Stacy v. Commonwealth

• Decision Date: 21 March 2013
• Docket Number: No. 2012–SC–000065–MR.,2012–SC–000065–MR.
• Citation: 396 S.W.3d 787
• Parties: Newell STACY, Appellant v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

396 S.W.3d 787

Newell STACY, Appellant

v.COMMONWEALTH of Kentucky, Appellee.

No. 2012–SC–000065–MR.

Supreme Court of Kentucky.

March 21, 2013.

Robert Chung–Hua Yang, Assistant Public Advocate, Appellate Division, Department of Public Advocacy, Frankfort, KY, Counsel for Appellant.

Jack Conway, Attorney General of Kentucky, Perry Thomas Ryan, Assistant Attorney General, Office of the Attorney, Frankfort, KY, Counsel for Appellee.

Opinion of the Court by Justice SCOTT.

A Boyle Circuit Court jury found Appellant, Newell Stacy, guilty of first-degree riot and of being a first-degree persistent felony offender (PFO). For these crimes, Appellant received a twenty-year prison sentence.

He now appeals as a matter of right, Ky. Const. § 110(2)(b), alleging that the trial court erroneously: (1) violated his due process rights by replaying witness testimony during the jury's deliberations in his absence, (2) violated his right to conflict-free counsel by permitting Department of Public Advocacy (DPA) Attorneys to engage in multiple representation of him and other defendants, (3) violated his speedy trial rights under KRS 500.110 and the Sixth Amendment to the United States Constitution, and (4) violated due process by permitting his witnesses to testify in shackles and prison garb.

For the reasons set out below, we affirm Appellant's convictions and twenty-year prison sentence.

I. BACKGROUND

On August 21, 2009, a riot broke out in Northpoint Training Center, a prison facility in Burgin, Kentucky. That evening, Kentucky Department of Corrections Officer Tim Peavyhouse responded to a fire alarm in dormitory # 6 of the complex. As he began the process of evacuating the inmates from their dorm, the fire alarm in dormitory # 3 began to sound. When Peavyhouse went to dorm # 3, he noticed inmates had set fire to a trash can and several of them began throwing rocks at the responding officers.

Thereafter, inmates from dorm # 6 broke through a chain link fence and gained access to one of the prison's restricted areas. While attempting to quell the riot, Peavyhouse noticed that inmates from dormitory # 2 were also outside of their quarters.¹

He also saw Appellant Newell Stacy attempting to break the locks off the multipurpose center's doors with a concrete gutter slab. Although Appellant was unsuccessful in gaining entry, he broke some of the windows, lit toilet paper on fire, and threw it inside the building. He also set a trashcan on fire and threw it on top of the roof. According to additional witnesses, other inmates also participated in lighting the fires that eventually led to the complete destruction of the multipurpose building.

Appellant was thereafter indicted for first-degree arson, first-degree riot, and for being a first-degree PFO. Although the jury was unable to come to a unanimous determination as to the arson charge, it rendered a guilty verdict for the first-degree riot charge and found Appellant to be a first-degree PFO. The trial court subsequently adopted the jury's recommended sentence of five years for the first-degree riot conviction, enhanced to twenty years as a result of Appellant being a first-degree PFO.

Further facts will be developed as required.

II. ANALYSIS

A. Replaying of Witness Testimony

First, Appellant argues that the trial court unconstitutionally permitted the jury to hear recorded testimony from trial during its guilt phase deliberations. Specifically, Appellant asserts that the jury's viewing of the testimony outside of his presence violated due process. Appellant admits, however, that this issue is unpreserved, as no objection to the court's action was made. Thus, we review for palpable error under RCr 10.26.

We will reverse under the palpable error standard only when a “manifest injustice has resulted from the error.” RCr 10.26. “[T]he required showing is [a] probability of a different result or error so fundamental as to threaten a defendant's entitlement to due process of law.” Martin v. Commonwealth, 207 S.W.3d 1, 3 (Ky.2006). In this regard, there must be a “ ‘substantial possibility’ that the result in the case would have been different without the error.” Brewer v. Commonwealth, 206 S.W.3d 343, 349 (Ky.2006)(citing Schoenbachler v. Commonwealth, 95 S.W.3d 830, 836 (Ky.2003)). Moreover, a palpable error “must involve prejudice more egregious than that occurring in reversible error[.]” Ernst v. Commonwealth, 160 S.W.3d 744, 758 (Ky.2005). When we engage in this degree of review, our “focus is on what happened and whether the defect is so manifest, fundamental and unambiguous that it threatens the integrity of the judicial process.” Martin, 207 S.W.3d at 5.

In this instance, after deliberations began, the jury asked if it could review Officer Peavyhouse's testimony. The trial court then permitted the jury to listen to the recorded testimony in the jury room without either party present. A few hours later, the jury asked if it could rehear the recorded testimony of the defense witnesses and the court again acquiesced. In neither instance was there an objection.

The United States Supreme Court has held that a defendant has a right to be present “whenever his presence has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge ... [and it] is a condition of due process to the extent that a fair and just hearing would be thwarted by his absence, and to that extent only.” Snyder v. Massachusetts, 291 U.S. 97, 105–08, 54 S.Ct. 330, 78 L.Ed. 674 (1934), overruled on other grounds by Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964). Moreover, RCr 9.74 states in this regard that “[n]o information requested by the jury or any juror after the jury has retired for deliberation shall be given except in open court in the presence of the defendant ... and the entire jury, and in the presence of or after reasonable notice to counsel for the parties.”

Here, there is no denying that the trial court's replaying of the recorded testimony to the jury outside of the courtroom was error. We have definitively held that “[p]ursuant to RCr 9.74, the replaying of witness testimony is to be on the record in open court in the presence of the defendant.” McGuire v. Commonwealth, 368 S.W.3d 100, 114 (Ky.2012) ( citing Mills v. Commonwealth, 44 S.W.3d 366, 371–72 (Ky.2001)). However, the trial court did not commit palpable error, as Appellant has failed to establish that there is a “substantial possibility” that he would not have been convicted had he been present when the jury viewed the witness testimony. See Brewer, 206 S.W.3d at 349. Quite simply, he fails to show any prejudice arising out of the trial court's error. Thus, the error is not so fundamental that it would affect Appellant's entitlement to due process of law. See also McGuire, 368 S.W.3d at 115 (holding that the trial court's error in replaying witness testimony outside of the presence of the defendant did not infringe upon the defendant's due process rights and as a result, did not amount to a manifest injustice). Thus, we find no palpable error here.

B. Conflict of Interest

Appellant also asserts that his Sixth Amendment right to effective assistance of counsel was violated because he was represented by counsel who had a conflict-of-interest. Specifically, Appellant argues that his counsels' joint representation of him and several others charged with crimes arising out of the Northpoint prison riot amounted to reversible error. Appellant further argues that the trial court violated RCr 8.30 and that this violation is a reversible error as well.

According to Appellant, he was represented by several attorneys from the Department of Public Advocacy over the course of his defense.² At his arraignment, Appellant was represented by DPA Attorney Susanne McCollough. At a later status conference, he was represented by DPA Attorney Elizabeth Kidd. At a subsequent preliminary hearing, Appellant was represented by DPA Attorney Stacy Coontz. Several months later at his trial, Appellant asserts he was represented by McCollough, Kidd, and DPA Attorney Leslie Ayers. According to Appellant, these attorneys also represented several other defendants who were being tried for crimes arising out of their participation in the riot.

After review, we disagree with Appellant for two reasons. First, Appellant has failed to show that a cognizable Sixth Amendment violation exists because he was represented by other defendants' counsel. Second, Appellant has failed to show prejudice in order to establish a reversible RCr 8.30 violation.

1. Effective Assistance of Counsel

The Sixth Amendment provides that a criminal defendant shall have the right to the “Assistance of Counsel for his defence.” U.S. Const. amend. VI. This right includes “the right to effective assistance of counsel,” Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and effective assistance “includes the right to representation free from conflicts of interest.” Rubin v. Gee, 292 F.3d 396, 401 (4th Cir.2002) ( citing Cuyler v. Sullivan, 446 U.S. 335, 348–50, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980); Wood v. Georgia, 450 U.S. 261, 271, 101 S.Ct. 1097, 67 L.Ed.2d 220 (1981)).

Appellant's claim, is of course, an ineffective assistance of counsel claim. However, “[a]s a general rule, a claim of ineffective assistance of counsel will not be reviewed on direct appeal ... because there is usually no record or trial court ruling on which such a claim can be properly considered.” Humphrey v. Commonwealth, 962 S.W.2d 870, 872 (Ky.1998) ( citing Caslin v. Commonwealth, 491 S.W.2d 832 (Ky.1973)). “This is not to say, however, that a claim of ineffective assistance of counsel is precluded from review on direct appeal, provided there is a trial record, or an evidentiary hearing is held on motion for a new trial, and the trial court rules on the issue.” ³Humphrey, 962 S.W.2d at 872–73(citing Hopewell v. Commonwealth, 641...