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Lang v. Commonwealth

Supreme Court of Kentucky

September 27, 2018



          COUNSEL FOR APPELLANT: Karen Shuff Maurer Assistant Public Advocate

          COUNSEL FOR APPELLEE: Andy Beshear Attorney General of Kentucky Jeanne Deborah Anderson Special Assistant Attorney General



         A circuit court jury convicted James Ellis Lang of first-degree robbery and fixed punishment for that crime at twenty years' imprisonment. Lang then pleaded guilty to the additional charge of being a first-degree persistent felony offender (PFO), and the same jury fixed an enhanced penalty of thirty years' imprisonment. Lang now appeals the resulting judgment as a matter of right, [1]raising three issues for our review.

         We reject Lang's contention that the trial court erred by failing to dismiss the indictment for the Commonwealth's alleged violation of his right to a speedy trial. We accept Lang's contention that the trial court erred when it failed to direct a verdict on the first-degree robbery charge. Following our established precedent on this issue, we reverse the first-degree robbery conviction and sentence, vacate the PFO conviction and sentence, which is predicated upon the underlying first-degree robbery conviction, and remand the case to the trial court for further proceedings consistent with this opinion. [2]

         Lang's third argument-that the trial court erred by preventing him from fulfilling his role as his own co-counsel by denying his request to make his own opening statement and closing argument to the jury at trial-is rendered moot by our reversal today. But because the issue is likely to arise in the event of a trial on remand, we direct the trial court to reconsider its ruling in light of our discussion of Lang's issue in this opinion.

         I. ANALYSIS.

         A. The trial court did not violate Lang's right to a speedy trial.

         Lang argues that this Court should vacate the judgment and direct the trial court on remand to dismiss the indictment because his right to a speedy' trial was violated by the protracted proceedings in this case. That this issue is. preserved for appellate review is undisputed. We reject Lang's argument because the delay in this case is largely self-inflicted.

         All criminal defendants have a constitutional right to a speedy trial.[3] a[A] defendant's right to a speedy trial is analyzed under the four-prong balancing test set forth in Barker v. Winged[4]."[5] "The four factors to be considered in a speedy trial analysis are: 1) length of the delay; 2) reason for the delay; 3) defendant's assertion of his right to a speedy trial; and 4) prejudice to the defendant."[6]

         1. Length of Delay

         The Commonwealth concedes that the nearly 52-month delay between arraignment and trial in this case is presumptively prejudicial. "That prejudice, however, is not alone dispositive and must be balanced against the other factors."[7] "Presumptive prejudice' does not necessarily indicate a statistical probability of prejudice; it simply marks the point at which courts deem the delay unreasonable enough to trigger the Barker enquiry. "[8]

         2. Reasons for Delay

         The reasons for the delay in this case weigh heavily in favor of the Commonwealth. As the Commonwealth points out, the record supports the conclusion that nearly all the delays in this case were attributable to Lang and his pre-trial tactics.

         Lang was arraigned on the first-degree robbery charge on October 2, 2012. His original trial date was set for June 18, 2013. That date, however, fell during a public defender's statewide conference, so Lang's appointed counsel asked for a continuance. At an October 1, 2013, hearing, Lang's counsel informed the trial court that Lang had recently discussed an issue with her that Lang wanted to raise pre-trial, agreeing to a continuance for that reason. A new trial date was set for May 20, 2014.

         On February 6, 2014, when a pre-trial conference for the May trial date was held, Lang stated that he wanted to participate in trial as co-counsel. The court set a second pre-trial conference for March 25, 2014, to conduct the mandated Faretta hearing[9] and kept the May 20, 2014 trial date. Lang also requested an ex parte hearing regarding conflict counsel, which the trial court set for April 7, 2014.

         The May 20, 2014 trial date was converted to a pre-trial conference because Lang filed a pro se motion asking for a continuance. Lang had also filed several other pro se motions with the trial court, including a motion to disqualify the entire Commonwealth's Attorney's office, a motion for an evidentiary hearing, a motion for an emergency protective order, a motion for additional discovery, and a motion for better access to legal materials in jail. The trial court then set a new pre-trial date and rescheduled the trial date for October 14, 2014.

         By the time the next pre-trial conference occurred on August 7, 2014, Lang had filed more pro se motions, including a motion for additional discovery regarding disciplinary records for police detectives not connected to his case, a motion to hold the jail in contempt, a motion for an expert witness, a motion to "memorialize" his status as co-counsel, and a motion for bond reduction. As both parties concede, for reasons not apparent from the record, the October trial date was continued, and a new trial date was scheduled for June 9, 2015.

         On June 5, 2015, the trial court, at Lang's request, held another ex parte hearing. At this hearing, Lang asked the trial court to appoint conflict counsel because his current appointed counsel had not told him until the month before that she did not agree with his theory of the defense or think it was viable. Lang stated that he and appointed counsel were "not prepared to go to trial." Appointed counsel stated that she had, on multiple occasions, discussed with Lang his defense and her concerns regarding it. Appointed counsel was also concerned that a newly appointed attorney could not prepare for a trial just five days away at that point. Lastly, appointed counsel remarked that if she remained Lang's counsel, Lang's new concerns about her assistance would necessitate further discussions between them. Because of this hearing, the trial court set a new trial date.

         On August 6, 2015, conflict counsel appeared with Lang for the first time. A pre-trial conference was set for November 12, 2015, and the new trial date was set for March 29, 2016. Lang filed a motion to have conflict counsel disqualified, which the trial court denied. On March 29, 2016, conflict counsel had the flu and asked for a continuance. A new trial date of June 21, 2016 was set.

         At a pre-trial conference on May 9, 2016, the trial court addressed Lang's pro se motion requesting a special prosecutor handle his case. The trial date remained set for June 21, 2016.

         Both parties agree that the June 21, 2016 trial was continued for reasons unclear on the record. On June 23, 2016, the Commonwealth requested a continuance because the back-up trial date in August conflicted with the case's lead detective's out-of-state training session.[10] The trial court then scheduled a new trial date of August 30, 2016. But, the trial court was in the middle of a civil trial and had to move Lang's trial date to January 24, 2017.[11]

         On January 20, 2017, the trial court held a pre-trial hearing to address Lang's pro se motion to disqualify his second attorney, claiming that a conflict arose and that he wanted the court to assign him a different attorney. Nonetheless, the trial court proceeded with trial on January 24, 2017. We note that after Lang's trial began, he filed four more pro se motions.

         3. Absence of Prejudice to Lang

         It is undisputed that Lang asserted his right to a speedy trial on March 26, 2016. We note that such an assertion did not occur until about three and a half years after he was first arraigned.

         Regarding the prejudice prong of the Barker analysis, we find it difficult to give credence to any prejudice asserted by Lang, himself a seasoned veteran of the criminal justice system, when almost the entirety of the delay in this case was largely attributable to Lang's self-directed pretrial practice. That finding weighs heavily in our holding that Lang's right to a speedy trial was not violated.

         B. The trial court erred when it denied Lang's motion for a directed verdict on the first-degree robbery charge.

         Lang argues that the trial court erred when it denied his motions for a directed verdict and a judgment notwithstanding the verdict on the first-degree robbery charge. Preservation of this issue is uncontested. We agree with Lang.

         "On appellate review, the test of a directed verdict is, if under the evidence as a whole, it would be clearly unreasonable for a jury to find guilt, only then the defendant is entitled to a directed verdict of acquittal."[12]

         Kentucky Revised Statutes ("KRS") 515.020(1) defines the elements of first-degree robbery:

A person is guilty of robbery in the first degree when, in the course of committing theft, he uses or threatens the immediate use of physical force upon another person with intent to accomplish the theft and when he:
(a) Causes physical injury to any person who is not a participant in the crime; or
(b) Is armed with a deadly weapon; or
(c) Uses or threatens the immediate use of a dangerous instrument upon any person who is not a participant in the crime.

         The facts of this case are practically undisputed. Lang walked into a bank. He approached one of the bank tellers, handing her a deposit slip. The slip said, "only 20s, 50s, and 100s, no wrappers." The teller testified at trial that she was confused by the note, so she looked up at Lang. The teller testified that Lang proceeded to "signal, that he had a gun, with his hands. It was like a trigger finger." The teller then gave Lang money. He took the money and left the bank.

         During the teller's testimony, the Commonwealth introduced bank surveillance videos showing Lang at the bank from the time he walked up to the teller to the time he left. It is difficult to tell from any of the videos if Lang ever made a signal to the teller that he had a gun. In fact, at no point do any of the videos show Lang making such a gesture. But there is a point in one of the videos where Lang moves his hands, at which point the teller ...

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