Morton v. Com., SC-753-MR

Decision Date29 August 1991
Docket NumberSC-753-MR
Citation817 S.W.2d 218
PartiesBarrington L. MORTON, Appellant, v. COMMONWEALTH of Kentucky, Appellee. 88-
CourtUnited States State Supreme Court — District of Kentucky

Rodney McDaniel, Marie Allison, Asst. Public Advocate, Dept. of Public Advocacy, Frankfort, for appellant.

Frederic J. Cowan, Atty. Gen., Elizabeth A. Myerscough, Asst. Atty. Gen., Crim. Appellate Div., Frankfort, for appellee.

LAMBERT, Justice.

Appellant was convicted of two counts of murder for the stabbing deaths of drug dealer Stacy Archie and her five-year-old son David Shavers. The Commonwealth sought the death penalty, but the jury recommended punishment of life imprisonment without parole for twenty-five years on each count. In the final judgment, the sentences were ordered to be served concurrently. This appeal is as a matter of right and the Court heard oral argument.

Appellant has not questioned the sufficiency of the evidence to sustain the conviction. It is unnecessary, therefore, to extensively state the facts of the case. In summary, however, it appears that appellant's motivation was robbery and the murder of the victims was in furtherance of this purpose. Additional facts will be presented as the issues are discussed.

Appellant first contends that his rights under the Sixth Amendment to the Constitution of the United States and Section 11 of the Constitution of Kentucky were violated when the trial court refused, after finding appellant to be indigent, to permit earlier retained counsel to continue representing him on a pro bono basis. Appellant also contends that the trial court violated KRS 31.110, et. seq., when it determined that he, upon being declared indigent and entitled to benefit of the statute, was not entitled to be represented by pro bono counsel, but was limited to counsel provided by the District Public Defender's Office.

From the record it appears that appellant or his family paid attorney Jan Waddell the sum of $100 for representing him. Thereafter, appellant filed a motion in which he sought to be declared an indigent person. In his motion he stated he was "unable to provide any additional money for legal representation or to afford expert witnesses to testify in his behalf or to provide scientific tests to assist in his preparation of an adequate defense in order to assure that [he received] his constitutional due process right to a fair trial." The motion was supported by appellant's affidavit and the affidavit of attorney Waddell. Mr. Waddell stated that he had received $100 as an attorney fee for representing appellant and that he was "willing to provide further legal representation of the defendant in this case PRO BONO or ... accept an appointment by the Court to represent said Defendant, Barrington Lee Morton." An order was entered wherein Mr. Waddell was relieved as counsel and the District Public Defender's Office was appointed to represent appellant. The benefits of KRS 31.100, et seq., were provided.

Appellant contends, despite his motion and affidavit for indigency status, that he had a constitutional right to have Mr. Waddell continue as his attorney. This Court has repeatedly held that the constitutional right to counsel does not embrace a right to be represented by a particular attorney. Henderson v. Commonwealth, Ky., 636 S.W.2d 648 (1982), Baker v. Commonwealth, Ky.App., 574 S.W.2d 325 (1978), and Hargrove v. Commonwealth, Ky., 362 S.W.2d 37 (1962). We reiterate that proposition here.

In Hargrove v. Commonwealth, supra, we expressed the view that Powell v. State of Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932), merely prohibited the government from refusing a defendant "the right to have a particular person to defend him, or reasonable opportunity to obtain the services of such an attorney." Hargrove, supra, at 40. We continued, "The expression 'counsel of one's own choice' does not mean that the court is required to appoint counsel selected by the accused; it means, rather, that the accused has a right of his own volition to hire or otherwise obtain counsel and then be represented by that counsel at the trial." Id. at 40. In Morris v. Slappy, 461 U.S. 1, 14, 103 S.Ct. 1610, 1617, 75 L.Ed.2d 610, 621 (1983), the Supreme Court rejected an expansive reading of the Sixth Amendment and ridiculed the notion that a defendant has a "right to a meaningful attorney-client relationship."

Appellant was not denied his right to counsel. Nor was he denied the right to be represented by Mr. Waddell. Mr. Waddell was relieved as counsel only after appellant sought and obtained indigency status. Appellant made a determination that the benefits provided by KRS 31.110 outweighed his desire to be represented by a particular attorney. Having made such a determination and having otherwise been afforded his Sixth Amendment and Section 11 rights, we find no constitutional violation.

A more difficult question is whether the trial court erred in its determination that a defendant who seeks and obtains the benefits of KRS 31.110(1)(b) may not be represented by retained counsel who declares his intention to continue on a pro bono basis. Appellant correctly observes that the statute contains no express prohibition against having the Commonwealth provide "the necessary services and facilities of representation" when the defendant has obtained his own counsel. Be this as it may, in our view, KRS 31.100, et. seq., is a unified enactment which contemplates the necessity of a comprehensive determination whether a defendant qualifies for the benefits provided. For it to be determined that he does, he must be without the independent means to obtain counsel. The statute surely does not contemplate that a defendant would be indigent for purposes of KRS 31.110(1)(b), but still able to hire an attorney. If such were the case, rarely would any defendant step forward to pay investigative costs and other services necessary for his representation. Indeed, in KRS 31.100(3) "needy person" or "indigent person" is defined as "a person who at the time his need is determined is unable to provide for the payment of an attorney and all other necessary expenses of representation." Under this definition and the general tenor of the entire Act, inability to obtain counsel and inability to obtain necessary services must go hand-in-hand.

In an unusual case, however, it may be that an indigent defendant can obtain counsel which is truly pro bono; counsel who has neither sought nor obtained any fee or the promise thereof for legal services rendered or promised. In such a circumstance, the dual benefits provided by the Act would indeed be severed. The defendant would be indigent for purposes of necessary services and facilities, but otherwise be able to provide his own counsel without cost to himself. When such a circumstance produces the severance between ability to obtain counsel and need for other necessary expenses, the statute may be interpreted to permit the trial court to grant indigency status for purposes of KRS 31.110(1)(b) only.

As earlier stated, appellant's original counsel, Mr. Waddell was paid only the sum of $100 and later signed an affidavit that he was willing to continue his representation of appellant pro bono. It has been suggested that this sum is so trifling as to be unworthy of consideration as any attorney fee. We recognize the modesty of this amount of money for defense of a double murder case in which the death penalty is sought. Nevertheless, the money was paid as an attorney fee and Mr. Waddell's services cannot be said to have been truly pro bono. This Court is not unmindful of the wide range of fees charged by different attorneys for the same or similar legal services. Rarely have we become involved in evaluating such services or the reasonableness of attorneys' fees, believing that in most cases private parties may freely contract with one another. If we held that $100 did not constitute a fee, the next question would be at what point does the fee paid cease to be merely token and become a bona fide fee which would disqualify the defendant from indigency status. Rather than impose on trial judges the unenviable task of evaluating the fee, an inquiry which would necessarily require consideration of the factors set forth in SCR 3.130 (Rule 1.5), the better approach is to flatly state that any fee paid is indeed bona fide and so long as the recipient of that fee continues as counsel, the defendant is disqualified from any indigency status. To do otherwise would invite defendants to impoverish themselves by payments to attorneys and have the Commonwealth pay all other costs.

We have considered appellant's argument that freely permitting partial pro bono representation would relieve the burden on the public defender system and his argument that the trial court could hold a hearing to determine whether a defendant "has rendered himself impecunious by an unreasonable expenditure of funds to retain private counsel." English v. Missildine, 311 N.W.2d 292, 294 (Iowa 1981). We have heretofore expressed our view as to the latter point and as to the former, we do not believe the financial burden on the Commonwealth would be relieved. In our view, permitting defendants to employ counsel and then claim indigency for purposes of other necessary services would increase the cost to the public by abusive utilization. There was no error in the trial court's resolution of this issue.

Appellant next complains of the trial court's ruling that the result of his polygraph examination was not admissible in evidence.

While the police investigation was ongoing, appellant and a number of other persons voluntarily took polygraph examinations. In the examiner's opinion, appellant passed. After the indictment was returned, a stipulation of admissibility was entered into and signed by appellant's counsel, the Assistant Commonwealth's Attorney, and the appellant. The trial court even approved the...

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