COMMONWEALTH V. BUSSELL
CRIMINAL: BRADY VIOLATIONS AND INEFFECTIVE ASSISTANCE OF COUNSEL
OPINION OF THE COURT; SCOTT NOT SITTING
DATE RENDERED: 6/21/2007
SC affirmed the order of the Christian Circuit Court vacating Charles Bussell’s death sentence and granting him a new trial based upon numerous Brady violations and ineffective assistance of counsel. The circuit court found that the evidence presented at the RCr 11.42 hearing clearly established that more likely than not nine police reports were never disclosed to the defense team. Under the totality of the circumstances as found by the trial court, we agree that those reports known to the prosecution and withheld for whatever reason were material to Bussell’s guilt. Moreover, while not every police report discussed during the evidentiary hearing was exculpatory or was otherwise required to be disclosed, the cumulative effect of the information contained in those reports certainly suggests a reasonable probability that had the information been disclosed, the outcome of Bussell’s trial would have been different. And, under the rationale set forth in Kyles, the prosecutor in this case was under a concomitant "duty to learn of any favorable evidence known to . . .the police."
In reviewing the record before us, we cannot say that the trial judge erred in finding Bussell’s trial defense counsel deficient such that he was deprived of a fair trial. Embry’s performance during both the guilt phase and penalty phase of Bussell’s trial fell below an objective standard of reasonableness. Moreover, we discern no error in the trial court’s view that but for Embry’s deficiencies, the result of the trial would have been different. Thus, both prongs of the test set forth in Strickland have been satisfied. Bussell was deprived of effective assistance of counsel during the guilt phase of his trial, entitling him to a new trial.
Note: Around the time of trial, defense counsel became addicted to crack cocaine and later pled guilty to second-degree manslaughter arising from the neglect of his mother. Ultimately, counsel was permanently disbarred.