Opinion
NO. 2018-CA-000380-MR
02-28-2020
DARRELLE LANDON WALTON APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Karen Shuff Maurer Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General M. Brandon Roberts Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM MADISON CIRCUIT COURT
HONORABLE JEAN CHENAULT LOGUE, JUDGE
ACTION NO. 17-CR-00067-001 OPINION
AFFIRMING
** ** ** ** **
BEFORE: ACREE, LAMBERT, AND L. THOMPSON, JUDGES. ACREE, JUDGE: Darrelle Walton appeals the Madison Circuit Court's final judgment and sentence of imprisonment. Walton contends the circuit court abused its discretion by: (1) failing to exclude statements he made during the probable cause hearing after the district court allowed him to proceed pro se without conducting a Faretta hearing; (2) failing to grant a mistrial after the Commonwealth made a statement shifting the burden of proof to the defendant; and (3) allowing the Commonwealth to define reasonable doubt. We find no abuse of discretion and affirm.
Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975) (to proceed without counsel, trial court must assure itself the accused is voluntarily, knowingly, and intelligently foregoing the traditional benefits associated with the right to counsel).
The Court elected not to publish this opinion. Either party may, by filing a timely petition for rehearing or modification under Kentucky Rules of Civil Procedure (CR) 76.32(1)(a), move the Court of Appeals to publish the opinion notwithstanding the Court's designation, "Not To Be Published." Commonwealth v. Crider and Rogers, Inc., 929 S.W.2d 179, 180 (Ky. 1996). The petition should state the reasons for urging publication.
FACTS AND PROCEDURE
On December 8, 2016, a clerk at a Shell gas station in Berea, Kentucky called the police after seven cartons of cigarettes were stolen. The clerk described the suspects as two black males driving a Jeep Grand Cherokee with a license plate number having as a first digit the number 5. Officer Eric Davidson responded to the 911 call, arriving on scene within three to four minutes. He saw a vehicle near the Shell station matching the description given by the clerk. Officer Davidson pulled the vehicle over and initiated a stop.
Approaching the car, Officer Davidson activated his body cam. He asked the driver to put his hands on the steering wheel. The driver complied. According to Officer Davidson, there were three individuals in the car - the driver, a passenger in the front seat, and a juvenile in the backseat. Officer Davidson asked the driver his name. He responded by saying his name was "Ernest Powell" and gave the officer a Michigan driver's license showing that name. Officer Davidson then told the driver he was a suspect in a theft and to get out of the car. The driver refused. Officer Davidson opened the car door and a struggle ensued. To get away, the driver put the car in reverse and began backing up fast enough to cause the tires to squeal. The open car door hit Officer Davidson and knocked him back several feet. Once the officer was knocked away, the driver drove off and onto Interstate 75.
Returning to his vehicle, Officer Davidson, and another officer in a separate police cruiser, gave chase. During the chase, a carton of cigarettes was thrown from the suspect's vehicle. The chase began at the on-ramp at Exit 77 and continued to Exit 62 at an average speed of 115 mph. To evade the police, the driver turned off his headlights and exited the interstate by Exit 62 but turned back to re-enter the interstate heading north. The officers' pursuit continued, and they clocked the suspect's vehicle averaging 110 mph until it crashed.
The impact caused the passengers to be thrown from the car which caught fire. The next day, police learned the driver's true identity - he was Darrelle Walton. The district court held a preliminary hearing on December 21, 2016, to determine probable cause to send the case to the grand jury. Walton did not have counsel and asked to proceed pro se. The following exchange took place:
Court: Mr. Walton, you're here without counsel. [You] indicated you're still working on trying to hire counsel. Uh, you've also indicated to me that you do not wish to waive your time frame uh, to get counsel but you're wishing to invoke the rule and require your hearing be conducted today. Is that correct?(Trial Record (T.R.) at 63). To this point, Walton sat patiently while the Commonwealth presented evidence.
Walton: Yes, sir, it is.
Court: Even though with the understanding you're entitled to counsel. I highly recommend that you have an attorney because you're facing a Class B felony and you're seeking to waive that right and have a hearing today?
Walton: Yes, sir, I am.
Court: Based on that, we can proceed with the hearing today. Uh, Officer, if you would raise your right hand.
After the Commonwealth finished questioning the officer, the district court asked Walton if he had any questions. Walton proceeded with his cross examination.
Court: Mr. Walton, this is your opportunity to ask any questions you may have. You have any questions for the officer?
Walton: Yes, sir.
Court: You may ask.
Walton: Okay. So, to begin, my name is Darrelle Walton. Okay, so you say, you say that pulled, you pulled us over because you seen [sic] that the vehicle matched the description. That's one, right?
Officer: That is correct.
Court: Mr. Walton, let me, I just want to stop you one second too before you continue. You haven't done anything yet, but I went over your rights with you this morning.
Walton: Yes, sir.
Court: You've got a right at the hearing today not to say anything that would incriminate yourself . . .
Walton: Correct.
Court: . . . or to make any statements they can use against you later.
Walton: Correct.
Court: Anything you say at this hearing today can be used against you down the road in the prosecution of this case. Do you understand that?
Walton: Yes, sir.
Court: So, you need to limit and, and watch what you're asking for your constitutional rights. You understand all that?
Walton: Yes, sir.(T.R. at 68-69).
Court: Okay, just want to make sure you understand your rights. You may proceed.
Throughout Walton's cross examination of the officer, he consistently failed to ask appropriate questions; instead, he merely commented and made statements. The district judge sought to correct his course.
Court: Okay, hey, if you'll phrase it in the form of a question; I'm going to give him a little leeway unfortunately since he . . .
Com.: Yes, I'm . . .
Court: . . . doesn't have counsel, but if you've got a question, I'll again, I'll allow you to tell me what you want me to hear if you wish to speak, although I'll, I highly recommend for today's proceedings you don't say anything that can be used against you because today's proceeding is probable cause only.
Walton: Okay.
Court: Probable cause gets the matter sent down the street for a Grand Jury to hear and they would be the ones to determine whether to issue a felony indictment or not.
Walton: Correct. Correct.
Court: Today is just a probable cause finding.
Walton: Okay, I get it.
Court: So, it's a limited proceeding so that's one reason I'm trying to explain to you . . .(T.R. at 71-72).
Walton: Okay.
Court: . . . even if I dismiss the case today, they've got the right to present it to the Grand Jury and have an indictment issued. So, today's proceeding is limited for its purpose and the statute they charged you with, you're since you're not an attorney, I want to make sure, or you're aware the murder statute in Kentucky also says, including, but not limited to, operation of a motor vehicle if you exercise extreme indifference to human life and wantonly engage conduct which causes a grave risk of death to another person. He charged you with attempted murder based on that statute that you operated a motor vehicle with extreme difference [sic] but he, so I just want to make sure, that's the purpose of the attempted murder is based on that section of the criminal statute.
Walton: Correct.
Court: Okay. You have other questions you'd like to ask?
Walton: Yes, sir.
Walton continued questioning but eventually asked to make a statement. The district court again informed Walton that anything he said could be used against him at trial. Nevertheless, Walton continued with his recollection of the event. (T.R. at 75-76).
A Grand Jury heard Walton's case and returned an indictment, after which his case was docketed in the circuit court for trial. In that court, the Commonwealth filed a motion in limine to play to the jury the statements Walton made at the probable cause hearing. By then, Walton had legal counsel who objected to the Commonwealth's motion.
Walton's counsel argued that the district court's failure to conduct a Faretta hearing prior to allowing Walton to proceed in his own defense violated his constitutional rights and, therefore, his statements were inadmissible. The Commonwealth argued that Walton previously had been Mirandized, which, coupled with the district court's reiteration of his Miranda rights, cured any error in failing to conduct a Faretta hearing.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966) (holding statements obtained from defendants are generally inadmissible unless defendant was fully informed of his constitutional rights and warned of the consequences of making statements).
After recognizing these were unique circumstances that posed a difficult legal question, the circuit court took the issue under advisement. Before trial, the court ruled that Walton had been sufficiently advised of his rights when he made his statement in open court, thereby rendering his statements admissible.
At trial, the Commonwealth played Walton's statement for the jury. After a two-day trial, the jury found Walton guilty of seven crimes: (1) reckless driving; (2) criminal facilitation to tampering with physical evidence; (3) two counts of second-degree wanton endangerment; (4) first-degree fleeing/evading police; (5) third-degree assault; (6) complicity to theft by unlawful taking under $500; and (7) felony offender in the second degree. The jury recommended a combined sentence of 15 years imprisonment. On January 25, 2018, the circuit court entered its final judgment, sentencing Walton according to the jury's recommendation. Further facts will be described in the context of specific arguments.
STANDARD OF REVIEW
All of appellant's claims of error are scrutinized by the appellate court for abuse of discretion. Ward v. Commonwealth, 587 S.W.3d 312, 332 (Ky. 2019) ("The standard of review of an evidentiary ruling is abuse of discretion." (citation and internal quotation marks omitted)); Commonwealth v. Padgett, 563 S.W.3d 639, 645 (Ky. 2018) ("[T]he decision to grant a mistrial is within the trial court's discretion, and such a ruling will not be disturbed absent a showing of an abuse of that discretion." (citation and internal quotation marks omitted)); Winstead v. Commonwealth, 283 S.W.3d 678, 684 (Ky. 2009) ("We review the trial court's conduct of voir dire under the abuse of discretion standard." (citations omitted)).
"The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Ward, 587 S.W.3d at 319 (internal quotation marks and footnote omitted).
ANALYSIS
In the following three sections, we address Walton's claims of error as they appear in his brief. Those claims are that the circuit court abused its discretion: (1) by admitting into evidence at trial an exculpatory statement he made in the district court probable cause hearing; (2) by refusing to grant a mistrial after the Commonwealth made a statement suggesting a shifting of the burden of proof to the defendant; and (3) by allowing the Commonwealth to define reasonable doubt during voir dire.
I. Admitting Walton's Statements Was Not An Abuse of Discretion
Whether a circuit court abuses its discretion by admitting defendant's statements in district court, while acting as his own counsel, depends first on the answer to the following question of law: Under the facts of the case, is the probable cause hearing a critical stage of the criminal proceedings at which the right to counsel attaches? If not, there is no issue that Walton's statement, made after repeated Miranda warnings, was admissible.
Conversely, if the facts support the conclusion that the probable cause hearing is a critical stage of the proceedings, the defendant was then entitled to counsel. Being entitled to counsel but expressing a desire to waive that right, the defendant's Sixth Amendment rights must be protected by satisfying Faretta's requirement that the court assure itself the defendant is proceeding with "eyes open." Commonwealth v. Terry, 295 S.W.3d 819, 820 (Ky. 2009) (citations omitted).
We conclude Walton's probable cause hearing became a critical stage of the proceeding when he expressed a desire to cross-examine the officer.
However, this does not end our analysis given the parties' arguments. We must answer the following question: Given the pragmatic approach to the waiver question, and under these facts, does a specific warning that a defendant's statements made while acting pro se can be used against him sufficiently protect his Sixth Amendment right as addressed in Faretta? We answer that question in the affirmative. Therefore, we conclude the circuit court did not abuse its discretion when it admitted Walton's statement.
a. Probable cause hearing does not begin as a critical stage , but can become one
The circuit court's reluctance to rule on the admissibility question from the bench was certainly justified. There is nothing our research disclosed that could be called directly "on point." In fact, Kentucky jurisprudence on the questions involved in resolving this evidentiary objection is somewhat murky, beginning with whether the probable cause hearing was a critical stage of the criminal proceedings.
For example, there is case law, predating Faretta but not overruled, indicating a probable cause or preliminary hearing is not a critical stage of criminal proceedings. In the context of an RCr 11.42 appeal, Kentucky's high court said:
Kentucky Rules of Criminal Procedure.
It is our opinion appellant's first argument, that he was without benefit of counsel at his preliminary hearing, is not sufficient to entitle him to relief under RCr 11.42. We have previously pointed out that the only purpose of a preliminary hearing in this jurisdiction is to determine whether there is sufficient evidence to warrant binding the defendant over to the grand jury and that this does not constitute a critical stage in the proceedings. See Commonwealth v. Watkins, Ky., 398 S.W.2d 698 (1966); Satterly v. Commonwealth, Ky., 441 S.W.2d 144 (1969).Crockett v. Commonwealth, 473 S.W.2d 112, 113 (Ky. 1971) (emphasis added). Both Watkins and Satterly, cited by the Court, address post-conviction relief under RCr 11.42, and the Court may have intended to limit this holding to that context. However, there is still more reason for confusion.
The same year the Supreme Court of the United States rendered Faretta, it also rendered Gerstein v. Pugh, 420 U.S. 103, 95 S. Ct. 854, 43 L. Ed. 2d 54 (1975). Gerstein addressed whether a "probable cause hearing" was a critical stage. That case did limit its holding - "to the precise requirement of the Fourth Amendment[.]"Id. at 123, 95 S. Ct. 868. The Supreme Court said, "The Fourth Amendment probable cause determination is addressed only to pretrial custody . . . [that] does not present the high probability of substantial harm . . . ." Id. at 123, 95 S. Ct. at 867-68. Thus constrained, the Court said, "Because of its limited function and its nonadversar[ial] character, the probable cause determination is not a 'critical stage' in the prosecution that would require appointed counsel." Id. at 122, 95 S. Ct. at 867 (emphasis added).
Confusion whether Gerstein's rule applies in Kentucky is understandable. Jurisprudence suggests such a hearing has the same limited function under state procedural law. In King v. Venters, the Kentucky Supreme Court said, "The purpose of a preliminary hearing, or 'examining trial,' in this state and its only purpose is to determine whether there is sufficient evidence to justify detaining the defendant in jail or under bond until the grand jury has an opportunity to act on the charges." 595 S.W.2d 714, 714 (Ky. 1980). In fact, said the Court, a defendant does not even have a right to a preliminary or probable cause hearing; "a preliminary hearing, examining trial, or any other 'probable cause' inquiry, is not prerequisite to the consideration of a charge by the grand jury or to the validity of an indictment returned pursuant to a 'direct submission.'" Id. at 715; but see RCr 3.07 ("A defendant who has not been indicted is entitled to a preliminary hearing, unless waived, when charged with an offense requiring an indictment pursuant to Section 12 of the Kentucky Constitution."). In 2009, this Court cited King for the very holding that "the purpose of a preliminary hearing is limited and serves only to determine whether there is sufficient evidence to justify detaining the defendant in jail or under bond until the grand jury has an opportunity to act on the charges." Delahanty v. Commonwealth ex rel. Maze, 295 S.W.3d 136, 142 (Ky. App. 2009) (citing King, 595 S.W.2d at 714).
Certainly, this jurisprudence might lead one to believe the hearings described both in Gerstein and King were of the same nature and, therefore, neither constituted a critical stage of the proceeding. But this is not the full story of Kentucky criminal procedure which, understood in context, demonstrates a consistency throughout that, in candor, is not readily apparent.
Even before the probable cause hearing, there is typically an arraignment. Like the probable cause hearing, arraignment is not always necessary. The Supreme Court has said a trial court's failure to conduct an arraignment will not be grounds for reversal unless "the failure to arraign prevented the defendant from having proper notice of the charges and an adequate opportunity to defend against them." Jones v. Commonwealth, No. 2007-SC-000147-MR, 2008 WL 4601237, at *5 (Ky. Sept. 18, 2008). So, is arraignment a critical stage of criminal proceedings? With no flippancy intended, the answer is that arraignment is not a critical stage, until it is.
We do not understand why the Supreme Court elected to not publish Jones v. Commonwealth, given that it is the only opinion ever rendered to "clarify the holdings" in two published opinions, Terry v. Commonwealth, 253 S.W.3d 466 (Ky. 2007), and Hutson v. Commonwealth, 171 S.W.3d 743 (Ky. App. 2005) (hereafter Hutson I), and to "specifically conclude that a defendant seeking relief due to a lack of arraignment must show that such failure caused him prejudice. Prejudice exists if the failure to arraign prevented the defendant from having proper notice of the charges and an adequate opportunity to defend against them." Jones, 2008 WL 4601237, at *5. However, we cite this unpublished opinion because it was rendered after January 1, 2003, and may be cited (though not as precedent) because there is no published opinion on this point. CR 76.28(4)(c). Because it is not precedent, it could be ignored in deference to the published opinions, Terry and Hutson. However, this Court will follow the holding in Jones because it is the final word and thoughtful opinion of the highest court of the Commonwealth on this point of law and should stand with other reasoned precedent notwithstanding its nonpublished status.
Specifically, "[u]nder our rules of criminal procedure, arraignment is not a critical stage of the trial unless, of course, the accused enters a plea of guilty without benefit of counsel." Hutson v. Commonwealth, 215 S.W.3d 708, 713 (Ky. App. 2006) (hereafter Hutson II; quoting Parrish v. Commonwealth, 472 S.W.2d 69, 71 (Ky. 1971)). Hutson II simply restated the 35-year-old holding in Parrish, in which the defendant participated in his arraignment without counsel. But that defendant also pleaded not guilty. Given that circumstance, the Court concluded the "absence of counsel at arraignment would not constitute grounds for relief[.]" Parrish, 472 S.W.2d at 71. A plea of guilty would have resulted in the opposite holding. Id.
Parrish meshes perfectly with the reasoning of the Supreme Court of the United States in Gerstein because, when nothing occurs at the arraignment except a plea of not guilty, arraignment has a "limited function[,]" is "non-adversarial[,]" and "does not present the high probability of substantial harm . . . ." Gerstein, 420 U.S. at 123, 95 S. Ct. at 868, 867-68. That is not so when "the accused enters a plea of guilty without benefit of counsel." Parrish, 472 S.W.2d at 71. When the accused accedes to the will of the prosecutor and pleads guilty to the charges, he may not be making the hearing adversarial, but such a hearing can no longer be considered limited in its scope. Frankly, a guilty plea is the whole ballgame. More importantly, the high probability of substantial harm is self evident. "It is axiomatic that '[a] guilty plea . . . is an event of signal significance in a court proceeding . . . [and] might in fact be the most critical stage of [an accused's] criminal proceeding.'" Commonwealth v. Tigue, 459 S.W.3d 372, 384 (Ky. 2015) (quoting Florida v. Nixon, 543 U.S. 175, 187, 125 S. Ct. 551, 160 L. Ed. 2d 565 (2004) (citing United States v. Akins, 276 F.3d 1141, 1147 (9th Cir. 2002) ("Nowhere is counsel more important than at a plea proceeding.")).
Therefore, an arraignment is not a critical stage of the proceedings, until it is.
Like an arraignment, a probable cause hearing is not a critical stage of the proceeding, until it is. That is, so long as the unrepresented defendant remains mute at the hearing, as is often the case, the hearing is nonadversarial and, if its purpose does not go beyond determining whether there is sufficient evidence to detain the defendant in jail or under bond until the grand jury has an opportunity to act on the charges, the hearing remains limited with little risk of substantial harm to the accused. This concept is found in RCr 3.14(1).
RCr 3.14(1) says:
If the defendant waives the preliminary hearing or if from the evidence it appears to the judge that there is probable cause to believe that an offense required to be prosecuted by indictment pursuant to Section 12 of the Kentucky Constitution has been committed and that the defendant committed it, the judge shall hold the defendant to answer in the circuit court and commit the defendant to jail, release the defendant on personal recognizance or admit the defendant to bail if the offense is bailable; otherwise the defendant shall be discharged.
However, what if the accused expresses a desire to avail himself of the second section of the same rule that says, in part, "[t]he defendant may cross-examine witnesses against him and may introduce evidence in his own behalf"? RCr 3.14(2). This unquestionably makes the hearing adversarial. Delahanty, 295 S.W.3d at 142 ("Although a preliminary hearing is not an adjudicatory proceeding, it is an adversarial proceeding." (citing Shanks v. Commonwealth, 575 S.W.2d 163 (Ky. App. 1978)). "[A]n accused person's Sixth Amendment right to counsel attaches upon the commencement of adversary proceedings . . . ." Hayes v. Commonwealth, 25 S.W.3d 463, 464-65 (Ky. 2000).
There are only two ways an accused can cross-examine witnesses or offer evidence pursuant to RCr 3.14(2): first, through defense counsel; or second, through the accused himself, acting as his own counsel. It seems clear that the trial court cannot allow the defendant to engage in this undertaking as his own counsel without the accused's voluntary, knowing, and intelligent waiver of counsel that can only be assured by the district court's compliance with Faretta.
This, too, meshes comfortably with Gerstein. The Gerstein Court said:
Although we conclude that the Constitution does not require an adversary determination of probable cause [for Fourth Amendment purposes], we recognize that state systems of criminal procedure vary widely. There is no single preferred pretrial procedure, and the nature of the probable cause determination usually will be shaped to accord with a State's pretrial procedure viewed as a whole.Gerstein, 420 U.S. at 123, 95 S. Ct. at 868 (emphasis added). Discussing Alabama criminal procedure, the Court identified "two critical factors that distinguish the Alabama preliminary hearing from the probable cause determination required by the Fourth Amendment." Id. at 122, 95 S. Ct. at 867 (citing Coleman v. Alabama, 399 U.S. 1, 90 S. Ct. 1999, 26 L. Ed. 2d 387 (1970); United States v. Wade, 388 U.S. 218, 226-227, 87 S. Ct. 1926, 1931-32, 18 L. Ed. 2d 1149 (1967)). Both factors are present in Kentucky criminal procedure.
First, as in Kentucky, the Alabama preliminary or probable cause hearing is broader. "[U]nder Alabama law the function of the preliminary hearing was to determine whether the evidence justified charging the suspect with an offense. A finding of no probable cause could mean that he would not be tried at all." Id. at 123, 95 S. Ct. at 867. The same is true in Kentucky. In Kentucky, the district judge must make a finding of "probable cause to believe that an [indictable offense] has been committed and that the defendant committed it," before "the judge shall hold the defendant to answer in the circuit court . . . ." RCr 3.14(1).
This is not to say a finding of no probable cause precludes a prosecutor from seeking indictment before the grand jury. Jeopardy does not attach in a case until a jury is sworn. Sneed v. Burress, 500 S.W.3d 791, 793 (Ky. 2016). It is still true, however, that a finding of no probable cause "could mean that he would not be tried at all" because such a finding by a court could not fail to influence the prosecutor's exercise of discretion going forward.
"Second, Alabama [law] allowed the suspect to confront and cross-examine prosecution witnesses at the preliminary hearing." Gerstein, 420 U.S. at 123, 95 S. Ct. at 868. As noted above, Kentucky's RCr 3.14(2) allows the same confrontation and cross-examination. Additionally, RCr 3.14(2) allows the accused to present his own evidence. Even without the allowance to present evidence there is a risk, said the Court, "that the suspect's defense on the merits could be compromised if he had no legal assistance for exploring or preserving the witnesses' testimony." Id.
We hold that, when conducting a preliminary hearing pursuant to RCr 3.14(1), the hearing becomes a critical stage of the criminal proceedings when a defendant not represented by counsel seeks to avail himself of the right afforded by RCr 3.14(2) to cross-examine a witness or to introduce evidence. At that point, the district court must comply with Faretta.
b. Miranda warnings, in certain circumstances, can satisfy Faretta requirements
The Commonwealth argues that under the facts of this case, the district court satisfied the requirements of Faretta. We agree.
Jurisprudence on the waiver of counsel question has evolved since Faretta was rendered, and as applied in Kentucky. Our state jurisprudence on this point congealed to a large degree with the rendering of Depp v. Commonwealth, 278 S.W.3d 615 (Ky. 2009). There, the Kentucky Supreme Court said:
[T]he U.S. Supreme Court pointed out that the analysis regarding whether waiver of counsel is adequate at any stage requires a pragmatic approach to right-to-counsel waivers, one that asks, "'what purposes a lawyer can serve at the particular stage of the proceedings in question, and what assistance [counsel] could provide to an accused at that stage' . . . ." [Iowa v. Tovar, 541 U.S. 77, 89, 124 S. Ct. 1379, 1381-82, 158 L. Ed. 2d 209 (2004)] (quoting Patterson v. Illinois, 487 U.S. 285, 298, 108 S. Ct. 2389, 101 L. Ed. 2d 261 (1988)). While what is required at different stages of the trial may vary, the Court clarified as to the Sixth Amendment that the constitutional minimum for determining whether a waiver was "knowing and intelligent" is that the accused be made sufficiently aware of his right to have counsel present and of the possible consequences of a decision to forgo the aid of counsel.Id. at 617-18 (emphasis added). Distilling this portion of Depp, the Supreme Court bookended the Tovar quote by noting the general principles that "a pragmatic approach" calls for no more than the "constitutional minimum" which is achieved by assuring the accused is aware of his "right to have counsel present" and "the possible consequences" of going forward without one. The Tovar quote itself indicates that, on appellate review, consideration must be given to what stage of the proceedings is involved and, perhaps more significantly, what specific prejudice might have been prevented had the accused been represented by counsel. We understand this from a further reading of Depp and by reading its Tovar passage in greater depth.
First, in Depp the Court emphasized that Faretta was decided in the context of the accused's right to counsel at trial.
Since Faretta dealt with the defendant's right to represent himself at trial, and the concomitant right to not have counsel forced upon him, the U.S. Supreme Court held that the record must establish that he "knowingly and intelligently" chose to forgo the benefits of an attorney. The U.S. Supreme Court, looking at the record, determined that Tovar did voluntarily exercise his informed free will because of his personal characteristics and because the trial court had warned him that it was a mistake not to accept assistance of counsel and that he would be required to follow the rules of trial procedure.Depp, 278 S.W.3d at 617-18 (emphasis in original). The specific prejudice Faretta faced, noted our Supreme Court, was an ignorance of the rules of criminal trial procedure. This is where reading the Tovar quotation in context adds to our understanding, and our Supreme Court points us in that direction.
As that Court emphasized, the Supreme Court of the United States said, as it quoted Faretta:
"[A]t trial," we observed, "counsel is required to help even the most gifted layman adhere to the rules of procedure and evidence, comprehend the subtleties of voir dire, examine and cross-examine witnesses effectively . . . , object to improper prosecution questions, and much more." 487 U.S., at 299, n.13, 108 S. Ct. 2389. Warnings of the pitfalls of proceeding to trial without counsel, we therefore said, must be "rigorous[ly]" conveyed. Id., at 298, 108 S. Ct. 2389. We clarified, however, that at earlier stages of the criminal process, a less searching or formal colloquy may suffice. Id., at 299, 108 S. Ct. 2389.Tovar, 541 U.S. at 89, 124 S. Ct. at 1388. "We require less rigorous warnings pretrial, . . . because, at that stage, the full dangers and disadvantages of self-representation . . . are less substantial and more obvious to an accused than they are at trial." Id. at 90, 124 S. Ct. at 1388 (citation and internal quotation marks omitted). Popular culture has made "more obvious" this knowledge of the rights to counsel and to remain silent. "From television shows like 'Law & Order' to movies such as 'Guys and Dolls,' we are steeped in the culture that knows a person in custody has 'the right to remain silent.'" Anderson v. Terhune, 516 F.3d 781, 783 (9th Cir. 2008) (sitting en banc). In short, we are unsure what measures more the district court could have taken to assure Walton was proceeding with "eyes open."
In fact, another SCOTUS opinion, Patterson v. Illinois, cited both in Tovar and Depp, makes it clear that Miranda warnings, in certain circumstances, can satisfy the Sixth Amendment protections required by Faretta. 487 U.S. 285, 108 S. Ct. 2389, 101 L. Ed. 2d 261 (1988). The appellant's claim in Patterson was that there was no compliance with Faretta before police officers and prosecutors conducted a pretrial, postindictment interrogation. The case holds, "[a]t that stage of the case, . . . the warnings required by Miranda v. Arizona . . . , adequately informed the defendant not only of his Fifth Amendment rights, but of his Sixth Amendment right to counsel as well." Tovar, 541 U.S. at 89, 124 S. Ct. at 1388 (citing Patterson, 487 U.S. at 293, 108 S. Ct. at 2389).
Furthermore, says Tovar, the Miranda warnings "inform [the accused] of the 'ultimate adverse consequence' of making uncounseled admissions, i.e., his statements may be used against him in any ensuing criminal proceeding." Id. (citation omitted). The warnings, said the Court, "also sufficed . . . to let [the defendant] know what a lawyer could 'do for him,'" namely, advise him to refrain from making statements that could prove damaging to his defense." Id. at 90, 124 S. Ct. at 1388.
We conclude the district court's multiple warnings and references to Walton's rights under Miranda satisfied the constitutional minimum for determining whether Walton's waiver was "knowing and intelligent" in that he was made sufficiently aware of his right to have counsel present and the specific prejudice he would suffer by making voluntary statements in open court.
We acknowledge that the stages of the proceedings were not the same in Patterson (postindictment interrogation) and this case where Walton demanded to represent himself in the probable cause hearing. Unlike mere postindictment interrogation, a probable cause hearing, as in Faretta, does implicate "rules of procedure and evidence, [and their modification, and] . . . the subtleties of . . . examin[ing] and cross-examin[ing] witnesses effectively . . . object[ing] to improper prosecution questions, and much more." Id. at 89, 124 S. Ct. at 1388 (quoting Patterson, 487 U.S. at 299, n.13, 108 S. Ct. 2389). That does not make Walton's case more like Faretta than Patterson.
RCr 3.14(3) says: "Objections to evidence on the ground that it was acquired by unlawful means are not properly made at the preliminary hearing. Motions to suppress must be made to the trial court as provided in Rule 9.78."
The distinction between Faretta and Patterson is not that they were different stages of the case. Rather, the distinction is the alleged prejudice. In Faretta, the concern was ignorance of rules of procedure and evidence; in Patterson, the concern was the narrower fact that statements made by the accused, even when acting without counsel, can be used against him at trial. In Faretta, a more rigorous and complete set of warnings was necessary because a trial demands special knowledge that even "the most gifted layman" lacks.
However, says Patterson, "If [the defendant] . . . lacked a full and complete appreciation of all of the consequences flowing from his waiver [including those that caused him no prejudice], it does not defeat the State's showing that the information [the trial court] provided to him satisfied the constitutional minimum" if it addressed the specific prejudice he does claim occurred. Tovar, 541 U.S. at 92, 124 S. Ct. at 1389 (quoting Patterson, 487 U.S. at 294, 108 S. Ct. 2389). This is why Depp emphasizes "looking at the record" to compare the alleged prejudice with the information provided by the trial court. Depp, 278 S.W.3d at 618 (emphasis in original). As the Court later said, "The question is . . . whether the trial court provided enough information to assure that Appellant's waiver of counsel was done with 'eyes open.'" Lamb v. Commonwealth, 510 S.W.3d 316, 321 (Ky. 2017).
To be sure, "[t]he law ordinarily considers a waiver knowing, intelligent, and sufficiently aware if the defendant fully understands the nature of the right and how it would likely apply in general in the circumstances—even though the defendant may not know the specific detailed consequences of invoking it." Tovar, 541 U.S. at 92, 124 S. Ct. at 1389 (quoting United States v. Ruiz, 536 U.S. 622, 629, 122 S. Ct. 2450, 153 L. Ed. 2d 586 (2002) (emphasis in original)). Here, in fact, this standard was exceeded because Walton was made to know the specific detailed consequences of invoking his right to counsel and making statements on the record.
Comparing the prejudice Walton claims (volunteering an inculpatory statement in open court) with the information the trial court provided (multiple warnings that his statement could be used against him at trial if he proceeded without counsel), we conclude the constitutional minimum required by Faretta and its progeny, was satisfied. It was not an abuse of discretion for the circuit court to allow into evidence the statements made by Walton in the district court.
II. Denial of motion for mistrial not justified by Commonwealth voir dire
During voir dire, the prosecutor said to the jury, "I have to turn over everything, my entire file to [the defense]. So, today you and I will hear their story for the first time." Walton objected, and the court conducted a bench conference. The court sustained the objection and reminded the Commonwealth that the defense need say nothing and that the jury would be instructed that the defendant does not have to say anything. That instruction was given at the close of the case. However, Walton did not request an admonition at the time. Instead, he moved for a mistrial on grounds that the comment implicitly suggested the burden of proof was on the defendant. The trial court denied the motion for a mistrial.
Even though the Commonwealth's statement was improper, it was not an error "of such character and magnitude that a litigant will be denied a fair and impartial trial and the prejudicial effect can be removed in no other way [except by grant of a mistrial]." Bray v. Commonwealth, 177 S.W.3d 741, 752 (Ky. 2005), overruled on other grounds by Padgett v. Commonwealth, 312 S.W.3d 336 (Ky. 2010) (citations and internal quotation marks omitted)); see Tunstull v. Commonwealth, 337 S.W.3d 576, 591 (Ky. 2011).
"[A] mistrial is an extreme remedy and should be resorted to only when there is a fundamental defect in the proceedings and there is a 'manifest necessity for such an action.'" Woodard v. Commonwealth, 147 S.W.3d 63, 68 (Ky. 2004) (citing Bray v. Commonwealth, 68 S.W.3d 375, 383 (Ky. 2002)). "The occurrence complained of must be of such character and magnitude that a litigant will be denied a fair and impartial trial and the prejudicial effect can be removed in no other way." Woodard, 147 S.W.3d at 68 (quoting Gould v. Charlton Co., Inc., 929 S.W.2d 734, 738 (Ky. 1996)). A trial court's decision to grant a mistrial must be supported by a "manifest necessity" for that decision in the record. Wiley v. Commonwealth, 575 S.W.2d 166, 168 (Ky. App. 1978) (citations omitted). This necessity must be "an urgent and real necessity." Id. (quoting Baker v. Commonwealth, 280 Ky. 165, 132 S.W.2d 766 (1939)). The error of which Walton complains does not rise to this level. See Commonwealth v. Padgett, 563 S.W.3d 639, 646-48 (Ky. 2018).
Walton does not object to the jury instruction on this burden-of-going-forward question. When the Supreme Court addressed a case in a similar posture, it said, where "written instructions given to the jury at the conclusion of the case accurately stated the presumption of innocence and placed the burden of proof on the Commonwealth to prove every element of the offense . . . [such] instructions cured any prejudice attributable to" remarks to the contrary, "especially in light of the fact that Appellant did not request any other relief." Kirk v. Commonwealth, 6 S.W.3d 823, 829 (Ky. 1999). As in this case, the appellant in Kirk failed to request other relief in the form of a jury admonishment.
We are inclined to follow Kirk notwithstanding Walton's claim that his motion for a mistrial was such "other relief." But, he neither articulates how he was prejudiced despite the jury instruction, nor how the admonishment he decided to forgo would not have prevented any prejudice that might have arisen.
For these reasons, we find the circuit court did not abuse its discretion when it denied Walton's motion for mistrial.
III. Comments regarding "reasonable doubt" do not compel reversal
Walton argues the Commonwealth's comments during voir dire regarding reasonable doubt so prejudiced his defense that the only remedy is reversal. We disagree.
Speaking to the jury, the prosecutor said, "Does everybody understand that when I say 'reasonable doubt,' it doesn't mean to check your common sense at the door? And, does anybody think 'reasonable doubt' means one hundred percent no doubt?" At that, Walton's counsel sought a bench conference and told the circuit court that the Commonwealth was "risking" defining reasonable doubt. The court responded by stating, "I think you can say it doesn't necessarily mean one hundred percent, but I don't want to go too far into the definition." The parties expressed their agreement, and the Commonwealth moved on to other issues.
The parties disagree as to whether Walton's request for a bench conference amounted to an objection rather than merely a pause to address the issue before the Commonwealth's voir dire became objectionable. There is no dispute, however, that Walton did not request the circuit court for an admonishment of the jury, nor did he move the court for a mistrial.
Walton cites Commonwealth v. Callahan for the proposition that "trial courts shall prohibit counsel from any definition of 'reasonable doubt' at any point in the trial . . . ." 675 S.W.2d 391, 393 (Ky. 1984) (emphasis in original). Much more recently, however, our Supreme Court said the following:
We have held that, subject to appropriate limits, the rule is not offended by stating what reasonable doubt is not. [Callahan, 675 S.W.2d] at 392. In Johnson v. Commonwealth, 184 S.W.3d 544, 549 (Ky. 2005), we concluded that the prosecutor's statement to the jury panel that "beyond a reasonable doubt" was not the same
thing as "beyond a shadow of a doubt" did not constitute defining of reasonable doubt. Most recently, in Cuzick v. Commonwealth, 276 S.W.3d 260, 268 (Ky. 2009) we declined to overrule Johnson on that very point and expressly reaffirmed Johnson's point that "in the very case that announced the prohibition against defining reasonable doubt [Callahan ], we held that the prosecutor's allegedly improper statement, which, at most, attempted to show what reasonable doubt was not, did not amount to a violation of the rule against defining 'reasonable doubt.'" Cuzick, 276 S.W.3d at 269 (citing Johnson, 184 S.W.3d at 549).Rogers v. Commonwealth, 315 S.W.3d 303, 307-08 (Ky. 2010) (footnotes omitted). We believe this jurisprudence controls the facts of this case.
Walton attempts to set up what amounts to a straw-man argument by citing Brooks v. Commonwealth, 217 S.W.3d 219 (Ky. 2007), a palpable error case with the same holding as Callahan, Johnson, Cuzick, and Rogers, supra. Then, Walton argues Brooks is inapposite because it was decided based on palpable error where no objection was raised. We are not persuaded. Even giving benefit of the doubt to Walton that he did raise a proper objection, this argument fails.
In the final analysis: "The history of our cases on the subject plainly demonstrates such concern from the prosecutor's perspective, and we have consistently held their efforts to point out that reasonable doubt is not 'all doubt' or a 'shadow of a doubt' were either proper or were, at most, harmless error." Rogers, 315 S.W.3d at 308.
The circuit court's manner of addressing the Commonwealth's reference to "reasonable doubt" was not an abuse of discretion.
CONCLUSION
For the foregoing reasons, we affirm the Madison Circuit Court's judgment of conviction.
ALL CONCUR. BRIEFS FOR APPELLANT: Karen Shuff Maurer
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General M. Brandon Roberts
Assistant Attorney General
Frankfort, Kentucky