Shegog v. Com., No. 2002-SC-0528-MR.

• Decision Date: 26 August 2004
• Docket Number: No. 2002-SC-0528-MR.
• Citation: 142 S.W.3d 101
• Parties: Kevin SHEGOG, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: Supreme Court of Kentucky

142 S.W.3d 101

Kevin SHEGOG, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 2002-SC-0528-MR.

Supreme Court of Kentucky.

August 26, 2004.

Appeal from the Circuit Court, Campbell County, William J. Wehr, J Richard Hoffman, Department of Public Advocacy, Frankfort, Counsel for Appellant.

Gregory D. Stumbo, Attorney General, Elizabeth A. Heilman, Assistant Attorney General, Frankfort, Counsel for Appellee.

Opinion of the Court by Justice GRAVES.

Appellant, Kevin Shegog, was convicted in the Campbell Circuit Court of first-degree robbery and for being a first-degree persistent felony offender. He was sentenced to a total of twenty years imprisonment and appeals to this Court as a matter of right. Finding no error, we affirm.

Appellant's convictions stem from a robbery that was committed on May 28, 2001, at a BP gas station in Highland Heights, Kentucky. Joy Powell, a witness who was inside the gas station at the time of the robbery, stated that she observed an African-American male wearing a red and white sports jacket and a nylon stocking on his head pass by the front glass window and then enter the store. Once inside, Powell stated that the man grabbed her and, as he pulled the stocking down over his face, announced that he had a gun. Powell was ordered behind the counter with the store clerk and both were told to lie on the floor. After taking the money from the register, the robber fled the scene. Powell's husband Steve, who had been pumping gas, observed the man get into a dark colored vehicle with a vanity license plate that read "Shegog."

The following day, Powell was shown a photo line-up, but was unable to identify the robber due to the poor quality of the computer-generated images. Police thereafter compiled a second line-up of color photographs, from which Powell identified Appellant. Appellant was indicted for and ultimately convicted of first-degree robbery. The jury recommended a fifteen year sentence enhanced to twenty years by virtue of Appellant's persistent felony offender status. Judgment was entered accordingly and this appeal ensued. Additional facts are set forth as necessary.

I.

Appellant's first allegation of error concerns the trial court's failure to grant what Appellant characterizes as a "meaningful" hearing on his request for new counsel, resulting in his being forced to go to trial with unwanted counsel. After reviewing the record and the trial court's order, we conclude this argument lacks any merit.

Prior to Appellant's arraignment on the instant charges, he wrote a letter to the trial court expressing his dissatisfaction with his court-appointed counsel, Theodore Knoebber, and requesting the services of either public defender John Delaney or Steve Dowell. During the arraignment, the trial court denied the request for new appointed counsel. However, after Appellant filed a bar complaint against Knoebber, the trial court appointed Dowell as co-counsel.

Two weeks prior to trial, Appellant filed a letter with the circuit clerk complaining about Dowell's representation. Appellant also filed a bar complaint against Dowell. Then, five days prior to the April 24, 2002, trial date, Appellant filed a pro se motion for a continuance to hire private counsel, arguing that Dowell had a conflict of interest (the bar complaint) which prevented him from providing effective representation. Appellant further alleged, as he did in the bar complaint, that Dowell was not keeping him informed about the case, was not filing appropriate motions, was not conducting an adequate investigation, and had refused to permit him to testify at the suppression hearing.

While Appellant complains that it was not "meaningful", the trial court did, in fact, hold a hearing on the motion to continue. At that time, Appellant was afforded an opportunity to fully inform the trial court of the basis of his motion and present any supporting evidence. Thereafter, the trial court entered an order, which stated in pertinent part:

The first motion was made by Defendant pro se, to once again continue this trial. He has now filed a bar complaint against Hon. Steven Dowell, as he did previously against Hon. Theodore Knoebber, alleging ineffective assistance of counsel. His contentions are refuted by the record and have no basis in the view of the undersigned. In further support of his Motion to continue, he indicated on the record that when his wife is released from jail, she will hire him a private attorney. He further stated that her mother has had the money to do so all along but has been too busy to do so....

The Defendant was indicted on September 27, 2001, over six months ago. He immediately filed a pro se Motion for a speedy trial. Thereafter, on October 22, 2001, he asked for leave to replace his public defender with his previous public defender from Kenton County, who he said would represent him in this county as well, and renewed his motion for a speedy trial. No such substitution took place, and the matter proceeded to Pre-trial Conference on November 28, 2001. Various motions were set for hearing on December 17, 2001 and a jury trial was scheduled for March 12, 2002.

On December 17, 2001, after the Defendant had filed a bar complaint against Mr. Knoebber, Mr. Dowell was appointed co-counsel for the Defendant on or about December 17, 2001. This required the trial date to be changed until April 2, 2002. Certain pro se motions were withdrawn by Mr. Dowell, at that time with the concurrence of his client, and a motion to suppress was set for February 8, 2002. A suppression hearing was held, the parties briefed their positions, and the Court's order from that hearing was entered March 26, 2002. To accommodate a vacation schedule, again with the concurrence of the Defendant, the trial date was changed to April 24, 2002. The Court has now been advised that the Defendant has filed the second bar complaint against Mr. Dowell as well, leading to this pro se request to continue the trial again.

In view of all the above, unless private counsel enters an appearance for the Defendant prior to the scheduled trial date (at which time an actual attorney with their available schedule would be present), this matter will proceed to trial as scheduled on April 24, 2002, the Court being of the opinion that good representation is being provided for the Defendant. The pro se Motion to continue this trial is, therefore, overruled at this time.

In order to warrant a substitution of counsel during trial, "the defendant must show good cause, such as a conflict of interest, a complete breakdown of communication or an irreconcilable conflict which leads to an apparently unjust verdict." United States v. Calabro, 467 F.2d 973, 986 (2d Cir.1972), cert. denied, 410 U.S. 926, 93 S.Ct. 1357, 35 L.Ed.2d 587 (1973). See also United States v. Welty, 674 F.2d 185, 188 (3d Cir.1982); Maynard v. Meachum, 545 F.2d 273, 278 (1st Cir.1976); United States v. Young, 482 F.2d 993, 995 (5th Cir.1973). Appellant contends that once he filed the bar complaint against Dowell, an actual conflict of interest arose and, thus, the trial court's failure to fully inquire into the conflict and permit Appellant to obtain new counsel violated his rights under the Sixth Amendment to the United States Constitution and Section 11 of the Kentucky Constitution.

Importantly, the trial court did not deprive Appellant of the right to secure private counsel of his own choosing. See Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932). The trial court merely ruled that such counsel, if obtained, was required to enter an appearance prior to the scheduled trial date. Further, contrary to the Commonwealth's argument, this issue is not controlled by Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), since Appellant never asserted the desire to represent himself.

Nevertheless, we do not agree with Appellant that the filing of a bar complaint against a public defender automatically entitles a defendant to new counsel. If such were the case, trial delays due to counsel substitutions would be endless. Indeed, as the trial court herein concluded, Appellant's assertion that he would have the money to hire private counsel was a tactical strategy to again delay the start of his trial. A defendant is not entitled to the dismissal of his counsel and the appointment of a substitute "except for adequate reasons or a clear abuse by counsel." Fultz v. Commonwealth, Ky., 398 S.W.2d 881 (1966). Here, there were none.

We are of the opinion, as was likely the trial court, that Appellant's claim that his family was going to retain private counsel was, at best, speculative. The trial court clearly determined that Dowell was providing good representation and that Appellant's allegations of ineffective assistance of counsel were refuted by the record. Indeed, it is virtually a universal complaint by all defendants that their counsel has not adequately kept them informed. Nevertheless, Appellant has failed to demonstrate in any way that he was prejudiced by Dowell's performance, and a review of the record belies the conclusion that different counsel would have performed better or achieved a different result. No error occurred.

II.

Appellant next argues that the trial court erred in failing to suppress Powell's out-of-court and in-court identifications of him since the photographic line-up was not only unduly prejudicial, but was also lost by the police prior to trial. After a thorough review of the record, we conclude no reversible error occurred.

The day after the robbery, Powell was shown a photo line-up consisting of computer-generated images. Powell stated at that time she was unable to identify the robber due to the quality of the pictures. Police thereafter obtained an actual photograph of Appellant and compiled a second photo array. Powell initially told Detective Thomas that she still could not identify the robber. However, as Detective...