Henderson v. Commonwealth

Decision Date13 December 2018
Docket Number2016-SC-000484-MR
Citation563 S.W.3d 651
Parties Cleosey Darnell HENDERSON, II, Appellant v. COMMONWEALTH of Kentucky Appellee
CourtUnited States State Supreme Court — District of Kentucky

COUNSEL FOR APPELLANT: Shannon Renee Dupree, Department of Public Advocacy.

COUNSEL FOR APPELLEE: Andy Be shear, Attorney General of Kentucky, Joseph A. Beckett, Assistant Attorney General.


A Jefferson County jury convicted Cleosey Darnell Henderson, II of Assault, first degree, Sexual Abuse, first degree, and Unlawful Imprisonment, first degree. The jury also found Henderson was a persistent felony offender (PFO) in the first-degree. He was sentenced, per the jury’s recommendation, to a total sentence of sixty years. Henderson now appeals his conviction and sentence as a matter of right on several grounds. For the following reasons, we affirm his conviction.


Alice,1 Henderson’s neighbor, walked over to his home to request money that she alleged Henderson owed her. After answering the door and engaging in some conversation, Henderson grabbed Alice by the throat and attacked her. She lost consciousness and, at some point, awoke, tied up in Henderson’s bedroom. Alice lost consciousness multiple times throughout the encounter but testified that Henderson had removed her pants and panties and digitally penetrated her vagina. Henderson cut Alice multiple times with a sharp object that Alice could not specifically identify in her testimony. Alice was ultimately able to free herself and leave through a window, during which her legs were cut from the broken glass. She escaped to a neighbor’s home where she obtained help and was taken to the hospital for treatment. She had multiple cuts and bruises from the assault.

Henderson was arrested in November of 2011, yet his trial did not occur until June of 2016. For this reason, on appeal, he argues that his constitutional right to a speedy trial, under both the United States Constitution2 and the Kentucky Constitution,3 was violated and he is entitled to a dismissal with prejudice. Henderson also alleges prejudicial error in: (1) the trial court’s failure to appoint substitute counsel; (2) the trial court’s failure to advise Henderson of his right to stand-by or hybrid counsel; (3) the trial court’s denial of Henderson’s motion to suppress; (4) the exclusion of evidence under the Rape Shield Law; and (5) the trial court’s inaccurate curtailing of Henderson’s right to recall a witness. For the following reasons, we find no reversible error and affirm the judgment of the Jefferson Circuit Court.

A timeline of this case is integral to the speedy trial analysis. As such, the Court must, in detail, describe exactly what occurred during Henderson’s case and the dilatory nature of any delay.


Henderson was indicted on December 28, 2011 and arraigned in January of 2012. His jury trial was scheduled at that time for July 17, 2012. His first appointed public defender was present with him at a bond reduction hearing on January 27, 2012, but he had to be appointed a new attorney when his original counsel left the DPA. The newly-appointed attorney appeared with him at his next pretrial conference on April 23, 2012. It seemed that it was this court’s practice, from the record and from counsel’s statements at appearances, to schedule fewer pretrial conferences until trial. Thus, from Henderson’s court record, it was not unusual, absent motions or issues, for two to four months to pass between appearances in the circuit court. While that delay is not necessarily excusable, the description of local practice4 is important to understanding the context of Henderson’s case.

The first suppression motion was filed on May 30, 2012 and set for hearing on June 22, 2012. Rather than utilizing that date for the hearing, defense counsel, with agreement from the Commonwealth, moved to remand the jury trial date and utilize that date as the suppression hearing. The reason is unclear from the record, but that date was also rescheduled, and the suppression hearing was held on September 11, 2012. The parties set the jury trial for May 7, 2013. The context of the May date is also important; the dissent focuses on the length of time between trial dates and the inevitable delay to Henderson’s case. While attempting to reschedule dates, the trial court, prosecutor, and defense attorney all had burdensome schedules with which to arrange possible dates for Henderson’s trial. Both the prosecutor and defense attorney were working on other murder cases and there was at least one reference to a capital case. The trial court also had a cumbersome schedule with multiple civil jury trials; each time the parties had to reschedule, the judge contacted his assistant on speaker phone to tell him the next possible date. This May 7, 2013 date was the first time that all the parties were available for another trial. Although this is a long period, this context must be appreciated and understood. The parties were not being intentionally dilatory but were, instead, attempting to cooperate with three diverse and busy schedules to accommodate Henderson’s need for access to the court.

Henderson’s attorney filed some uncomplicated motions over the next few months, including a second suppression motion. After that motion was filed, the parties attempted to schedule a second hearing. The lead detective for the Commonwealth was unavailable until the trial date as she was on medical leave. The dissenting opinion states that the Commonwealth was unable to proceed to hearing on February 11, 2013 after the filed motion. However, from review of the record, February 11 was a pretrial conference at which time the parties were to schedule a hearing because of Henderson’s recently filed motion (filed on February 5, 2013). The Commonwealth was ready to proceed with the jury trial date in May; it simply was unable to produce its witness before that time. The parties agreed to convert the trial date to a suppression hearing and reschedule the trial. Thus, the prosecution, from this review of the record, never requested a continuance for its preparation but merely consented to defense requests for such.

On March 4, 2013, Henderson filed a demand for a speedy trial. In May, although the reasons are unclear from the record, the suppression hearing was rescheduled for June 26, 2013 and a jury trial date was scheduled for October 28, 2013. The suppression hearing occurred on the June 26 date. In October, and for reasons that are once again unclear from the record, the court entered an order rescheduling the jury trial for June 3, 2014.

On November 11, 2013, Henderson filed a pro se motion to dismiss for violating his right to a speedy trial. The hearing, from pleadings, was rescheduled by the trial court twice. It finally occurred on May 7, 2014. By that time, Henderson had filed a second pro se motion for an expert witness. At the May 7 hearing, Henderson first stated that he would like to dismiss his attorney and have a new lawyer appointed. The judge asked him to file that in writing so that the court could address it later but specifically pointed out to Henderson that such a motion would definitely delay the trial even longer, in spite of his request for a speedy trial. Henderson stated that the request was necessary and "it would just have to happen." Based on these motions requiring an ex parte hearing, the court scheduled those motions to be heard on May 12, 2014.

On May 12, Henderson filed his pro se motion for conflict counsel and the hearing went forward. Henderson there stated that he "refuse[d]" to go to trial with his appointed attorney. The circuit court converted the June trial date to a pretrial conference and stated it would have all rulings on pending motions ready and the parties would move forward accordingly. On June 3, the circuit court again stated that the drafts on rulings were complete but he needed to pass thirty days to finish. The next appearance was scheduled for July 2 but, for reasons unknown from the record, the next appearance was on August 8, 2014. At that time, the judge tendered orders denying both motions to suppress, the motion for conflict counsel, and the motion for expert witness. He stated that he still needed to issue a ruling on the motion to dismiss (the subsequent order denying was entered September 16, 2014). The next pretrial was set for October 2, 2014. The parties began scheduling a new trial but Henderson interrupted and requested that they wait to reschedule the jury trial until the next pretrial conference.

On September 30, Henderson filed a pro se motion to dismiss and another pro se motion to dismiss was filed on October 2, 2014. There was a pretrial conference on October 2, as scheduled, and a new jury trial was scheduled for June 23, 2015. At that appearance, Henderson stated again that he would not go to trial with his appointed attorney. Henderson filed a pro se motion to reconsider suppression on October 12, 2014. The parties appeared in court on November 14, at which time defense counsel requested that the parties have more "face to face" time with the court. The next status was scheduled for January 16, 2015. The jury trial remained scheduled for June 23, 2015. The court entered an order denying the motion to dismiss on December 22, 2014.

On January 16, 2015, the parties appeared for a status. Both attorneys stated there were no issues to address. Henderson interrupted and stated that God had told him to inform the court that he would no longer need an attorney. He reiterated that he wanted to dismiss his appointed counsel and that "the Lord will fight my cause" and "the Lord will be my defense." The court did not question much further at that time but requested that Henderson place his motion in writing for the court to address. On February 6, 2015, he filed a pro se motion to reconsider, accusing the Commonwealth of lying in a previous reply memorandum. Henderson filed his pro se motion to...

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  • Smith v. Commonwealth
    • United States
    • United States State Supreme Court (Kentucky)
    • 16 de dezembro de 2021
    ...However, the "assertion of the right to speedy trial ‘must be viewed in light of [defendant's] other conduct.’ " Henderson v. Commonwealth , 563 S.W.3d 651, 664 (Ky. 2018) (alteration in original) (quoting Dunaway , 60 S.W.3d at 571 ). In this case, the Commonwealth concedes that Smith asse......
  • Commonwealth v. Padgett, 2017-SC-000441-DG
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    • United States State Supreme Court (Kentucky)
    • 13 de dezembro de 2018
  • Ball v. Commonwealth
    • United States
    • United States State Supreme Court (Kentucky)
    • 26 de setembro de 2019
    ...of his counsel and the appointment of substitute counsel except for adequate reasons or a clear abuse by counsel." Henderson v. Commonwealth, 563 S.W.3d 651, 668 (Ky. 2018) (citing Henderson v. Commonwealth, 636 S.W.2d 648, 651 (Ky. 1982)). Thus, "[w]hen an indigent defendant seeks to chang......
  • Smith v. Commonwealth
    • United States
    • United States State Supreme Court (Kentucky)
    • 16 de dezembro de 2021
    ...the "assertion of the right to speedy trial 'must be viewed in light of [defendant's] other conduct.'" Henderson v. Commonwealth, 563 S.W.3d 651, 664 (Ky. 2018) (alteration in original) (quoting Dunaway, 60 S.W.3d at 571). In this case, the Commonwealth concedes that Smith asserted his righ......
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