KENT HILL V COMMONWEALTH OF KENTUCKY
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2002-SC-0077-MR
KENT HILL
V
APPELLANT
APPEAL FROM MUHLENBERG CIRCUIT COURT
HONORABLE DAVID H . JERNIGAN, JUDGE
01-CR-124-1
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION OF THE COURT BY JUSTICE COOPER
REVERSING AND REMANDING
A Muhlenberg Circuit Court jury convicted Appellant, Kent Hill, of engaging in
organized crime, a class B felony, KRS 506 .120(2), and his punishment for that
conviction was fixed at ten years in prison . Because Appellant was also a persistent
felony offender in the first degree, his sentence was enhanced by plea agreement to
twenty years . KRS 532.080(6)(x). He appeals to this Court as a matter of right, Ky.
Const. § 110(2)(b), asserting that: (1) he was denied his Sixth Amendment right to
counsel because the trial court did not hold a Faretta hearing, Faretta v. California, 422
U .S . 806, 95 S.Ct. 2525, 45 L.Ed .2d 562 (1975), in response to his request to act as cocounsel for himself; (2) the evidence was insufficient to support his conviction ; and (3)
he was denied the presumption of innocence by being restrained in leg shackles during
the course of the trial. The Faretta error requires that we reverse and remand for a new
trial.
In 1990, Appellant was convicted on several charges arising from incidents in
which he and other men, impersonating police, federal, and military officers, robbed
suspected drug traffickers of their drugs, money, and valuables . For his involvement in
these and other crimes, Appellant was sentenced to twenty-eight years imprisonment .
He was subsequently incarcerated in the Green River Correctional Complex in Central
City, Kentucky.
On June 1, 2001, while still in prison, a Muhlenberg County grand jury indicted
him on charges of engaging in organized crime and being a persistent felony offender in
the first degree . The indictment for engaging in organized crime charged that Appellant
had organized or participated in organizing a criminal syndicate to smuggle marijuana
into the Green River Correctional Complex for the purpose of trafficking in a controlled
substance. Appellant pled not guilty and initially moved to proceed pro se. However,
once counsel was appointed, Appellant requested only to serve as "co-counsel" so that
he, rather than his attorney, could perform the direct and cross-examinations of some of
the witnesses. The trial court granted Appellant's request, but without holding a
hearing, providing any warnings, or making a finding that he was knowingly and
intelligently exercising a limited waiver of his right to counsel . The court's only
admonishment was that it would not allow both Appellant and his attorney to examine
the same witness.
The trial lasted one day. The Commonwealth introduced five witnesses who
testified that, along with Appellant, they collaborated to bring marijuana into the prison .
Kelvin Ray testified that he met Appellant in 1999 shortly after being imprisoned at
Green River and that the two entered into an agreement in the early summer of 2000 to
smuggle marijuana into the prison for sale. Ray was romantically involved with one of
the female correctional officers, Sharon Hightower, and Appellant had several female
friends outside the prison who could obtain marijuana . Ray and Appellant agreed that
Appellant's friends would deliver the marijuana to Hightower who would smuggle it into
Green River and transfer it to Ray. Ray would keep half the marijuana and deliver the
other half to Appellant . Hightower and Appellant's friends, Tracy Maggard and Linda
Nicolais, all agreed to participate in the scheme . There was evidence at trial of three
separate occasions on which marijuana was transferred from Maggard and/or Nicolais
to Hightower who then smuggled it into Green River and delivered it to Ray. There was
also evidence that Nicolais had delivered marijuana to someone other than Hightower
for delivery to Appellant . The collaboration continued for two to five months until prison
authorities discovered Hightower's activities . Ray, Hightower, Maggard, and Nicolais all
testified against Appellant at trial . Another inmate, Mark Connolly, also testified that he
had purchased marijuana from Appellant for resale within the prison and that Appellant
told him that "he and Kelvin Ray had a female officer bringing it in ."
Appellant presented testimony from five witnesses, including himself. He
advanced the defense that he believed the substances delivered to him by Hightower,
Maggard, and Nicolais were actually substances that he believed were legal, such as
human growth hormone and a legal body-building supplement called "creatine."
Appellant testified that if any marijuana was smuggled into the prison, Ray and
Appellant's cellmate did it without Appellant's knowledge . Appellant recalled Nicolais for
attempted impeachment . His three other witnesses were a prison official who
conducted the investigation and two inmates who testified that they knew Appellant in
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prison and had never seen him with marijuana . They claimed that he was only in the
business of selling items such as cigarettes and creatine . One of the inmates also
claimed that he overheard Appellant's cellmate offering Ray $500.00 to "point the finger"
at Appellant .
I . RIGHT TO COUNSEL.
The right to counsel is protected by the Sixth Amendment to the United States
Constitution and was firmly established in the seminal case, Gideon v. Wainwright , 372
U .S. 335, 83 S .Ct. 792, 9 L.Ed.2d 799 (1963) . Section 11 of-the Constitution of
Kentucky independently recognizes the importance of counsel to assist the defendant in
a criminal trial. We have held that "[t]he right to counsel is a fundamental constitutional
right." Jenkins v. Commonwealth , Ky., 491 S .W .2d 636, 638 (1973) .
Conversely, a defendant also has a state and federal constitutional right to
proceed without a lawyer . In Faretta v. California , supra , the United States Supreme
Court held that implicit in a defendant's Sixth Amendment right to make a defense is the
right to personally do so, and proceed without counsel . Id . at 819, 95 S .Ct. at 2533.
The Court therefore recognized that the right to the assistance of counsel expressed in
Gideon is not a mandate:
[I]t is one thing to hold that every defendant, rich or poor, has the right to
the assistance of counsel, and quite another to say that a State may
compel a defendant to accept a lawyer he does not want.
Id . at 833, 95 S .Ct . at 2540 . Thus, Faretta held that "forcing a lawyer upon an unwilling
defendant is contrary to his basic right to defend himself if he truly wants to do so." Id .
at 817, 95 S .Ct. at 2532 (quoting Robert Jackson, Full Faith and Credit-The Lawyer's
Clause of the Constitution , 45 Col .L .Rev . 1, 26 (1945)) . The Constitution of Kentucky
expressly guarantees this right . Ky . Const. § 11 ("In all criminal prosecutions the
accused has the right to be heard by himself and counsel . . ."); Wake v. Barker, Ky.,
514 S .W .2d 692, 695 (1974).
Neither Faretta nor any subsequent opinion of the United States Supreme Court
has specifically addressed whether a defendant has a Sixth Amendment right to make a
limited waiver of counsel, as Appellant did here . However, dictum in McKaskle v.
Wi
ins, 465 U .S . 168, 104 S .Ct. 944, 79 L .Ed .2d 122 (1984), notes that " Faretta does
not require a trial judge to permit 'hybrid' representation of the type [the defendant] was
actually allowed ." Id . at 183, 104 S.Ct. at 953. Most lower courts, both state and
federal, have followed this dictum, holding that the Sixth Amendment does not grant
defendants the right to act as co-counsel, i .e . , the right to "hybrid representation ."
3 Wayne R . LaFave, Jerold H. Israel & Nancy J . King, Criminal Procedure § 11 .5(g) (2d
ed. Supp. 2003) . Instead, the matter is generally left to the discretion of the trial court.
Id . ; Locks v. Sumner , 703 F .2d 403, 408 (9th Cir. 1983) .
However, because the Kentucky Constitution, unlike the United States
Constitution explicitly guarantees a criminal defendant the right to be heard "by himself
and counsel," Ky. Const . § 11, our predecessor court held in Wake v. Barker, supra ,
that "an accused may make a limited waiver of counsel, specifying the extent of
services he desires, and he then is entitled to counsel whose duty will be confined to
rendering the specified kind of services (within, of course, the normal scope of counsel
services)." Id. at 696.' Thus, the trial court here was constitutionally required to grant
Appellant's request to serve as co-counsel for himself.
Wake , supra , also interpreted the Sixth Amendment to the United States Constitution,
and the equal protection provisions of both the federal and state constitutions, as
providing for the right to hybrid counsel . Id . at 696. We do not address here whether
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The federal and state right to waive counsel is accompanied by the right to be
informed by the trial court of the dangers inherent in that decision . By waiving counsel,
a defendant relinquishes many benefits, known and unknown . Faretta, supra , held that
"in order to represent himself, the accused must 'knowingly and intelligently' forgo those
relinquished benefits ." Id. (citations omitted) . See also Wake, supra , at 695 (allowing a
defendant who has made a valid waiver of counsel to proceed to trial unassisted) . Thus,
the trial judge has an affirmative duty to make the accused "aware of the dangers and
disadvantages of self-representation, so that the record will establish that 'he knows
what he is doing and his choice is made with his eyes open ."' Id. (quoting Adams v.
United States ex rel . McCann , 317 U .S. 269, 279, 63 S .Ct. 236, 242, 87 L.Ed. 268
(1942)) . See also Patterson v. Illinois , 487 U .S . 285, 298, 108 S.Ct. 2389, 2398, 101
L.Ed.2d 261 (1988) ("[W]e have imposed the most rigorous restrictions on the
information that must be conveyed to a defendant, and the procedures that must be
observed, before permitting him to waive his right to counsel at trial.") ; Wilson v.
Commonwealth , Ky., 836 S .W .2d 872, 882-83 (1992) (describing warnings and proper
questioning at length), overruled on other grounds by St . Clair v. Roark, Ky., 10 S .W .3d
482, 487 (1999). As such, the Commonwealth's contention that the issue is
unpreserved is without merit. The duty to hold a Faretta hearing and make appropriate
findings is an affirmative duty imposed upon the trial court, and there is no evidence
here of express or implied waiver.
In Kentucky, a trial court's Faretta duties manifest themselves in three concrete
ways . First, the trial court must hold a hearing in which the defendant testifies on the
Wake was correctly decided in that respect . However, Wake was decided ten years
before the United States Supreme Court rendered McKaskle v. Wiggins, supra .
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question of whether the waiver is voluntary, knowing, and intelligent .' Cf. Jacobs v.
Commonwealth , Ky., 870 S.W.2d 412, 418 (1994) (interpreting Faretta and the Sixth
Amendment to require a trial court to hold a hearing to determine if defendant knowingly
and voluntarily elected to waive insanity defense) . Second, during the hearing, the trial
court must warn the defendant of the hazards arising from and the benefits relinquished
by waiving counsel . Wilson , supra , at 882-83. Third, the trial court must make a finding
on the record that the waiver is knowing, intelligent, and voluntary . See Jacobs , supra ,
at 418 . A waiver of counsel is ineffective unless all three requirements are met.
The accused need not proceed completely pro se in order to trigger the trial
court's Faretta duties . Rather, we held in Jacobs , supra, that those duties are triggered
even by a waiver of a defense . Id. at 418. The defendant in Jacobs wished to waive an
insanity defense against the advice of counsel, but was refused by the trial court . Id .
We held that the defendant's exercise of this right on remand required that the trial court
"hold a hearing as to [the defendant's] ability to voluntarily and intelligently understand
and waive such defense, and such hearing shall be on the record . . . ." Id . Thus, even
a limited waiver under the Sixth Amendment of the right to present a specific defense
recommended by counsel triggers the trial court's duty to hold a hearing and make
findings that the waiver is voluntarily and intelligently made .
' Although Faretta , supra, referred to the waiver being merely "knowing and intelligent,"
_id . at 835, the additional finding that the waiver is "voluntary" is obviously necessary to
protect the defendant's constitutional rights . E.g., Shafer v. Bowersox , 329 F.3d 637,
651 (8th Cir. 2003) (requiring that waiver be "knowing, voluntary, and intelligent") ;
United States v. Maniarrez, 306 F.3d 1175, 1181 (1 st Cir. 2002) (finding waiver to be
"knowing, voluntary, and intelligent") ; United States v. Stubbs, 281 F.3d 109, 118 (3d
Cir. 2002) ("A court should only accept a waiver after making a searching inquiry
sufficient to satisfy the court that the defendant's waiver was understanding and
voluntary ." (Citations omitted .)) .
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In the instant case, Appellant exercised his constitutional right, recognized in
Wake v. Barker, supra , to make a limited waiver of his right to counsel . However, the
trial court did not hold a hearing, give any Faretta warnings, or make a finding on the
record that Appellant's waiver was knowing, intelligent, or voluntary . The
Commonwealth contends that, unlike an absolute waiver of counsel as in Faretta , or
even a waiver of a defense, as in Jacobs , supra, the trial court has no Faretta duties
when there is only a limited waiver of counsel . We disagree .
In United States v. Davis , 269 F.3d 514 (5th Cir. 2001), the United States Court
of Appeals for the Fifth Circuit pointed out that, as with an absolute waiver of counsel, a
defendant who makes a limited waiver of counsel forgoes "many of the traditional
benefits associated with the right to counsel ." Id . at 518 . The defendant proceeds pro
se with respect to those aspects of his defense that he undertakes on his own . Id . at
520. Therefore, "'[h]ybrid' or no, the representation sought by [the defendant] entailed a
waiver of his Sixth Amendment right to counsel that required the safeguards specified in
Faretta ." Id . Professors LaFave, Israel, and King concur, noting that "since hybrid
representation is in part pro se representation, allowing it without a proper Faretta
inquiry can create constitutional difficulties ." LaFave, Israel & King, supra, at § 11 .5(g) .
See also United States v. Turnbull , 888 F .2d 636, 638 (9th Cir. 1989) ("If the defendant
assumes any of the 'core functions' of the lawyer, however, the hybrid scheme is
acceptable only if the defendant has voluntarily waived counsel .") (Citations omitted .)).
We find no authority to the contrary . The Commonwealth's reliance upon United
States v. Leggett , 81 F .3d 220 (D .C . Cir. 1996), is misplaced . That case only held that
the defendant had no right to Faretta warnings if he has not waived the right to counsel .
Id . at 226 . Unlike Appellant, the defendant in Le
ett did not make a limited waiver of
counsel ; he merely posed supplemental questions to several witnesses after his
counsel had finished examining those witnesses . Id . at 225-26 . Thus, because
"Leggett did not waive his right to the assistance of counsel and failed to invoke his right
of self-representation," the trial court was relieved of the Faretta duties that otherwise
would have attached . Id . at 226 .
Here, Appellant unquestionably asserted his constitutional right to make a limited
waiver of counsel under Wake, su ra :
Counsel:
Mr. Hill has indicated to me that he does want to act as cocounsel .
Court:
Now on this issue of co-counsel, Mr. Hill, I'm going to allow you
to act as co-counsel, but the situation is this. You don't get to
double team . You know, one witness comes on the stand,
neither you - I mean both of you and [counsel] cannot
question . One of you can . When it comes time for argument,
one of you can make one, but not both of you . You follow me?
Appellant : Yes . Basically, Your Honor, what I was trying to do is there is
so many different aspects of prison life that [counsel] doesn't I mean even with the time I've spent with him, he doesn't
understand that, and when you speak to the witnesses, you
have to realize where their frame of mind is at and what they're
looking at, and I could bring out more from them because of
what I know than what - I could sit and talk to him all day and
he'd never have certain aspects of the - of the - of the entire
case down like I do .
Court:
In every case we try where there's more than one attorney
representing a party, that is the same situation . Some
attorneys have more experience in an area, but what those
attorneys do, they decide who's going to do the questioning
and cross-examination . Now, you're going to be allowed to be
seated next to your attorney . You'll be allowed to write notes
to him . You'll be given a pad . You can certainly converse with
him as he's questioning people, but if you decide you're going
to do the questioning of a witness, or the cross-examination of
a witness, then [counsel] will not be doing it. You follow me?
Appellant : On that one witness you mean?
Court:
As we go through every witness . Okay. Now, have we
covered your motion in limine, [counsel]?
Counsel :
Yes.
Appellant conducted the cross-examination of four of the five prosecution witnesses
(Ray, Maggard, Nicolais, and Connolly) and the direct examination of two of the five
defense witnesses (Nicolais and the prison official) . The record does not reflect
whether Appellant received any assistance from counsel in preparing questions for
these witnesses, but the transcript of evidence indicates that counsel remained silent
during questioning by Appellant . Indeed, the Commonwealth made twenty-six
objections to Appellant's questions during direct and cross-examination, and Appellant
was required to respond to each objection without the assistance of counsel.
Appellant thus assumed the direct and cross-examinations of witnesses, a
fundamental aspect of the assistance of counsel . See Brown v. Commonwealth , Ky.,
934 S .W.2d 242, 247 (1996) (describing cross-examination as "the primary means by
which trial counsel can attempt to persuade jurors of the weight or significance to be
attached to the testimony of the witnesses" (quotation omitted)) ; 3 Fred Lane, Goldstein
Trial Techniques § 11 .01, at 6 (Callaghan 1999) ("it is principally through the direct
examination of their witnesses, that parties truly present and emphasize their . . .
defense . Parties should not expect to win if they fail to do a good job . . . ."). Thus, the
trial court erred by not holding a Faretta hearing, issuing warnings, and making a finding
as to whether Appellant's waiver was knowing, intelligent, and voluntary .
We need not determine whether this error is harmless because it is "structural ."
The United States Supreme Court explained in Arizona v. Fulminante , 499 U .S. 279,
111 S .Ct. 1246, 113 L.Ed .2d 302 (1991), that unlike "trial errors," "which occur[ ] during
the presentation of the case to the jury," and may be "quantitatively assessed in the
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context of other evidence presented in order to determine whether [the error] was
harmless beyond a reasonable doubt," id. at 307-08, 111 S .Ct. at 1263-64, "structural
errors" affect "the framework within which the trial proceeds . . . ." Id . at 310, 111 S .Ct.
at 1265 . Thus, "structural defects in the constitution of the trial mechanism" require
automatic reversal . Id . at 309, 111 S .Ct. at 1265. A prototypical example of a
"structural error" is the denial of the right to proceed pro se, or a failure to adequately
warn a defendant of the dangers of proceeding pro se under Faretta , supra . See
Jacobs , supra , at 418 (reversing and remanding without conducting harmless error
analysis). See also Penson v. Ohio , 488 U .S . 75, 88-89,109 S.Ct. 346, 354,102
L .Ed .2d 300 (1988) (harmless error analysis not applicable to violation of right to
counsel when state appellate court granted appellate counsel's motion to withdraw and
failed to appoint new counsel) ; McKaskle v. Wig gins, supra, at 177 n.8, 104 S.Ct . at 950
n .8 ("Since the right of self-representation is a right that when exercised usually
increases the likelihood of a trial outcome unfavorable to the defendant, its denial is not
amenable to 'harmless error' analysis . The right is either respected or denied ; its
deprivation cannot be harmless ."); Henderson v. Frank , 155 F.3d 159, 170 (3d Cir.
1998) ("deprivation of [defendant's] right to counsel at the suppression hearing is one of
the 'structural defects in the constitution of the trial mechanism, which defy analysis by
harmless-error standards ."' (Quotation omitted .)); United States v. McKinley, 58 F.3d
1475, 1480 (10th Cir. 1995) ("When a court improperly denies the right to selfrepresentation, that denial is not subject to harmless-error analysis ."); Savage v. Estelle ,
924 F.2d 1459, 1466 n .14 (9th Cir. 1991) ("harmless-error analysis is inapposite when
the Faretta right is improperly denied .") ; United States v . Allen , 895 F.2d 1577, 1580
(10th Cir . 1990) (overruling previous cases which applied harmless error analysis to
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invalid waiver of right to counsel) ; Chapman v . United States , 553 F.2d 886, 891 (5th
Cir. 1977) ("[t]he nature of the right to defend pro se renders the traditional harmless
error doctrine peculiarly inapposite ."). Therefore, since the trial court held no hearing,
issued no warnings, and made no finding that Appellant's limited waiver was knowing,
intelligent, and voluntary, we are bound to reverse and remand this case for a new trial .
I1 . SUFFICIENCY OF EVIDENCE .
Appellant asserts that he was entitled to a directed verdict of acquittal because
the evidence against him was insufficient to support a conviction of engaging in
organized crime . KRS 506 .120 provides in relevant part:
A person, with the purpose to establish or maintain a criminal
syndicate or to facilitate any of its activities, shall not do any of the
following:
(a)
Organize or participate in organizing a criminal syndicate or
any of its activities ;
(b)
Provide material aid to a criminal syndicate or any of its
activities, whether such aid is in the form of money or other
property, or credit;
(c)
Manage, supervise, or direct any of the activities of a
criminal syndicate, at any level of responsibility ;
As used in this section "criminal syndicate" means five (5) or more
persons collaborating to promote or engage in any of the following
on a continuing basis:
(e)
Illegal trafficking in controlled substances as prohibited by
KRS Chapter 218A . . . .
Appellant concedes that there was sufficient evidence to support the mens rea finding
that he violated one or more of provisions (1)(a) - (c), supra , and the finding that five or
more persons were involved in the trafficking scheme . However, he contends that the
evidence was insufficient to support findings that (1) the "collaboration" occurred "on a
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continuing basis ;" and (2) that the syndicate was "collaborating to promote or engage" in
"illegal trafficking in controlled substances ." The Commonwealth responds that these
objections are unpreserved and without merit.
A . Preservation .
Appellant made a motion for a directed verdict of acquittal at the close of the
Commonwealth's case-in-chief, and again at the close of all the evidence . The
Commonwealth asserts that Appellant did not specify the grounds for such a motion.
Daniel v. Commonwealth , Ky., 905 S.W .2d 76, 79 (1995). However, the transcript
clearly shows that, at the close of the Commonwealth's evidence, the following colloquy
occurred :
Counsel : At this time, Your Honor, the defense would move for a directed
verdict on the wounds of insufficient evidence .
Court:
Alright then . Of course this court has heard the evidence, the
same as what the jury has heard and it's clearly evident that
there's sufficient evidence to go to the jury on this charge of
engaging in organized crime, so the motion of the defendant for
directed verdict is denied and overruled .
(Emphasis added .) At the close of all the evidence, Appellant's counsel renewed his
motion:
Court:
[W]e're here for purposes of motions .
Counsel : We would just renew our motion for a directed verdict at this
time .
Court :
Motion denied without further comment .
Appellant stated the grounds for his motion for a directed verdict of acquittal . He
did not waive his right to appeal by not repeating his previously stated grounds upon
renewing the same motion at the conclusion of all the evidence . If there was any
possibility that the trial judge was confused about the grounds, or if Appellant was
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appealing on different grounds, the Commonwealth's argument would have merit. As
this was not the case, we conclude that this issue was preserved for appeal .
B . Continuing Basis.
Appellant argues that the evidence that the syndicate lasted five months at best
is insufficient as a matter of law to establish that it operated "on a continuing basis," as
required by KRS 506 .120(3) . We disagree .
The standard of proof on this element of the crime is by its very nature
indefinite . The Commonwealth is not held to proving any specific number
of incidents or any element of time, but must show by the proof what the
jury could infer from the evidence as intent to collaborate on a continuing
basis.
Commonwealth v. Phillips, Ky., 655 S .W.2d 6, 9 (1983). Since Phillips, we have
reaffirmed that no specific duration is required so long as the jury can find that the
collaboration occurred on a continuing basis . Edmonds v. Commonwealth , Ky., 906
S .W .2d 343, 348 (1995) ("The prosecution is not required to prove any specific number
of incidents or any element of time, but must show by proof what the jury could infer
from the evidence as to intent to collaborate on a continuing basis ."); Dishman v.
Commonwealth , Ky., 906 S .W.2d 335, 342 (1995) ("The 'continuing basis' language in
the criminal syndicate statute has been held to be proper because the standard of proof
on this element of the crime is by its very nature indefinite .") .
The facts here were sufficient to support a jury finding of a criminal syndicate
operating on a "continuing basis ." The witnesses generally agreed that the scheme
lasted between two and five months . More importantly, much of the evidence supported
the conclusion that the operation would have continued indefinitely if not discovered, as
evidenced by Ray's direct testimony :
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Q:
A:
[L]et me ask you this, the reason that it stopped is only because
you got caught as opposed to people wanting to quit, right?
Yes . The officer was . . .
Q:
Caught?
A:
Yeah.
Q:
So this operation was continuing, but the reason it stopped is
because Hightower got caught, based to what you know, is that
right?
A:
Yes .
Although Ray later suggested, in response to Appellant's cross-examination, that he
planned to "get out" after smuggling a quarter pound of marijuana into the prison, the
jury was free to believe his first statement . The syndicate was organized to smuggle
marijuana into the prison for use and sale. The testimony of all of the other witnesses
indicated that the operation would continue so long as it yielded Appellant the money he
allegedly needed to pay his legal bills . Nor was there any suggestion that the appetite
for marijuana in the Green River Correctional Complex would be satiated after being
serviced by Appellant's syndicate for only a few months. The authorities at Green River
were not required to wait and see if the syndicate lasted a year or more before ending
the operation and bringing charges pursuant to KRS 506 .120.
Appellant analogizes this case to cases interpreting the federal Racketeer
Influenced and Corrupt Organizations Act, 18 U.S .C . §§ 1961-1968 (RICO), which he
interprets as requiring that the criminal activity last longer than the period established
here . His interpretations are erroneous . The Supreme Court of the United States has
held that RICO's continuity requirement is met when "the racketeering acts themselves
include a specific threat of repetition extending indefinitely into the future . . . . .. H.J . Inc.
v. Northwestern Bell Tel. Co. , 492 U .S. 229, 242, 109 S.Ct. 2893, 2902, 106 L .Ed .2d
195 (1989)
(emphasis added) . Because the authorities interrupt many syndicates in
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their early stages, "liability depends on whether the threat of continuity is
demonstrated ." Id . (emphasis in original) .
The cases cited by Appellant in which the alleged criminal activity failed to meet
the continuity requirement involved closed-ended schemes with no threat of continued
operation . For example, Manning v . Stigger, 919 F .Supp . 249 (E .D . Ky. 1996), involved
a solitary fraud that occurred over four months and came to a natural, voluntary, and
planned end. Id . a t 253 . The court found that the fraud "threaten[ed] no future criminal
conduct," and therefore was not continuous. Id . at 253-54. And, in Johnston v.
Wilbourn , 760 F .Supp . 578 (S.D. Miss . 1991), the court found no continuity when the
defendants' conspiracy to commit fraud in order to merge two specific banks "was
merely a short-lived scheme as to which there was no threat of repetition ." Id. at 588.
There is no inconsistency between these RICO cases and our interpretation of KRS
506.120 .3
C . Illegal Traffickinq.
Appellant asserts that there was insufficient evidence that the syndicate was
"collaborating to promote or engage" in "illegal trafficking in controlled substances," as
required to satisfy KRS 506.120(3)(e), because no marijuana was produced at trial and
no witness was competent to testify that the alleged marijuana was, in fact, marijuana
as opposed to, e.g_, oregano . In support of this argument, Appellant cites Boyington v.
State , 748 So .2d 897 (Ala . Crim. App . 1999), an Alabama case that apparently requires
the government to actually confiscate the illegal drug in order to charge the defendant
Of course, even if some RICO cases have been interpreted differently, this would have
no definite impact on our interpretation of KRS 506.120, a separate and independent
statute.
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with its possession . Id . at 902-03 . He further cites a host of cases from other
jurisdictions and argues that they require the government to prove that the witnesses
identifying the controlled substance, whether experts or laypersons, have some training
or experience allowing them to make a proper identification . See United States v.
Spann , 515 F .2d 579, 580 (10th Cir. 1975) ; State v. Scott , 930 P.2d 551, 554 (Ariz. Ct.
App . 1996); A.A. v. State , 461 So .2d 165, 167 (Fla . Dist. Ct. App . 1984) ; Dean v. State,
406 So.2d 1162, 1164 (Fla . Dist. Ct. App. 1981) ; State v. McKee , 744 N . E .2d 737, 74142 (Ohio 2001); State v. Frazier, 252 S.E.2d 39, 50 (W .Va . 1979). Based on these
cases, Appellant contends that no witness at his trial was shown to have such training
or experience ; ergo , a reasonable jury could not have concluded that the syndicate
possessed marijuana, rather than, e.g, oregano . Therefore, Appellant claims, that the
evidence was insufficient to support a crucial element of the organized crime statute.
However, in Graves v. Commonwealth , Ky ., 17 S .W .3d 858, 862 (2000), we held :
It is unnecessary for a conviction of trafficking in a controlled substance
that the controlled substance be seized by the police or that it be
introduced at trial. Conviction can be premised on circumstantial evidenc e
of such nature that, based on the whole case, it would not be clearly
unreasonable for a jury to find guilt beyond a reasonable doubt.
Id . at 862 (emphasis added). See also United States v. Schrock, 855 F.2d 327, 334
(6th Cir. 1988) ("To our knowledge, no court has held that scientific identification of a
substance is an absolute prerequisite to conviction for a drug-related offense, and we
too are unwilling to announce such a rule. In view of the limitations that such a burden
would place on prosecutors, and in accordance with general evidentiary principles,
courts have held that the government may establish the identity of a drug through
cumulative circumstantial evidence ."). Here, abundant evidence, both direct and
circumstantial, indicated that Appellant participated in organizing a criminal syndicate
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that illegally trafficked in marijuana . Ray, Nicolais, and Maggard, testified that Appellant
collaborated with them to smuggle marijuana into the prison . Connolly testified that he
purchased marijuana from Appellant while in prison . Ray testified that he tested the
marijuana by smoking some of it himself. Hightower testified that Ray bribed her to
bring marijuana into the prison . Thus, even if Appellant had been indicted for trafficking
in marijuana, the evidence was sufficient to have convicted him of that offense . Of
course, he was not indicted for trafficking in marijuana .
The Commonwealth was not required to prove that Appellant actually trafficked in
marijuana to convict him of engaging in organized crime . Trafficking in a controlled
substance is not an element of that offense . Collaborating to promote or engage in
trafficking in a controlled substance is, inter alia , a part of the definition of a criminal
syndicate . KRS 506 .120(3)(e) . Appellant was subject to conviction under KRS
506 .120(1)(a) if he participated in organizing a criminal syndicate regardless of whether
he subsequently collaborated with others by promoting or engaging in the syndicate's
activities. Evidence of the latter is required simply to prove that the entity organized by
Appellant was, in fact, a criminal syndicate . This case is more analogous to a criminal
conspiracy case in which "the absence of an actual sale or seizure of narcotics does not
render insufficient the proof of a conspiracy to distribute it." United States v. Desimone,
119 F.3d 217, 223 (2d Cir . 1997) .
1111 . PRESUMPTION OF INNOCENCE .
Appellant's final ground for appeal is that the trial court's order to restrain him by
leg shackles throughout the trial violated his constitutional right to be presumed
innocent . He claims that this order was doubly prejudicial because he was acting as co- 1 8-
counsel . According to Appellant, his presumption of innocence could not survive this
public manacling of both defendant and co-counsel.
It has long been the law in Kentucky that, in the absence of special
circumstances, an accused should not be forced to face the jury in chains .
It is a common-law right of a person being tried for the commission of a
crime to be free from all manner of shackles or bonds, whether of hands
or feet, when in court in the presence of the jury, unless in exceptional
cases where there is evident danger of his escape or in order to protect
others from an attack by the prisoner .
Marion v. Commonwealth , 269 Ky. 729, 108 S .W.2d 721, 723 (1937). This right relates
closely to an accused's constitutional right to be presumed innocent until proven guilty .
See Young v. Commonwealth , Ky., 50 S .W .3d 148, 171 (2001); see generally Taylor v.
Kentucky, 436 U .S. 478, 483-86, 98 S .Ct. 1930, 1933-35, 56 L.Ed .2d 468 (1978)
(outlining basis for treating presumption of innocence as a constitutional guarantee).
Our predecessor court noted that shackles would be justified in less than "one murder
case out of an average hundred coming to trial." Tunget v. Commonwealth , 303 Ky.
834, 198 S.W.2d 785, 786 (1946) . The United States Supreme Court stated in
Holbrook v. Flynn, 475 U .S . 560, 106 S.Ct. 1340, 89 L.Ed .2d 525 (1986), that shackling
should "be permitted only where justified by an essential state interest specific to each
trial." Id. at 568-69, 106 S .Ct. at 1346 . We codified this common law right in RCr
8 .28(5): "Except for good cause shown the judge shall not permit the defendant to be
seen by the jury in shackles or other devices for physical restraint ."
Both the historical common-law rule and RCr 8 .28(5) underscore the serious
prejudice that may result from manacling a defendant in the presence of the jury, but
recognize the necessity for restraints in some circumstances . We balanced these
interests most recently in Commonwealth v. Conley , Ky., 959 S .W .2d 77 (1997). In
-19-
Conley , the defendant had previously escaped from the courthouse during his
arraignment, and the trial court therefore ordered that he be shackled during the trial to
prevent another escape. Id . at 78 . To mitigate any resulting prejudice, the trial court
issued admonitions and excused two jurors for cause who indicated that the defendant's
leg shackles would adversely impact their ability to presume his innocence . . Id . We
held that the prior escape gave the trial court a sufficient basis to regard the defendant
as a man of "demonstrated desperation," and that the court did not abuse its discretion
in ordering the restraints. Id .
Neither this Court nor the Supreme Court of the United States has ever
considered whether, and in what circumstances, it may be appropriate to shackle a
defendant who acts as his own counsel or co-counsel during his trial . Leg shackles
obviously affect the ability to stand or move about when conducting cross-examination .
A defendant in such a situation has the Hobson's choice of calling further attention to his
restraints by attempting to move or, perhaps, reducing the effectiveness of his questions
by taking cover behind the counsel table .
Nevertheless, the Missouri Supreme Court found no error in shackling a pro se
defendant charged with a brutal murder who had previously escaped confinement .
State v. Armentrout , 8 S .W .3d 99, 107-08 (Mo. 1999) . And, were we faced again with
the defendant in Tunget , supra,, who obtained a gun, forced four guards into his cell,
killed the associate warden, and shot at two other guards, it would make little difference
in the "good cause" determination that he was proceeding pro se . Thus, some, even if
few, circumstances will arise where a trial court may, in its discretion, order that a
defendant proceeding pro se or as co-counsel be shackled .
- 20-
The decision presented to the trial court in the instant case was difficult, as
demonstrated by the following colloquy among the trial judge, Appellant's custodial
officer, the prosecutor, defense counsel, and Appellant :
Officer:
That would probably be referring to the escape at Beaver Dam
approximately five years ago . He escaped from two other
correctional officers from the Kentucky State Penitentiary and
was on the loose for several hours before the State Police - I'm
not sure how many hours before the State Police recovered
him, and I learned from the Internal Affairs that he had a zip gun
in the back seat and he had a cuff key of some sort, a
homemade cuff key to relieve himself from the restraints, and I
also learned that there was a prior escape or attempted escape
where his female partner may have passed him a cuff key and
then there was a time between the Green River incident - or the
Beaver Dam incident and this time that the penitentiary said that
he was involved in an escape plot to go over the wall at the
penitentiary .
Court:
Now, the Beaver Dam incident you related to where there was
an escape, was this a transportation to or from a courtroom?
Officer:
He was either going to court or coming back from court. I think
it was to court .
Court:
Alright . What's the recommendation of the transportation officer
with respect to what type of restraint? He is right now in
chambers in what we call leg shackles and cuffs?
Officer:
Right . I would prefer to keep leg restraints on if possible . I
understand that he's versed in martial arts and I'm not sure what
level he is, but . . . .
Court:
Alright . [Counsel], what's the position of the defendant?
Counsel : Your Honor, I think it would be extremely prejudicial to the jury
to have him out there shackled in the courtroom . I just object to
that and I think that would be extremely prejudicial .
Appellant : As everything he said on my escape, my actual escape was
true . I was in restraints when I escaped, Your Honor.
Restraints - it wasn't - it was - they fired one of the officers. I
wouldn't touch them. It was a non-violent escape . I refused to
put my hands on them . I actually walked around the officer.
Now all this is in the report where I - and they fired the officer
because he did not physically restrain me . I've never had any
violence on the record at all. My record speaks clear of that .
Now, I know that first degree robbery is a violent offense, but if
-21-
you read the specifics you'll see that we never actually pulled a
gun on anybody . We had to carry guns because we were
busting up a drug ring and they were violent people . But we
never pulled - I had a gun pulled on me, Your Honor, and I took
it away from him without hurting him. I don't have any history of
violence in my - which he can verify . I've never had any history
of violence in prison . I've never been in a fight in ten years,
Your Honor, I've been in prison . Never had a fight. Never. I am
not a violent person . I did escape one that one incident and I
actually was a runaway . A runaway from the officers . I was
under extreme distress. My son was being sexually molested . I
mean I had to get to him, but that's five years past. I have no
intentions of escaping . If I can beat this case which I'm hoping I
can, I can get out this year . This coming year . And it would be
foolish for me to even try to escape, Your Honor. That's - my
record speaks for itself on my violent behavior or anything like
that.
Pros. :
Following the indictment of this defendant, the Internal Affairs
intercepted a letter that he addressed to a Linda Nicolais, his
girlfriend, trying to set up an escape, which would have included
a feigning of an illness at the hospital and she was to go map
out the area and to have someone with a firearm that could
assist him in the escape, and they intercepted that letter and I
provided counsel with a copy of that. So he has - even
following - since the indictment participated in planning, trying
to escape, which would include the use of a firearm .
Appellant : In rebuttal on that, Your Honor, I do have a copy of that letter
and if you'll look at that letter and when I wrote that letter I was
in "seg" under psychotropic medication . Okay. If you'll read the
letter, you'll see where I mention going to Mexico and staying
with Brent Yaird ; who had been dead since August, Your Honor.
I was out of my head . The doctor, the psychologist told them
they had to get me off this medication because it was having a
negative impact on my psychological condition . . . . .
Thus, (1) Appellant had successfully escaped once, albeit five years prior to the
trial ; (2) Appellant had planned several escapes in the past; (3) Appellant had planned
at least one escape since being indicted for engaging in organized crime at Green
River; and (4) Appellant was somewhat skilled in martial arts (Nicolais subsequently
testified that she first met Appellant when he was her karate instructor) . Thus, the trial
-22-
court could have reasonably concluded that Appellant was an escape risk. The trial
court articulated other facts relevant to the decision :
Well, having considered everything that was stated into the record, and
being really no contradiction in facts on the matter, and the court needing
to note for the record that this is an old courthouse . We don't have a
holding cell particularly for prisoners . We have rooms, but the rooms are
shared by other witnesses with the defendant. We have multiple doors in
and out of the courtroom as well as this old courthouse . I have two
bailiffs, who are deputy sheriffs, not particularly trained for the situation of
having inmates from prison in and out of the courtroom . This courthouse
and courtroom is accessible to all persons . In other words, the hallways
utilized by the transportation officers and the defendant is also going to be
accessible to jurors from time to time, persons from the outside, and given
the number of prisoners that we're having here at this trial, I believe it's
imperative, and I'm always reluctant to have any type of restraint at a trial
on a defendant, but this case does absolutely require some restraints . So
I'm not going to have him handcuffed, but I am going to have him in leg
shackles . . . . I mean, just by virtue of this case, [the jury is] going to know
he was an inmate already and I don't - any prejudice is going to be
minimal and it's certainly outweighed by the necessity of some restraint
based upon the defendant's record and recent activities.
Thus, the trial court weighed Appellant's history of escape and planned escapes, the
porous nature of the courtroom and courthouse, and the fact that available security
consisted only of two deputies poorly trained to prevent an escape, against the resulting
prejudice partially mitigated by the fact that the jury would know from the facts of the
trial that Appellant was incarcerated, and concluded that the security risk of not using
restraints outweighed the prejudice flowing from their use. To further minimize the
prejudice, the trial court gave the following admonition to the jury:
Let me give you another admonition or an oral instruction and it is this .
The Defendant is in leg restraints. That was pointed out by counsel in voir
dire. You are not to hold that against him or to allow that fact to prejudice
the Defendant in any way whatsoever in this case. He is restrained as a
matter of policy and procedure by the Department of Corrections .
To maintain the presumption of innocence, an admonition of some kind is a virtual
necessity when the accused is forced to appear before the jury in shackles . Cf. Ester) v.
-23-
Commonwealth , Ky., 663 S.W .2d 213, 216 (1983) (affirming when photograph of
defendant handcuffed at time of arrest was admitted and jury was admonished that
handcuffs had no significance) ; Murray v. Commonwealth , Ky., 474 S .W .2d 359, 361
(1971) (affirming when jurors were questioned and reported that seeing defendant in
shackles and handcuffs would not affect their verdict) .
Under the peculiar facts of this case, we are unable to conclude that the trial
court abused its discretion in ordering Appellant restrained by leg shackles during his
trial . The trial court's admonition and the fact that the jury already knew Appellant was a
convicted criminal and a prisoner in a penitentiary mitigated the prejudice naturally
attendant to such restraint. On remand, however, the trial judge may wish to reconsider
whether any less restrictive or prejudicial means of preventing flight are available, such
as a larger security force . The United States Supreme Court noted in Holbrook v.
Flynn , supra, that a defendant is unlikely to suffer serious prejudice from a large security
presence in the courtroom ; if the jury questions the security it might well assume that it
is for the defendant's protection . Id. at 569, 106 S .Ct. at 1346 ; see also Young v.
Commonwealth , Ky ., 50 S.W .3d 148,171 (2001); Hodge v. Commonwealth , Ky., 17
S .W.3d 824, 839-40 (2000).
Accordingly, we reverse the judgments of conviction and sentences imposed by
the Muhlenberg Circuit Court and remand this case for a new trial.
Johnstone, Keller and Stumbo, JJ ., concur. Wintersheimer, J ., dissents by
separate opinion, with Lambert, C.J., and Graves, J., joining that dissenting opinion .
COUNSEL FOR APPELLANT :
Richard Hoffman
Assistant Public Advocate
Department of Public Advocacy
Suite 302
100 Fair Oaks Lane
Frankfort, KY 40601
COUNSEL FOR APPELLEE:
Gregory D. Stumbo
Attorney General
State Capitol
Frankfort, KY 40601
Perry T. Ryan
Assistant Attorney General
Office of Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, KY 40601-8204
RENDERED : JANUARY 22, 2004
TO BE PUBLISHED
,$uyrnue (9ourf of ~Itnfurkg
2002-SC-0077-MR
KENT HILL
V.
APPELLANT
APPEAL FROM MUHLENBERG CIRCUIT COURT
HONORABLE DAVID H. JERNIGAN, JUDGE
01-CR-124-1
COMMONWEALTH OF KENTUCKY
APPELLEE
DISSENTING OPINION BY JUSTICE WINTERSHEIMER
I must respectfully dissent from the majority opinion because Hill has not
demonstrated that his participation in the case as co-counsel prejudiced him in any way
or influenced the verdict. Any possible error was entirely harmless . RCr 9.24 .
The facts in this case show that Hill pled not guilty and initially sought to proceed
pro se, however, once counsel was appointed for him, he requested only to serve as
co-counsel so that he, rather than his attorney, could engage in direct and cross
examination of some of the witnesses . Hill told the trial judge that he wanted to act as
co-counsel because he believed that his appointed counsel would not completely
understand "prison life." The trial judge noted that Hill could communicate with his
attorney and ask questions and seek advice during the one-day trial.
The requirement that the trial judge determine whether a criminal defendant's
waiver of counsel is knowing and voluntary does not arise when the trial judge has
appointed a defense counsel to act as co-counsel or standby counsel . Cf. Faretta v.
California , 422 U .S . 806, 95 S .Ct . 2525, 45 L.Ed .2d 562 (1975) . Moreover, there is
overwhelming evidence against the defendant, and any conceivable error is harmless.
I would affirm the conviction in all respects .
Lambert, C .J ., and Graves, J ., join this dissent.
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