Partin v. Com.

• Citation: 168 S.W.3d 23
• Decision Date: 25 August 2005
• Docket Number: No. 2003-SC-0596-MR.,2003-SC-0596-MR.
• Parties: Stacy Lynn PARTIN, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court (Kentucky)

168 S.W.3d 23

Stacy Lynn PARTIN, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 2003-SC-0596-MR.

Supreme Court of Kentucky.

May 19, 2005.

Rehearing Denied August 25, 2005.

COPYRIGHT MATERIAL OMITTED

Karen Maurer, Assistant Public Advocate, Department of Public Advocacy, Frankfort, Counsel for Appellant.

Gregory D. Stumbo, Attorney General, State Capitol, Michael Harned, James Havey, Assistant Attorneys General, Office of Attorney General, Criminal Appellate Division, Frankfort, Counsel for Appellee.

COOPER, Justice.

A McCracken Circuit Court jury convicted Appellant, Stacy Lynn Partin, of kidnapping, two counts of unlawful imprisonment in the first degree, wanton endangerment in the first degree, wanton endangerment in the second degree, and assault in the fourth degree; and found him to be a persistent felony offender in the second degree. He was sentenced to life in prison. He appeals to this Court as a matter of right, Ky. Const. § 110(2)(b), asserting four claims of reversible error, viz: (1) denial of his right of self-representation; (2) failure to sustain his motion to dismiss the indictment; (3) admission into evidence of portions of letters that he wrote to one of the victims and suppression of another such letter and of letters written to him by the same victim; and (4) failure to grant a mistrial after the prosecutor engaged in a "tirade" against him. Finding no reversible error, we affirm.

On April 28, 2002, Appellant and his wife, Vicki, were visiting with Vicki's twenty-year-old son, Bobby Knight, inside the mobile home where Appellant and Vicki resided. Appellant became enraged when he noticed a "caller ID" number on their telephone that he believed to be the telephone number of Vicki's ex-boyfriend. When Appellant began choking Vicki, Bobby intervened and suggested that he and Vicki go to Bobby's residence "until things cooled down." Appellant then brandished a .25 caliber pistol, "put [it] to both of [their] heads [and] said the only way [they] were leaving was in a body bag." When Vicki grabbed Appellant, Bobby escaped through the front door, ran to a nearby residence, and told the occupants to call the police. Appellant then grabbed Vicki by the hair, forced her into her car, and drove her to the home of a friend, Ronnie Rudd. Appellant forced his way into Rudd's residence and held Rudd and others at gunpoint until police surrounded the residence and convinced Appellant to surrender. (Though Rudd attempted to extenuate the incident, he admitted that Appellant was armed when he entered his residence.)

I. SELF-REPRESENTATION.

On June 6, 2003, two weeks before trial, the trial court held a hearing on Appellant's motion to act as co-counsel at his trial. Appellant expressed concern that his appointed counsel's workload was so heavy that she did not have time to devote full attention to his case. (He had also filed a complaint with the Kentucky Bar Association against his counsel claiming that she was not providing him with adequate representation.) During this hearing, Appellant expressed a desire to have input in jury selection, to cross-examine "certain witnesses" (not further identified), but to have his appointed counsel give the opening statement and the closing argument and examine other witnesses. After the hearing, the trial court received an ex parte letter from the victim's advocate advising that Appellant's wife was terrified of him, that she had received threats on her life and the life of her son, and that she was afraid Appellant would try to intimidate her and her son if permitted to personally cross-examine them. On June 9, 2003, the trial court entered an order sustaining Appellant's motion to act as co-counsel but denying him the right to personally conduct the cross-examination of the victims. Instead, the trial court allowed Appellant to prepare questions to be asked by his counsel during such cross-examination. The court placed the letter from the victim's advocate in the record.

The trial court held another hearing on the morning of trial, June 16, 2003, at which it expressed regret that it had received an ex parte communication from the victim's advocate, but reiterated that it did not believe Appellant should personally conduct the cross-examination of the victims. During this hearing, Appellant stated that he was "not objecting too loudly to not being allowed to cross-examine the victims," but that he wanted to cross-examine other witnesses and make his own opening statement and closing argument. He had prepared a number of questions to be posed by his counsel to the victims but agreed that counsel should exercise her own judgment during cross-examination so long as she generally followed Appellant's desired line of questioning. The trial court ruled that some of Appellant's proposed questions to Bobby Knight were improper, e.g., "Have you been arrested a lot in your life and are you in jail now?" and "Were you arrested once while staying at the [spouse abuse] shelter?" and "Did [Appellant] help bail you out of jail?" Defense counsel declined to ask other proposed questions, e.g., "On the day your Mom married [Appellant], did you and your friend drive to the bar they were at?" and "Did her ex-boyfriend take you to bars sometimes?" and "Did your mother send you and a girl named Amanda to Illinois to buy more beer?" and "Did you drink a little whiskey while you were gone?" Appellant does not claim on appeal that counsel's failure to ask any particular question of one of the victims was reversible error — only that he should have been permitted to personally conduct the cross-examinations.¹

In addition to preparing questions used to cross-examine the victims, Appellant conducted a portion of the voir dire (only to the extent of asking the jurors if any of them believed he was guilty and assuring them of his innocence), made his own opening statement, cross-examined the investigating officer, conducted the direct examination of four defense witnesses, and made his own closing argument (thrice informing the jury that there was other evidence of his innocence that had not been presented at trial). He also testified in his own behalf.

It is clear that Partin had the right, implicit under the Sixth Amendment of the United States Constitution and explicit under Section 11 of the Constitution of Kentucky, to decline representation by counsel and represent himself at his trial. Faretta v. California, 422 U.S. 806, 819-20, 95 S.Ct. 2525, 2533, 45 L.Ed.2d 562 (1975); Wake v. Barker, 514 S.W.2d, 692, 695-96 (Ky.1974). That, however, does not mean that he had a constitutional right to personally cross-examine the victim(s) of his crimes. In McKaskle v. Wiggins, 465 U.S. 168, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984), the United States Supreme Court explained the extent, nature, and purpose of the right of self-representation.

The pro se defendant must be allowed to control the organization and content of his own defense, to make motions, to argue points of law, to participate in voir dire, to question witnesses, and to address the court and the jury at appropriate points in the trial.

...

[However], [t]he right to appear pro se exists to affirm the dignity and autonomy of the accused and to allow the presentation of what may, at least occasionally, be the accused's best possible defense. Both of these objectives can be achieved without categorically silencing standby counsel.

...

[W]hether the defendant had a fair chance to present his case in his own way ... [and t]he specific rights to make his voice heard . . . form the core of a defendant's right of self-representation.

Id. at 174, 176-77, 104 S.Ct. at 949, 950.

In Fields v. Murray, 49 F.3d 1024 (4th Cir.1995), a majority of an en banc United States Court of Appeals for the Fourth Circuit held that the trial court did not err in refusing to allow the defendant to personally cross-examine the victims who testified against him in his trial on child sexual abuse charges. Instead, the trial court permitted standby counsel to conduct the cross-examination and to ask questions written by the defendant. The Fourth Circuit likened this partial restriction on the right of self-representation to the partial restriction on the right of confrontation approved in Maryland v. Craig, 497 U.S. 836, 857, 110 S.Ct. 3157, 3170, 111 L.Ed.2d 666 (1990) (child sexual abuse victims permitted to testify against alleged abuser out of his presence and outside of the courtroom by closed circuit television); and held that the defendant's right to personally cross-examine the witnesses against him could be restricted if the purposes of the self-representation right would have been "otherwise assured," and if denial of personal cross-examination was necessary to further an important public policy. Fields, 49 F.3d at 1035.

[W]hile Fields' ability to present his chosen defense may have been reduced slightly by not being allowed personally to cross-examine the girls, it would have been otherwise assured because he could have personally presented his defense in every other portion of the trial and could even have controlled the cross-examination by specifying the questions to be asked. As a result, we are convinced that the purposes of the self-representation right were better "otherwise assured" here, despite the denial of personal cross-examination, than was the purpose of the Confrontation Clause right in Craig when the defendant was denied face-to-face confrontation with the witnesses.

Id. at 1035-36.

In State v. Estabrook, 68 Wash.App. 309, 842 P.2d 1001 (1993), the defendant had no standby counsel, and the trial judge read the defendant's questions to the victim. Applying the McKaskle test, the court concluded that the procedure did not violate the defendant's right of self-representation.

First, it appears that Estabrook was permitted to maintain "actual control over the case he [chose] to present to the jury." He prepared the...