Lamb v. Commonwealth, 2015–SC–000255–MR

Citation510 S.W.3d 316
Decision Date16 February 2017
Docket Number2015–SC–000255–MR
Parties Paul LAMB, Appellant v. COMMONWEALTH of Kentucky, Appellee
CourtUnited States State Supreme Court (Kentucky)

COUNSEL FOR APPELLANT: Steven Jared Buck, Assistant Public Advocate

COUNSEL FOR APPELLEE: Andy Beshear, Attorney General of Kentucky, Micah Brandon Roberts, Assistant Attorney General

OPINION OF THE COURT BY JUSTICE VENTERS

Appellant, Paul F. Lamb, appeals from a judgment of the McCracken Circuit Court convicting him of eleven crimes: 1) failure to or improper signal; 2) careless driving; 3) two counts of first degree trafficking in a controlled substance (Percocet

), greater than ten dosage units, subsequent offense; 4) trafficking in marijuana, less than eight ounces, subsequent offense; 5) possession of drug paraphernalia; 6) trafficking in marijuana, greater than five pounds, firearm enhanced; 7) first degree trafficking in a controlled substance (Percocet ), greater than ten dosage units, firearm enhanced; 8) first degree possession of a controlled substance (methamphetamine), firearm enhanced; 9) possession of drug paraphernalia, firearm enhanced; and 10) possession of a handgun by a convicted felon. He was sentenced to prison for a total of seventy years. Appellant asserts on appeal that the trial court erred by 1) allowing him to waive counsel, 2) failing to suppress evidence from an illegal search, 3) allowing entry of improper character evidence, 4) denying a directed verdict, and 5) allowing Appellant's sentence to be enhanced as a subsequent offender. For the reasons stated below, we affirm Appellant's convictions.

I. FACTUAL AND PROCEDURAL BACKGROUND

Appellant became the focus of an investigation after police received a complaint that illegal drugs were being sold from the house in which he resided. As part of this investigation, McCracken County Sheriff Department (MCSD) detectives used a confidential informant to buy Percocet

from Appellant at a local bar. Five days later, the confidential informant told the detectives that Appellant was then at the same bar attempting to sell hydrocodone pills. Detectives surveilling the bar watched Appellant leave, get into his vehicle, and drive away. The detectives followed in an unmarked car. After seeing Appellant cross over the center line of the highway, they contacted the MCSD canine officer and informed him that they were following Appellant, that Appellant had previously sold illegal drugs to an informant, that the informant had told them that Appellant was in possession of hydrocodone which he had attempted to sell, and that Appellant could have a handgun.

The canine officer, in a marked police vehicle, then took over the task of following Appellant. When he saw Appellant make a right turn without using his turn signal, the officer stopped Appellant. As he approached Appellant's vehicle, he detected a faint odor of burnt marijuana. He instructed Appellant to exit the vehicle; he then patted Appellant down for weapons. Although he did not detect a weapon, he felt what he believed to be a "bundle of drugs." Appellant passed a field sobriety test and the portable breath test did not detect alcohol beyond the legal limit. Appellant refused consent for a search of his vehicle and his person.

Ten minutes after stopping Appellant, and with Appellant standing away from his vehicle, the canine officer deployed his dog to search the exterior of the unoccupied vehicle. The dog alerted to the driver's door. The officer then searched inside the vehicle but found only a nine millimeter clip in the trunk. He then searched Appellant's person and found six doses of hydrocodone

, 26 doses of Percocet, 39 grams of marijuana, and $2,480 cash, including $80 of the cash used by the confidential informant for the Percocet purchase five days earlier. Appellant was arrested. Additional charges followed when a search of Appellant's residence led to the discovery of other contraband.

II. ANALYSIS
A. The Trial Court Properly Determined that Appellant Had Waived His Right to Counsel

Two months after being appointed counsel, Appellant moved the court to relieve his counsel of further duty and allow him to represent himself. After conducting a Faretta hearing,1 the trial court concluded that Appellant voluntarily, knowingly, and intelligently waived his right to counsel. The court granted Appellant's motion to act as his own counsel and directed his appointed attorney to act as standby counsel.

In Commonwealth v. Terry , 295 S.W.3d 819, 822 (Ky. 2009), this Court offered model questions that trial judges could use to assist them in determining whether waivers of the right to counsel were being knowingly and intelligently made. Appellant complains that the trial judge in this case did not use Terry's model questions. In particular, he complains that the trial court did not review with him the crimes charged and their associated penalty ranges; did not discuss the procedure to be employed if he chose to testify; and failed to advise him against self-representation. Consequently, Appellant asserts that he was left without a proper appreciation of the disadvantages of self-representation, and thus he did not knowingly, voluntarily, and intelligently waive his right to counsel.

The Sixth Amendment of the United States Constitution and Section 11 of the Kentucky Constitution provide the right of self-representation for defendants who knowingly and intelligently relinquish their right to professional legal counsel. Faretta holds:

When an accused manages his own defense, he relinquishes, as a purely factual matter, many of the traditional benefits associated with the right to counsel. For this reason, in order to represent himself, the accused must knowingly and intelligently forgo those relinquished benefits.... [The accused] should be made 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 eyes open.

422 U.S. at 835, 95 S.Ct. 2525 (internal citation and quotation marks omitted).

The Supreme Court explained in Faretta that a defendant choosing self-representation "should be made aware of the dangers and disadvantages of self-representation" but that he need not have "the skill and experience of a lawyer in order competently and intelligently to choose self-representation," and "technical legal knowledge ... was not relevant to an assessment of [one's] knowing exercise of the right to defend himself." The Supreme Court further noted that "[t]he trial judge had warned Faretta that he thought it was a mistake not to accept the assistance of counsel." Id. at 835-836, 95 S.Ct. 2525. However, it appears in Faretta that an extensive discussion of the dangers associated with self-representation was not undertaken.

Faretta does not specifically require the trial court to inform a defendant seeking self-representation of the charges against him, the possible penalties, or the procedures that may be pertinent to the defense of his case. Nor must the defendant be specifically warned against self-representation. As we have stated in other cases, the inquiry to determine if a particular defendant is making an intelligent waiver of counsel and adequately understands the potentially adverse consequences of his choice, must be adapted to the circumstances of the individual case. The inquiry will depend on case-specific factors, such as the defendant's education, experiences, sophistication, the complexity or simplicity of the charges, and the stage of the proceeding for which the defendant seeks to waive counsel. Depp v. Commonwealth , 278 S.W.3d 615, 617 (Ky. 2009) (quoting Iowa v. Tovar , 541 U.S. 77, 88, 124 S.Ct. 1379, 158 L.Ed.2d 209 (2004) ); Terry , 295 S.W.3d at 825, n. 3. "[T]he requirement remains that a trial court must provide a defendant proposing self-representation enough information to demonstrate that the defendant's waiver of counsel was done with ‘eyes open.’ " Terry , 295 S.W.3d at 820. Ultimately, the trial court must ascertain that the defendant is competent to waive his right to counsel, not that the defendant is competent to represent himself. Godinez v. Moran , 509 U.S. 389, 399, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993).

Consequently, the trial judge in this case was not required to impart specific knowledge or warnings to Appellant as a prerequisite for finding that he knowingly and intelligently waived his right to counsel. Rather, it was sufficient that Appellant was alerted generally to the difficulties of navigating the trial procedure pro se. Upon review, we are satisfied that the trial court adequately cautioned Appellant so that he had an appropriate understanding of the dangers of self-representation. The question is not how well the trial court employed the model questions offered as guidance in Terry , but whether the trial court provided enough information to assure that Appellant's waiver of counsel was done with "eyes open." See Grady v. Commonwealth , 325 S.W.3d 333, 342 (Ky. 2010) ; Terry , 295 S.W.3d at 825. As in Faretta , "the record affirmatively shows that [Appellant] was literate, competent, and understanding, and that he was voluntarily exercising his informed free will" when he elected to represent himself. 422 U.S. at 835, 95 S.Ct. 2525. The trial court did not err by allowing Appellant to waive counsel.

B. The Trial Court Properly Declined to Suppress Evidence Obtained as a Result of the Search of Appellant's Person

The trial court denied Appellant's motion to suppress evidence obtained after the warrantless stop of his vehicle, and after the seizure and subsequent search of his person. Appellant does not dispute the trial court's findings of fact, but asserts the trial court erred in its application of law.

The trial court concluded that: 1) the arresting officer had probable cause to stop Appellant's vehicle after he failed to use a turn signal in violation of KRS 189.380(1) ;2 and 2) the officer executed the subsequent sobriety test,...

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