TROY HARRIS V. COMMONWEALTH OF KENTUCKY
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IMPORTANT NOTICE
NOT TO BE PUBLISHE D OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED ."
PURSUANT TO THE RULES OF CIVIL PROCEDURE
PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),
THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS BINDING PRECEDENT IN ANY OTHER
CASE IN ANY COURT OF THIS STATE; HOWEVER,
UNPUBLISHED KENTUCKY APPELLATE DECISIONS,
RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR
CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED
OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE
BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION
BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED
DECISION IN THE FILED DOCUMENT AND A COPY OF THE
ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE
DOCUMENT TO THE COURT AND ALL PARTIES TO THE
ACTION.
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2008-SC-000099-MR
TROY HARRIS
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APPELLANT
ON APPEAL FROM KENTON CIRCUIT COURT
HONORABLE GREGORY M . BARTLETT, JUDGE
NO . 06-CR-00554
COMMONWEALTH OF KENTUCKY
APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Appellant, Troy Harris, was convicted by a Kenton Circuit Court jury of
first-degree assault and of being a second-degree persistent felony offender .
For these crimes, Appellant received a total sentence of twenty-four years
imprisonment . Appellant now appeals to this Court as a matter of right . Ky.
Const . § 110.
Appellant asserts three arguments on appeal : 1) that the trial court had
a duty to sua sponte inquire whether Appellant voluntarily waived his right to
testify and choose his own defense ; 2) that the trial court erred in not holding a
competency hearing for Appellant ; and 3) that unduly prejudicial hearsay
testimony was improperly admitted at trial . For the reasons set forth herein,
we now affirm Appellant's convictions and sentence .
On September 14, 2006, Appellant impaled his girlfriend, Karen S ., with
a broom handle. The broom handle tore through Karen's blue jeans, injured
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her vagina and bladder, and ended up being forced two feet into her abdomen .
Upon calling 911, Appellant stated that the impaling was an accident. He
claimed that while he was sweeping up broken glass on the floor, he noticed a
spider on Karen and used the broom handle to kill it. He stated that the broom
handle accidentally slipped inside her. Karen testified at trial that Appellant's
actions were a result of an altercation they were having due to her staying out
all night drinking. Further facts will be developed below as necessary.
I. The trial court had no duty to sua sponte inquire whether Appellant
had voluntarily waived his right to testify or control his defense
Appellant first argues that the trial court should have inquired sua
sponte into whether he voluntarily waived his right to testify and to control his
own defense at trial . Prior to trial, it became clear that Appellant and his
counsel disagreed over what defense should be presented. Appellant wanted to
argue that the impaling was accidental and he wanted to testify at trial.
Appellant's counsel preferred an extreme emotional disturbance defense and
filed a motion with the trial court to determine which party should control the
defense. The trial court held a hearing and determined that Appellant was
competent to control the defense presented and to testify.
Despite the trial court's ruling, Appellant and his counsel continued to
disagree on what defense should be presented. Appellant's counsel believed
that Appellant's "accident" defense was "impossible, delusional, and
ridiculous ." The day before trial the court entered a second order finding
Appellant to be competent to direct his counsel in regard to the defense .
During trial Appellant's counsel presented an extreme emotional
disturbance defense for Appellant. Appellant's theory that the impaling was
accidental was not presented, and he did not testify. The trial court never
asked Appellant if he abandoned his preferred "accident" defense or if he
wanted to testify. Appellant never indicated during trial that he disagreed with
the defense being presented or if he was being prevented by his counsel from
testifying .
Appellant now argues that the trial court had a duty to make a sua
sponte inquiry into whether he voluntarily gave up his right to testify and the
right to control his defense . See U .S . Const . amend . V (giving a defendant the
right to testify) ; U.S. Const. amend. VI (giving a defendant the right to control
his defense at trial) . Appellant cites to Crawley v. Commonwealth , 107 S .W .3d
197, 199 (Ky. 2003), and Quarels v. Commonwealth , 142 S .W.3d 73, 78 (Ky.
2004), for the proposition that the "trial court has a duty to inquire into a
disagreement between a defendant and defense counsel regarding the
defendant's right to testify if it has reason to believe that a defendant's rights
have been wrongly suppressed." Further, Appellant argues that his Sixth
Amendment rights are violated if his counsel presents a defense in
contravention of his wishes . Jacobs v . Commonwealth, 870 S .W .2d 412, 417418 (Ky. 1994) . However, a trial court has no duty to inquire into a defendant's
choice not to testify if there is no evidence that the defendant's counsel
prevented the defendant from testifying . Riley v. Commonwealth , 91 S .W .3d
560, 562 (Ky. 2002) ; See also United States v. Penn, cooke , 65 F.3d 9, 13 (3d
Cir. 1995) ("Where the trial court has no reason to believe that the defendant's
own attorney is frustrating his or her desire to testify, a trial court has no
affirmative duty to advise the defendant of the right to testify or to obtain an
on-the-record waiver of such right .")
In this matter, the trial court had no indication that Appellant's counsel
kept him from presenting the defense he preferred or from testifying. While it
is clear from the record that Appellant and his counsel disagreed before trial on
how his defense should proceed, Appellant made no attempt to indicate
displeasure with his defense at trial . While Appellant argues that his body
posture during trial indicates he was unhappy with his counsel or was being
prevented from controlling his defense, such evidence is unpersuasive. This
matter is distinguishable from Crawley, supra , and Quarels, supra, because in
those cases the trial court actually had knowledge that someone prevented the
defendant from testifying. However, without any substantive evidence
indicating that Appellant was prevented from controlling his defense or
testifying, we cannot find that the trial court should have sua sponte inquired
whether Appellant's rights were being infringed upon . See Riley , 91 S.W .3d at
562 . Additionally, the trial court's order finding that Appellant was competent
to control his own defense did not order that his preferred defense be
presented . There is no error here .
II. Appellant was not entitled to a competency hearing
Appellant next argues that the trial court should have held a hearing to
determine if he was competent to stand trial. Appellant argues that there were
numerous reasons to question his competency . An expert determined that
Appellant has low intellectual functioning and that he could be suffering from a
dissociative state or post-traumatic stress disorder due to witnessing family
violence at a young age . However, Appellant's expert determined that Appellant
was competent to stand trial and his counsel admitted that Appellant was able
to understand the criminal proceedings . Appellant's counsel filed a motion
pursuant to RCr 8 .06 and KRS 504 .100 requesting an evaluation and
evidentiary hearing on Appellant's mental state . The basis for the motion was
their belief that Appellant's defense that the impaling was accidental was
"impossible, delusional, and ridiculous" and was an indicator of his inability to
participate rationally in his defense . Appellant's counsel argued that Appellant
was unable to rationally understand the truth. The trial court ruled that there
were insufficient grounds to order a mental evaluation because Appellant's
disagreement with counsel was not necessarily irrational and that poor
judgment was not a mental illness .
RCr 8 .06 states that if "during the proceedings there are reasonable
grounds to believe" a defendant is not competent, the judge has a duty to hold
a competency hearing. However, the decision on whether to hold a competency
hearing is up to the trial court's discretion . Dye v. Commonwealth , 477 S .W .2d
805, 806 (Ky . 1972) . The judge's decision to deny a competency hearing
should be reviewed to see if "a reasonable judge, situated as was the trial court
judge . . . should have experienced doubt with respect to [defendant's]
competency to stand trial." Turner v . Commonwealth, 153 S .W.3d 823, 832
(Ky . 2005) .
In this matter, the trial court's denial of Appellant's motion for a
competency hearing was proper. Inadequate evidence was provided that
Appellant was incompetent to stand trial . While Appellant did disagree before
trial with his counsel over what defense should be presented, we cannot say
that the disagreement was the byproduct of an incompetent mind.
Importantly, Appellant's own expert believed him to be competent to stand trial
and his counsel admitted that Appellant could understand the legal
proceedings. While Appellant may have suffered from some mental disorders
due to witnessing family violence, these disorders did not overcome the
presumption of competence we give all defendants . Gabbard v.
Commonwealth, 887 S.W.2d 547, 551 (Ky. 1994) . The trial court was within
its discretion to deny the motion for a competency hearing, and there is no
error here.
III . The introduction of improper hearsay evidence was harmless error
Appellant's last argument is that hearsay testimony was improperly
admitted into evidence . Mary Jo Hundley, a sexual assault nurse examiner,
testified at trial that she interviewed Karen S regarding the injuries she
sustained . The interview occurred hours after Karen S . had been admitted into
the hospital and treatments for her injuries had begun . Hundley testified that
Karen S . told her that "[Appellant] had locked her out of the house and she
broke the window and [Appellant] let her in and [Appellant] took a broomstick
and rammed into her vaginal area. `[Appellant] made a hole in my jeans and
rammed the broomstick up my vagina."' Appellant initially objected to this
testimony, but ultimately did not object to Hundley testifying that Appellant
impaled Karen S . with a broomstick .
KRE 803(4) provides that "[staaeements made for purposes of medical
treatment or diagnosis and describing medical history, or past or present
symptoms, pain or sensations, or the inception or general character of the
cause or external source thereof insofar as reasonably pertinent to treatment or
diagnosis" can be admitted as an exception to the hearsay rule . A statement is
"reasonably pertinent" to a patient's medical treatment if it is information that
aids the doctor or medical staff in providing the treatment sought. Lawson,
The Kentucky Evidence Law Handbook, § 8.55 (4th ed. 2003) . If the statement
was not pertinent to the treatment, then it is inadmissible under KRE 803(4) .
The statements made by Karen S . to Hundley regarding who impaled her
with a broomstick were inadmissible under KRE 803(4) . The identity of the
person who caused Karen S.'s injury was unnecessary for her medical
treatment. Additionally, Karen S. was already receiving treatment from doctors
when Hundley conducted the interview and so it cannot be said that her
statements were made for medical treatment. Thus, the admission of
Hundley's testimony was error. However, the error is harmless . Karen S .
testified at trial that Appellant was the one who impaled her with the
broomstick . Karen S .'s testimony also provided a description of how the
impaling occurred .
Thus, for the foregoing reasons, the conviction and sentence of the
Kenton Circuit Court is hereby affirmed .
All sitting. All concur.
COUNSEL FOR APPELLANT :
Shannon Renee Dupree
Assistant Public Advocate
Department of Public Advocacy
100 Fair Oaks Lane
Suite 301
Frankfort, Kentucky 40601
COUNSEL FOR APPELLEE:
Jack Conway
Attorney General
Gregory C. Fuchs
Assistant Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, Kentucky 40601-8204
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