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Allen v. Commonwealth

Supreme Court of Kentucky

September 26, 2013

Ricky ALLEN, Appellant
COMMONWEALTH of Kentucky, Appellee.

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[Copyrighted Material Omitted]

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Katie L. Benward, Assistant Public Advocate, Department of Public Advocacy, for appellant.

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Jack Conway, Attorney General of Kentucky, James Daryl Havey, Assistant Attorney General, for appellee.


MINTON, Chief Justice.

After approving Ricky Allen's request to represent himself in a jury trial of an indictment charging four felonies and a second-degree persistent felony offense (PFO 2), the trial court appointed standby counsel for Allen despite his objection. At trial, the court curtailed the range of Allen's self-representation by barring him from all bench conferences, allowing only standby counsel to participate because the court determined Allen was a threat both to disrupt the trial and to flee. The trial resulted in a judgment of conviction and twenty-year sentence of confinement as a second-degree persistent felon, from which Allen now appeals as a matter of right.[1]

We reject Allen's argument that the trial court erred by failing to grant a directed verdict on three charges, but we reverse the judgment because we hold that the trial court's restriction of standby counsel at bench conferences in lieu of Allen himself or hybrid counsel left Allen unrepresented at these critical stages of the trial proceeding in violation of his Sixth Amendment rights.

In light of our reversal, we confine our discussion of the other issues Allen raises to those likely to recur in the event of a retrial.


Grace Fellowship Church was burglarized. The church reported that several items were missing, including a Compaq laptop computer, digital camera, bass guitar, and $340 in cash. In the course of the burglary, a number of door locks, cabinet locks, and a desk lock were damaged. The repair and replacement necessitated by the damage cost the church over $5,000.

A few months later, police received a call from Cecil Hall reporting a domestic dispute between Ricky Allen and Cecil's mother, Verda Hall. Cecil met the police at his mother's residence where he turned over to the authorities a USB drive containing files belonging to Grace Fellowship Church and its pastor. Cecil told authorities that he downloaded the files from a computer that Allen asked him to evaluate. Cecil claimed that Allen bragged about breaking into a place in Carnaby Square— the shopping center where the church was located— and that Allen threatened him when Cecil figured out the laptop was stolen from the church. In the course of the investigation, Verda told police that on the night of the burglary, she dropped Allen off at Carnaby Square, which was about a half mile from her home. When she dropped Allen off, he was carrying a black bag. She also claimed that sometime later she saw a guitar in the back of Allen's truck.

A grand jury indicted Allen, charging him with third-degree burglary, first-degree criminal mischief, theft by unlawful taking over $300, receiving stolen property worth $300 or more, and being a PFO 2. Allen represented himself at trial with assistance from standby counsel.

At trial, Cecil testified that Allen presented him with a laptop that appeared to belong to the church based on the downloaded documents. He also claimed that Allen had told him in the past how he would go about breaking into a place. But Cecil denied his prior statements to the police that Allen admitted to burglarizing the church and that Allen threatened to harm him if he reported the crime. Cecil

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admitted that he did not like Allen, and this caused him to exaggerate his statements to the police.

Verda testified that she did not remember telling police that she dropped Allen off in the church's vicinity or that she saw a guitar in Allen's truck. She claimed that she was taking high doses of prescription drugs when she gave her statement to the police. Verda also testified that the only guitar she ever saw was one located in a building on property she owned with her husband (not Allen).

A detective testified to Cecil's and Verda's prior inconsistent statements. The detective had viewed the files on the USB drive and confirmed that they belonged to the church. Neither the files nor the thumb drive itself were introduced into evidence. There was no surveillance footage identifying Allen, and no usable fingerprints were found at the scene. And none of the stolen property was ever recovered.

At the close of the Commonwealth's case, the trial court granted a directed verdict for lack of sufficient evidence of the crime of receiving stolen property worth $300 or more and instructed the jury on receipt of stolen property worth less than $300. The jury convicted Allen of all counts submitted to it and determined Allen to be a PFO 2. The trial court sentenced him to twenty years' imprisonment.


A. Allen was not Entitled to a Directed Verdict.

Allen claims the trial court erroneously denied his motion for a directed verdict on the charges of burglary, criminal mischief, and theft. [2] This issue is properly preserved for appeal.[3] We find that sufficient evidence supported Allen's convictions.

A trial court ruling on a directed verdict motion must draw all fair and reasonable inferences in the Commonwealth's favor.[4] " [T]he trial court must assume that the evidence for the Commonwealth is true, but [reserve] to the jury questions as to the credibility and weight to be given to such testimony." [5] On appeal, we will reverse a trial court's denial of a directed verdict only if, under the evidence as a whole, it would be clearly unreasonable for a jury to find guilt.[6] There must be evidence of substance, and the Commonwealth must present more than a mere scintilla of evidence.[7]

Allen protests that he is entitled to a directed verdict on the charges of third-degree burglary,[8] first-degree criminal

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mischief, [9] and theft by unlawful taking over $300 [10] because no evidence existed to show that he entered or remained unlawfully in the church, stole the items, or caused damage to church property. He claims that the evidence presented at trial necessarily left a doubt concerning Allen's guilt. But we cannot say that it was clearly unreasonable for a jury to find Allen guilty of the charged crimes.

It is true that no physical evidence existed to link Allen directly to the scene of the burglary. But this fact alone does not warrant a directed verdict. A " [c]onviction can be premised on circumstantial evidence of such nature that, based on the whole case, it would not be clearly unreasonable for a jury to find guilt beyond a reasonable doubt." [11] " In cases ... where there is a lack of physical evidence or eyewitnesses, the case should nonetheless be submitted to the jury where when the various items of evidence are added together, a mosaic appears upon which a reasonable jury could look and conclude that appellant was guilty." [12]

Here, the jury found Allen guilty of possessing the stolen laptop. [13] From this, they could believe that he stole the laptop from the church and committed burglary. Years ago, our predecessor court held that

where there is substantial evidence showing a breaking and entering of a dwelling and a taking of property therefrom, which is supported by proof that the stolen property was found in the possession of the defendant, or in the possession of a third person who testifies that said property was obtained by him from the said defendant, that such showing is sufficient to make out a prima facie case of house breaking[.] [14]

It was reasonable for the jury to find also that Allen burglarized the church, thereby causing damage to church property and taking the other missing items. Cecil told police that when he figured out the laptop was stolen, Allen threatened to harm him if he told the police. Cecil also claimed that Allen admitted to breaking into a place in Carnaby Square. Verda told police that on the night of the crime, she dropped Allen off in the shopping center where the church was located. Allen was carrying a black bag with him. Verda also said that she saw a guitar in Allen's truck, and the detective understood this to be a few days after the crime.

Cecil and Verda recanted many of their statements at trial. But it was for the jury to determine whether it believed their testimony or out of court statements to the police. The Commonwealth established that Verda was still in contact with Allen, and the two corresponded while he was in jail. And, in closing, the Commonwealth argued that Cecil changed his testimony after having lunch with his mother on the

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day of trial. " [E]ven when the evidence is contradictory, the credibility of witnesses and the weight to be given to sworn testimony are for the jury to decide." [15] So the trial court did not err by denying Allen's motion for a directed verdict.

B. The Trial Court Violated Allen's Sixth Amendment Rights by Excluding Him from Bench Conferences.

Allen was represented in several cases in the trial court by Cotha Hudson, a court-appointed attorney. Before trial in another case, Allen moved, pro se, for a change of counsel, which the trial court denied. During the hearing on Allen's motion, the trial court had to ask Allen not to interrupt other people when they were talking. Following that trial, Allen filed a motion under Kentucky Rules of Criminal Procedure (RCr) 11.42 challenging his conviction because of Hudson's ineffectiveness as trial counsel.

Hudson informed the trial court that Allen's allegations in his RCr 11.42 motion prevented her from further representing him in his other ongoing cases, including the present one. Allen requested to represent himself at the trial of the present case. At the hearing on Allen's request, he interrupted the trial court as it was stating its inclination to hold the RCr 11.42 motion in abeyance. The trial court informed Allen that he was not to interrupt while the judge was speaking.

Despite the trial court's decision to abate Allen's self-representation motion, Hudson was concerned that she should be removed from the case, nevertheless, because Allen would not cooperate with her. A discussion to determine the best way to handle the situation took place among the trial court, Hudson, other Department of Public Advocacy (DPA) attorneys, and the Commonwealth's Attorney. Allen sought to interject and asked if he could speak, interrupting one of the attorneys who was talking. The trial court told Allen no, but he continued to speak. Allen said that he did not want representation by DPA and would represent himself. The trial court had Allen temporarily removed from the courtroom for failing to remain quiet.

The trial court brought Allen back into the courtroom, conducted a Faretta hearing, and took the issue under consideration. The trial court ultimately issued an order granting Allen's motion for self-representation with restrictions. The trial court ruled that Allen knowingly and voluntarily waived his right to representation and appointed Hudson as standby counsel.

Although mindful of Allen's right to represent himself, the trial court could not " ignore Allen's past dealings with th[e] [c]ourt." The trial court noted that Allen was " prone to frequent and uninvited interruptions in the [courtroom]" and was a flight risk. The trial court's determination that Allen was a flight risk was based on the fact that while on trial for a different charge, Allen left the courthouse and was not apprehended for six days.

The trial court believed that Allen would abuse his Sixth Amendment right of self-representation " by using it as another attempt to flee or abuse the judicial process by unnecessary disruption during ...

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