Conley v. Commonwealth

Supreme Court of Kentucky · 2019 · Evidence

599 S.W.3d 756 (Ky. 2019)

Updated August 22, 2026

EvidenceAke v. Oklahomaindigent defensemental health expertKCPCside switching expertRCr 8.07KRS 31.185

Facts

Conley, an indigent defendant charged with murdering her mother, sought funds to retain an independent mental health expert and supported the request with evidence of extensive mental illness, intoxication, lack of sleep, ingestion of Dramamine, and the extreme violence of the killing. The trial court denied the request and instead sent her to KCPC, even though KCPC stated it could not serve as a confidential defense expert under Ake. After KCPC staff member Dr. Trivette evaluated Conley, the court later granted funds for Conley to retain Dr. Conner, but then allowed the Commonwealth to use Dr. Trivette and her report as the prosecution's expert evidence. At trial, the Commonwealth also used Dr. Trivette to impeach Conley, and the jury convicted her of murder.

Issue

Whether the trial court violated Conley's rights under Ake by denying her initial request for funds for an independent mental health expert, substituting a KCPC examination, and then permitting the KCPC examiner to switch sides and testify for the Commonwealth. The case also presented recurring evidentiary and instructional issues likely to arise on retrial.

Rule

When an indigent defendant makes a sufficient showing that sanity or mental condition at the time of the offense is likely to be a significant factor at trial, the court must assure access to a competent, independent mental health expert who will assist in evaluation, preparation, and presentation of the defense. KCPC should not be designated as the defendant's Ake expert where strong indications show such an expert is obviously required and KCPC cannot function as a defense expert; in ambiguous cases, KCPC may evaluate the defendant for the court's benefit to help determine Ake entitlement, but if the Commonwealth later uses KCPC as a rebuttal source, a different evaluator must be assigned and walled off from the first evaluator's work to the extent practicable. An initial aggressor instruction requires evidence that the defendant used physical force before the claimed act of self-protection, and the Commonwealth may not use a defendant's post-Miranda silence to show she failed to reveal the defense later relied upon at trial.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Louisville, indigent defendant Marissa Cole is charged with killing her uncle. Before trial, she files an ex parte motion for funds to retain psychologist Dr. Nina Barrett, attaching records of prior psychosis, evidence she had been awake for four days, and proof she ingested large amounts of cough medicine and whiskey shortly before the killing. The state psychiatric center has already informed the court in writing that it does not provide confidential defense assistance or consultation.

What is the strongest argument that the trial court must grant Marissa's request rather than substitute an evaluation by the state psychiatric center?

Explanation. The majority held that when an indigent defendant makes a sufficient showing that sanity or mental condition at the time of the offense is likely to be a significant factor at trial, the court must assure access to a competent, independent mental health expert who assists in evaluation, preparation, and presentation of the defense. Where strong indications already make such assistance obviously necessary, substituting a state facility that disclaims confidentiality and defense-oriented assistance is insufficient.