CHARLES BLAINE DAILEY v. COMMONWEALTH OF KENTUCKY
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RENDERED:
OCTOBER 1, 2004; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2003-CA-000333-MR
CHARLES BLAINE DAILEY
APPELLANT
APPEAL FROM CARTER CIRCUIT COURT
HONORABLE SAMUEL LONG, JUDGE
ACTION NO. 01-CR-00052-001
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
VACATING AND REMANDING
** ** ** ** **
BEFORE:
JOHNSON, KNOPF, AND SCHRODER, JUDGES.
KNOPF, JUDGE:
Charles Dailey appeals from a judgment of the
Carter Circuit Court, entered February 5, 2003, convicting him,
following a jury trial, of complicity to third-degree assault1
and attempted first-degree escape.2
The court sentenced Dailey
to concurrent terms of incarceration totaling five years.
1
KRS 508.025 and KRS 502.020.
2
KRS 520.020 KRS 506.010.
Dailey contends that the trial court erred by denying his
request to represent himself, by denying his motions for a
directed verdict, and by sending written witness statements to
the jury room for the jury’s consideration during its
deliberation.
We agree that the court did not adequately
inquire into Dailey’s asserted waiver of his right to counsel.
Accordingly, we vacate the judgment and remand.
The charges against Dailey stemmed from an incident at
the Carter County Detention Center during the early morning of
May 1, 2001.
Dailey was an inmate at the center.
At about 5:00
a.m. his cell mate, John Knipp, called for assistance from the
lone guard because Dailey, who had a history of heart problems,
was complaining of chest pains.
When the guard entered the cell
to bring medicine to Dailey, Knipp struck him on the back of the
head with a brick he had pried from the wall.
Although knocked
to one knee and momentarily stunned, the guard weathered the
blow, called for help from two deputies who happened to be
visiting him, and managed to subdue Knipp, whom he then isolated
in a separate cell.
assault.
Dailey remained on his cot during the
Paramedics were summoned to assist him, but they found
no evidence of a heart attack.
At Dailey’s request, however,
they transported him to the hospital, where further testing
failed to discover any irregularity.
detention center that afternoon.
2
He was returned to the
During the investigation of the assault, inmates
reported that Dailey and Knipp had plotted to escape by luring
the guard to their cell with a false heart-attack alarm and then
overpowering him with the dislodged brick.
Dailey’s failure to
join the assault had allegedly elicited from Knipp the comment,
“Thanks a lot for the help.”
Based largely on these statements,
the Commonwealth charged Dailey with complicity in the assault
and with attempted escape.
He was indicted on June 28, 2001,
and apparently was promptly appointed a public defender.
A
public defender appeared with him at his arraignment on August
9, 2001, at which time trial was scheduled for March 12, 2002.
On August 29, 2001, Dailey filed a pro se motion for a
speedy trial.
The court thereupon rescheduled trial for
November 13, 2001.
In October, the public defender moved to
withdraw because of a conflict, and conflict counsel entered his
appearance.
In short order, this new counsel moved to withdraw
the speedy-trial motion and to continue the trial.
The trial
court granted the motions and rescheduled trial for June 6,
2002.
For reasons that do not appear in the record, in June the
matter was again continued and reset for January 7, 2003.
In November 2002, Dailey moved pro se to have the case
dismissed because he had been denied his right to a speedy
trial.
The motion alleged that conflict counsel had been
appointed without Dailey’s knowledge or consent and that
3
counsel’s motion to withdraw the speedy-trial motion had also
been made unbeknownst to Dailey.
Dailey asserted that his
intention was to proceed pro se.
Without any inquiry into
Dailey’s assertion of his right to waive counsel, the court
denied the motion by order entered December 10, 2002.
Dailey
appealed pro se from that denial.3
On the morning of trial, but before jury selection had
commenced, Dailey moved to represent himself and to dispense
with appointed counsel.
The court asked Dailey if he had read
the rules of evidence and procedure.
When Dailey claimed that
he had, the court asked him how many jurors the clerk would
initially call forward and what was a peremptory challenge.
Dailey did not know, whereupon the court summarily denied his
motion.
Dailey contends that the denial violated his right to
defend himself.
We agree.
In Hill v. Commonwealth,4 our Supreme Court recently
had occasion to reiterate that the right to counsel embodied in
the Sixth Amendment to the United States Constitution and
Section 11 of the Kentucky Constitution is accompanied by a
concomitant right to waive counsel and represent oneself.
When
a defendant unambiguously indicates his desire to exercise this
3
The appeal was dismissed as having been brought from an
interlocutory order.
4
Ky., 125 S.W.3d 221 (2004).
4
right, the trial court has a duty to establish on the record
that the defendant is waiving or limiting his right to counsel
voluntarily, knowingly, and intelligently.
As the Supreme Court
held,
[f]irst, the trial court must hold a hearing
in which the defendant testifies on the
question of whether the waiver is voluntary,
knowing, and intelligent. . . . Second,
during the hearing, the trial court must
warn the defendant of the hazards arising
from and the benefits relinquished by
waiving counsel. . . . Third, the trial
court must make a finding on the record that
the waiver is knowing, intelligent, and
voluntary.5
The defendant’s lack of legal expertise is irrelevant
to this inquiry.6
The defendant must be competent to stand
trial7 and must evince an understanding of the stakes involved
and the disadvantages he will face by proceeding on his own.8
The right to waive counsel, however, can itself be
waived if not timely asserted.
The general rule seems to be
that a request to proceed pro se is timely if made prior to jury
5
125 S.W.3d at 226. (citations omitted).
6
Faretta v. California, 422 U.S. 806, 45 L. Ed. 2d 562, 95 S.
Ct. 2525 (1975).
7
Godinez v. Moran, 509 U.S. 389, 113 S.Ct. 2680, 125 L. Ed. 2d
321 (1993).
8
Faretta v. California, supra.
5
selection or meaningful trial proceedings.9
Even a timely
request may be denied, moreover, if it appears to have been made
not in good faith but merely as a tactic to delay the trial.10
The trial court in this case did not address any of
these factors and did not determine on the record either that
Dailey’s waiver of counsel was involuntary or was asserted for
the sake of delay.
We sympathize with the court’s concern that
Dailey’s lack of expertise would likely render him a poor
advocate for his cause, but the right of self representation is
not limited to those who can represent themselves well.
The
court’s denial of Dailey’s motion to proceed pro se was
therefore erroneous.
Accordingly, we must vacate Dailey’s
judgment of conviction and remand this matter for a hearing as
described in Hill v. Commonwealth.
If Dailey’s waiver of
counsel is found to be knowing, voluntary, and intelligent and
not asserted for the sake of delay, he will be entitled to
represent himself at a new trial.
If his asserted waiver does
not meet the standards discussed above, however, the court’s
February 5, 2003, judgment shall be reinstated.
9
Robards v. Rees, 789 F.2d 379 (6th Cir. 1986); United States v.
McKenna, 327 F.3d 830 (9th Cir. 2003); United States v. Young,
287 F.3d 1352 (11th Cir. 2002).
10
Robards v. Rees, supra; Fritz v. Spalding, 682 F.2d 782 (9th
Cir. 1982).
6
As this ruling indicates, we are not persuaded that
the trial court erred by denying Dailey’s motions for a directed
verdict.
We review the denial of a directed verdict motion by
asking whether “under the evidence as a whole, it would be
clearly unreasonable for a jury to find guilt.”11
If not, then
the denial of the motion is to be upheld.
Here, the Commonwealth’s proof that Dailey knew of and
participated in the assault and attempted escape included the
suspicious coincidence of his heart pains and Knipp’s arming
himself with the brick when a lone guard was on duty; the
medical tests indicating that Dailey’s heart was normal; the
guard’s testimony that immediately after the blow, when he was
knocked to his knee, Dailey began to rise from the cot, but lay
down again when the guard recovered and called for help; and an
inmate’s testimony that his former statement, in which he
claimed that Dailey had talked about feigning a heart attack so
he could escape, and that Knipp had made the “thanks for the
help” remark, was the truth.
Although there was also testimony
from that inmate and another inmate that their former statements
had been based on rumors circulating in the detention center
after the assault and not on direct knowledge, and although
Knipp testified that Dailey had not been involved, a juror could
11
Commonwealth v. Benham, Ky., 816 S.W.2d 186, 187 (1991).
7
reasonably conclude that Dailey and Knipp attempted to escape by
orchestrating an assault on the guard.
Nor is Dailey entitled to relief because written
statements by the two inmate witnesses were sent to the jury
room.
We agree with Dailey that this was an error.
Our Supreme
Court has explained that testimonial exhibits are not to be sent
to the jury room because of the risk that such exhibits will be
given undue weight.12
not preserved.
As Dailey admits, however, the error was
As it was submitting the case to the jury, the
trial court announced that all of the exhibits would accompany
the jury to the jury room.
Dailey did not object.
Generally,
of course, unpreserved errors do not provide grounds for
relief.13
An exception to this rule exists under RCr 10.26 for
palpable errors.
As Dailey notes, palpable errors may be
reviewed even though unpreserved.
Our Supreme Court has
described a palpable error as
one that affects the substantial rights of a
party and will result in manifest injustice
if not considered by the court, and what it
really boils down to is that if upon a
consideration of the whole case this court
does not believe there is a substantial
12
Berrier v. Bizer, Ky., 57 S.W.3d 271 (2001).
13
CR 9.22; Grundy v. Commonwealth, Ky., 25 S.W.3d 76 (2000)
(citing McDonald v. Commonwealth, Ky., 554 S.W.2d 84 (1977));
Commonwealth v. Preece, Ky., 844 S.W.2d 385 (1992).
8
possibility that the result would have been
any different, the irregularity will be held
nonprejudicial.14
The error of sending the two short witness statements
to the jury room does not meet this standard.
The error was not
one of admissibility but only one of possibly overemphasizing
the inmates’ written statements.
The trial was short, however,
and the inmates’ live testimony was still fresh.
Dailey’s
counsel, moreover, emphasized the live testimony during his
closing argument.
There is not a substantial possibility that
the verdict would have been different had the written statements
not been sent to the jury room.
Dailey, therefore, is not entitled to have his
conviction reversed.
He is entitled, however, to a hearing on
his motion to represent himself.
He will be entitled to a new
trial if the court finds that he validly waived his right to
counsel.
Accordingly, we vacate the February 5, 2003, judgment
of the Carter Circuit Court and remand for additional
proceedings consistent with this opinion.
ALL CONCUR.
14
Schoenbachler v. Commonwealth, Ky., 95 S.W.3d 830, 836 (2003).
9
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Richard Hoffman
Assistant Public Advocate
Frankfort, Kentucky
Gregory D. Stumbo
Attorney General of Kentucky
Perry T. Ryan
Assistant Attorney General
Frankfort, Kentucky
10
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