Winstead v. Com.

• Decision Date: 21 May 2009
• Docket Number: No. 2007-SC-000425-MR.,2007-SC-000425-MR.
• Citation: 283 S.W.3d 678
• Parties: Jerry Bernard WINSTEAD, Jr., Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

283 S.W.3d 678

Jerry Bernard WINSTEAD, Jr., Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 2007-SC-000425-MR.

Supreme Court of Kentucky.

May 21, 2009.

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

Jack Conway, Attorney General, James Coleman Shackelford, Assistant Attorney General, Office of Criminal Appeals, Attorney General's Office, Frankfort, KY, Counsel for Appellee.

Opinion of the Court by Justice ABRAMSON.

Jerry Winstead appeals from a May 21, 2007 Judgment of the Daviess Circuit Court convicting him of murder and of first-degree robbery and sentencing him to concurrent prison terms, respectively, of life without the benefit of parole and of twenty years. The Commonwealth alleged, and at his March 2007 trial the jury found, that on January 22, 2005, Winstead shot and killed Richard Roberts in the course of stealing a substantial amount of cash from a small safe in Roberts's bedroom. On appeal Winstead contends (1) that he was denied his right to represent himself at trial; (2) that he was denied his right to an adequate voir dire; (3) that the trial court erred when it refused to strike one of the venire members for cause; and (4) that the trial court erred when it permitted one of the Commonwealth's witnesses to bolster her own testimony. Finding no reversible error, we affirm.

RELEVANT FACTS

Roberts's sister Samantha discovered Roberts's body lying on his bedroom floor near his opened safe at approximately 1:00 pm on January 22, 2005. She had talked to him on the phone about an hour before. He had been shot one time in the neck and was pronounced dead at the scene. The police investigation soon focused on Winstead. He and Roberts both lived on Crittenden Street in Owensboro, near each other, and the police learned that the nineteen year-old Roberts had engaged in selling street-level amounts of marijuana and that Winstead had been one of his regular customers. Winstead was aware that Roberts kept the proceeds of his drug dealing in the bedroom safe and had remarked to several acquaintances that he knew of a near-by drug dealer who would be easy to rob. Just prior to the shooting, Roberts had amassed in excess of $3,000.00. The police also learned that Winstead had been unemployed for several weeks before the crime, that just before the crime he faced imminent eviction from the residence he shared with his half-sister and step-father, and that immediately after the crime he had paid cash for a new apartment and had gone on a cash-financed shopping spree amounting to at least $2,000.00. Following Winstead's arrest, the police searched his residence and found an old suitcase containing a pair of jeans and a pair of gym shoes. On the jeans and on one of the shoes were spots of blood, which DNA analysis established was consistent with Roberts's DNA. The police also seized a .357 magnum caliber handgun that belonged to Winstead's step-father and to which Winstead had had access. The gun also bore a spot of Roberts's blood, and ballistics testing showed that bullet fragments removed from Roberts's body and discovered at the scene could have been fired from that gun.

Winstead was arrested on January 27, 2005 and was interrogated that evening. He denied any involvement in the shooting or the theft until detectives confronted him with their discovery of the apparently bloodied clothing. When Winstead denied knowing how the clothes had gotten into the suitcase, the detectives threatened to arrest his half-sister as the only other person who could have put them there. Winstead then claimed to have been visiting at Roberts's apartment the day of shooting when a person he did not recognize arrived and went with Roberts to the bedroom. A short time later he heard a gunshot and ran to the bedroom, where he nearly tripped over Roberts's prone body and found the stranger taking money from the safe. When the stranger threatened to shoot him, too, Winstead punched him so hard that the stranger fell and was knocked unconscious when his head hit the safe. Winstead then grabbed a portion of the money—about $1,300.00 he claimed— and ran home, where it was he who put the blood spattered clothes into the suitcase. The video recording of Winstead's interrogation was played at trial. The Commonwealth argued that while much of Winstead's statement was obviously untrue, it did place Winstead at the scene and in possession of the bloodied clothes and that together with the evidence summarized above it proved that Winstead had killed Roberts in the course of robbing him.

Winstead testified on his own behalf and denied having had anything to do with the killing or the theft. He claimed that he was with his half-sister at the time of the shooting. The money for his new apartment and for his shopping spree had come from his own drug dealing, he asserted, and his statement to the police in which he placed himself at the scene and admitted concealing the blood-spotted clothes, was a pure fabrication meant only to remove suspicion from his half-sister and to prevent her arrest. In fact, he claimed, he did not know how the clothes had gotten into the suitcase, but noted that his step-father had also had access to the suitcase and the gun. His half-sister corroborated his claims that they had been together when the crime occurred and that they had raised money for their new apartment by selling crack cocaine.

As noted above, the jury found Winstead guilty of both murder and robbery, whereupon the Commonwealth argued that because Winstead's crime was an aggravated killing—a killing in furtherance of a robbery—it warranted the death penalty. The jury recommended instead, however, that Winstead be sentenced to life without parole, and that, as noted, is the sentence the trial court imposed.

ANALYSIS

I. Winstead Was Not Denied His Right To Represent Himself.

The first claim Winstead makes on appeal is that he was denied his right to represent himself. Winstead was indicted on March 8, 2005 and was arraigned on March 24th of that year, prior to which time, apparently, public advocates had been appointed to represent him. Assistant Public Advocate Joseph Bennett entered his appearance to assist with the case on March 31st. At the end of September 2005, Winstead filed three pro se motions seeking discovery from the Commonwealth, and on October 3rd he filed a fourth motion complaining that the discovery provided to him to date had excluded several items he believed he was entitled to. The trial court forwarded the motions to counsel for both sides, and at a hearing on October 7, 2005, Winstead stated that he had asked counsel (apparently Bennett) to file the motions on his behalf, and that when counsel had refused, he (Winstead) had decided to take the matter into his own hands. The court informed Winstead that as long as he had counsel of record the court would not entertain pro se motions. Motions Winstead filed himself would be forwarded to counsel to be handled as counsel saw fit. Winstead complained that he found it difficult to work with counsel (again, apparently Bennett), but the court informed him that although he was entitled to an attorney, he was not entitled to the attorney of his choice, and in the court's estimate the team representing Winstead was highly competent.

There the matter stood, apparently, until November 21, 2005, when Winstead filed another pro se motion, this one seeking dismissal of the indictment for lack of evidence and monetary compensation for what Winstead characterized as his unlawful incarceration. He accompanied the motion with a letter to the court in which he again complained of counsel's unavailability and his failure to share with Winstead several items of discovery. The letter includes the following passage regarding Winstead's relationship with counsel:

I can not [sic] help my attorney build a proper defense if evidence is withheld from me. I have tried reasoning with him, but it has done no good. He has basicly [sic] told me he felt I was guilty and there is overwhelming evidence stacking up against me. I have failed to see his point or the evidence. Unless there is evidence being held from me. [sic] I honestly feel my attorney is not working with and or for me in this case. In fact, I feel as if he is working on the behalf of the Commonwealth. I honestly feel I have a better chance of defending myself. I am not completly [sic] intelagent [sic] on all legal matters. I feel the O.P.D. is trying to frame me. I would be able to prove it if my attorney would work with me, but he refuses to do so. I have been trying to settle this matter for the last ten months, but have not been able to do so.

At a hearing the next day, the court again told Winstead that he was "wasting his time" filing pro se motions, as they would only be forwarded to counsel. In June 2006, Sheila Kyle-Reno replaced Bennett on Winstead's defense team, and it was she and Robert Sexton who represented Winstead at trial. Winstead now contends that with his pro se motions and the November 21, 2005 letter to the court he invoked his right to represent himself, and that the court subsequently erred by failing to conduct the hearing mandated under Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) and Hill v. Commonwealth, 125 S.W.3d 221 (Ky. 2004). Because Winstead's complaints about counsel did not amount to an invocation of his right to proceed pro se, the trial court did not err.

The Sixth Amendment to the United States Constitution and Section Eleven of our Kentucky Constitution grant criminal defendants both the right to be represented by counsel and, conversely, the right to waive counsel and to conduct their own defense. Faretta, supra; Hill, supra. Because the assistance of counsel is generally regarded as a crucial component of a fair trial, the right to that assistance has been characterized as a fundamental constitutional right. Hill, 125...