RENDERED: AUGUST 29, 2019

TO BE PUBLISHED

R 2017- SC-000651-DG

AND

2018- SC-000151-DG

COMMONWEALTH OF KENTUCKY APPELL

ON REVIEW FROM COURT OF APPEALS

V. CASE NO. 2016-CA-000788-MR

LAWRENCE CIRCUIT COURT NO. 03-CR-00062

ALGER FERGUSON APPELLEE / CROSS-APPELLANT

OPINION OF THE COURT BY JUSTICE WRIGHT

REVERSING AND REINSTATING

The Commonwealth of Kentucky appeals from the Court of Appeals ’

reversal of the trial court ’ s denial of a motion for relief pursuant to Kentucky

Rules of Criminal Procedure (RCr 11.42). The Court of Appeals held that

Appellee/Cross-Appellant, Alger Ferguson ’ s, counsel was ineffective in

representing Alger during his murder trial leading to his conviction. Therefore,

the appellate court reversed and remanded to the trial court for a new trial.

Alger cross-appeals, asking this Court to affirm the Court of Appeals ’ result

even if we disagree with the standard applied by that court.

I. BACKGROUND

On August 9, 2003, Alger was at his home with his nephew, Parker

Ferguson. The two had been shooting guns earlier in the day and had spent

the evening drinking and smoking marijuana together. Parker suffered twogunshot wounds

— one above his lip and another to his temple, which was fatal.

Alger was the only other person in the home at the time. Alger called the police

and, when they arrived on the scene, told them Parker had shot himself. A .40

caliber Browning semi-automatic pistol was on the floor next to Parker ’ s body.

According to the autopsy, the shot above Parker ’ s lip was taken from a distance

of at least 18-24 inches away and would not have been immediately disabling.

The contact wound to Parker ’ s temple was immediately incapacitating. Alger

was indicted for Parker ’ s murder.

Alger was represented at trial by private attorney Leo Marcum. 1 Two to

three weeks prior to the start of trial, Alger informed Marcum that he would be

representing himself. Before trial, Marcum obtained a competency evaluation

for Alger. Then, the morning of trial, Alger informed Marcum that he wanted

him to start the trial and he would step in at some point. That morning,

Marcum was successful in having the trial court suppress certain evidence.

During voir dire, Marcum told the court he only had one testifying witness

—

Alger. Alger complains that Marcum had neither consulted nor hired experts 1

1 The dissent goes through the litany of Marcum ’ s disciplinary history,

including his permanent disbarment in 2012 for failing to file state income taxes

between 2004 and 2009. The dissent points out that Marcum was disciplined for,

among other things, failing to provide competent representation to two clients during

the same timeframe he represented Alger. The dissent ’ s concern about Marcum ’ s

disciplinary history is understandable. However, Marcum ’ s disciplinary issues in the

past (or even contemporaneously with his representation on Alger) is not evidence that

his representation in the current case was ineffective. The violation of our Kentucky

Rules of Professional Conduct in other cases has no bearing on whether he was

ineffective in representing Alger, much less whether that supposed ineffectiveness met

the standards discussed below which would necessitate reversal in this case.

2and that he did not find other witnesses to support his defense theory, which

was that Parker ’ s death was a suicide. Alger also complains that Marcum

made no opening statement. However, in fact, Marcum did not fail to give an

opening statement; rather, he reserved his opening statement until after the

close of the Commonwealth ’ s case. This is not uncommon trial practice among

the criminal defense bar. Oftentimes, defense attorneys elect to hear the

evidence presented against their clients prior to giving their opening

statements. In this case, Marcum was uncertain at the beginning of trial if his

client would testify to a believable fact pattern

— and had been told by Alger in

the weeks leading up to trial that Alger planned to represent himself.

The Commonwealth ’ s witnesses included Kentucky State Police Detective

Paul Cales, Coroner Keith Moore (who was also a retired KSP detective), and

State Medical Examiner William Ralston. These witnesses testified regarding

the investigation, blood spatter evidence, the firearm, and Parker ’ s autopsy.

Some family members also testified regarding Alger ’ s behavior on the night of

Parker ’ s death. Marcum cross-examined each of the witnesses, though Alger

now complains about the nature of said cross-examination. Alger now

complains that Marcum did not object when the Commonwealth ’ s witnesses

testified as to their opinions concerning the capability of the firearm in

question

— and the Court of Appeals also made much ado of this point.

However, we note that Marcum actually solicited the information about the

firearm during his cross-examination

— and that it was beneficial to Alger ’ s

defense as it supported the version of events to which he would later testify.

3At the close of the Commonwealth ’ s case, Alger moved to proceed pro se

and the trial court granted his motion

— with Marcum as stand-by counsel.

Alger re-called some of his family members who had testified for the

Commonwealth and cross-examined them and then testified on his own behalf.

The jury convicted Alger and recommended a sentence of life imprisonment.

The trial court sentenced him accordingly. Alger filed a direct appeal to this

Court and we affirmed the trial court in Ferguson v. Commonwealth, No. 2006-

SC-000156-MR, 2007 WL 4462368 (Ky. Dec. 20, 2007). Alger then filed a pro

se RCr 11.42 motion to vacate his conviction due to alleged ineffective

assistance of counsel. Eventually Alger obtained post-conviction counsel with

the Department of Public Advocacy (DPA) to assist in his 11.42 proceedings.

DPA retained Shelly Rice, a crime-scene reconstructionist, to prepare a report

and testify at the hearing on Alger ’ s 11.42 motion. Rice ’ s report spanned more

than 100 pages and discussed different aspects of the case such as the firearm

at issue, self-inflicted non-contact wounds, blood spatter evidence, and her

perceived deficiencies in the Commonwealth ’ s case. Rice opined that it was

more likely than not that both of Parker ’ s gunshot wounds were self-inflicted.

The trial court heard Rice ’ s testimony and that of Alger, Marcum, and

DPA regional director Roger Gibbs at the hearing. It ultimately denied Alger ’ s

motion based on Strickland v. Washington, 466 U.S. 668, 687 (1984). There,

the Supreme Court of the United States held:

A convicted defendant ’ s claim that counsel ’ s assistance was so

defective as to require reversal of a conviction or death sentence

has two components. First, the defendant must show that

counsel ’ s performance was deficient. This requires showing that

4counsel made errors so serious that counsel was not functioning

as the “ counsel ” guaranteed the defendant by the Sixth

Amendment. Second, the defendant must show that the deficient

performance prejudiced the defense. This requires showing that

counsel ’ s errors were so serious as to deprive the defendant of a

fair trial, a trial whose result is reliable. Unless a defendant makes

both showings, it cannot be said that the conviction or death

sentence resulted from a breakdown in the adversary process that

renders the result unreliable.

In making this finding, the trial court stated: “ The Defendant, in

claiming that the victim committed suicide, had what the Court believes to be

an almost insurmountable burden of convincing the jury that the victim first

shot himself at an angle from an upper trajectory [(we note that the evidence

was actually that the bullet entered above Parker ’ s lip at a downward

trajectory)] at a distance of more than two feet, only wounding himself, and

then put the gun to his head and killed himself. ” Marcum had testified at the

hearing that this defense was a difficult one of which to convince the jury. The

trial court agreed. It held that “ the representation of [Alger ’ s] former attorney,

within the parameters with which he had to operate, was not deficient. ” It

further held that “ if expert witnesses had been obtained and more vigorous

cross-examination of the Commonwealth[ ’ s] witnesses had taken place, there

does not exist a reasonable probability that the outcome would have been

different, and that therefore the Defendant ’ s rights were not prejudiced. ”

On appeal, the Court of Appeals acknowledged the Strickland standard,

but did not base its reversal on it. Rather, it applied the standard set forth in

United States v. Cronic, 466 U.S. 648, 659 (1984), which stated: “ if counsel

entirely fails to subject the prosecution ’ s case to meaningful adversarial

5testing, then there has been a denial of Sixth Amendment rights that makes

the adversary process itself presumptively unreliable. ”

Applying Cronic, the Court of Appeals held that, while “ Alger ’ s trial

counsel performed some pretrial work on behalf of his client, including a

successful motion to suppress[,]

... an examination of the record at trial

reflects that counsel made no genuine effort to support his client ’ s suicide

defense. ” Therefore, the Court of Appeals held Marcum had completely failed

to represent Alger at trial and failed “ to subject the prosecution ’ s case to

meaningful adversarial testing. ” Id. at 659. Based on this review, the Court of

Appeals reversed the trial court ’ s denial of RCr 11.42 relief and remanded for a

new trial. We disagree with the Court of Appeals and, therefore, reverse its

holding and reinstate the trial court ’ s order denying RCr 11.42 relief. Alger

cross-appeals asking this Court to affirm the Court of Appeals ’ result even if

this Court disagrees that Cronic is the appropriate standard. However, for

reasons that follow, we reverse based on the Strickland standard as well.

II. ANALYSIS

We will first analyze whether Cronic is the appropriate standard to apply

in this case. In Bell v. Cone, 535 U.S. 685, 696-97 (2002), the Supreme Court

of the United States explained: “ When we spoke in Cronic of the possibility of

presuming prejudice based on an attorney ’ s failure to test the prosecutor ’ s

case, we indicated that the attorney ’ s failure must be complete. We said ‘ if

counsel entirely fails to subject the prosecution ’ s case to meaningful

adversarial testing. ’ Cronic, supra, at 659

. . . (emphasis added). ” The Cone

6Court went on to state that, in that case, the argument was “ not that his

counsel failed to oppose the prosecution throughout the sentencing proceeding

as a whole, but that his counsel failed to do so at specific points. For purposes

of distinguishing between the rule of Strickland and that of Cronic, this

difference is not of degree but of kind. ” Cone, 535 U.S. at 697.

The same is true here. While Alger would have preferred that his

attorney conduct cross-examination of witnesses in a different manner, that is

more a question of “ degree ” than of “ kind ”

— -just as was the case in Cone.

Marcum did cross-examine the Commonwealth ’ s witnesses, often bringing out

points that supported his client ’ s story. Furthermore, he obtained a

competency evaluation for Alger and got certain evidence suppressed on the

morning of trial. Marcum had reviewed the record, met with his client

numerous times, and interviewed Alger, the investigating officer, the

Commonwealth ’ s Attorney, and others in the community.

This case simply does not rise to the requisite level to warrant the

application of Cronic rather than Strickland. We will now consider whether the

Court of Appeals ’ result should be upheld under Strickland. As noted, under

that standard, we must first determine whether the counsel ’ s representation

was deficient and then determine whether such deficiencies prejudiced the

defense in such as way as to “ deprive the defendant of a fair trial, a trial whose

result is reliable. ” Strickland, 466 U.S. at 687.

This Court has held, “ [t]here is a strong presumption that counsel ’ s

conduct falls within a wide range of reasonable professional

7assistance. ” Commonwealth v. Bussell, 226 S.W.3d 96, 103 (Ky. 2007)

(internal citations and quotations omitted). Furthermore, “ [a]s a reviewing

court, we ‘ must focus on the totality of evidence before the judge or juiy 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. ” ’ Id., quoting Haight

v. Commonwealth, 41 S.W.3d 436, 441-42 (Ky. 2001), overruled on other

grounds by Leonard v. Commonwealth, 279 S.W.3d 151 (Ky. 2009).

As we have held:

We must analyze counsel ’ s overall performance and the totality of

circumstances therein in order to determine if the challenged

conduct can overcome the strong presumption that counsel ’ s performance was reasonable. Haight, 41 S.W.3d at 441-42. In

addition, the trial court ’ s factual findings and determinations of

witness credibility are granted deference by the reviewing

court. Id. Finally, we apply the de novo standard when reviewing

counsel ’ s performance under Strickland. Bussell, 226 S.W.3d at

100.

Commonwealth v. McGorman, 489 S.W.3d 731, 736 (Ky. 2016).

We will turn to the facts in the case at bar in order to apply this

deferential standard. Alger argues that his counsel was deficient at trial for

several reasons including the fact that he did not consult with experts in

preparation for trial or have experts to testify at his trial. At the RCr 11.42

hearing, Alger ’ s newly-attained expert opined that it was more likely than not

that Parker had shot himself, thereby causing his own death. Therefore, Alger

now faults Marcum for not conducting an appropriate investigation into the

defense. However, as this Court has stated, counsel ’ s “ investigation need not

8be ‘ an investigation that the best criminal defense lawyer in the world, blessed

not only with unlimited time and resources, but also with the benefit of

hindsight, would conduct, ’ but rather ‘ must be reasonable under all the

circumstances. ’ ” McGorman, 489 S.W.3d at 743, quoting Haight, 41 S.W.3d at

446.

Here, the circumstances were difficult. The victim had two gunshot

wounds to his head

— one of which the medical examiner opined had occurred

from a distance of eighteen to twenty-four inches away, as it did not have

characteristics of stippling as would occur in a closer shot. Furthermore, this

shot above Parker ’ s lip had entered from above and to the side, having a

downward, lateral trajectory. Marcum testified at the RCr 11.42 hearing that

having an expert to testify that Alger could have shot himself in such a manner

as consistent with the bullet entry wound would not have been beneficial, as it

seemed to be a “ palpable lie. ” 2

To delve further into the circumstances surrounding Marcum ’ s decision,

we note that the handgun was more than seven inches in length. It is difficult

to imagine a scenario in which that handgun could be manipulated in a

manner to create a downward, lateral trajectory from two feet away so as to

2 The dissent argues that Alger was entitled to an attorney who zealously

asserted his position. SCR 3.130(1.2). We agree with that statement. However, it is

clear that Alger ’ s position was that Parker had shot himself in the temple and then the

gun discharged a second time when it struck the floor, causing the wound above

Parker ’ s lip. Each of Rice ’ s theories regarding Parker ’ s death being a suicide was

completely contradictory to Alger ’ s testimony. These theories would have shown

Alger ’ s testimony to be a “ palpable lie, ” as was Marcum ’ s concern in determining trial

strategy.

9strike the person operating the firearm in the mouth. In fact, when asked on

cross-examination during the RCr 11.42 hearing, Rice could not demonstrate

how this was physically possible. Rice merely asserted, without having tested

the gun in question, that it is possible that stippling may not have been

present if fired from as close as twelve inches away. She arrived at this figure

from a case she had found in academic literature of a self-inflicted gunshot

wound fired from a .38 caliber (significantly less powerful) handgun from twelve

to eighteen inches away which did not cause stippling. She faulted the

Commonwealth and defense for not performing testing that she did not perform

herself.

But, even if we were to assume that Rice was correct that it was

physically possible for Parker to have self-inflicted this wound, her testimony

goes in direct contradiction to Alger ’ s own testimony and defense theory.

According to Alger, Parker was holding the gun to his head when Alger exited

the room before hearing two gunshots. He believed the gun discharged the

second time when it hit the floor. Therefore, Rice ’ s suicide theory stands in

direct contradiction from the testimony of Alger, the only witness.

Furthermore, the semi-automatic handgun was not in the cocked

position when recovered by police. After being fired, a semi-automatic firearm

would return to the cocked position, ready to fire again. Alger explained why

the gun was not cocked when police found it, as he stated he had picked it up

and un-cocked it before putting it back on the floor next to his nephew ’ s body.

Rice, however, testified at length about the importance of the position of the

10gun to her analysis. She also faulted Marcum for failing to consult with an

expert or test the gun to determine whether it could have somehow

malfunctioned, causing it to be de-cocked after Parker shot himself. However

—

again

— this would have been in direct conflict with Alger ’ s testimony that the

gun was found in the un-cocked position because he had de-cocked it himself.

Rice also placed much importance about a live round found near

Parker ’ s feet, and indicated it showed potential characteristics of a misfire. She

said this would corroborate Alger ’ s statement that Parker was handling the gun

in a manner in which it was not intended to be handled. However, we note this

live round could have been ejected from the gun by Alger or been the result of a

misfire when he was handling the weapon. It in no way definitively links

Parker to his own death. This evidence has little to no bearing on the fact

pattern as put forth by Alger in order to create a reasonable likelihood the

result at trial would have been different.

Rice had the benefit of hindsight and was able to examine the entirety of

the trial in making her determinations. However, even with that, we fail to see

how any of the theories she presents regarding the weapon show Marcum ’ s

representation was deficient to such a degree as to require reversal under

Strickland.

Rice also takes issue with the blood spatter evidence adduced at trial.

She asserts that a void in Parker ’ s hand and blood found on it indicate that it

is likely that he shot himself. However, as noted, it is difficult to see how

Parker could have held the gun in order to have inflicted the shot above his lip.

11The photographs to which she directs our attention do show a void in the blood

stains in the palm of Parker ’ s hand, however, the Commonwealth asserted at

trial that was caused by the beer can found near his body.

Rice also argues that blood spatters and blood flow patterns indicate that

Parker was seated in the chair when the first shot entered above his lip and

then slid to the floor, where he was seated upright when the second shot

entered his temple. Again, however, this is in direct contradiction of Alger ’ s

testimony that Parker first shot himself in the temple before the second shot

entered above his lip, caused by the firearm discharging as it struck the floor.

Roger Gibbs, a regional DPA director, also testified at the RCr 11.42

hearing as an expert in criminal defense. While he was critical of Marcum ’ s

preparation and representation of Alger, he could not say that had Marcum

consulted experts that it would have made enough difference “ to carry the day. ”

This simply does not rise to the Strickland standard which requires that “ [t]he

defendant 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. ” Strickland, 466 U.S. at 694.

Despite their criticism of Marcum ’ s representation, neither the testimony

of Rice nor that of Gibbs created a “ reasonable probability that

. . . the result of

the proceeding would have been different. ” Id. The manner in which Rice

arrived at her conclusion that it was more likely than not that Parker ’ s death

was a suicide completely undermined Alger ’ s own testimony and defense

12theory. Alger did not abandon this theory after his conviction

— as it is put

forth in his RCr 11.42 motion as well.

Alger now asserts that he was indigent at trial as evidenced by the fact

that he never paid Marcum ’ s fee

— and that Marcum should have sought funds

from the court to obtain expert consultation or testimony. However, there was

never a determination of indigency here. We cannot go outside the record and

assume that Alger failed to pay Marcum due to indigency rather than that he

failed to pay him for some other reason. In this case, Marcum indicates that

he and Alger did discuss obtaining an expert and that they both agreed it

would not be beneficial. Further, we fail to see how the lack of an expert to

consult or testify deprived Alger of a reliable result at trial. Even the theories

Rice could concoct with the benefit of hindsight were largely fantastical.

Alger also argues that Marcum ’ s representation was deficient as he was

unprepared for trial. He says this is evidenced by the fact that he did not make

an opening statement. We note that while Marcum postponed making an

opening statement until the close of the Commonwealth ’ s case, he did not, as

Alger asserts, simply fail to make one due to unpreparedness. Rather, Marcum

knew from his many conversations with Alger that his client planned to testify

at trial. He reserved his opening, however, because he was unsure as to the

exact content of what Alger planned to say in his testimony, as some of his

statements to police differed slightly from what Alger told Marcum he planned

to say at trial.

13Marcum indicated at the RCr 11.42 hearing that “ Alger made it almost

impossible to get ready ” for trial and that “ he wouldn ’ t assist with his defense

in any meaningful way. ” As noted earlier, Marcum was under the belief that

Alger would represent himself until the very day of trial. Of course, he was still

the attorney of record and had duties to his client, as Alger had not yet moved

the court to proceed pro se. However, Marcum had prepared for the trial

throughout his twenty-six months of representation. Furthermore, Marcum

testified that Alger once revealed his trial strategy to him during a conversation

about self-representation. According to Marcum, Alger stated he had a way “ to

get out of this. ” Marcum testified that Alger told him “ that he wasn ’ t going to

go to prison because the women on the jury panel wouldn ’ t allow it. ”

Alger complains that Marcum did not effectively cross-examine the

Commonwealth ’ s experts. However, as discussed above, in many of these

complained-of instances, Marcum was able to elicit information on crossexamination that supported Alger ’ s story as to how the events unfolded on the

night of Parker ’ s death. Even if these experts were not shown to be qualified to

give the opinions regarding firearms and blood spatter that they gave, Marcum

(sometimes soliciting these opinions himself) used them to his client ’ s

advantage.

While it is true that Marcum did make some mistakes at trial, those

mistakes did not render his assistance ineffective. For example, Marcum

inadvertently opened the door to some (but certainly not all) evidence he had

gotten suppressed at trial. Marcum was also not successful in introducing

14certain impeachment evidence. The dissent also insists that Marcum was

deficient in failing “ to subject the Commonwealth ’ s theory of motive to proper

scrutiny. ” We must keep our standard of review in mind in light of these

purported deficiencies. “ As a reviewing court, we ‘ 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. ” ’ Bussell, 226 S.W.3d 96, 103, quoting Haight, 41

S.W.3d at 441-42.

III. CONCLUSION

Marcum testified he was faced with a difficult defense and a client who

would not consider taking a plea deal because he was certain he could sway

the female members of the jury panel in his favor. There is not a reasonable

probability that the outcome of the trial would have been different but for any

of Marcum ’ s purported deficiencies. Therefore, we agree with the

Commonwealth and reverse the Court of Appeals and reinstate the trial court ’ s

order denying Alger RCr 11.42 relief.

All sitting. Minton, C.J.; Buckingham, Hughes, Keller, VanMeter and

Wright, JJ., concur. Lambert, J., dissents by separate opinion.

15LAMBERT, J., DISSENTING: Respectfully, I dissent. I would affirm the Court

of Appeals and hold that Leo Marcum provided Alger Ferguson ineffective

assistance of counsel as defined in Strickland v. Washington 3 and remand for a

new trial.

I. CRONIC AND STRICKLAND

I agree with the majority ’ s holding that U.S. v. Cronic 4 does not apply to

the facts at bar. The presumptive prejudice to a defendant envisioned by

Cronic is only present in veiy narrow circumstances: (1) when a defendant is

denied counsel outright; (2) when counsel completely fails to subject the

prosecution ’ s case to adversarial testing; or (3) when the circumstances

surrounding the case make the likelihood that any lawyer could provide

effective assistance so small that a presumption of prejudice is appropriate,

like the circumstances present in Powell v. Alabama, 287 U.S. 45 (1932). 5

None of these circumstances are present in this case.

However, I believe that under Strickland, Ferguson is entitled to a new

trial.

A convicted defendant ’ s claim that counsel ’ s assistance

was so defective as to require reversal of a

conviction...has two components. First, the defendant

must show that counsel ’ s performance was deficient.

This requires showing that counsel made errors so

serious that counsel was not functioning as the

“ counsel ” guaranteed the defendant by the Sixth

3 467 U.S. 1267 (1984).

4 466 U.S. 648 (1984).

5 Cronic, 466 U.S. at 659.

16Amendment. Second, the defendant must show that

the deficient performance prejudiced the defense. This

requires showing that counsel ’ s errors were so serious

as to deprive the defendant of a fair trial, a trial whose

result is reliable. Unless a defendant makes both

showings, it cannot be said that the

conviction... re suited from a breakdown in the adversary

process that renders the result unreliable.

Based on the following, I believe Ferguson ’ s case meets both Strickland

requirements.

II. DEFENSE ATTORNEY LEO MARCUM

The majority credits several of Marcum ’ s unsubstantiated claims about

Ferguson ’ s representation that are in direct contradiction to Ferguson ’ s

account. For example: Ferguson telling Marcum he intended to represent

himself in the weeks before trial; that “ [Marcum] and Ferguson did discuss

obtaining an expert and that they both agreed it would not be beneficial ” ; and

that Ferguson told Marcum he was certain he could “ sway the female members

of the jury panel in his favor. ” However, Marcum ’ s storied history of

professional misconduct should give the reader pause before accepting

Marcum ’ s version about his defense of Ferguson as gospel. 6

6 It is important to understand the circumstances surrounding the practices of

attorney Marcum prior to his permanent disbarment in 2012. As this Court has

previously noted, Marcum has extensive prior disciplinary issues, including: (1) Public

reprimand on May 14, 1992, Kentucky Bar Ass ’ n v. Leo Marcum, 830 S.W.2d 389 (Ky.

1992), for violation of DR-9- 10 1(b) which is the equivalent of SCR 3.130-1.11 (conflict

in successive government and private employment); (2) Public reprimand on October

26, 2000, Kentucky Bar Ass ’ n v. Leo Marcum, 28 S.W.3d 861 (Ky. 2000), for violations

of SCR 3.130- 1.4(a) and (b) (communication); (3) Private Admonition on May 17, 2002,

for violation of SCR 3.130-1. 7(b) (conflict of interest); (4) Private Admonition on July

15, 2005, for violation of SCR 3.130-8. 1(a) (false statement in a disciplinary

matter); (5) Amended and Substituted Private Admonition on February 23, 2005, for

17III. THE COMMONWEALTH ’ S CASE

Ferguson was tried for the murder of his nephew, Parker Ferguson. At

trial, the Commonwealth asserted that Ferguson ’ s motive for killing Parker was

that Parker slept with Ferguson ’ s wife Joy and was the father of Ferguson ’ s

daughter. A cabinet 7 worker testified about a motion Mrs. Ferguson filed

requesting a paternity test in early July 2003 that alleged Ferguson was not

the girl ’ s biological father.

To support its theory of the case the Commonwealth presented the

following evidence. On August 9, 2003, the night Parker died, police were

violation of SCR 3.130-1. 2(a) (failing to abide by a client ’ s decision), SCR 3.130-1.3

(diligence), SCR 3.130- 1.16(d) (termination of representation), and SCR 3.130-8. 1(b)

(failing to respond to disciplinary authority); (6) Suspended from the practice of law on

August 27, 2009, for 181 days, Kentucky Bar Ass ’ n u. Leo Marcum, 292 S.W.3d 317

(Ky. 2009), for violating SCR 3.130-1. 15(a) (commingling) and SCR 3.130-8. (4](c)

(dishonesty, fraud, deceit, or misrepresentation); (7) Suspended from the practice

of law on April 22, 2010, for one year, Kentucky Bar Ass ’ n v. Leo Marcum, 308 S.W.3d

200 (Ky. 2010), for violations of SCR 3.130-1.1 (competence), SCR 3.130-1.3

(diligence), SCR 3.130-1. 4(a) (communication), SCR 3.130-1. 15(a) (commingling), SCR

3.130- 1. 15(b) (notifying clients of receipt of funds), SCR 3.130-3.2 (expediting

litigation), SCR 3.130-8. 1(b) (failure to respond to disciplinary authority), and SCR

3.130- 8.[4](c) (dishonesty, fraud, deceit, or misrepresentation); (8) Suspended from

the practice of law for three years on March 24, 2011, for three years, consecutive to

any other suspensions, Kentucky Bar Ass ’ n v. Leo Marcum, 336 S.W.3d 95 (Ky. 2011),

for violating SCR 3.130-1. 15(a) (commingling) and SCR 3.130-8. 1(a) (false statement

in a disciplinary matter). Kentucky Bar Ass ’ n v. Leo Marcum, 377 S.W.3d 550, 551-

52 (Ky. 2012). Marcum was ultimately disbarred following his conviction on six felony

counts for failing to file Kentucky state income taxes between 2004 and 2009. Id. at

551.

Of particular note, Marcum ’ s entry of appearance as counsel of record in

Ferguson ’ s case was filed in late August of 2003. The trial occurred in November of

2005. During that two-year time frame Marcum was involved in two other client

representations that led to his one-year suspension from the practice of law as

mentioned above for failure to provide competent and diligent representation,

failure to communicate properly with his client, and dishonesty.

7 Kentucky Cabinet for Health and Family Services.

18called to Alger Ferguson ’ s house. When the officers arrived, they found

Parker ’ s deceased body on the living room floor. Parker ’ s body was directly in

front of a blood-stained armchair. His chest was against the floor, with his

hips turned upward so that the entire front of his body was not flush against

the floor. Parker ’ s head was turned so that the right side of his head was

visible, and the left side was against the floor. Parker had a visible gunshot

wound to his right temple, and, upon autopsy, a gunshot wound above the left

side of his mouth was discovered. A significant amount of blood was pooled

under his body and head. Blood was also pooled under a box fan lying on the

floor front side up less than a foot away from Parker ’ s head. A Browning Smith

and Wesson (S&W) .40 caliber pistol was found next to Parker ’ s right forearm.

It was undisputed that Parker and Ferguson were the only people at

Ferguson ’ s house that evening. They drank for several hours, and Parker ’ s

autopsy results showed that he had blood alcohol content of

. 176 8 and a

presumptive presence of marijuana in his urine. The Commonwealth alleged

that Parker and Ferguson were watching television in Ferguson ’ s living room

and speculated that they got into an argument about the paternity of

Ferguson ’ s daughter. Ferguson then walked to his hall closet with the remote

control in his hand, put the remote down next to his .40 caliber S&W ’ s case,

8 The legal limit of blood alcohol content to operate a motor vehicle in

Kentucky is .08. Kentucky Revised Statutes (KRS) 189A.010.

19and got the gun out of its case. Ferguson then walked to the living room gun

in hand. When Parker saw the gun he stood up, and Ferguson shot him in the

face from at least eighteen to twenty-four inches away causing the entry wound

above Parker ’ s lip. Parker fell to the floor, and Ferguson walked up to Parker

and shot him point blank in the temple while his head was on the floor.

Police officers arrived shortly after. When they asked Ferguson what

happened, he told them Parker shot himself. Police investigated Parker ’ s death

as a suicide until the autopsy revealed that he had two entry wounds to his

head: the one to his temple which the officers observed at the scene, and the

other that entered above the left side of his mouth and lodged in the soft tissue

of the left back of his neck. The second shot was not visible at the scene due to

both Parker ’ s mustache and the amount of blood pooled on the left side of his

face. Following discovery of the second wound, the police investigated his

death as a homicide. Ferguson was convicted and sentenced to a life sentence

following a jury trial.

IV. FERGUSON ’ S STORY

After the Commonwealth concluded its evidence, Ferguson successfully

moved the court to proceed pro se, and testified on his own behalf to the events

of that day.

Ferguson said that he began drinking around ten or eleven o ’ clock in the

morning. He spoke to Parker on the phone between two and three o ’ clock in

the afternoon. Parker wanted to come over and drink with Ferguson, which

20was something they did often. Parker got to Ferguson ’ s house between four

and four thirty, and they left shortly after to get more beer. On the way back

they stopped to see Parker ’ s mother (Ferguson ’ s ex-sister-in-law) because it

was her birthday.

Ferguson said he was unsure what time they got back to his house, but

he remembers it still being daylight outside. He and Parker continued drinking

and smoked marijuana. They went into the woods near Ferguson ’ s house and

went four-wheeling, shot beer cans, and continued to drink. When they got

back to the house, they kept drinking and just sat around and talked;

Ferguson said they often talked about life. Regarding Parker ’ s death, Ferguson

testified:

And, I don ’ t know what time it was, time got away from

us. So I fell into a doze in the recliner in the comer of

the house and Parker was over next to me. I was just

laying there dozing, not quite fully asleep and I heard

the gun (inaudible) back and the bullet eject. 9 And,

there wasn ’ t any need to do that (inaudible) about ten

rounds in the clip and one in the barrel, but apparently

he didn ’ t know that when it ’ s not reloaded. I woke up

and said, “ Parker what are you doing? ” and he never

said nothing. He just went like that and sat up and

pulled the trigger and at that point I run out of the

house through the door and on the porch. While I was

running out I heard another shot and so I was laying on

the porch and I wasn ’ t sure what had happened

whether he missed himself or just shot. It scared me.

So I went back in and he ’ s laying there and there ’ s blood

all over the place. He ’ s laying on the side, as you seen

in the pictures there with a hole in his head and I held

his hand I know he wasn ’ t alive, I checked for a pulse.

And, I de-cocked the gun. And I believe at that point I

9 There was an unspent round found at Parker ’ s feet.

21may have cocked it myself, I really don ’ t remember. It ’ s

like I went into shock.

The Commonwealth pressed him on his version of the shooting on cross

examination:

Q: So for your version to have taken place, Parker

would have shot himself in the lip from eighteen to

. twenty-four inches away, then fall to the floor and

shot himself in the temple, then turned his arm

around this way and (inaudible)?

A: No, that ’ s not what happened. I said (inaudible)

that he shot himself in the head and that ’ s where

the gun was pointed and then he fell to the ground

and the gun went off.

Q: Was the gun underneath his body when you

recovered it?

A: No.

Q: So you very clearly saw him shoot himself in the

temple?

A: No, I said I seen him point it at his head.

Q: Point it at his temple, then you ran out. Do you

recall the doctor and coroner presiding that this

wound was immediately incapacitating? That once

this shot was fired he could do no other voluntary

thing?

A: I never said he did any voluntary acts. I said that

the gun must have hit the floor and went off.

So, either Parker killed himself or Ferguson killed him. And, in the

process, the gun may have dropped and accidentally discharged. The only way

to at least come close to the truth of what happened was to have forensic

experts fully analyze the evidence at the scene. But, as discussed in more

detail below, Marcum did not consult with or hire any forensic experts to help

Ferguson present a suicide defense. Further, he allowed the Commonwealth to

present highly prejudicial forensic evidence by non-forensic experts and did not

object to the testimony, or properly cross-examine the witnesses.

22V. MARCUM ’ S STRICKLAND DEFICIENT REPRESENTATION

A. Pre-Trial

To begin, Marcum ’ s overall approach to Ferguson ’ s representation is

disturbing. It is clear based on his testimony during Ferguson ’ s RCr 10 11.42

hearing that Marcum did not believe Ferguson ’ s version of Parker ’ s death.

Marcum stated at the hearing that he did not want to present Ferguson ’ s

suicide defense because it appeared to him “ to be a blatant lie. ”

By no means does a defense attorney have a duty to believe his client ’ s

story, but “ [a]s advocate, a lawyer zealously asserts the client's position

under the rules of the adversary system. ” 11 The purpose of having a defense

attorney is to have at least one person in the court room on the defendant ’ s

side that is willing to present the defendant ’ s version of what happened, and to

subject the Commonwealth ’ s evidence to proper challenge. A defense attorney

is not relieved of this duty simply because he finds his client ’ s story hard to

believe. 12

To aid in his RCr 11.42 appeal Ferguson hired Shelly Rice, an expert on

crime scene reconstruction. Ms. Rice examined the physical evidence and the

testimony regarding that evidence at trial. She compiled a 1 12-page report

that discussed her conclusions about the evidence as well as the shortcomings

10 Kentucky Rules of Criminal Procedure.

11 Kentucky Supreme Court Rule 3.130, Kentucky Rules of Professional

Conduct Rule 3.130(1.2) (emphasis added).

12 See McCoy v. Louisiana, 138 S.Ct. 1500 (2018).

23of the Commonwealth ’ s case. Ms. Rice concluded that the evidence showed

“ that there was a greater probability that Parker Ferguson was the shooter. ”

This demonstrates that if Marcum had fulfilled his duty to his client by, among

other things, taking the time to consult and hire forensic experts, there is more

than enough reason to believe that the outcome of Ferguson ’ s trial would have

been different. But Marcum did nothing to seek out an expert.

Further, Marcum was a privately retained attorney. Ferguson ’ s story

since the night Parker died was that he shot himself and he has never deviated

from that stoiy. Marcum knew from the instant Ferguson hired him that he

wanted to present a suicide defense. If Marcum was unwilling to present that

defense he should not have accepted the representation, or he should have

withdrawn from it. 13 And the very fact that Marcum was a privately retained

attorney makes it difficult to believe that he thought Ferguson intended to

represent himself at trial. But even if he did, Marcum testified that Ferguson

told him “ [a] couple of weeks before trial...that he planned to represent himself

at the trial. ” Marcum had two years to prepare for trial but did not. Roger

Gibbs, an expert on criminal defense work, 14 testified at the 11.42 hearing that

a defendant who claims a victim ’ s death was the result of suicide has the

burden of proving it. Therefore, he would have researched the issues,

13 Kentucky Supreme Court Rule 3.130, Kentucky Rule of Professional Conduct

Rule 3.130(1.16).

14 Gibbs is the Eastern Regional Manager for the Department of Public

Advocacy. He has thirty years of experience as an attorney, twenty-nine of which has

been with the Department of Public Advocacy. He has tried over 100 cases and has

assisted on others.

24consulted an expert that would not necessarily testify, and if necessary,

attempt to obtain expert witnesses to testify at trial. Marcum did none of these

things. At the 11.42 hearing Marcum said, “ what came out of [Ferguson ’ s]

mouth was going to be his defense. ”

Marcum also claimed that “ he discussed obtaining funds for expert

witnesses with [Ferguson], but [Ferguson] was unable to afford those funds. ” It

is particularly alarming to hear this excuse, as a person ’ s access to justice

should never be limited by how much money he or she has. 15 Even so, if this

was true, Marcum should have filed a motion for funding for an expert witness.

Under KRS 31.110:

(1) A needy person who is being detained by a law

enforcement officer, on suspicion of having committed,

or who is under formal charge of having committed, or

is being detained under a conviction of, a serious

crime...is entitled:

(b) [T]o be provided with the necessary services

and facilities of representation, including

investigation and other preparation.

(emphasis added). If the trial court denied this request, Ferguson could have

asked the court to appoint counsel, and have his appointed counsel request

Chapter 31 funding. 16 But, because Marcum did not even attempt to get this

funding, Ferguson was denied the opportunity to have an expert testify on his

behalf.

15 See e.g. Gideon v. Wainwright, 372 U.S. 335 (1963); and Anders v. State of

Cal., 386 U.S. 738 (1967).

16 Gibbs testified he was aware of cases where this occurred.

25Next, the majority is correct that Marcum “ was successful in having the

court suppress certain evidence. ” He made successful motions to suppress any

of Ferguson ’ s prior bad acts, and any statements made to the police after he

invoked his right to an attorney. He was also able to exclude any witness

statements about Parker saying he would never commit suicide unless Marcum

opened the door to that testimony. However, Marcum ultimately did open the

door to that testimony on cross-examination. This allowed Parker ’ s sister

Valerie to testify that Parker said he would never commit suicide.

In that vein, after Ferguson successfully moved to proceed pro se, he

called his sister Rosemary to testify. She testified Parker tried to kill himself in

her presence several times in the past. While it is true that the jury did hear

this testimony because Ferguson called her during his pro se representation,

the first prong of a Strickland analysis asks whether counsel ’ s performance was

deficient. We know that Marcum never intended to call Rosemary as a witness

even though she was a witness that could both bolster Ferguson ’ s suicide

defense and rebut Valerie ’ s testimony that Parker said he would never kill

himself. But Marcum did not know this because he did not bother to interview

Rosemary during trial preparation.

B. Motive

In addition to these pre-trial errors Marcum made several errors during

trial, starting with his failure to subject the Commonwealth ’ s theory of the

motive to proper scrutiny. “ Although motive is not an element of a criminal

26prosecution, nevertheless, evidence of motive is relevant and admissible to

prove conduct consistent with the motive, as well as willfulness or criminal

intent. ” 17 Motive is therefore important for a jury to consider in a criminal

trial, particularly when the alleged crime is murder, an intent crime. 18

In this case, it would have been simple for Marcum to try to create

reasonable doubt about the alleged motive. First, the motion Mrs. Ferguson

filed did not allege Parker was the father of her child, it merely stated that

Ferguson was not. Marcum did not point this out during the cabinet worker ’ s

cross-examination. In fact, the only thing he asked her was whether it was a

“ common ploy for women to say that their husband is not the father of their

child when there is a custody battle. ” More significantly, Detective Paul Cales,

the lead detective in Ferguson ’ s case, filed a report which was provided to

Marcum in December 2003, nearly two full years before the trial. The report

stated: “ I also advised her of the baby comments. Joy advised her baby does

not belong to [Ferguson] or Parker. ” Joy was not a witness for the

Commonwealth, and Marcum never intended to call her. However, Det. Cales

was a witness for the Commonwealth, and Marcum did not solicit this critical

piece of information from Det. Cales on cross-examination.

17 McGuire v. Commonwealth, 368 S.W.3d 100, 110-11 (Ky. 2012).

18 “ (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). ] ” KRS 507.020.

27C. Gunshot wounds

Dr. Rolston, the medical examiner who performed Parker ’ s autopsy,

testified for the Commonwealth. Regarding the gunshot wound to Parker ’ s

face, Dr. Rolston provided the following testimony:

A: Multiple things exit the gun when it ’ s fired. The

bullet is the most notable. Other things that come

out are unburnt pieces of gun powder, which I refer

to as stippling. Additionally soot, which is the

product of combustion, exits the barrel of the gun

as well as various gases, including carbon

monoxide.

Q: Those soot and stippling products, do they travel

veiy far?

A: They travel... stippling, for instance, is in general

for most handguns travel about eighteen to

twenty-four inches.

Q: Did you notice stippling around the wound to the

lip?

A: No, there was no stippling noted.

Q: What conclusion can you reach within a reasonable

degree to medical certainty as to the absence of

that?

A: It means that there ’ s no indication on the body, the

skin surface, that the gun was within eighteen to

twenty-four inches when it was fired.

Q: So in all likelihood it was farther away. Is that what

you ’ re saying?

A: That ’ s what I ’ m saying.

(emphasis added).

This is the testimony the majority references when it states that “ the shot

above Parker ’ s lip was taken from a distance of at least 18-24 inches away. ”

This testimony was the only evidence that supported the crucial conclusion

that the shot to Parker ’ s face had to be fired from eighteen to twenty-four

inches away. No testing was performed on the firearm and ammunition in this

28case to determine exactly what distance stippling would occur from it being

fired.

Ms. Rice ’ s report stated the following regarding stippling:

Stippling or tattooing is caused by particles of unburned

gunpowder that creates punctate abrasions or bums

when it contacts the surface and cannot be washed

away. As there have been general predicted distances

of this evidence [in this case], it is still not an accurate

assessment of this evidence. The distance and

presence of stippling/tattooing is variable to the

type of firearm and ammunition. A distance

determination test would be required using the

same firearm and same lot number of ammunition

to conclude the actual distances that stippling

would be present.

(emphasis added).

Marcum did not cross Dr. Rolston on the fact that no tests were

performed with the specific gun and ammunition used in Parker ’ s shooting to

get accurate results on the distances from which stippling would and would

not occur. Nor did he highlight the fact that Dr. Rolston made a very specific

conclusion about the distance in this case based on a very generalized

statement about when stippling occurs “ for most handguns. ” If Marcum would

have hired an expert or experts, they could have both conducted a stippling

test on the specific gun and ammunition used in the shooting and pointed out

any inaccuracies of the medical examiner ’ s testimony.

Ms. Rice also found that the shot to Parker ’ s temple was particularly

important because: (1) the exit wound does not demonstrate that Parker ’ s head

29was pressed against a hard surface, i.e. the floor, when the shot was fired 19 ;

and (2) no bullet fragments were lodged in the floor, even though Dr. Rolston

testified they should have been there if Parker was shot in the position

documented by the photographs. These are critical facts that the jury should

have been aware of while deliberating.

D. Blood Spatter

“ If the subject matter of an issue in litigation is not common knowledge,

then expert testimony is proper. ” 20 The forensic analysis of blood spatter is

certainly not within the realm of common knowledge. Nonetheless, the

Commonwealth ’ s primary witness about the blood spatter at the scene was

Det. Cales, who had investigated less than ten homicides during his time as a

detective with the Kentucky State Police and did not have any education or

training in the area of blood spatter analysis. He testified at length about what

the shape and location of blood spatter at the scene of Parker ’ s death, and his

conclusions about the blood spatter in this case:

Q: All right. Now, had those spatters come about from

a self-inflicted gunshot wound in the chair, what

shape would you have expected those droplets to

be?

A: If the spatter came from the direction of the chair, I

would have expected the spatter to have...to be more

oval shape. When I say oval, kind of like that and

19 If Parker ’ s left temple was compressed against a hard surface at the time the

fragment exited, the wound should have had a shored appearance. Instead, the exit

wound was cone shaped and protruded about two inches.

20 Baptist Healthcare Sys. v. Miller, 177 S.W.3d 676, 680 (Ky. 2005).

30that would point me to the direction that it came

from but these were not like that.

Q: These were round?

A: Yes, sir.

Q: Were you able to draw a conclusion from the shape

of those droplets as to where Parker Ferguson had

been when that shot happened?

A: When that shot happened, it ’ s my conclusion that

he was directly underneath that part of the ceiling.

Q: On the floor?

A: Yes, sir.

[■••]

Q: Did you notice any other blood spatters?

A: Across from the chair on the opposite side of the

room there was a blood spatter. I found one spatter

against the wall that was in such a position that if

you ’ re sitting in the chair that has the blood on it,

you cannot see the spatter. If you stand up you can

see it. This looked like a direct on spatter, which

means I don ’ t think it did appear that the spatter

came out and dropped down like this but it hit the

wall directly. I believe that the time that that

spatter was made that Mr. Ferguson...Parker

Ferguson was standing at that time.

Det. Cales ’ testimony was the only testimony that supported the

Commonwealth ’ s theory that Parker was standing when he was shot above the

lip and was lying on the floor when he was shot in the temple. In fact, the only

other witness for the Commonwealth who analyzed the blood evidence provided

some testimony that supported Ferguson ’ s sto r y. Detective Keith Moore

testified:

31A: This photograph depicts an area of the bloodstain

that is on the chair and also on the decedent. This

is a flow pattern that is obviously consistent with

the decedent sitting in the chair.

(emphasis added). Det. Cales also testified that he could not say with certainty

how the wound to Parker ’ s lip was acquired. Yet Marcum did not address the

fact that this testimony was much more consistent with Ferguson ’ s defense

than the Commonwealth ’ s theory, and did not object to the fact that Det. Cales

was not an expert in blood spatter analysis.

Ms. Rice ’ s report discussed the blood stain evidence at length. She noted

that Det. Cales made references to bloodstain patterns without properly

identifying the bloodstains or using proper terminology and disregarded several

significant bloodstains at the scene. She also disagreed with Det. Moore ’ s

conclusion that Parker did not shoot himself in the temple because there was

no shift in the blood flow pattern after the wound was inflicted. She found this

to be incorrect because under the main flow of blood from the temple wound is

an initial downward blood flow that is more indicative of Parker being in an

upright position when the temple wound occurred, then falling over.

She also made the following conclusions based on her independent

analysis of the evidence:

1) Parker was sitting upright in the armchair he was found in front of. This

conclusion was based on the impact stains dispersed over the top portion

of Parker ’ s jeans.

2) No one observed blood on Ferguson ’ s person while at the scene. If

Ferguson inflicted Parker ’ s contact head wound, evidence of that would

likely be found on his person.

323) The marks on Parker ’ s outer hand were consistent with either abrasions

from gunpowder or back spatter from a self-inflicted gunshot wound.

These marks were not addressed by the coroner or police.

4) There was a void in Parker ’ s right palm where no blood was found. The

Commonwealth asserted this void was created by him holding the beer

can found near his body. However, the shape of the void is more

consistent with the handle of the gun.

5) If Parker had in fact been lying on the ground when he sustained the

wound to his temple, the impact stains on the right side of his face would

be more prevalent than they were because the back spatter would have

fallen on his face as it dispersed from the inju r y.

6) No measurement was taken of the distance from the floor to the ceiling.

This measurement is vital to determine whether the bloodstains could

have travelled that distance if Parker was shot while lying in the position

he was found in, which was the Commonwealth ’ s theory. Typically,

smaller blood stains of back spatter from a high velocity impact do not

have enough energy to travel far.

7) No measurements or overall photographs were taken of the location of

the bloodstains on the opposite wall. Therefore, no determination can be

made about their actual location.

8) It is possible that the blood on the ceiling and the opposite wall got there

because of the box fan found near Parker ’ s body. Ferguson said the fan

was on the entire night, and he is unsure when it was turned off or

knocked over. Ms. Rice speculates that (1) the blood particles were

forced onto the opposite wall by the fan blowing while it was upright after

the shots were fired and (2) the blood pooled under Parker ’ s body was

sucked up into the fan after it was knocked over and sprayed onto the

ceiling.

Again, if a qualified expert like Ms. Rice came to these conclusions, it is

reasonable to conclude that if Marcum had taken the time to consult and hire

experts, they may have come to the same or similar conclusions, and at the

very least would have been able to point out the shortcomings in the

Commonwealth ’ s evidence.

33E. Firearm Evidence

The only evidence the Commonwealth presented about the gun in this

case came from Det. Cales and Det. Moore. Neither are firearms experts. Both

said essentially the same thing: based on the type of gun found at the scene,

the hammer of the gun should have been found in the cocked position. But

instead the hammer was found in the de-cocked position. The implication of

course being that Parker could not have de-docked the hammer because he

died instantly after he sustained the shot to his temple. But this was really

much ado about nothing. Ferguson later testified unequivocally that he decocked the hammer after he came back into the house. Regardless, Marcum

never objected to any of their testimony about the gun and its functioning even

though neither of them were firearms experts.

More significantly, Marcum never prepared any evidence to present

Ferguson ’ s version of events: after Parker shot himself in the temple, both he

and the gun dropped to the floor, and the second shot to his lip occurred when

the gun hit the floor and fired. Included in Ms. Rice ’ s report is a copy of an

owner ’ s manual for a Browning S&W .40 caliber. In the safety section of the

manual it says: “ DROPPING YOUR HI-POWER PISTOL WHEN LOADED CAN

CAUSE AN ACCIDENTAL DISCHARGE EVEN WITH THE HAMMER IN THE

DROPPED POSITION. Be extremely careful while hunting or during any

shooting activity to avoid dropping any firearm. ” So clearly, there was

independent evidence from the manufacturer to support Ferguson ’ s contention

that the gun fired when it hit the floor, but the jury never saw or heard about

34the warning in the manual. Instead, Marcum only asked Det. Moore whether a

firearm can sometimes fire when it is dropped. Det. Moore said he believed

they could, but that he “ could not say with certainty ” whether the gun in this

case could because he is “ not a firearms examiner. ”

VI. CONCLUSION

To be clear, our review is not about whether Ferguson is innocent or

guilty. It is about whether he received the effective assistance of counsel that

every criminal defendant is entitled to under Strickland.

Under the first prong of Strickland we ask whether Marcum ’ s

performance was deficient: whether he made errors so serious that he was not

functioning as the “ counsel ” guaranteed to Ferguson by the Sixth Amendment.

As discussed supra, Marcum never believed in Ferguson ’ s defense and refused

to do anything meaningful to prepare for trial. Because of this, he could not

and did not subject the Commonwealth ’ s evidence to a proper challenge.

Marcum also allowed non-experts in the fields of blood spatter and firearms to

present the only evidence on those topics, that directly supported the

Commonwealth ’ s theory without objecting to the testimony.

The second prong of Strickland requires showing that Marcum ’ s deficient

performance prejudiced the defense: that Marcum ’ s errors were so serious that

they deprived Ferguson of a trial whose result is reliable. If Marcum would

have made the proper objections to the Commonwealth ’ s witnesses, more

vigorously cross-examined the Commonwealth ’ s evidence, consulted and hired

experts that could have testified to the shortcomings in the Commonwealth ’ s

35

## r

evidence and present evidence that Parker shot himself, it could have created

reasonable doubt in the minds of one or more jurors. In other words, there

was valid admissible evidence out there that jury never got to hear. This, by

definition, renders the result of Ferguson ’ s trial unreliable, thereby meeting the

second Strickland prong.

I would therefore affirm the Court of Appeals insofar as it granted

Ferguson a new trial and remand for a new trial under Strickland.

COUNSEL FOR APPELLANT/CROSS-APPELLEE:

Andy Beshear

Attorney General of Kentucky

Gregory C. Fuchs

Assistant Attorney General

COUNSEL FOR APPELLEE/CROSS-APPELLANT:

Samuel N. Potter

Assistant Public Advocate

Rachel Abigail Vinales

Assistant Public Advocate

36