971); see also Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963) (state must insure that defendant has meaningful chance to present his defense); Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956) (state must furnish indigent defendant with trial transcript).

The Supreme Court in Ake furthered the definition of “basic tools” to include a psychiatrist for an indigent defendant where sanity is a significant factor at trial. The Ake court found that “a criminal trial is fundamentally unfair if the State proceeds against an indigent defendant without making certain that he has access to the raw materials integral to the building of an effective defense.” Ake, 470 U.S. at 77, 105 S.Ct. at 1093. The Court employed the Mathews v. Eldridge, 424 U.S. 319, 325, 96 S.Ct. 893, 898, 47 L.Ed.2d 18 (1976), three-prong test to determine whether “the State [must] provide an indigent defendant with access to competent psychiatric assistance in preparing the defense.” Ake, 470 U.S. at 77, 105 S.Ct. at 1093. The three factors the Court considered were: (1) “the private interest in the accuracy of a criminal proceeding” which the Court found to be “uniquely compelling,” id. at 78, 105 S.Ct. at 1093; (2) the state’s interest that would be affected by providing expert assistance which the Court found to be “not substantial,” id. at 79, 105 S.Ct. at 1094; and (3) “the probable value of the psychiatric assistance sought, and the risk of error in the proceeding if such assistance is not offered.” Id.

It is a somewhat different, though closely related, question whether the “basic tools” of the defense should include the need for the state to furnish an expert where mental capacity rather than sanity per se is an issue. The Supreme Court left that question open in Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985). I conclude that, as a matter of due process, the state must provide a psychiatric expert where the defendant demonstrates that an expert is necessary to aid in a proper defense, and that without that expert the result of the trial would be unfair. See Little v. Armontrout, 835 F.2d at 1244.

Applying the Ake three-prong analysis to this case, the first and last parts of which go to the importance of the scientific issue in the case, I believe that Kordenbrock was entitled to a psychiatric expert. His interest in the accuracy of the criminal proceeding — having the jury be in a position to understand the mental and psychiatric aspects of the case — outweighs the cost to the state in furnishing experts. After all, it is the state which is seeking to put the defendant to death. Compared to that cost, the cost of a psychiatric expert pales. The defendant’s interest is the more “compelling” of the two. In this case the psychiatric assistance on the subject of diminished capacity would have been valuable to the jury so that it could better understand Kordenbrock’s character and family circumstances in weighing aggravating and mitigating factors and better understand exactly what effect the drugs and alcohol had on him. For the same reasons given in Ake for requiring a psychiatric expert, the risk of ignorance and error respecting the defendant’s mental processes in the trial without psychiatric assistance in this case was high. The jury needed the assistance of an expert to help it understand fully the nature of Kordenbrock’s case.

My view of “how important the scientific issue is in the case” — to use Judge Arnold’s phrase in Little — is reinforced by the trial judge’s own effort to provide a defense expert. The trial judge believed it was important. He ordered it twice. His efforts were thwarted by the refusal of the state and local governments to pay, not because the trial judge thought the expert assistance would have been unimportant.

B. Whether Counsel Deliberately Failed to Secure Payment for the Expert

Having concluded that Kordenbrock was denied his constitutional right to have an expert aid in his defense because of his indigence, I turn to the state’s alternative arguments that defense counsel did not pursue payment for the expert deliberately to create an appealable issue, that the state psychiatrist satisfied Kordenbrock’s right to expert assistance, and that the testimony of a pharmacologist satisfied Korden-brock’s right to expert assistance.

The District Court found that defense counsel failed to ensure that Dr. Nizny received payment because the doctor’s report was unfavorable. Kordenbrock, 680 F.Supp. at 872. A close examination of the facts and the doctor’s report reveals that this finding was erroneous.

After the Fiscal Court refused to pay the doctor, defense counsel alerted the trial judge of its refusal. The trial court again ordered the Fiscal Court to pay the bill. This order was again ignored. The parties were at an impasse at this point. The trial judge, after defense counsel’s third request for an order, refused to enter the order until Dr. Nizny filed his report. Dr. Nizny refused to file his report until payment was guaranteed.

The District Court found that defense counsel could have done more to ensure Dr. Nizny’s testimony, such as ask the trial judge to hold the Fiscal Court in contempt or to subpoena Dr. Nizny. Id. However, Dr. Nizny resided in Ohio, beyond the subpoena power of a Kentucky Court.⁵ Defense counsel did not initiate a contempt proceeding in an attempt to secure payment for Dr. Nizny, but the dispute about payment was not caused or brought about defense counsel. It was caused by the conduct of the Fiscal Court and the state. Petitioner should not be punished because the state could not decide who should be responsible for providing funds for an expert.

As support for its contention that defense counsel was deliberately attempting to create an appealable issue, the District Court cites the unfavorable nature of Dr. Nizny’s report. Kordenbrock, 680 F.Supp. at 872. A reading of the doctor’s report shows that it was not entirely unfavorable. Defense counsel wanted Dr. Nizny to testify as to Kordenbrock’s state of mind at the time of the shooting as well as other possible mitigating factors. Dr. Nizny found that Kordenbrock “was almost continually under the influence of alcohol and/or a variety of drugs and medications from age 14 to his incarceration in January, 1980.... This 10 to 11 year span was, to my knowledge, never interrupted by more than a number of hours or days.” Joint App. at 269. The doctor’s report took into account Kordenbrock’s drugs and alcohol intake the morning of the shooting in determining his state of mind. Dr. Nizny found that when the two men entered the store to rob it, Kordenbrock “was aware of his actions though he ignored risks and demonstrated bad judgment_” Id. at 270. As for the shooting itself, the doctor’s report states that “[t]wo almost simultaneous events, in my view, precipitated his shooting the two men. He heard the glass gun case crash and one man apparently started to rise from the floor.” Id. The doctor refers to petitioner’s actions as “reflex-like” and “impulsive.” Id. According to Dr. Nizny, Kordenbrock’s drug use “decreased] [his] self control” and gave him a “sense of indestructability [sic].” Id. at 270-71.

As to other possible mitigating factors, the doctor’s report indicates that Korden-brock was not “a man totally self centered or totally devoid of feeling for another person.” Id. at 271. The doctor would also have been able to testify about the effect Kordenbrock’s family life had on him. Id. at 270.

There were some very significant unfavorable aspects of the doctor’s report which came out during the evidentiary hearing that the District Court held on the matter. Kordenbrock told Dr. Nizny that he had killed another man in the course of robbing a gas station the night before the shooting in the auto parts store.⁶ Id. at 1266. At the evidentiary hearing held by the District Court, the prosecutor contend ed that the doctor’s knowledge of the prior crime was relevant to prove Kordenbrock’s modus operandi of eliminating witnesses. Id. at 1273. This is a debatable point. Defense counsel argued that any possible relevance of this information would be outweighed by its overwhelming prejudice. Id. at 1277. Without citation of authority, the District Court found that “any judge would have let [the prosecutor question Dr. Nizny on this issue].” Id. at 1275. The judge stated that “by putting the Doctor on you’d have made the whole history relevant.” Id. at 1277. The fact is that the trial judge never had an opportunity to rule on this question in limine or otherwise because of the state’s conduct. We only know that the state judge believed that a defense psychiatric expert was important.

The prosecution’s purpose in this line of questioning in the District Court was to show that defense counsel never intended to put Dr. Nizny on the stand because of his knowledge about the crime which took place the night before. But this is pure speculation based on no facts. Even if the trial judge had allowed the doctor’s testimony on that issue, in the doctor’s opinion the crimes occurred under “identical kinds of circumstances.” Id. at 1278. His knowledge of the prior incident did not change his opinion of Kordenbroek’s actions on the day of the shooting. Id. at 1288.

In fact, Dr. Nizny’s report and his testimony would have been significant on the issue of intoxication as a mitigating circumstance. The jury could then have decided whether to accept his testimony. The doctor’s report stated that Kordenbrock’s “intoxication interfered with the capacity to form a specific intent to commit the crimes.” Id. at 273. Dr. Nizny also testified before the District Court that “I don’t see him forming an intent to end someone’s life,” id. at 1225, obviously a fact of importance. The jury might have found this evidence important on the question of death, a subject on which the jury had doubts.

C. Whether State Psychiatrist Satisfied Ake

The state also claims that if Kordenbrock was entitled to a psychiatrist, the state psychiatrist satisfied that right. I find this argument unpersuasive. Ake requires that a psychiatrist who serves as a defense expert “conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense.” Ake, 470 U.S. at 83, 105 S.Ct. at 1096. A “neutral” expert would not be able to serve this purpose. From the facts it appears that the state psychiatrists at the Grauman Forensic Psychiatry Services would not be able to serve as defense experts.

Defense counsel wrote to the Secretary of the Department of Human Resources and asked if psychiatrists at the Grauman Unit could perform this service, and the response was a clear “no.” Dr. Stumbo, the Secretary, responded that Grauman psychiatrists were only permitted to perform “objective evaluation[s]” and that their services were “supplied as a service to the court, and not to either the prosecution or defense.” Joint App. at 162. In addition Dr. Bland, the state psychiatrist who examined petitioner, “indicated [to defense counsel] that he could not examine Paul as [a] defense psychiatrist because of the Secretary’s directive.” Id. at 166. Paul Farm, general counsel for the Department of Human Resources, also testified that a Grauman psychiatrist “[was] to be neutral in the evaluation process,” and that he would not be permitted to testify as to all possible mitigating factors. Id. at 1169. With this factual background it is not surprising that defense counsel ordered Kor-denbrock not to cooperate with Dr. Bland, a state psychiatrist who was under no duty to treat the psychiatric examination in confidence.

At the evidentiary hearing held by the District Court, Dr. Bland testified that he would have been able, despite the Secretary’s directive, to testify as to mitigating factors. Id. at 1114. These factors would include family background and environmental factors. Id. at 1118. However, during the time that Dr. Bland would have served as an expert for Kordenbrock, he was only-available for defense planning of a case “in a limited way.” Id. at 1122. Dr. Bland testified that a Crauman psychiatrist would have investigated all issues, “[b]ut ... might not and potentially would not include the depth of areas that might be pursued by a defense-only psychiatrist in terms of looking for everything possible in favor [of] the defendant.” Id. at 1123-24.

There was also a question of whether records kept by a Grauman psychiatrist would remain confidential. Id. at 1125. Indeed, defense counsel testified that he was aware of “two specific instances ... involving public defenders ... where confidentiality ... [was] breached.” Id. at 1183.

Thus, it was not unreasonable for defense counsel to conclude that he needed a defense expert, not Dr. Bland. In order to perform the services required under Ake, defense counsel believed he needed Dr. Nizny’s testimony and assistance.

D. Whether Pharmacologist Satisfied Ake

Finally the state claims that Korden-brock’s rights under Ake were satisfied by the pharmacologist’s testimony. I find this argument to be equally unpersuasive. Because defense counsel was not able to locate another psychiatrist before trial, counsel called Dr. Nelson, a pharmacologist, to testify. Dr. Nelson testified as to Korden-brock’s drug addiction and to his mental state on the day of the shootings: “He ... had a diminished ability to exercise judgment, ethical decisions, and formulate complex thoughts.” Kordenbrock, 889 F.2d at 77. The original panel in this case found that the pharmacologist’s testimony satisfied Kordenbrock’s need for an expert because he testified explicitly on the issue of his defense. Id.

The purpose of a psychiatric expert was not only to testify as to Kordenbrock’s intent to commit the crime. The jury was also entitled to consider all mitigating circumstances to which Dr. Nizny would have testified. See Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). Dr. Nelson was not qualified to testify about other possible mitigating factors.

This is especially true in light of the witnesses called by the prosecution. To rebut the pharmacologist’s testimony, the state called a medical doctor who testified that as a medical doctor he was more qualified to discern Kordenbrock’s state of mind than a pharmacologist. The doctor disputed the pharmacologist’s opinion about the effect of drugs on Kordenbrock, claiming that Kordenbrock had developed a tolerance to drugs and alcohol. Dr. Nizny testified at the District Court evidentiary hearing, and could have testified at trial, that “there was some evidence that [Kor-denbrock] was developing tolerance to the [Q]uaaludes.” Joint App. at 1237. However, he also testified that Kordenbrock probably had not developed a tolerance to alcohol, id., and that when petitioner entered the store he was under the influence of both alcohol and Quaaludes. Id. at 1221-22.

VII. Failure to Instruct Jury on Mitigating Factors

Kordenbrock also argues that the trial court erred in failing to instruct the jury properly on mitigating circumstances. He claims that jurors need to be told exactly how the penalty phase of a capital trial works. He argues that if juries are not specifically told about the procedure for determining mitigating circumstances they tend to operate as a unit. There is a great danger that a mitigating factor will not be considered when only one juror believes it exists because of the general assumption drawn from other instructions that the jury must act unanimously.

After the penalty phase the trial judge instructed the jury that an aggravating factor had to be found unanimously but refused to give defense counsel’s proffered instruction that the jury need not be unanimous with regard to mitigating factors.⁷

In Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988), the Supreme Court held that a state sentencing form which could reasonably be interpreted to require the jury to agree unanimously that a particular mitigating circumstance existed was unconstitutional because it precluded the sentencer from considering relevant mitigating circumstances. The Court in Mills found that some jurors could have reasonably believed that in order to find a mitigating circumstance they had to agree on it unanimously. Id. at 384, 108 S.Ct. at 1870. In Mills it was clear from the sentencing form that in order to find the existence of an aggravating circumstance the jury had to be unanimous. However, it was not clear from the sentencing form whether a finding of a mitigating circumstance required unanimity. The Court found that “[i]n reviewing death sentences, the Court has demanded even greater certainty that the jury’s conclusions rested on proper grounds.” Mills, 486 U.S. at 376, 108 S.Ct. at 1866. The Court used the following standard in determining whether the verdict should stand: “Unless we can rule out the substantial possibility that the jury may have rested its verdict on the ‘improper’ ground, we must remand for resentencing.” Id. at 377, 108 S.Ct. at 1867.

Two circuits have considered the question of what type of instruction on mitigating circumstances is required by the Constitution. In Davis v. Maynard, 869 F.2d 1401 (10th Cir.1989), cert. granted and judgment vacated on other grounds, — U.S.-, 110 S.Ct. 1516, 108 L.Ed.2d 756 (1990), the Tenth Circuit held that an instruction defining the role of mitigating circumstances was not necessary. Davis, 869 F.2d at 1411. The court found that while the Constitution does require that the jury understand the function of mitigating factors in the sentencing scheme, a specific instruction was not mandated. Id. In Davis “[t]he jurors were instructed that mitigating factors should be accounted for in reaching their decision, and that such factors should be balanced against any aggravating circumstances found to exist beyond a reasonable doubt. in deciding between life and death. That is all the Constitution requires.” Id.

The Seventh Circuit took a contrary view in Kubat v. Thieret, 867 F.2d 351 (7th Cir.), cert. denied,— U.S.-, 110 S.Ct. 206, 107 L.Ed.2d 159 (1989). After considering Kubat’s claim that his counsel’s performance was deficient because he failed to object to the trial court’s instructions, the court addressed Kubat’s claim that the jury instructions standing alone required reversal as violative of the Eighth Amendment. The Seventh Circuit construed Mills to place certain limitations on how a trial court must instruct a jury during the sentencing phase of a capital case. The court relied on the Supreme Court’s language that “ ‘common sense ... suggests] that juries do not leave blanks and do not report themselves as deadlocked over mitigating circumstances after reasonable deliberation, ... unless they are expressly instructed to do so.’ ” Kubat, 867 F.2d at 373 (quoting Mills, 486 U.S. at 383, 108 S.Ct. at 1870). Because juries are likely to act as a unit in sentencing, the court found that the danger of a tainted sentence was high where jurors are “never expressly informed in plain and simple language that even if one juror believed that the death penalty should not be imposed, [petitioner] would not be sentenced to death.” Id.

In this case, as in Mills, “[n]o instruction was given indicating what the jury should do if some but not all of the jurors were willing to recognize something about petitioner, his background, or the circumstances of the crime, as a mitigating factor.” Mills, 486 U.S. at 379, 108 S.Ct. at 1868. I believe there is a “substantial possibility” that the jury construed the instructions to mean that mitigating as well as aggravating circumstances could be found only if the jury was unanimous. The trial judge refused to instruct the jury on this very important point in spite of defense counsel’s objections and proffered instruction. It is likely from the jury’s question about whether they could sentence Korden-brock to life without parole that they were struggling with mitigating factors. One or more jurors may have believed there were mitigating circumstances. Because the jurors in this case were told that aggravating factors had to be unanimous, but were not told exactly what role mitigating factors play, it would have been reasonable for them to assume that mitigating factors had to be found unanimously as well.

Death is the ultimate punishment. We must be certain that juries carry out their roles properly in death penalty cases. I believe the jury was confused on the unanimity question concerning mitigation and that the verdict of death may not have been imposed had they understood that one juror could block the death sentence if he or she believed there were sufficient mitigating circumstances.

VIII.

Accordingly the judgment of the District Court is reversed and the case remanded to the District Court with instructions to issue the writ of habeas corpus giving the state an appropriate period of time to conduct a retrial as to both criminal liability and sentence.

1. Abigail Smith, with whom Kordenbrock had stayed the night before the shooting, was with Kordenbrock when he was arrested.

2

. Two of Kentucky’s statutory mitigating circumstances are as follows:

The capital offense was committed while the defendant was under the influence of extreme mental or emotional disturbance even though the influence of extreme mental or emotional disturbance is not sufficient to constitute a defense to the crime....

Ky.Rev.Stat.Ann. § 532.025(2)(b)(2) (Baldwin Supp.1989).

At the time of the capital offense, the capacity of the defendant to appreciate the criminality of his conduct to the requirements of law was impaired as a result of mental illness or retardation or intoxication even though the impairment of the capacity of the defendant to appreciate the criminality of his conduct or to conform the conduct to the requirements of law is insufficient to constitute a defense to the crime....

Ky.Rev.Stat.Ann. § 532.025(2)(b)(7) (Baldwin Supp.1989).

3

. Section 507.020 provides:

(1) A person is guilty of murder when:

(a) With intent to cause the death of another person, he causes the death of such person. ...

4

. The state raises no claim of the nonretroactivity of the Ake rule, as applied to the instant case, under the doctrine of Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). The state has waived any argument based on Teague.

5

. Ky.R.Crim.P. 7.02(5) provides in pertinent part:

A subpoena requiring attendance of a witness at a hearing or trial may be served at any place within the Commonwealth.

6

. Petitioner had been charged with the murder of a gas station attendant but had not yet been indicted.

7

. The trial court instruction on aggravating circumstances reads in part:

In recommending a sentence for the defendant Paul Kordenbrock for the murder of Stanley Allen, you shall consider the following aggravating circumstance, if you believe from the evidence beyond a reasonable doubt that it exists....

Joint App. at 154.

The instruction on mitigating circumstances reads in part:

In recommending a sentence for the defendant Paul Kordenbrock you shall consider such mitigating or extenuating facts and circumstances as have been presented to you in evidence and you believe to be true, including but not limited to such of the following as you believe from the evidence to be true....

Joint App. at 155.