BROWN (VERNARDO G.) VS. COMMONWEALTH OF KENTUCKYAnnotate this Case
RENDERED: NOVEMBER 14, 2008; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
VERNARDO G. BROWN
APPEAL FROM JESSAMINE CIRCUIT COURT
HONORABLE C. HUNTER DAUGHERTY, JUDGE
ACTION NO. 06-CR-00035
COMMONWEALTH OF KENTUCKY
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BEFORE: THOMPSON AND VANMETER, JUDGES; HENRY, SENIOR
THOMPSON, JUDGE: Vernardo G. Brown appeals from a judgment of
conviction in the Jessamine Circuit Court for flagrant non-support. For the reasons
stated herein, we affirm.
On March 10, 2006, Brown was indicted for flagrant non-support. At
his arraignment, the trial court asked Brown if he desired appointed counsel.
Brown responded that he did not trust the Jessamine County court system and
would represent himself. Despite Brown’s request to proceed pro se, the trial court
appointed him a public advocate who filed an entry of appearance on September 7,
On April 27, 2007, the trial court conducted a Faretta1 hearing with
Brown and, by then, his two appointed counsel. During the hearing, the trial court,
Brown, and his two counsel engaged in an extensive discussion of pre-trial and
trial proceedings. Specifically, the trial court explained the voir dire process,
opening statements, the nature of each party’s case-in-chief, and closing arguments
to Brown. The trial court required Brown to delineate his and his counsel’s roles at
each stage of the proceedings.
Further, the trial court explained the proper method of conducting
cross-examinations and informed Brown that he could not testify while personally
conducting cross-examination. The trial court further informed Brown that his
self-representation could turn the jury against him if he became too forceful in
cross-examining witnesses. Although recognizing that the law required a jury to
decide a case based solely on the facts, the trial court informed Brown that jurors
might consider other factors beyond its control, particularly, if he represented
The trial court further explained the implications of Brown’s
testimony either in the narrative or through his trial counsel’s direct examination.
Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).
Although the trial court cautioned him regarding the potential detrimental
consequences of his unguided testimony, Brown decided to testify in the narrative
with the slight help of his trial counsel to remind him of any omitted facts. Brown
then discussed other witnesses and evidence that he wanted to introduce at trial.
At the conclusion of the hearing, the trial court issued a written order,
finding that Brown had “knowingly, intelligently, and voluntarily” waived his right
to counsel and would serve as co-counsel in his trial. Subsequently, Brown was
found guilty of flagrant non-support and was sentenced to five-years’
imprisonment. This sentence was probated for five years after the service of five
months in jail. This appeal followed.
Brown first contends that the trial court erred when it failed to conduct
an adequate Faretta hearing because the trial court did not fulfill its three duties
under Hill v. Commonwealth, 125 S.W.3d 221, 226 (Ky. 2004). He contends that
the trial court’s failure to conduct an adequate Faretta hearing deprived him of his
right to competent representation and constitutes a “structural error” necessitating
the reversal of his conviction. We disagree.
When a defendant requests to make a limited or complete waiver of
his Sixth Amendment right to counsel, a trial court must conduct a Faretta hearing
which requires the completion of three steps. Hill v. Commonwealth, 125 S.W.3d
221, 226 (Ky. 2004). “First, the trial court must hold a hearing in which the
defendant testifies on the question of whether the waiver is voluntary, knowing,
and intelligent.” Id. “Second, during the hearing, the trial court must warn the
defendant of the hazards arising from and the benefits relinquished by waiving
counsel.” Id. The trial court must then make a finding on the record that the
waiver was knowingly, intelligently, and voluntarily. Id.
From a review of the record, we believe that the trial court conducted
an adequate Faretta hearing. The videotape record clearly demonstrates that
Brown voluntarily made the decision to proceed with limited counsel and that he
understood the significance of his choice. The trial court explained to Brown in
great detail the requirements of self-representation in criminal trials and the
potential negative consequences of the undertaking. Despite these discussions and
warnings, Brown decided to serve as co-counsel and committed himself to placing
the local court system on trial.
Further, the trial court’s written order, entered on May 1, 2007,
provided that it had warned Brown of the hazards of self-representation. The order
provided that Brown had insisted on participating in his own defense despite being
notified of the potential consequences of such action. The trial court then wrote
that it was clear from the hearing that Brown’s “waiver was made knowingly,
intelligently, and voluntarily.” Having reviewed the record, we conclude that the
trial court’s order was proper.
Brown next contends that the trial court erred when it failed to grant
him a directed verdict of acquittal on the charge of flagrant non-support.
Specifically, he contends the Commonwealth failed to prove that he could
reasonably provide child support because it failed to refute his allegation that his
illiteracy prevented him from obtaining sufficient employment to provide for his
child. We disagree.
Our review of the denial of a motion for directed verdict is governed
by the standard set forth in Commonwealth v. Benham, 816 S.W.2d 186 (Ky.
On motion for directed verdict, the trial court must draw
all fair and reasonable inferences from the evidence in
favor of the Commonwealth. If the evidence is sufficient
to induce a reasonable juror to believe beyond a
reasonable doubt that the defendant is guilty, a directed
verdict should not be given. For the purpose of ruling on
the motion, the trial court must assume that the evidence
for the Commonwealth is true, but reserving to the jury
questions as to the credibility and weight to be given to
On appellate review, the test of a directed verdict is, if
under the evidence as a whole, it would be clearly
unreasonable for a jury to find guilt, only then the
defendant is entitled to a directed verdict of acquittal.
Id. at 187.
After reviewing the evidence, we conclude that it was not clearly
unreasonable for the jury to find Brown guilty of flagrant non-support. While
Brown testified that he was unemployed during the two-year period listed in the
indictment and that he was illiterate, the Commonwealth presented evidence that
Brown was a high school graduate with no mental or physical limitations which
would prevent him from obtaining employment. Accordingly, the jury was
presented with sufficient evidence to conclude that Brown’s failure to support his
daughter was a voluntary decision.
Brown next contends that the Commonwealth’s improper introduction
of his two prior convictions during the penalty phase of the trial was prejudicial.
He contends that the Commonwealth repeatedly informed the jury that he had been
convicted of third-degree burglary although he pled guilty to the amended offense
of first-degree criminal trespass. Brown further contends that his harassment
conviction should have been precluded because he was denied a jury trial. Thus,
he contends that the trial court should have excluded the conviction absent the
Commonwealth’s introduction of evidence to refute his constitutional violation
claim. After reviewing these unpreserved errors, we disagree.
Under Kentucky Rules of Criminal Procedure (RCr) 10.26, an
appellate court may review unpreserved errors for palpable error. Bell v.
Commonwealth, 245 S.W.3d 738, 741 (Ky. 2008). Palpable errors are errors
which affect the substantial rights of a defendant. Id. An error is not palpable
unless it is so easily perceptible and obvious that a “manifest injustice” will result
if appropriate relief is not granted. Schoenbachler v. Commonwealth, 95 S.W.3d
830, 836 (Ky. 2003). Palpable error analysis boils down to whether or not there is
a substantial possibility that the defendant’s case would have resulted differently
absent the error. Brewer v. Commonwealth, 206 S.W.3d 343, 349 (Ky. 2006).
During the penalty phase, the Commonwealth introduced a certified
copy of Brown’s Fayette Circuit Court judgment of conviction for first-degree
criminal trespass. On the certification page of the judgment, it provided that
Brown had been indicted for third-degree burglary. While the Commonwealth
should have redacted any reference to the burglary, Brown’s counsel informed the
jury that the charge had been amended down to a misdemeanor and the judgment
of conviction confirmed this statement. Accordingly, the Commonwealth’s
misstatement created no substantial possibility of prejudice because the jury was
put on notice of the misstatement.
Likewise, Brown’s contention that the introduction of his harassment
conviction was palpable error must fail. Even if we assume that the prior
conviction was improperly admitted, a harassment conviction is not a felony or an
otherwise violent crime which would with reasonable probability incite a jury to
take unjust retributive action against a defendant. Although the jury recommended
a five-year sentence, Brown’s conduct during the trial, including his harsh crossexamination of his child’s mother, the introduction of his total arrears beyond the
amount listed in the indictment, and his unorthodox manner of trying a case was
likely the contributing factor of the jury’s recommendation.
Brown next contends that the Commonwealth failed to provide timely
discovery of the convictions that it intended to introduce against him during the
penalty phase of the trial. He contends that the Commonwealth’s untimely
disclosure of his prior convictions prevented him from adequately preparing a
defense to mitigate their effect. Although conceding that this error was not
preserved by a contemporaneous objection, he contends that the Commonwealth’s
failure to timely disclose his prior convictions was palpable error. We disagree.
The record does not disclose if there was a discovery violation due to
either Brown’s unanswered discovery request or the Commonwealth’s failed
pledge to provide copies of his prior convictions. Even if there was a discovery
violation, the reversal of a conviction is unwarranted unless there is a “reasonable
probability” that the discovery violation altered the result of the trial. Weaver v.
Commonwealth, 955 S.W.2d 722, 725 (Ky. 1997). In this case, Brown has not
produced any evidence that would support a reasonable probability that the
outcome of his trial would have been different even with timely discovery.
Therefore, even if there was a discovery violation, the error would not be palpable.
For the foregoing reasons, the judgment of conviction of the
Jessamine Circuit Court is affirmed.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Attorney General of Kentucky
Heather M. Fryman
Assistant Attorney General