SPENCER A . BAUCOM, JR . V. COMMONWEALTH OF KENTUCKY
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RENDERED : MAY 20, 2004
TO BE PUBLISHED
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2002-SC-1050-MR
SPENCER A. BAUCOM, JR.
V.
APPELLANT
APPEAL FROM WARREN CIRCUIT COURT
2001-CR-738 & 2002-CR-365
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION OF THE COURT BY JUSTICE WINTERSHEIMER
REVERSING AND REMANDING
This appeal is from a judgment based on a jury verdict that convicted Baucom of
second-degree escape, theft by unlawful taking over three hundred dollars and being a
first-degree persistent felony offender . He was sentenced to a total of twenty years in
prison .
The questions presented are whether Baucom was denied his right to "hybrid
representation" and whether he was entitled to a "no adverse inference" instruction
during the penalty phase .
In 2001, Baucom was serving time for a previous felony conviction at the Warren
County Regional Detention Center. While on a work release program at the Humane
Society, Baucom unlawfully left the work site, allegedly in the organization's pickup
truck . He was captured three months later in Nashville, Tennessee. The pickup truck
was also recovered in that state . At trial, Baucom, pro se, admitted that he left the
Humane Society without authorization, but, as part of his defense, claimed mitigating
circumstances, namely, that he was under great stress and needed to be with his
mother who was suffering from Alzheimer's disease . He denied taking the pickup truck .
The jury convicted him of second-degree escape, theft by unlawful taking over three
hundred dollars and being a first-degree persistent felony offender . He was sentenced
to twelve years for the escape charge and ten years on the theft charge, the sentences
to run consecutively for a maximum term of twenty years in prison . This appeal
followed .
I . Limited Waiver of Counsel
Baucom, now represented by a public defender, argues that he was denied his
rights under the 6th Amendment to the United States Constitution when the trial judge
refused to appoint standby counsel to assist him in presenting his case when he made
a timely request, explained the reason for the request and the specific areas where he
needed assistance . Relying strictly on federal cases, he states that there is no
constitutional requirement to allow the type of arrangement that he was requesting in
this case . However, Baucom claims that the appointment of hybrid counsel is a matter
of trial judge discretion, but that in this case the trial judge did not exercise that
discretion.
Before trial, Baucom filed a pro se motion waiving his right to counsel . At a
pretrial hearing on that motion, Baucom stated that he wanted to waive counsel except
for some assistance in selecting a jury. After pondering aloud what "sort of trap Mr.
Baucom was trying to set for . . . the court," the trial judge denied the request for a
limited waiver. Over the next several months, including on the eve of trial, Baucom
continued to make requests for a legal advisor . These renewed requests were also
denied by the trial judge . His position was clear, either Baucom would accept an
attorney from the public defender's office or he was going to have to act entirely on his
own . Faced with this choice, Baucom represented himself during the entire
proceedings .
Wake v. Barker, Ky., 514 S .W.2d 692 (1974), held 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. See
also Hill v. Commonwealth , Ky., 125 S .W.3d 221 (2004), which reaffirms the concept of
"hybrid representation" because Section 11 of the Kentucky Constitution, unlike the
United States Constitution, explicitly guarantees a criminal defendant the right to be
heard "by himself and counsel ." Hill , supra also notes that most lower courts, both
state and federal, have followed dictum in McKaskle v. Wiggins, 465 U .S. 168, 104
S.Ct. 944, 79 L .Ed .2d 122 (1984), that the Sixth Amendment does not grant a
defendant the right to act as co-counsel, i.e., the right to "hybrid representation ."
Although we recognize that there is a division of legal authority arising from
differences between the Kentucky and Federal constitutions, we are required to apply
the Kentucky constitution because it affords greater protection for citizens who are
accused of crimes . Here, it was clear that the trial judge presented Baucom with only
two alternatives : either represent himself or accept appointed counsel . Under Section
11 of the Kentucky Constitution, as interpreted by existing case law, Baucom was
entitled to a third alternative, and the one he requested, a hybrid representation . This
being a structural error, we are obliged to reverse . See Hill.
Although this case must be reversed, we must recognize the trial judge's
exemplary exercise of judicial temperament and his willingness to explain the judicial
process to Baucom . We also commend the prosecutor's patience and fairness in his
handling of this case .
II . Penalty Phase Instruction
Baucom asserts that he is entitled to a new penalty phase hearing because the
jury was not given a "no adverse inference" instruction at the penalty phase of the trial .
He concedes that this issue is not preserved but claims that pro se litigants are not held
to the same procedural strictures as those represented by counsel . Alternatively, he
seeks review pursuant to RCr 10 .26 .
There was no error in the trial judge's failure, sua sponte, to include a "no
adverse inference" instruction in the penalty phase instructions . That instruction is
required only when requested and no request was made in this case . RCr 9 .54(3).
The judgment of conviction is reversed and this matter is remanded for a new
trial.
All concur.
COUNSEL FOR APPELLANT :
COUNSEL FOR APPELLEE:
John Anthony Palombi
Assistant Public Advocate
Department of Public Advocacy
Suite 302, 100 Fair Oaks Lane
Frankfort, KY 40601
Gregory D. Stumbo
Attorney General of Kentucky
John R . Tarter
Assistant Attorney General
Criminal Appellate Division
Office of the Attorney General
1024 Capital Center Drive
Frankfort, KY 40601-8204
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