WILEY GIBBS V. COMMONWEALTH OF KENTUCKY
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RENDERED : SEPTEMBER 21, 2006
AS MODIFIED : DECEMBER 21, 2006
TO BE PUBLISHED
,~$uyrrwr Courf of i
2004-SC-000286-MR
WILEY GIBBS
ON APPEAL FROM LOGAN CIRCUIT COURT
HONORABLE TYLER L. GILL, JUDGE
NO. 03-CR-00052
V.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION OF THE COURT BY CHIEF JUSTICE LAMBERT
AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
Appellant, Wiley Gibbs, appeals as a matter of right' from the final
judgment of the Logan Circuit Court . A jury found Gibbs guilty of five (5) counts of
incest, one (1) count of sodomy in the second degree, four (4) counts of rape in the
second degree, and two (2) counts of sexual abuse in the second degree, all with
respect to the first victim, Jane Doe . 2 He was also found guilty of one (1) count of
sexual abuse in the first degree and three (3) counts of sexual abuse in the second
degree with respect to the second victim, Sarah Smith. Gibbs was sentenced to the
maximum on each count, all to be served consecutively for a total of 105 years of
imprisonment .
2 Ky. Const . § 110(2)(b) .
Jane Doe and Sarah Smith are pseudonyms used to protect the anonymity of the
victims.
Appellant is 65 years old and has an IQ of 66, which is generally classified
as being mentally retarded . He was married to Linda Gibbs for almost 26 years and
they raised three children . Appellant is the father of Jane Doe. The other victim is
Jane's friend, Sarah Smith. In January 2002, Jane Doe told a girl who attended her
church that Appellant was sexually abusing her. This girl told the youth pastor, who
eventually convinced Jane to tell her mother . Appellant was then forced to leave the
home . The allegations were reported to the police on February 11, 2002. Appellant
gave a videotaped statement to police, admitting to having abused his daughter and
also having sexually touched Sarah Smith.
Appellant was indicted by a Logan County Grand Jury on April 2, 2003,
and charged with 99 criminal offenses . On June 5, 2003, the court entered an order for
a psychiatric examination of Appellant . The record does not reflect that any further
hearing was held thereon but there was no objection made by Appellant to continuing
with trial. On January 22, 2004, the case went to trial. Jane Doe testified that she was
seventeen years old, and that she had been sexually abused by Appellant on a regular
basis from the age of seven to fifteen . She indicated that she was sexually abused in
the bathroom, her bedroom, and Appellant's bedroom . She also stated that Appellant
had sexual intercourse with her in his bedroom, her bedroom, and the bank where
Appellant and his wife worked as custodians. She further testified to being orally
sodomized on a less frequent basis.
Sarah Smith testified that Appellant's wife babysat her in the Gibbs' home
since she was six years old . She testified that she was subjected to sexual contact. by
3 Appellant does not indicate the guidelines for this determination .
2
Appellant in his home and vehicle when she was between the ages of thirteen and
fifteen .
Several other witnesses also testified at trial regarding the sexual abuse.
Detective Kenneth Edmonds testified that he interviewed Jane Doe a couple of days
after the allegations of abuse . He also interviewed Appellant at the police department,
and Appellant made an admission to the police as to some instances of misconduct .
Dr. Todd Douglas, a family practitioner in Morgantown, testified that he examined Jane
Doe and found evidence of an old scar on her posterior fourchette . He also found
irregularities in her hymen. At the close of the Commonwealth's case Appellant's
motion for a directed verdict was denied.
Appellant's wife, Linda Gibbs, testified for the defense. She testified that
Appellant had a full time job as well as a part time job that required an additional fifteen
to twenty hours of work per week . She further testified that five to six people were living
in the Gibbs' home. At various times, her grandmother and Jane's friend, Lucy Puckett,
lived with the Gibbs family and stayed in Jane's room with Jane . She testified she could
not see how Appellant could have abused Jane as often as Jane stated .
Appellant also testified and admitted sexually abusing and having
intercourse with Jane. However, he denied that the misconduct occurred as many
times as Jane alleged . He also admitted to touching Sarah Smith four or five times .
Appellant's renewed motion for directed verdict was sustained as to some
counts and overruled as to the others . Concerning Jane Doe, the trial court instructed
the jury on six (6) counts of incest, two (2) counts of sodomy in the second degree, four
(4) counts of rape in the second degree, four (4) counts of rape in the third degree as
lesser included offenses of rape second, and two (2) counts of sexual abuse in the
second degree . With respect to Sarah Smith, the court instructed the jury on one (1)
count of sexual abuse in the first degree and four (4) counts of sexual abuse in the
second degree . The jury found Appellant guilty of five (5) counts of incest, one (1)
count of sodomy in the second degree, four (4) counts of rape in the second degree,
and two (2) counts of sexual abuse in the second degree with respect to Jane Doe . The
jury found Gibbs guilty of one (1) count of sexual abuse in the first degree and three (3)
counts of sexual abuse in the second degree with respect to Sarah Smith. The jury was
instructed that the aggregate sentence imposed on Appellant could not exceed twenty
(20) years . Despite this instruction from the judge, the jury recommended the maximum
sentence on each count. They further recommended that all felony offenses be served
consecutively for a total of 105 years and this recommended sentence was imposed by
the trial court's final judgment.
Appellant raises several issues on appeal, and each will be addressed in
turn. Appellant first argues that the trial court's failure to hold a competency hearing
following the court-ordered evaluation for competency to stand trial violated Appellant's
right to procedural and substantive due process. We begin by noting that Appellant did
not request a competency hearing following the competency evaluation . However,
Appellant now relies on Gabbard v. Commonwealth4 and claims this issue is preserved
because KRS 504 .100 places an affirmative duty on the trial court to hold an evidentiary
hearing following a competency evaluation . KRS 504.100(1) requires a trial court to
appoint a psychologist or psychiatrist "to examine, treat and report on the defendant's
4 887 S.W.2d 547 (Ky. 1994) .
5 See id .
mental condition" whenever "the court has reasonable grounds to believe that the
defendant is incompetent to stand trial ." KRS 504 .100(3) states that after such a report
is filed, "the court shall hold a hearing to determine whether the defendant is competent
to stand trial."
We note that in the case at bar, the psychologist found Appellant was
competent to stand trial. Appellant's competency evaluation determined that Appellant
was mentally retarded and he had a depressive disorder . Despite this, the evaluation
further determined Appellant did not suffer from a mental condition which impaired his
ability to understand the requirements of the law with regard to his sexual behavior or
prevented him from conforming his behavior to the requirements of the law. The expert
also concluded that although Appellant may require extra time to understand legal
concepts and terminology, he was capable of participating rationally in his own defense
and working with his attorney on his behalf . In Gabbard , expert reports indicated
Defendant was incompetent. This Court held that based on the finding of
incompetence in Gabbard , the trial court was required to hold a hearing to further
determine whether or not he was competent to stand trial .'
Results of Appellant's competency evaluation are similar to those in Mills
v. Commonwealth .$ 1n Mills, the defendant was found competent to stand trial, but on
appeal, relied on the trial court's order for a competency evaluation to show that he was
incompetent to stand trial and deserved a competency hearing. This Court held that
6 Id. at 552.
7 _Id.
8 996 S.W.2d 473 (Ky. 1999).
due to the competency evaluation's determination of competence, the trial court was not
required to further hold a hearing .9
This Court found that the standard of review in such a case is, "[w]hether a
reasonable judge, situated as was the trial court judge whose failure to conduct an
evidentiary hearing is being reviewed, should have experienced doubt with respect to
competency to stand trial."' ° Similar to Mills, Appellant relies on the trial court's order
directing a competency hearing to show that there was reasonable grounds to believe
he was incompetent and therefore, after the Kentucky Correctional Psychiatric Center
(KCPC) report, a hearing should have been held on Appellant's competency. However,
that report specifically concluded that Appellant was competent to stand trial.
Furthermore, in a pre-trial hearing, when the court asked whether there was any need to
conduct a competency hearing, Appellant's counsel advised the trial court that the
evaluation indicated that Appellant was competent and there was no need to hold a
hearing at that time . Counsel made no further objection to continuing with trial. "[T]rial
judges cannot be aware of everything happening in every case before them and cannot
be required to sua sponte hold competency hearings ."" This Court has said in a
number of cases that "reasonable grounds [to hold a competency hearing] must be
called to the attention of the trial court by the defendant or must be so obvious that the
trial court cannot fail to be aware of them .
9 _Id.
'° Id. at 486 (Ky. 1999) uotin Williams v. Bordenkircher, 696 F. 2d 464, 467 (6th Cir.
1983)) .
" Gabbard , 887 S .W .2d at 552.
12
Id. (uotin Via v . Commonwealth , 552 S.W.2d 848, 849 (Ky. 1975)) ; see also
Matthews v. Commonwealth , 468 S.W.2d 313 (Ky. 1971); Pate v. Commonwealth , 769
S.W.2d 46 (Ky. 1989).
Nevertheless, it is difficult to ignore what appears to be a mandatory
hearing requirement in KRS 504.100(3) . The hearing need not be complex, but the
Commonwealth and the defendant must be given an opportunity to present evidence on
the issue of competency and an opportunity to cross-examine the psychologist or
psychiatrist who prepared the report. While better practice is to hold such a hearing
prior to trial, a retrospective competency hearing is permissible when circumstances
with respect to time and witness availability "are adequate to arrive at an assessment
that could be labeled as more than mere speculation . "13
In this case, Appellant's trial was in 2004 and we are unaware of any
reason that a proper hearing could not be held. Accordingly, we remand this case to
the trial court for a hearing as required by KRS 504.100(3) which shall proceed in
accordance with Thompson v. Commonwealth ..
Appellant's second argument is that the trial court erred in not reading
each instruction to the jury in its entirety and that the oral instructions differed from the
written instructions . During the reading of jury instructions, the trial court read the
instruction for a particular offense . Some offenses contained multiple counts, and the
instructions for each count varied only in the location of where the offense occurred .
For some of the multiple counts, the trial court decided not to re-read the instructions,
but instead, indicated that the instruction was the same as the prior instruction with the
exception as to where the offense occurred .
13
Thomason v. Commonwealth , 56 S.W.3d 406, 409 (uotin Martin v. Estelle , 583
F .2d 1373, 1374 (5th Cir. 1978)).
14
56 S.W.3d 406 (Ky. 2001) .
RCr 9 .54(1) provides, "it shall be the duty of the court to instruct the jury in
writing on the law of the case, which instructions shall be read to the jury prior to the
closing summations of counsel. These requirements may not be waived except by
agreement of both the defense and the prosecution ." Appellant claims that because
there was no agreement to waive the requirement that the instructions be read to the
jury or that the instructions not be put into writing, this issue is preserved. RCr 9 .54(2)
states as follows :
No party may assign as error the giving or the failure to give
an instruction unless the party's position has been fairly and
adequately presented to the trial judge by an offered
instruction or by motion, or unless the party makes objection
before the court instructs the jury, stating specifically the
matter to which the party objects and the ground or grounds
of the objection .
Failure to comply with subsection (2) of RCr 9.54 has been consistently
held to prohibit review of alleged error in instructions because of the failure to properly
preserve the claimed error.' 5 It is the duty of counsel who wishes to claim error to keep
current on the law, and to object with specificity so that the trial judge will be advised on
how to instruct. 16 The underlying purpose of such a rule is to obtain the best possible
trial at the trial level and to call any error to the attention of the trial judge, thereby
affording him the opportunity to give the correct instructions ." RCr 9.54 (2) "requires
lawyers to assist the judge in giving correct instructions and disallows an ex post facto
objection as a means of obtaining a reversal of the judgment on appeal .
15
See Commonwealth v. Duke , 750 S.W.2d 432 (Ky. 1988).
16 Id .
'7 _Id.
'8
Sand Hill Energy, Inc. v. Smith, 142 S .W .3d 153,164 (Ky. 2004) ( uotin Cox v.
Hardy , 371 S.W.2d 945, 947 (Ky. 1963)) .
While this claim of error is not preserved, this Court may review it for
palpable error.' 9 The trial court in this case did not read each instruction verbatim, but
did carefully explain each instruction and supplemented the oral instructions with a
written copy of the instructions for the jurors to follow. This Court has recognized that
practical considerations must be taken into account for such technical errors in the
course of a trial . In Muncy v. Commonwealth ,2' we held that a definition given by the
trial court that did not come directly from a legal text and was given orally to the jury in
violation of RCr 9.54(1), did not unduly impact an appellant's rights. In the case at bar,
the trial court provided the jury a full set of instructions in compliance with the tenor of
RCr 9.54(1) and committed no error.
Appellant's third argument is that his convictions for five (5) misdemeanor
offenses were barred by the statute of limitations . Appellant argues that he was
convicted of five (5) misdemeanor offenses which occurred more than one year prior to
the date the proceedings against Appellant were commenced. KRS 500.050(2) states
"[e]xcept as otherwise expressly provided, the prosecution of an offense other than a
felony must be commenced within one (1) year after it is committed ,22
The crimes in this case were not reported to the police until February 11,
2003, and the indictment charging felony and misdemeanor offenses was returned on
April 2, 2003. The misdemeanor offenses are sexual abuse in the second degree, and
are identified in the Instructions as the numbers 4, 5, 6, 24 and 25. From the evidence
presented, the offenses set forth in Instructions 4, 5, 6, and 24 occurred more than one
19 RCr 10.26.
Muncy v. Commonwealth, 132 S .W.3d 845, 848 (Ky. 2004) .
21 _Id
.
22
KRS 500.050(2) (emphasis added) .
2°
year before the proceedings commenced, and they were therefore barred by the statute
of limitations, KRS 500.050(2) . The offense set forth in Instruction 24 however,
occurred at some time between 1998 and 2002. This was the only misdemeanor
offense that could have possibly been within the one (1) year statute of limitations
applicable to misdemeanors . Even if the jury believed this offense to have occurred in
2002 (and therefore not barred by the statute of limitations), the offense also required
the prosecution to prove that the victim was under the age of fourteen years old at the
time the offense occurred . The offense set forth in Instruction 25 was against Jane
Doe . As she turned fourteen on May 20, 2000 (more than two years prior to the
commencement of proceedings against Appellant), it too is time barred . On the other
hand, if the jury believed this offense occurred within one year before the proceedings
commenced (in 2002) and is not barred by the statute of limitations, Jane Doe could not
have been under the age of fourteen when the offense was committed, and an element
of the offense would be missing. The jury could not have found that both the age
requirement was met and that the offense occurred within the statute of limitations for
the offense . The statute of limitations barred the first four misdemeanor charges
complained of and the offense set forth in Instruction 25, was either barred by the
statute of limitations and/or the age element was not met. Accordingly, these
misdemeanor convictions will be reversed for dismissal .
Appellant's fourth argument is that the 105 year sentence imposed on him
violates the statutory maximum provided by law. The trial court instructed the jury on
nineteen (19) different counts against Appellant . The jury rendered guilty verdicts
against Appellant for five (5) misdemeanors, ten (10) Class C felonies, and one (1)
Class D felony. KRS 532 .110 states the law with respect to concurrent and consecutive
sentences . KRS 532.110(1) states in pertinent part the following:
When multiple sentences of imprisonment are imposed on
a[n] [Appellant] for more than one (1) crime, including a
crime for which a previous sentence of probation or
conditional discharge has been revoked, the multiple
sentences shall run concurrently or consecutively as the
court shall determine at the time of sentence, except that:
(c) The aggregate of consecutive indeterminate terms shall
not exceed in maximum length the longest extended term
which would be authorized by KRS 532.080 for the highest
class of crime for which any of the sentences is imposed. In
no event shall the aggregate of consecutive indeterminate
terms exceed seventy (70) years .
The highest degree of felony conviction that Appellant received was a
Class C felony . Therefore, the longest aggregate sentence Appellant could have
received was the maximum length authorized for a Class C felony under the Persistent
Felony Offender statute : KRS 532.080. KRS 532.080(6)(b) provides,
If the offense for which he presently stands convicted is a
Class C felony or Class D felony, a persistent felony offender
in the first degree shall be sentenced to an indeterminate
term of imprisonment, the maximum of which shall not be
less than ten (10) years nor more than twenty (20) years .
The longest sentence Appellant could receive for the Class C and Class D
felonies for which he was convicted was twenty (20) years . The trial court erred in
sentencing Appellant to 105 years imprisonment . While the Commonwealth does not
expressly concede error, it does admit it would be difficult to find that there was no error.
We remand this case with instructions to re-sentence Appellant to imprisonment for a
period of years not to exceed twenty years .
23
KRS 532.080(6)(b) .
Appellant's fifth argument is that the trial court erred when it denied his
motion for directed verdict for the offense of sexual abuse in the first degree . The
offense of sexual abuse in the first degree involved an allegation that Appellant took
Sarah Smith's hand and placed it on his pants where his penis was . KRS 510.110(1)
states that:
A person is guilty of sexual abuse in the first degree when :
(a) He subjects another person to sexual contact by forcible
compulsion ; or
(b) He subjects another person to sexual contact who is
incapable of consent because he:
1 . Is physically helpless ;
2. Is less than twelve (12) years old; or
3. Is mentally incapacitated .24
Since Sarah Smith was already fourteen years old when this touching
allegedly occurred, the prosecution was required to prove that the touching was
accomplished by a means of forcible compulsion . Forcible compulsion is defined as
follows :
[P]hysical force or threat of physical force, express or
implied, which places a person in fear of immediate death of
physical injury to self or another person, fear of immediate
kidnap to self or another person, or fear of any offense under
this chapter . Physical resistance on the part of the victim
shall not be necessary to meet this definition .
The question is whether Appellant's act of placing Sarah Smith's hand on
his pants where his penis was, constitutes physical force meeting the definition of
forcible compulsion. Prior to 1988, physical force was defined as force that "overcomes
KRS 510.110 .
KRS 510.010(2); see also Robert G. Lawson & William H. Fortune, Kentucky Criminal
Law, §11-2(a)(2) at 424 (Lexis 1998) (emphasis added) .
24
2s
12
earnest resistance ." 26 In 1988, the legislature removed the "earnest resistance"
requirement, divorcing the force requirement from victim resistance. In 1996, the
legislature further amended the definition to provide physical resistance by the victim is
not necessary for the [Appellant's] acts to constitute forcible compulsion . 28
This Court addressed the question of forcible compulsion in Miller v.
Commonwealth .29 The defendant in that case was convicted of raping and sodomizing
his daughter 225 times. The victim did not testify that Defendant used physical force or
threatened to harm her or another if she refused his sexual advances . Furthermore, the
victim never stated that she submitted to Defendant's advances out of fear or harm to
herself or another. The only threat she described was that, on one unspecified
occasion, Defendant told her they would both get in trouble if she told anyone what they
were doing. 30
Miller , however, differs from the case at bar because it dealt with rape and
sodomy, both of which require some form of penetration . As for sexual abuse, only
contact by force is required, and force cannot be implied . Since sexual contact does not
have an implied forcible compulsion element, there must be a close examination of
whether physical force or threats of physical force caused the sexual contact, and an
offender's intention must be taken into consideration . Here, Appellant's act of taking
Sarah Smith's hand and placing it on his penis is required physical force and his intent
was to cause the sexual contact between the two. Unlike the victim in Miller , Sarah
26
Robert G . Lawson & William H . Fortune, Kentucky Criminal Law , §11-2(a)(2) at 424
(Lexis 1998).
27
See _id .
28 See _id.
29 Miller v. Commonwealth, 77 S.W.3d 566, 575 (Ky. 2002) .
30 See id .
13
Smith testified that Appellant forced her to touch his penis . Sarah Smith did not consent
or contribute to the act of touching Appellant's penis ; it was the sole act of Appellant that
caused Sarah Smith's hand to be placed on Appellant's penis . Although there was no
duress or resistance on Sarah Smith's part, forcible compulsion has no such
requirement . It simply requires physical force or threat of physical force. The evidence
was sufficient to permit a jury to believe beyond a reasonable doubt that the defendant
was guilty . 31 The trial court did not err in denying Appellant's motion for directed verdict .
Appellant's sixth argument is that the trial court erred in submitting
instructions to the jury for four counts of rape in the second degree and four related
counts of incest. Appellant argues that it was error for the trial court to submit
instructions on incest and rape occurring in the bathroom at the Appellant's home
because the victim did not testify that any act of intercourse occurred in the bathroom.
Appellant claims that this issue is preserved by his motion for directed verdict, but it is
not. RCr 9 .22 states in pertinent part, that a party must "ma[k]e known to the court the
action which that party desires the court to take or any objection to the action of the
court, and on request of the court, the grounds therefor . ,32 Appellant made only a
general motion for a directed verdict, which is insufficient to preserve this issue for
appeal. This Court has recently reaffirmed that failure to state specific grounds for a
motion for directed verdict will foreclose appellate review of the trial court's denial of that
motion . 33 In the motion, no specific mention was made of a lack of evidence as to any
31
Commonwealth v. Benham , 816 S.W.2d 186,187 (Ky. 1991) ; Commonwealth v.
Sawhill, 660 S.W.2d 3 (Ky. 1983) ; see also Jackson v. Virginia, 443 U.S. 307, 319, 99
S .Ct. 2781, 61 L.Ed .2d 560 (1979).
32
RCr 9 .22.
33
See Commonwealth v. Pate, 134 S.W.3d 593 (Ky. 2004) .
14
particular element of the charges ; Appellant merely asserted that there was insufficient
evidence as to each and every charge pending against him . Without a specific
objection, "[t]he trial court was never given an opportunity to address the question of
whether there was lack of evidence on this particular element of the offense . »34
Appellant should have objected to the giving of an instruction on the individual charges
and stated his reasons and disclosed which elements were missing.
Appellant asks this Court to review the issue for palpable error if this Court
determines this claim to be unpreserved. Palpable error is one which "affects the
substantial rights of a party . ,35 This is not palpable error because the location of the
offense is not a statutory element of the offense . In the current situation, the location
was simply used to identify each offense. Appellant admitted having sexual intercourse
with his underage daughter on three occasions at his home ; therefore, it was not
improper for the trial court to instruct the jury on at least the three incidents of rape and
incest at the home . The trial court's mistake in location, if any, does not rise to the level
of manifest injustice necessary to justify reversal for palpable error when Appellant
admitted three occasions of sexual intercourse at his home . Accordingly, instructions
were properly given for three incidents of rape in his home . 36
Appellant also mentions an ineffective assistance of counsel claim in his
reply brief, but it was not raised in his initial brief to this Court . Moreover, no such claim
Hicks v. Commonwealth , 805 S.W.2d 144,148 (Ky. App. 1990) ; see also Anastasi v.
Commonwealth, 754 S.W.2d 860 (Ky. 1988).
5
Perkins v. Commonwealth , 694 S.W.2d 721, 722 (Ky. App. 1985) ; see RCr 10.26.
36
See RCr 10.26.
34
15
has been presented to the trial court. RCr 11 .42 is the proper vehicle for presenting
such claims and we will await the appeal, if any, to resolve that question . 37
Appellant's final argument is that the instructions in this case allowed the
jury to find Appellant guilty based upon facts that would not support the charged
offense . This issue is admittedly unpreserved and as addressed in issues II and VI, a
specific objection to the instructions was not made . However, Appellant asks this Court
to review for palpable error.
Appellant argues that the instructions included a time frame of years in
which the offenses had to be committed against the victim, but that the time frame
included some years in which the victims were older than the maximum age
requirement for the offense . The Commonwealth had to prove that the offenses
occurred when the victims were under fourteen or sixteen years of age, depending on
the offense . Appellant argues the jury instructions denied him his right to a unanimous
verdict and the right to have the jury determine he was guilty of every element of the
crime . Appellant asserts that the jury could have found that the offense occurred within
the time frame given in the instructions, but after the victims had attained an age that
exceeded the maximum age element for the offense . For instance, the instructions for
rape in the second degree allowed jurors to find that the offense occurred between 1998
and 2002 . Since Jane Doe turned 14 on May 20, 2000, the jury could have believed
that the required act of sexual intercourse occurred before or after this date .
However, the instructions required the jury to find not only that the
offenses occurred within the stated time frame, but also that the victims were less than
37
See Humphrey v. Commonwealth , 962 S.W.2d 870 (Ky. 1998) .
16
fourteen or sixteen at the time of sexual contact or intercourse . The age element was a
statutory requirement for each of the complained of offenses .38 The instructions only
allowed the jury to find Appellant guilty if the act fell within the stated time frame and in
which the child victim was less than fourteen or sixteen . The instructions were not
erroneous or otherwise confusing as to the findings that the jury needed to make . The
instructions did not relieve the jury from finding that the act occurred before the victims
attained the maximum age requirement because the second paragraph of each of the
instructions required that finding. Therefore, there was no palpable error.
Accordingly, we have determined that the trial court erred by not
conducting a competency hearing following a court ordered competency evaluation, and
that the 105 year sentence imposed on Appellant violates the statutory maximum
provided by law. As such, this cause is remanded to the trial court for a retrospective
competency hearing and re-sentencing . On all other claims, the judgment of the trial
court is affirmed .
Graves, McAnulty, Minton, and Scott, concur . Roach, J., dissents by
separate opinion in which Wintersheimer, J., joins.
38
KRS 510.080 ; KRS 510.050 ; KRS 510 .120; KRS 510 .060.
17
COUNSEL FOR APPELLANT :
Thomas M. Ransdell
Assistant Public Advocate
Department of Public Advocacy
Suite 302, 100 Fair Oaks Lane'
Frankfort, KY 40601
COUNSEL FOR APPELLEE:
Gregory D. Stumbo
Attorney General of Kentucky
Room 118, Capitol Building
Frankfort, KY 40601
Gregory C . Fuchs
Assistant Attorney General
Criminal Appellate Division
Office of the Attorney General
1024 Capital Center Drive
Frankfort, KY 40601-8204
RENDERED : SEPTEMBER 21, 2006
TO BE PUBLISHED
o
4Wrns Court of ~Pnfurkgnfurkg
2004-SC-000286-MR
WILEY GIBBS
V.
APPELLANT
ON APPEAL FROM LOGAN CIRCUIT COURT
HONORABLE TYLER L. GILL, JUDGE
NO. 03-CR-00052
COMMONWEALTH OF KENTUCKY
APPELLEE
DISSENTING OPINION BY JUSTICE ROACH
I dissent only as to the majority's holding that requires a retroactive competency
hearing . In the appropriate case, I have no qualms with the concept of retroactive
competency hearings as set forth in Thompson v. Commonwealth , 56 S.W.3d 406 (Ky.
2001) . However, the majority fails to properly apply Mills v. Commonwealth , 996
S.W.2d 473 (Ky. 1999), which held in circumstances almost identical to those in this
case that it was harmless error to allow a defendant to waive a competency hearing . i
also believe that Thompson and Mills were decided erroneously in part in that they
failed to recognize that two separate interests-a statutory right and a constitutional
right--are at stake in analyzing whether a defendant is competent, and, more
importantly, that different standards govern those interests .
To begin with, while Mills held that a competency hearing "cannot be waived by a
defendant," 996 S .W.2d at 486, it also held that waiver of such a hearing could be
harmless error. Id. In Mills, the Court noted that the psychiatric report indicated the
defendant was competent to stand trial, that the defendant failed to present any other
evidence of incompetence, and that the trial court had ordered the psychiatric
examination because the defendant filed a notice of intent to introduce evidence of
mental illness, insanity, or mental defect, not because of any belief or evidence that the
defendant was incompetent . Id. Because the defendant "failed to establish any factual
basis which should have caused the trial court to experience reasonable doubt as to
[his] competence to stand trial . . . we h[e]ld that it was harmless error for the trial court
to allow [him] to waive the mandatory competency hearing . . . ." Id .
In this case, the trial court ordered that Appellant be examined pursuant to KRS
504.100(2) because his attorney claimed to have concerns about his competency to
stand trial. The psychiatrist's report indicated Appellant was competent to stand trial.
At a subsequent pretrial hearing, the trial court asked Appellant's attorney whether a
competency hearing was necessary. The attorney continued to express concern about
his client's "level of . . . intellectual functioning," but advised the court about the content
of the psychiatric report. Appellant's attorney also told the trial court that he had no
reason to believe Appellant would be unable to assist in his defense or was otherwise
incompetent . Based on this, Appellant's attorney declined the offer of a competency
hearing.
These facts are almost identical to those in Mills. The majority even recognizes
this case's factual similarity to Mills. Yet, rather than applying the harmless error aspect
of Mills, the majority opinion, relying on the notion in Mills that competency hearings are
mandatory under KRS 504.100(3), has ordered a retroactive competency hearing for
Appellant . But given the factual similarity between this case and Mills, even assuming
that the reasoning in the latter was correct (meaning that Appellant's waiver of a
competency hearing in this case was error), it is clear that Appellant's waiver was
harmless error. This alone would cause me to respectfully dissent from the majority
opinion.
However, I also believe that Mills, which gave rise to Thomason, which in turn the
majority relies on to require a retroactive competency hearing, contains a significant
error of law. Mills correctly notes that "[c]riminal prosecution of a defendant who is
incompetent to stand trial is a violation of due process of law under the Fourteenth
Amendment" of the United States Constitution . Id. at 486. Under the Fourteenth
Amendment "once facts known to a trial court are sufficient to place a defendant's
competence to stand trial in question, the trial court must hold an evidentiary hearing to
determine the question ." Id . at 486. Mills also stated correctly that the "United States
Supreme Court decisions indicate strongly that a defendant cannot waive a competency
hearing." Id . at 486. Under this federal constitutional standard, once the threshold
showing has been made, a defendant cannot waive a competency hearing. However,
under the Fourteenth Amendment, a competency hearing is only necessary "where
there is substantial evidence that a defendant is incompetent ." Filiagqi v. Bagley, 445
F.3d 851, 858 (6th Cir. 2006). On appeal, the test is "`whether a reasonable judge,
situated as was the trial court judge whose failure to conduct an evidentiary hearing is
being reviewed, should have experienced doubt with respect to competency to stand
trial."' Id . (quoting Williams v. Bordenkircher, 696 F.2d 464, 467 (6th Cir.1983)) .
Kentucky has a statutory mechanism initiating an inquiry into a defendant's
competence to stand trial . A trial court is required to have a defendant examined if it
"has reasonable grounds to believe the defendant is incompetent to stand trial . . . . ..
KRS 504.100(1). The statute requires that after the defendant is examined, "the court
shall hold a hearing to determine whether or not the defendant is competent to stand
trial ." KRS 504.100(3).
In Mills, we addressed the interaction between the requirements of the process
and our statute in regards to competency hearings . As Mills explained, KRS 504.100 is
"entirely consistent with these [due process rights under the Fourteenth Amendment]
constitutional requirements." 996 S.W.2d at 486. This is clearly the case since the
statute, if followed, provides at least as much protection for defendants as the
Fourteenth Amendment requires . Mills also correctly held that the plain words of KRS
504.100(3) require a hearing if the court ordered an examination under KRS 504 .100(1) :
Id .
Mills then held that KRS 504.100(3) "is mandatory and cannot be waived by a
defendant ." Id.
It is this last point where I believe Mills went astray . Primarily, I think Mills
ignores that the evidentiary threshold at which each right attaches is different. The
Fourteenth Amendment right to a competency hearing only comes into play when the
judge has "substantial evidence that a defendant is incompetent," Filia
i, 445 F.3d at
858, whereas the statutory mechanism kicks in when the judge merely "has reasonable
grounds to believe the defendant is incompetent . . . ." KRS 504.1 00(l). The
Fourteenth Amendment right requires a significantly higher evidentiary burden than the
statutory right. I think the difference is akin to that between the notions of "probable
cause" and "reasonable articulable suspicion" in Fourth Amendment jurisprudence .
Under this framework, it is possible that the evidentiary threshold for the statutory right
could be met without that evidence rising to a level sufficient to invoke the Fourteenth
Amendment right.
In fact, I think that is exactly what happened in this case. The statutory right in
this case was invoked when the defense attorney told the trial court that he had
concerns about his client's competency and the trial court ordered that Appellant be
examined pursuant to the statute . The court's order was predicated on the statement
that "there is reason to believe that the above defendant is not mentally capable of
understanding the charge against him/her, or aiding his/her counsel in the trial of said
case . . . . .. At that point, however, the trial court was relying only on the attorney's
representations as to his concerns; the court had been presented with no other
evidence that Appellant was incompetent . While counsel's representations may have
been sufficient to start the KRS 504.100 inquiry into Appellant's competency (with the
trial court's findings in the regard enjoying a great deal of deference on appeal), absent
evidence to support them, they are insufficient to invoke the Fourteenth Amendment
right to a competency hearing . Verbalized concerns about a defendant's competency
made to the trial court, even by an attorney as an officer of the Court, do not constitute
"substantial evidence that a defendant is incompetent."
And no such substantial evidence was later presented to the trial court. As
discussed above, after the trial court entered its order under KRS 504.1 00(l), Appellant
was examined by a psychiatrist, whose report was returned to the trial court as required
by KRS 504.100(2). The psychiatrist found that Appellant was competent, and
Appellant's attorney, having no reason to question the report, accepted it and waived
the hearing.
As noted above, due process does not require a competency hearing in every
case. Rather, the due process right to a hearing, while perhaps unwaivable, is
nonetheless conditional and depends on the existence of substantial evidence of
incompetence.' As the Fila
i court noted, the appropriate inquiry is whether at the
time the trial court declined to order the hearing, "a reasonable judge, situated as was
the trial court judge whose failure to conduct an evidentiary hearing is being reviewed,
should have experienced doubt with respect to competency to stand trial." Filia
i, 445
F.3d at 858 . Under this standard of review, I believe that it is clear that even after the
psychiatric examination, there was no evidence before the trial court to create doubt as
to Appellant's competency . At that point, Appellant's Fourteenth Amendment right to a
competency hearing still had not attached .
Unfortunately, Mills , and subsequently Thomas , conflated the due process and
statutory rights and, in the process, erroneously grafted the much lower statutory
evidentiary standard of "reasonable grounds to believe" onto the unwaivable
constitutional right. But I think that so long as the due process right has not attached,
our inquiry should be limited to the separate, and quite different, statutory right, which
Appellant clearly waived in this case.
The easy response to this is that because the statute employs the word "shall"
with respect to holding a competency hearing, KRS 504.100(3), it is mandatory once the
trial court orders a defendant to be evaluated for competency. This appears to be at
least part of the basis of the holding in Mills that "[t]he competency hearing of KRS
504.100(3) is mandatory and cannot be waived by a defendant," 996 S.W.2d at 486,
and the majority's reason for ordering the retroactive hearing in this case . But such a
construction of the statute appears to require that we ignore RCr 9.24, our harmless
error rule, in applying KRS 504. 100 . In fact, the majority opinion fails even to cite or to
Although it is even further afield than my current concern, I would also note that
the unwaivability of a hearing required by the Fourteenth Amendment does not mean
that an erroneous waiver is not subject to harmless error.
6
discuss the rule and, as discussed above, fails to apply the harmless error aspect of
Mills.
This construction also ignores our long-standing rule that a defendant "may
waive any mere statutory right." Keith v. Commonwealth , 195 Ky. 635, 243 S .W . 293,
297 (1922). The rights afforded a defendant under KRS 504.100 are like the vast
majority of other numerous rights that are enjoyed by a defendantthey can be waived .
Appellant never asserted his right nor did he object to the lack of a hearing . In fact, his
attorney affirmatively declined the offer of a hearing after he saw the psychiatric report
about his client.
Ultimately, I think this case is an example of how Justice Wintersheimer
characterized Thompson : "This is a clear case of appellate counsel desiring to change
the actual facts of the trial." Thompson , 56 S.W.3d at 411 (Wintersheimer, J.,
dissenting) . Worse still, Appellant's claim amounts to little more than a request that
KRS 504.100 be applied blindly and formulaically, without regard to the actual evidence,
so as to manufacture error where none exists. I fear that the majority opinion has done
just that.
I respectfully dissent .
Wintersheimer, J ., joins this dissenting opinion .
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