Padgett v. Com., No. 2008-SC-000632-MR.

Decision Date17 June 2010
Docket NumberNo. 2008-SC-000632-MR.
Citation312 S.W.3d 336
PartiesMark PADGETT, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
CourtUnited States State Supreme Court — District of Kentucky

312 S.W.3d 336

Mark PADGETT, Appellant,
COMMONWEALTH of Kentucky, Appellee.

No. 2008-SC-000632-MR.

Supreme Court of Kentucky.

March 18, 2010.

Rehearing Denied June 17, 2010.

312 S.W.3d 337


312 S.W.3d 338


312 S.W.3d 339

Emily Holt Rhorer, Department of Public Advocacy, Frankfort, KY, Counsel for Appellant.

Jack Conway, Attorney General, Christian Kenneth Ray Miller, Assistant Attorney General, Office of Attorney General, Office of Criminal Appeals, Frankfort, KY, Counsel for Appellee.

Opinion of the Court by Justice NOBLE.

Appellant, Mark Padgett, was convicted in Campbell Circuit Court of criminal attempt to commit first-degree manslaughter, second-degree assault, and violation of an emergency protective order. On appeal, Appellant raises five issues: that he was compelled to incriminate himself, that the trial court failed to hold a proper hearing on his counsel's performance, that the trial court failed to inform him of his right to standby counsel, that the trial court denied him his right to a competency hearing, and that the prosecutor committed misconduct during her closing argument.

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For the reasons set forth below, Appellant's convictions are affirmed

I. Background

On the evening of June 29, 2007, Appellant was looking for his two teenage sons in Ft. Thomas. He was unable to contact them by phone, so he drove around town in his truck, searching for them at the places they frequented. After a while, Appellant gave up his search and decided to return home. At this point, he noticed that a nearby church was hosting a festival, so he decided to park his truck and to go look for some friends.

While walking to the festival, Appellant heard his son P.J., a teenager, call for him. He testified that he then saw P.J. carelessly cross the street, in front of oncoming traffic. He testified that he yelled at P.J. to stop, as he watched a car pass in front of him. This deeply upset Appellant, who then asked P.J. whether his mother, Susan Padgett, was supervising him. P.J. warned Appellant that Susan was across the street, in a laundromat. This was a problem because, after their divorce, Susan had an emergency protective order against Appellant, requiring him to stay at least 500 feet away from her.

Appellant returned to his truck, intending to drive home, to avoid violating the protective order. He testified that he then saw P.J. cross the street once more, again in front of oncoming traffic. This made Appellant extremely upset. He testified that his eyes were blinking, he was having trouble breathing, and that he could not feel the ground beneath his feet. Apparently, Appellant then decided that he was going to show Susan that her failure to supervise P.J. was unacceptable. So, he pulled his truck into a parking spot near the laundromat, grabbed an SKS rifle from the back of his truck, and went inside to scare her. He testified that he left his truck running so that he could easily flee after he was done scaring Susan.

Inside the laundromat, a fight between Appellant and Susan ensued. Appellant testified that he kept his rifle to his side, but that Susan grabbed it, causing them to struggle for control over it. He insisted that he never intentionally hit Susan, but that she was hit as a result of their mutual struggle over the rifle.

Susan, however, testified that she felt an impelling force approach her, and by the time she turned around, she saw a rifle pointed at her head. Then, Appellant beat her several times with the butt of his rifle, as she attempted to flee and deflect his blows. Susan's testimony was corroborated by a witness inside the laundromat who testified that Appellant entered the laundromat, declared "it's show time," attempted to fire his rifle, and when that failed, began to beat Susan with it. Another witness, who was looking into the laundromat through a window from outside, also testified that Appellant beat Susan with his rifle.

Eventually, Susan escaped and made her way outside. She ran down the street, screaming for help. Apparently, while Appellant was inside the laundromat, fireworks in his truck, which he was keeping for Independence Day celebrations, mysteriously exploded, setting his truck on fire. This alerted police officers and some additional witnesses to the scene. Appellant testified that this turned the incident into his "worst nightmare" because he could not flee in his truck after scaring Susan, as he had planned.

Appellant left the laundromat. Witnesses, including a nearby police officer who came to the scene after the fireworks exploded, testified that Appellant then pointed his rifle at Susan as she ran down the street. One witness testified that Appellant

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pulled his rifle up in a "firing-type" pose; the officer testified that Appellant pulled his rifle up in a "ready-fire" pose. The officer also testified that he saw Appellant pull the trigger on his rifle, and when it did not fire, adjust its bolt action

Appellant explained their testimony by positing that the strap on his rifle was bothersome, which caused him to move his rifle around as he ran. But he insisted that he never posed with his rifle, pointed it at Susan, or pulled its trigger.1 Soon thereafter, Appellant dropped his rifle, ran, and was eventually arrested. Susan had found a hiding spot nearby, and was treated for injuries to her head and hand.

The jury convicted Appellant of criminal attempt to commit first-degree manslaughter, second-degree assault, and violation of an emergency protective order. He was sentenced to twenty years' imprisonment and appeals to this Court as a matter of right. Ky. Const. § 110(2)(b).

II. Analysis

A. Compelled Self-incrimination

Appellant argues that the trial court compelled him to incriminate himself by requiring him to testify to receive an instruction on extreme emotional disturbance. At trial, Appellant's theory was that he acted under extreme emotional disturbance, triggered by his seeing his son carelessly cross the street. To support his theory, Appellant planned to call an expert witness to testify. The trial court ruled that the expert's testimony would be inadmissible because his opinion was based on Appellant's out-of-court statements, including what Appellant saw his son do and how this made Appellant feel. After the trial court ruled that the expert could not testify without some evidence beyond Appellant's out-of-court statements, Appellant took the stand to testify to the triggering event giving rise to his extreme emotional disturbance. The trial court then allowed the expert to testify.

An extreme emotional disturbance instruction must be supported by "some definite, non-speculative evidence." Holland v. Commonwealth, 114 S.W.3d 792, 807 (Ky.2003) (quoting Hudson v. Commonwealth, 979 S.W.2d 106, 109 (Ky. 1998)). Specifically, the evidence must show that some triggering event caused the defendant to suffer "a temporary state of mind so enraged, inflamed, or disturbed as to overcome one's judgment, and to cause one to act uncontrollably from an impelling force of the extreme emotional disturbance rather than from evil or malicious purposes." Greene v. Commonwealth, 197 S.W.3d 76, 81 (Ky.2006) (alteration in original, quoting McClellan v. Commonwealth, 715 S.W.2d 464, 468-69 (Ky.1986)); see also KRS 507.020(1)(a), 507.030(1)(b).

As in every other context, the evidence supporting extreme emotional disturbance must come from some admissible source. In Talbott v. Commonwealth, 968 S.W.2d 76 (Ky.1998), the defendant attempted to prove the presence of her extreme emotional disturbance with expert testimony based primarily on her out-of-court statements. In that case, the trial court refused to permit the expert testimony, and without any other evidence, refused to instruct the jury on extreme emotional disturbance. This Court affirmed, stating:

Where the defendant does not testify and there is no other factual basis to
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support a defense of extreme emotional disturbance, that defense cannot be bootstrapped into the evidence by an expert opinion premised primarily on out-of-court information furnished by the defendant.... To permit this type of evidence would allow a defendant to testify by proxy without being subjected to the crucible of cross-examination. The objection to the expert's testimony was properly sustained and Appellant's request for jury instructions on extreme emotional disturbance ... was properly denied.

Id. at 85.

In this case, the trial court's statements make clear that it was not requiring Appellant to testify, but was instead excluding inadmissible evidence, as in Talbott. The trial court said that it would not allow the expert to testify about the triggering event of Appellant's extreme emotional disturbance because that testimony would be supported only by Appellant's out-ofcourt statements to the expert. Indeed, the only evidence up to that point contradicted Appellant's out-of-court statements. Appellant's son P.J. testified that he looked both ways before crossing the street and that the only cars near him were stopped at red traffic lights. Susan also saw P.J. cross the street, but she testified that she could not see whether any traffic was approaching P.J. from her vantage point. Appellant was trying to introduce evidence of the triggering event, P.J. carelessly crossing the street in front of oncoming traffic, with his out-of-court statements, through the expert.

The trial court determined that Appellant would have to show the triggering event with some evidence other than testimony by proxy. Defense counsel argued that "circumstantial evidence" supported the expert's opinion in addition to Appellant's out-of-court statements. When the trial court disagreed, counsel asserted that "there's no evidence to the contrary." The trial court responded: "That's the point. There's no evidence."

In fact, there was...

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