DANIEL HORTON HERALD V. COMMONWEALTH OF KENTUCKY
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IMPORTANT NOTICE
NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNA TED "NOT TO BE
PUBLISHED." PURSUANT TO THE RULES OF
CIVIL PR OCED URE PROMUL GA TED BY THE
SUPREME COURT, CR 76.28 (4) (c), THIS OPINION
IS NOT TO BE PUBLISHED AND SHALL NOTBE
CITED OR USED AS A UTHORITY IN ANY OTHER
CASE INANY CO UR T OF THIS STATE.
RENDERED : JUNE 12, 2003
NOT TO BE PUBLISHED
,Suyxtmv 49ourf of
1998-SC-1025-MR & 2002-SC-0045-M
[OAT IE
DANIEL HORTON HERALD
V.
APPELLANT
APPEAL FROM MASON CIRCUIT COURT
HONORABLE ROBERT I . GALLENSTEIN, JUDGE
97-CR-50-1
COMMONWEALTH OF KENTUCKY
APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
In case number 1998-SC-1025-MR, Herald appeals from a judgment based on a
jury verdict which convicted him of two counts of first-degree robbery, first-degree
sodomy, first-degree attempted sodomy, first-degree rape and being a first-degree
persistent felony offender . He was sentenced to a total of forty years in prison . In case
number 2002-SC-45-MR, Herald appeals from a judgment that found him competent to
stand trial after a retrospective competency hearing . We have consolidated these two
appeals in order to render one opinion .
The questions presented are whether the absence of defense counsel from a
pretrial hearing is reversible error; whether the trial judge erred in releasing juvenile and
mental health records to KCPC as part of a competency evaluation; whether the
retrospective competency hearing violated state and federal due process of law;
whether Herald was competent to stand trial and whether Herald was entitled to a
directed verdict on either or both robbery charges.
Herald, his codefendant, Colemire, and the three victims were all cellmates at
the Mason County Detention Center. During their incarceration together, the two
defendants terrorized the three victims, committing crimes of robbery, sodomy and
rape. The victims sustained multiple injuries as a result of the crimes committed by
Herald and Colemire .
Ultimately, the jury convicted Herald of two counts of first-degree robbery, firstdegree sodomy, first-degree attempted sodomy, first-degree rape and of being a firstdegree persistent felony offender. He was sentenced to twenty years on each charge .
As a result of the PFO conviction, the twenty-year sentences were enhanced to forty
years, said sentences to run concurrently for a total of forty years in prison . It should be
noted that this Court has already affirmed the conviction and twenty-year sentence of
Colemire . See Colemire v. Commonwealth , 98-SC-1026-MR .
Following his conviction, Herald appealed to this Court as a matter of right and
argued that his conviction should be set aside because the trial judge failed to hold a
competency hearing . Pursuant to Thompson v. Commonwealth , Ky., 56 S .W.3d 406
(2001), we remanded this case for the trial judge to determine whether a retrospective
competency hearing was possible and, if so, to hold such a hearing . We also instructed
the trial judge to determine whether the release of Herald's prior juvenile and mental
health records to KCPC was proper.
On remand, the trial judge held two evidentiary hearings . At the first hearing, Dr.
Johnson, who originally examined Herald for competency in December 1997 at KCPC
and found him competent, testified without contravention that a retroactive competency
evaluation was possible . He informed the trial judge and the attorneys what information
he needed to make that determination . Subsequently, the trial judge ordered various
state penal institutions to send Dr. Johnson copies of the relevant information from the
period of December 23, 1997 through October 12, 1998. After receiving and reviewing
the information, Dr. Johnson filed a supplemental report which concluded that his
original view that Herald was competent to stand trial had not been altered .
At the ensuing competency hearing, Dr. Johnson gave uncontroverted testimony
that Herald was competent at the time of his trial on October 12, 1998. The trial judge
entered a judgment on January 14, 2002 which found that a retrospective competency
hearing was constitutionally permissible ; that as a result of the retrospective
competency hearing, Herald was competent to stand trial and that the mental health
and juvenile records of Herald were not improperly released to KCPC . These
consolidated appeals followed .
I . Pretrial Hearing
Herald contends that he was denied his right to counsel at the November 21,
1997 hearing on the Commonwealth's "Motion on Shortened Notice for Release of
Juvenile and Mental Health Records," therefore the KCPC report is unreliable and must
be struck from the record . We disagree .
In the original proceedings, the trial judge granted the motion by defense counsel
for Herald to undergo a competency evaluation . Thereafter, the Commonwealth filed a
"Motion on Shortened Notice for Release of Juvenile and Mental Health Records," so
that a complete evaluation could be performed . At the hearing on that motion on
November 21, 1997, neither Herald nor his defense counsel were present . From the
outset, the trial judge recognized that defense counsel was going to withdraw from the
case and later the following colloquy took place:
Trial Judge : I have no problem with the motion, but how
about the fact that - - well, I guess officially speaking,
[defense counsel] is still on the case . He hasn't withdrawn.
Commonwealth : Well, we did notice this . I can't - - I think
we've talked to him on Tuesday when we became aware of
how soon Mr. Herald will be transferred .
On November 24, 1997, the trial judge entered an order releasing the various
juvenile and mental health records to KCPC for their use in an evaluation of Herald .
That same day, defense counsel filed his motion to withdraw. That motion, however,
was not granted until December 9, 1997 when the trial judge entered an order granting
defense counsel leave to withdraw . Substitute counsel was appointed on January 23,
1998.
It is clear from our review of the record that Herald had counsel at the time of the
hearing on November 21, 1997. His original defense counsel remained of record until
December 9, 1997 . It is also clear that nothing in the record contradicts the claim by
the Commonwealth that counsel for Herald was noticed on the motion to release the
various records . In fact, on remand, the Commonwealth raised the issue of notice at a
December 13, 2001 hearing . There, counsel for Herald indicated that the original
defense counsel was preparing an affidavit for the court that he received no notice of
the hearing . Our review of the record, however, shows that no such affidavit was
forthcoming or ever materialized .
The absence of defense counsel from the November 21, 1997 pretrial hearing
was not reversible error. At no time during the original proceedings did defense
counsel raise a Sixth-Amendment challenge to the absence of defense counsel at the
pretrial hearing . Although defense counsel could not contemporaneously object to his
own absence, he could have raised an objection at the next available juncture . Here,
the record demonstrates that defense counsel was served with written notice of the
hearing and with the order of the trial judge releasing the records . Defense counsel
never filed any type of motion to alter, amend, vacate or set aside the November order.
We recognize that contrary to the trial judge's finding of fact, defense counsel did
not state at a January 16, 1998 pretrial conference that he was aware of the order
releasing the records . However, the simple fact remains that defense counsel was
given notice of the hearing and the subsequent order. The arguments raised by Herald
concerning the prejudice in not being present at the hearing are speculative and without
merit . There is no support for his allegation that the Commonwealth relied on selective
records to support a finding of competency. No reversible error occurred .
II . Release of Records
We find no error in the decision of the trial judge to release the juvenile and
mental health records . See KRS 610.340 which allows a trial judge to release
confidential juvenile court records for "good cause." See also KRE 506 and 507 which
state that neither the counselor-client privilege nor the psychotherapist-patient privilege
can be raised if the patient is asserting that patient's mental condition as an element of
a claim. Here, Dr. Johnson stated that the records were necessary for a proper
examination of Herald to determine whether he was competent to stand trial. The
KCPC report was reliable evidence to determine competency . The trial judge did not
err in releasing the records .
.
III . Retrospective Competency Hearing
Sufficient evidence existed to hold a retrospective competency hearing . The test
to be applied in determining whether a retrospective competency hearing is permissible
is whether the "quantity and quality of available evidence is adequate to arrive at an
assessment that could be labeled as more than mere speculation ." Thompson , supra .
The determination of whether a retrospective competency hearing is permissible should
be left to the trial court. Thompson .
In this case, the trial judge found that a retrospective competency hearing
satisfied the requirements of due process for the following reasons :
2)
3)
4)
5)
6)
The length of time between the retrospective hearing and
the trial was approximately three years and the original
examining psychologist had sufficient recollection of the
defendant and his testing to render a retrospective
opinion.
The original mental examination was conducted
approximately nine months prior to trial. Additionally, Dr.
Johnson was provided with correctional and mental
health records of the defendant for the time period
between the original examination in December 1997, and
the trial date of October 12, 1998 .
There was no unusual or bizarre behavior exhibited by
the defendant between the examination date of
December 1997 and trial date of October 1998 which
would alter the original opinion of the examining
psychologist .
There was no unusual or bizarre behavior exhibited by
the defendant at any of the pretrial or trial proceedings
which caused either the trial defense counsel or the trial
court to question the defendant's competency .
The trial defense counsel was aware of the results of the
December 1997 mental examinations and was
apparently satisfied that the defendant had the mental
capacity to understand the charges and participate in all
phases of the proceeding .
The quality and quantity of the evidence available at the
hearing on January 7, 2002, was more than adequate for
this Court to make an informed decision on the issue of
the defendant's competency .
After careful review of the record, we find no error in the determination by the
trial judge that a retrospective competency hearing was permissible . Herald's claim that
an independent competency evaluation by a defense expert is an essential component
of a retrospective competency determination is without merit. His reliance on United
States v. Mason , 52 F .3d 1286 (4 th Cir. 1996) is misplaced because that case merely
acknowledges that the existence of an independent evaluation at the time in question
can be a sufficient justification for a retrospective determination . Moreover, in
Thompson this Court held that no single factor standing alone controls whether the
retrospective competency hearing is permissible . The retrospective competency
hearing did not violate the state or federal due process rights of Herald .
IV. Competency to Stand Trial
The trial judge also properly determined that Herald was competent to stand trial .
The test for mental competence is whether the defendant "has sufficient present ability
to consult with his lawyer with a reasonable degree of rational understanding--and
whether he has a rational as well as factual understanding of the proceedings against
him ." Dusky v. U .S ., 362 U .S . 402, 80 S .Ct. 788 4 L .Ed2d 824 (1960). Here, the only
witness on the issue of whether Herald was competent to stand trial was Dr. Johnson,
the examining psychologist who was called by defense counsel. Dr. Johnson examined
Herald in December 1997 and supplemented his report on December 31, 2001 .
Despite the repeated efforts of defense counsel to impeach the credibility of Dr.
Johnson, the trial judge found that the evidence clearly and convincingly established
that Herald was competent to stand trial in October 1998 .
The uncontradicted testimony demonstrated that Herald understood the court
proceedings and was able to cooperate with his trial defense counsel . He possessed
working knowledge of the roles of the prosecutor, the defense attorney, the witnesses,
the judge, and the jury. Considering the entire record, the trial judge correctly
determined that Herald was competent to stand trial .
V. Directed Verdicts
The trial judge properly overruled the motion by Herald for a directed verdict of
acquittal on the charge of first-degree robbery against one of the victims . The critical
elements of this crime are the use of physical force causing injury to another person
while in the course of committing a theft. See KRS 515.020. At trial, the victim of the
robbery testified that Herald and his codefendant repeatedly came into his cell area and
while one of them beat him, the other took his commissary items. Contrary to the claim
by Herald this charge involved more than the chocolate milk incident.
The victim further testified that he sustained multiple injuries as a result of these
attacks during the repeated robberies . Specifically, he stated that he had knots across
his forehead, a bruised sternum, bruised kidneys and a swollen neck. Based on all the
evidence, a reasonable jury could easily conclude that Herald committed first-degree
robbery . Commonwealth v. Benham, Ky., 816 S .W.2d 186 (1991).
The trial judge also properly overruled the motion by Herald for a directed verdict
of acquittal on the charge of first-degree robbery against a second victim . This victim
indicated that Herald and his codefendant would physically beat him after they took his
commissary items. He further testified that because of these beatings he sustained a
blackened eye, bruised ribs and a swollen face and nose. An eyewitness to the crimes
specifically stated that the beating and threats occurred at the time the items were
taken . Consequently, a reasonable jury could easily conclude that Herald committed
first-degree robbery against this second victim. Benham, supra .
The judgment finding Herald competent to stand trial is affirmed . The judgment
of
conviction and sentence is also affirmed .
Cooper, Graves, Johnstone, Stumbo and Wintersheimer, JJ., concur. Lambert,
C.J ., and Keller, J ., concur in result only.
COUNSEL FOR APPELLANT :
Shelly R. Fears
Assistant Public Advocate
Department of Public Advocacy
Suite 302, 100 Fair Oaks Lane
Frankfort, KY 40601
COUNSEL FOR APPELLEE :
A. B . Chandler III
Attorney General of Kentucky
Matthew D . Nelson
Assistant Attorney General
Criminal Appellate Division
Office of the Attorney General
1024 Capital Center Drive
Frankfort, KY 40601-8204
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