Hill v. Com., No. 2002-SC-0077-MR.

• Decision Date: 22 January 2004
• Docket Number: No. 2002-SC-0077-MR.
• Citation: 125 S.W.3d 221
• Parties: Kent HILL, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

125 S.W.3d 221

Kent HILL, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 2002-SC-0077-MR.

Supreme Court of Kentucky.

January 22, 2004.

Richard Hoffman, Assistant Public Advocate, Frankfort, Counsel for Appellant.

Gregory D. Stumbo, Attorney General, Perry T. Ryan, Assistant Attorney General, Frankfort, Counsel for Appellee.

Opinion of the Court by Justice COOPER.

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)(a). 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 co-counsel 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 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. Wiggins, 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 696.¹ Thus, the trial court here was constitutionally required to grant Appellant's request to serve as co-counsel for himself.

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...