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Henderson v. Commonwealth

Supreme Court of Kentucky

December 13, 2018

CLEOSEY DARNELL HENDERSON, II APPELLANT
v.
COMMONWEALTH OF KENTUCKY APPELLEE

          ON APPEAL FROM JEFFERSON CIRCUIT COURT HONORABLE BARRY WILLETT, JUDGE NO. 11-CR-003874

          COUNSEL FOR APPELLANT: Shannon Renee Dupree Department of Public Advocacy

          COUNSEL FOR APPELLEE: Andy Be shear Attorney General of Kentucky Joseph A. Beckett Assistant Attorney General

          OPINION

          KELLER, JUSTICE.

         A Jefferson County jury convicted Cleosey Darnell Henderson, II of Assault, first degree, Sexual Abuse, first degree, and Unlawful Imprisonment, first degree. The jury also found Henderson was a persistent felony offender (PFO) in the first-degree. He was sentenced, per the jury's recommendation, to a total sentence of sixty years. Henderson now appeals his conviction and sentence as a matter of right on several grounds. For the following reasons, we affirm his conviction.

         I. BACKGROUND

         Alice, [1] Henderson's neighbor, walked over to his home to request money that she alleged Henderson owed her. After answering the door and engaging in some conversation, Henderson grabbed Alice by the throat and attacked her. She lost consciousness and, at some point, awoke, tied up in Henderson's bedroom. Alice lost consciousness multiple times throughout the encounter but testified that Henderson had removed her pants and panties and digitally penetrated her vagina. Henderson cut Alice multiple times with a sharp object that Alice could not specifically identify in her testimony. Alice was ultimately able to free herself and leave through a window, during which her legs were cut from the broken glass. She escaped to a neighbor's home where she obtained help and was taken to the hospital for treatment. She had multiple cuts and bruises from the assault.

         Henderson was arrested in November of 2011, yet his trial did not occur until June of 2016. For this reason, on appeal, he argues that his constitutional right to a speedy trial, under both the United States Constitution[2] and the Kentucky Constitution, [3] was violated and he is entitled to a dismissal with prejudice. Henderson also alleges prejudicial error in: (1) the trial court's failure to appoint substitute counsel; (2) the trial court's failure to advise Henderson of his right to stand-by or hybrid counsel; (3) the trial court's denial of Henderson's motion to suppress; (4) the exclusion of evidence under the Rape Shield Law; and (5) the trial court's inaccurate curtailing of Henderson's right to recall a witness. For the following reasons, we find no reversible error and affirm the judgment of the Jefferson Circuit Court.

         A timeline of this case is integral to the speedy trial analysis. As such, the Court must, in detail, describe exactly what occurred during Henderson's case and the dilatory nature of any delay.

         Timeline

         Henderson was indicted on December 28, 2011 and arraigned in January of 2012. His jury trial was scheduled at that time for July 17, 2012. His first appointed public defender was present with him at a bond reduction hearing on January 27, 2012, but he had to be appointed a new attorney when his original counsel left the DPA. The newly-appointed attorney appeared with him at his next pretrial conference on April 23, 2012. It seemed that it was this court's practice, from the record and from counsel's statements at appearances, to schedule fewer pretrial conferences until trial. Thus, from Henderson's court record, it was not unusual, absent motions or issues, for two to four months to pass between appearances in the circuit court. While that delay is not necessarily excusable, the description of local practice[4] is important to understanding the context of Henderson's case.

         The first suppression motion was filed on May 30, 2012 and set for hearing on June 22, 2012. Rather than utilizing that date for the hearing, defense counsel, with agreement from the Commonwealth, moved to remand the jury trial date and utilize that date as the suppression hearing. The reason is unclear from the record, but that date was also rescheduled, and the suppression hearing was held on September 11, 2012. The parties set the jury trial for May 7, 2013. The context of the May date is also important; the dissent focuses on the length of time between trial dates and the inevitable delay to Henderson's case. While attempting to reschedule dates, the trial court, prosecutor, and defense attorney all had burdensome schedules with which to arrange possible dates for Henderson's trial. Both the prosecutor and defense attorney were working on other murder cases and there was at least one reference to a capital case. The trial court also had a cumbersome schedule with multiple civil jury trials; each time the parties had to reschedule, the judge contacted his assistant on speaker phone to tell him the next possible date. This May 7, 2013 date was the first time that all the parties were available for another trial. Although this is a long period, this context must be appreciated and understood. The parties were not being intentionally dilatory but were, instead, attempting to cooperate with three diverse and busy schedules to accommodate Henderson's need for access to the court.

         Henderson's attorney filed some uncomplicated motions over the next few months, including a second suppression motion. After that motion was filed, the parties attempted to schedule a second hearing. The lead detective for the Commonwealth was unavailable until the trial date as she was on medical leave. The dissenting opinion states that the Commonwealth was unable to proceed to hearing on February 11, 2013 after the filed motion. However, from review of the record, February 11 was a pretrial conference at which time the parties were to schedule a hearing because of Henderson's recently filed motion (filed on February 5, 2013). The Commonwealth was ready to proceed with the jury trial date in May; it simply was unable to produce its witness before that time. The parties agreed to convert the trial date to a suppression hearing and reschedule the trial. Thus, the prosecution, from this review of the record, never requested a continuance for its preparation but merely consented to defense requests for such.

         On March 4, 2013, Henderson filed a demand for a speedy trial. In May, although the reasons are unclear from the record, the suppression hearing was rescheduled for June 26, 2013 and a jury trial date was scheduled for October 28, 2013. The suppression hearing occurred on the June 26 date. In October, and for reasons that are once again unclear from the record, the court entered an order rescheduling the jury trial for June 3, 2014.

         On November 11, 2013, Henderson filed a pro se motion to dismiss for violating his right to a speedy trial. The hearing, from pleadings, was rescheduled by the trial court twice. It finally occurred on May 7, 2014. By that time, Henderson had filed a second pro se motion for an expert witness. At the May 7 hearing, Henderson first stated that he would like to dismiss his attorney and have a new lawyer appointed. The judge asked him to file that in writing so that the court could address it later but specifically pointed out to Henderson that such a motion would definitely delay the trial even longer, in spite of his request for a speedy trial. Henderson stated that the request was necessary and "it would just have to happen." Based on these motions requiring an ex parte hearing, the court scheduled those motions to be heard on May 12, 2014.

         On May 12, Henderson filed his pro se motion for conflict counsel and the hearing went forward. Henderson there stated that he "refuse[d]" to go to trial with his appointed attorney. The circuit court converted the June trial date to a pretrial conference and stated it would have all rulings on pending motions ready and the parties would move forward accordingly. On June 3, the circuit court again stated that the drafts on rulings were complete but he needed to pass thirty days to finish. The next appearance was scheduled for July 2 but, for reasons unknown from the record, the next appearance was on August 8, 2014. At that time, the judge tendered orders denying both motions to suppress, the motion for conflict counsel, and the motion for expert witness. He stated that he still needed to issue a ruling on the motion to dismiss (the subsequent order denying was entered September 16, 2014). The next pretrial was set for October 2, 2014. The parties began scheduling a new trial but Henderson interrupted and requested that they wait to reschedule the jury trial until the next pretrial conference.

         On September 30, Henderson filed a pro se motion to dismiss and another pro se motion to dismiss was filed on October 2, 2014. There was a pretrial conference on October 2, as scheduled, and a new jury trial was scheduled for June 23, 2015. At that appearance, Henderson stated again that he would not go to trial with his appointed attorney. Henderson filed a pro se motion to reconsider suppression on October 12, 2014. The parties appeared in court on November 14, at which time defense counsel requested that the parties have more "face to face" time with the court. The next status was scheduled for January 16, 2015. The jury trial remained scheduled for June 23, 2015. The court entered an order denying the motion to dismiss on December 22, 2014.

         On January 16, 2015, the parties appeared for a status. Both attorneys stated there were no issues to address. Henderson interrupted and stated that God had told him to inform the court that he would no longer need an attorney. He reiterated that he wanted to dismiss his appointed counsel and that "the Lord will fight my cause" and "the Lord will be my defense." The court did not question much further at that time but requested that Henderson place his motion in writing for the court to address. On February 6, 2015, he filed a pro se motion to reconsider, accusing the Commonwealth of lying in a previous reply memorandum. Henderson filed his pro se motion to dismiss counsel on February 11 and sent an additional pro se letter to the court on February 23. In his motion to dismiss counsel, Henderson stated "the Lord is now the defendant's defense."

         The trial court conducted a hearing on the motion to dismiss appointed counsel on April 7, 2015. At that time, the judge questioned Henderson further on exactly what he meant by the Lord being his defense. He asked him practical questions like who would be questioning the witnesses, who would be at bench conferences, etc. His appointed attorney attempted to clarify further, asking him whether the questions would be coming out of Henderson's mouth or not. Henderson refused to answer, stating that his attorney was mocking him. He was unable to answer these practical questions, merely saying that "the Lord will be my defense" and that he had "no need for court appointed counsel." He also stated that God had been "revealing things" to him throughout this entire process and God told him that he did not need a lawyer. The court said it would issue a decision on the motions.

         On June 1, 2015, the parties appeared again and addressed a motion in limine from the Commonwealth. At that time, Henderson once again interrupted. This time, he objected to the detective being present at the Commonwealth's table, at that appearance and at trial. He said she should not be present at all and repeatedly insisted that she was "not in my discovery motion." On June 2, 2015, the trial court entered an order for a competency evaluation upon its own motion, as well as an order denying the motion to dismiss. Upon the competency order, Henderson was admitted to Kentucky Correctional Psychiatric Center ("KCPC") on July 6, 2015 and evaluated.

         The parties appeared in court again on August 3, 2015 and scheduled a competency hearing for September 22, 2015. Defense counsel was instructed to check with the KCPC evaluator for availability; on August 15, an order was entered rescheduling the hearing for October 15, 2015, presumably due to a scheduling conflict (however, this is not clear from the record). Henderson proceeded to file more pro se motions: open record requests to the clerk for victim history and case history (filed September 8, 2015); a federal lawsuit against his attorney and the public defender's office (filed September 10, 2015); a letter to the court informing it of the federal suit (filed October 7, 2015); and another demand for speedy trial (filed October 15, 2015).

         The competency hearing was held on October 15; the trial court said it would issue a ruling and Henderson stated that he had filed another pro se motion for conflict counsel based on the newly-filed federal lawsuit. On October 27, the court entered orders finding Henderson competent; denying conflict counsel; and denying the motion to reconsider. The next appearance was November 3, 2015. At that time, the attorneys agreed that, given the status of all orders, it was necessary to set a jury trial date. A jury trial was scheduled for June 6, 2016 and a final pretrial conference was set for May 20, 2016. At this time, Henderson also belligerently addressed the trial court, asking "are you even reading these motions for real?" Upon response, Henderson also responded angrily that he would get his case "reversed" and everyone would "be right back here." The court ended the pretrial conference.

         On February 26, 2016, Henderson filed a pro se motion to represent himself and, on March 4, 2016, filed a pro se motion to change conditions of release. The court heard parties on the motion to waive counsel on March 28, 2016, and the court conducted a Faretta inquiry.[5] The trial court offered Henderson the option of having his appointed counsel assist in subpoenas, clothing, and other practical matters for trial. At first, both Henderson and his attorney agreed to such a situation. But, then Henderson again stated that he wouldn't be needing an attorney, "God is [his] defense ... [and he'd] be just fine." When asked whether such a decision was in his best interest, Henderson responded, "If I'm gonna go down, gonna go down fighting for myself. So yes, it's in my best interest." The court entered an order the same day allowing Henderson to represent himself.

         On April 7, 2016, Henderson filed a pro se petition for a writ of prohibition, prohibiting any further prosecution. On April 12, he also filed a response to the Commonwealth's motion in limine. On May 20, 2016, the parties appeared for the final pretrial conference before trial on June 6. At that time, Henderson specifically requested that the jury trial be continued until the Court of Appeals had made a decision on his petition for writ. The court said it would proceed as though it was going to trial and pass the decision until that time. Henderson objected for the record to going forward. The trial did occur on June 6 and defendant was convicted by the jury of assault, first degree; sexual abuse, first degree; unlawful imprisonment, first degree; and persistent felony offender, first degree. The jury recommended an enhanced sentence of sixty years. Henderson was formally sentenced on August 5, 2016.

         II. ANALYSIS

         A. Right to Speedy Trial

         This Court analyzes alleged violations of the right to speedy trial under the four-factor Barker test. Dunaway v. Commonwealth, 60 S.W.3d 563, 569 (Ky. 2001) (citing Barker v. Wingo, 407 U.S. 514 (1972)). The four factors under this test are: "(1) the length of delay, (2) the reason for the delay, (3) the defendant's assertion of his right, and (4) the prejudice to the defendant caused by the delay." Dunaway, 60 S.W.3d at 569. "No single one of these factors is determinative by itself." Id. (quoting Gabow v. Commonwealth, 34 S.W.3d 63, 70 (Ky. 2000)). "We regard none of the four factors ... as either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial. Rather, they are related factors and must be considered together with such other circumstances as may be relevant." Stacy v. Commonwealth, 396 S.W.3d 787, 795 (Ky. 2013) (quoting Barker, 407 U.S. at 533).

         1. Length of De lay

         The fifty-six-month delay in this case is clearly presumptively prejudicial. Under our precedent, that presumptive nature is clear. The dissent characterizes Henderson's case as not "complex." However, this case presented a wealth of physical evidence, as well as DNA evidence. It was a violent crime with a victim testifying to difficult facts. Given our precedent, we do not characterize this case as "simple." See Stacy, 396 S.W.3d at 796 (finding an arson and riot case "serious and of moderate complexity"). Henderson presented a completely contradictory narrative, thus lending far more importance to the physical and scientific evidence for the jury. As such, this case cannot be labeled "simple and straightforward." However, this does not change the fact that a fifty-six-month delay is presumptively prejudicial.

         2. Reason for Delay

         There are "three categories of reasons for delay: (1) a 'deliberate attempt to delay the trial in order to hamper the defense'; (2) a 'more neutral reason such as negligence or overcrowded courts'; and (3) 'a valid reason, such as a missing witness.'" Dunaway, 60 S.W.3d at 570 (quoting Barker, 407 U.S. at 531. These "different reasons should be allocated different weights[.]" Dunaway, 60 S.W.3d at 570 (citing Barker, 407 U.S. at 531).

A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government. A more neutral reason such as negligence or overcrowded courts should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than the defendant. Finally, a valid reason, such as a missing witness, should serve to justify appropriate delay.

Stacy, 396 S.W.3d at 796 (quoting Miller v. Commonwealth, 283 S.W.3d 690, 700 (Ky. 2009)). Looking at the timeline of this case, there are three major reasons for delay: (1) the trial court's tardiness in responding to Henderson's motions to suppress; (2) Henderson's insistence upon filing numerous and repetitive pro se motions, while still being represented by appointed counsel; and (3) Henderson's continuous demands for a new appointed attorney.

         In Stacy, this Court pointed to the defendant's "abundance of pro se motions." Stacy, 396 S.W.3d at 797 (emphasis added). "While simultaneously pursuing his motion for a speedy trial, Appellant filed two subsequent motions requesting additional discovery, a motion for access to the crime scene, and a motion for a Faretta hearing." Id. (citation omitted). Recognizing that a defendant has a right to file such motions, the Court still recognized that "the trial court must have sufficient time to dispose of them before trial." Id. Here, Henderson continued to insist upon a speedy trial yet also filed multiple pro se motions, often in duplicate or triplicate. Many motions were based upon the exact same grounds and offered nothing new for the trial court except to issue another written order.

         Much of the delay throughout Henderson's case stemmed from his consistent, yet often unfounded, insistence upon new appointed counsel. As Justice Hughes noted in Goben v. Commonwealth, "[t]he speedy trial clause does not guarantee continuous or effective representation or prompt discovery. To the extent that Goben's rights to those things were violated, he may have other recourse, but the alleged violations were not the result of trial delay and so do not add any weight to Goben's speedy trial claim." 503 S.W.3d 890, 910 (Ky. 2016). In Goben, much of the delay was caused by conflicts and motions to withdraw based on conflicts involving multiple co-defendants. See id. at 909. Here, the delay was even more unquestionably attributable to Henderson: despite an attorney that seemed to take multiple steps to protect Henderson's rights (filing suppression motions, speaking to experts on his behalf without being charged by those experts, negotiating offers with the Commonwealth, ensuring Henderson would appear more often in front of the trial court, and even continuing to advocate for the positions Henderson sought despite Henderson's continued efforts to "dismiss" him), Henderson continued to attempt to force the trial court's hand in retaining new counsel for him. It appears, from the record, highly doubtful that substitute counsel would have been able to take any further steps on Henderson's behalf or satisfy Henderson with his or her defense.

         We must also note that there are three separate entities we must consider for reasons of delay: the trial court, the prosecution, and then the defendant. Here, while there were delays due to the trial court, there were no requests for continuance by the prosecution. This fact must also be considered in the weighing of the Barker factors. In McDonald v. Commonwealth, the Court stated that "it is apparent the Commonwealth was making a good-faith effort to bring McDonald to trial. Here McDonald did not object to any of the continuances. The record is vague as to the reasons for many of the continuances ..." 569 S.W.3d 134, 137 (Ky. 1978). The Court found that McDonald did not argue any of the specific continuances were inappropriate and thus he "participated in the delay." Id. Likewise, it seems that the prosecution here persisted in a good-faith effort to bring Henderson to trial. Henderson did not raise any objections to continuances of the trial date at any point during the proceedings. He complained of delays in his demands for speedy trial and motions to dismiss for violations of such, yet did not raise objections when the trial court continued his trial. Additionally, shortly before the June 2016 trial date, Henderson himself asked for a continuance.[6] He wanted to cease any activity in the case until the Court of Appeals had issued a response on his petition for writ of prohibition. This shows a complicity in the delay, or an effort to utilize such delay to his advantage. At the very least, it shows that his insistence upon a speedy trial was less than genuine.

         The dissent states that a "whole year of delay was caused by the trial court's unjustifiable decision to compel [Henderson] to submit to a competency evaluation." The Court cannot agree with this assessment. We cannot, from this record, state that the court's decision was "unjustifiable." Kentucky Revised Statute (KRS) 504.100 states that if the court, at any point, "has reasonable grounds to believe the defendant is incompetent to stand trial, the court shall appoint" a professional to evaluate the defendant's condition. KRS 504.100(1) (emphasis added). This is a mandatory duty if the court has reasonable grounds to even question a defendant's competence. While the dissent is willing to make the leap that, given the entire context of this case, the trial court's doubts were entirely unfounded, a majority of this Court must disagree with such a conclusion.

         "It is within the trial court's discretion to determine whether there are 'reasonable grounds' to believe a defendant may be incompetent to stand trial." Slone v. Commonwealth, 382 S.W.3d 851, 859 (Ky. 2012) (quoting Bishop v. Caudill, 118 S.W.3d 159, 161 (Ky. 2003)). "However, once facts known to the trial court are sufficient to place a defendant's competency at issue, an evaluation and evidentiary hearing are mandatory." Slone, 382 S.W.3d at 859 (quoting Bishop, 118 S.W.3d at 161; citing Gray v. Commonwealth, 233 S.W.3d 715, 718 (Ky. 2007)). Aside from this statutory right, "the United States Constitution, as a matter of due process, bars trying a defendant who is incompetent to stand trial." Woolfolk v. Commonwealth, 339 S.W.3d 411, 421 (Ky. 2011) (citing Drope v. Missouri, 420 U.S. 162 (1975)). "'Evidence of a defendant's irrational behavior, his demeanor in court, and any prior medical opinion on competence to stand trial are all relevant facts for a court to consider' in reaching its decision." Woolfolk, 339 S.W.3d at 422 (quoting Mills v. Commonwealth, 996 S.W.2d 473, 486 (Ky. 1999)). This Court has recognized a trial court's superior position "to observe [a defendant's] conduct and demeanor ... and to evaluate the circumstances ..." Woolfolk, 339 S.W.3d at 423.

         The statute and corresponding precedent create a significant responsibility for a trial court; upon seeing what it deems, within its discretion, as reasonable grounds to question competency, that court must order an evaluation. The dissent looks to the evaluation and post-trial circumstances to determine that the trial court was unfounded in what it deemed "reasonable grounds" to question competency. Yet, this is improper. We must look at what was before the trial court at the time it ordered an evaluation: Henderson had begun speaking in hyper-religious speech. He was not just speaking of a strong faith, a character trait which should not lead to competency questions. He was speaking of an audible voice instructing him as to his defense. Henderson, arguably, was acting contrary to his interests to accommodate the instructions of the "voice" he heard. He also stated that the voice had been "revealing" things to him the entire time. This language is, in itself, troubling enough. However, the trial court also saw an increasing aggression in Henderson's conduct, looking to his accusations against the Commonwealth and the trial court. Additionally, he began making hostile objections at appearances, such as stating that the lead detective should not even be present at the Commonwealth's table at any time during his proceedings. Given all this information and looking at the seriousness of the charges and the constitutional imperative that Henderson be competent to face those charges, the court's order was not unreasonable. A "valid reason, such as a missing witness, should serve to justify appropriate delay." Stacy, 396 S.W.3d at 796 (quoting Miller v. Commonwealth, 283 S.W.3d 690, 700 (Ky. 2009)). Ensuring a defendant's constitutional right to be competent is a "valid reason" and justifies reasonable delay connected to those proceedings.

         Thus, looking at the three major causes of delay-the trial court's late orders on suppression; Henderson's pro se motions; and Henderson's insistence on new counsel-most of the delay was caused by Henderson himself. This Court does not excuse the trial court's failure to promptly respond to Henderson's suppression motions. This factor must weigh heavily against the government. However, the competency evaluation was legally necessary and a valid reason for delay. All other delay was caused by Henderson's own conduct.

         3. Waiver and Assertion

         An assertion of the right to speedy trial "must be viewed in light of [defendant's] other conduct." Dunaway, 60 S.W.3d at 571 (quoting United State v. O'Dell, 247 F.3d 655, 671 (6th Cir. 2001) (quoting United States v. Loud Hawk, 474 U.S. 302, 314 (1986))). "[I]f delay is attributed to the defendant, then his waiver may be given effect under standard waiver doctrine." McDonald, 569 S.W.2d at 137.

         In Dunaway, the Court determined that "six months of frivolous petitions by the defendant reduced the sincerity of defendant's assertion of his right." 60 S.W.3d at 571. Although Dunaway referred to delays, he "never mention[ed] voicing a single objection." Id. "If a defendant acquiesces in a delay, he cannot be heard to complain about the delay." Id. (quoting Gabow, 34 S.W.3d at 70). Additionally, although a defendant may assert the right to a speedy trial, complicity in continuing dates may be inferred as acquiescing and not vigorously invoking the right to speedy trial. See Stacy, 396 S.W.3d at 798.

         Here, Henderson continued to file pro se motions, all while insisting upon a speedy trial. He continued to demand a new attorney, despite the court's advising him that such a request would inevitably cause further delay. He never once objected to one of the continuances during a court appearance. He even requested another continuance before his June 2016 trial date, making sure his objection to the trial going forward was preserved for the record. Henderson did, both in writing and verbally, assert his constitutional right to a speedy trial. Yet aside from those steps, all his actions seem intent upon causing delay and utilizing that delay to his defense's advantage. Thus, Henderson's invocation was less than "vigorous."

         4. Prejudice

         There are three interests protected by the right to a speedy trial: "(1) to prevent oppressive pretrial incarceration; (2) to minimize anxiety and concern of the accused; and (3) to limit the possibility that the defense will be impaired." Dunaway, 60 S.W.3d at 571-72 (quoting Barker, 407 U.S. at 532. The last consideration "is the most serious." Dunaway, 60 S.W.3d at 572 (citing Barker, 407 U.S. at 532).

         To a certain extent, the dissent's determination that Henderson suffered prejudice through oppressive pretrial incarceration is correct. Yet this is only one factor for the prejudice analysis under Barker. Henderson has not presented any proof of anxiety beyond that which accompanies an ordinary prosecution. See Dunaway, 60 S.W.3d at 572. He has also not presented a showing of any concrete prejudice to his defense. Contrary to Henderson's claim of prejudice to his case, the delay actually assisted his defense in a very concrete way. Alice, the victim in this case, was a convicted felon at the time of trial. She was not a convicted felon when the assault occurred. She admitted that, after this happened, she began using drugs again and "caught [her] first felony" after this incident. This lends a certain weight to Henderson's defense, claiming that Alice was less credible and had used drugs leading to her allegations against him. Given this context, the Court must look at all these factors and determine how the delay balances, whether it be against the defendant or the government.

         5. Weighing the Factors

         Although, as the dissent states, "deprivation of liberty is the core value the Speedy Trial Clause was designed to protect," the analysis of prejudice and the weight given to all the factors here leads to a conclusion that Henderson's constitutional rights were not violated. Henderson was subjected to a lengthy pretrial detention before reaching a jury trial. Such pretrial detention is a problem our courts are continually addressing through pretrial monitoring programs, reform of rules and regulations regarding bond and bail, and expansion of monitoring programs while awaiting trial. However, Henderson's pretrial detention, while extremely significant, was not sufficient, while weighing and examining all the Barker factors, to find a constitutional violation.

         Henderson continued to exacerbate the delay of his case through repetitive motions, argumentative attitude, and an unwillingness to comply with procedural protections. He was intent on having his way, from his choice of appointed counsel to exactly how the case should proceed; yet, despite all the parties' attempts to accommodate his requests, he insisted the process was taking too long. The trial court was remiss in its duties here, most notably through the two-year delay in tendering an order on Henderson's motions to suppress. However, the trial court's attempts to progress Henderson's case were consistently hindered by Henderson's own machinations. Although the trial court was tardy here, this Court cannot hold that the entire reason for delay was on the government and therefore entitles Henderson to a dismissal of his case.

         In Doggett, the United States Supreme Court noted that "if the Government had pursued Doggett with reasonable diligence from his indictment to his arrest, his speedy trial claim would fail. Indeed, that conclusion would generally follow as a matter of course however great the delay, so long as Doggett could not show specific prejudice to his defense." Doggett v. United States, 505 U.S. 647, 656 (1992). In Doggett, the Court there noted a complete absence of any effort on the government's part to prosecute Doggett for over six years. Id. at 652-53. "The Government, indeed, can hardly complain too loudly, for persistent neglect in concluding a criminal prosecution indicates an uncommonly feeble interest in bringing an accused to justice; the more weight the Government attaches to securing a conviction, the harder it will try to get it." Id. at 657. Here, the government was not completely inactive like in Doggett. The Commonwealth's Attorney's office was consistently taking steps to further the prosecution and navigate a clogged trial schedule to ensure Henderson was brought to justice.

         The language of McDonald is compelling here: "the delay here was extraordinary and presumptively prejudicial; however, in balancing the factors ... we are of the further opinion the prosecution exercised good faith in attempting to bring McDonald to trial, the delays were not shown to be for other than valid reasons and a significant portion of the delays is attributed to McDonald." McDonald, 569 S.W.2d at 137. There, the Court determined that rather than honestly and vigorously asserting the right to a speedy trial, McDonald "hoped to take advantage of the delay in order to obtain a dismissal of the charge, and ... the prejudice to McDonald by reason of the delay was minimal if any prejudice resulted at all." Id. Henderson's conduct is similar. While his words demanded a speedy trial, his conduct hindered such progress.

         The dissent has occluded the weighing of the Barker factors by focusing solely on the problem of liberty. The liberty interest is a vitally important one to protect. However, this Court cannot set aside all the other factors and case precedent to determine that Henderson's deprivation of liberty here was sufficient prejudice, on its own, to warrant dismissal of his entire case. Here, the balance of all the factors and circumstances weighs against Henderson. His consistent actions to delay proceedings, countered by the prosecution and trial court (absent the delay in assessing the suppression motions) attempting to push the case forward, show a certain lack of sincerity in insisting upon a speedy trial. For all these reasons, Henderson's right to a speedy trial was not violated.

         Henderson also alleged the trial court erred in: (1) failing to appoint him substitute counsel; (2) failing to advise him of the right to or appoint stand-by or hybrid counsel; (3) denying his motion to suppress; (4) excluding evidence under the Rape Shield Law; and (5) misadvising him of his right to recall a witness, thereby interfering with his right to present a defense.

         B. Substitute Counsel

         Henderson alleges that the trial court abused its discretion in refusing to grant him substitute counsel, as he repeatedly requested. Henderson filed his first pro se motion for conflict counsel on May 12, 2014, after the trial judge asked him to put his request in writing. That same day, the court held an ex parte hearing to determine whether defense counsel should be removed.

         At the hearing, Henderson cited to a complete breakdown in communication and a disagreement with appointed counsel as to his defense to proffer at trial. As to his defense, he argued (1) he was not guilty; (2) the injuries to the victim could have been caused by breaking glass from her going through his window, rather than a knife; (3) the victim's actions could have been caused by her consumption of illicit substances; and (4) that the indictment violated the proscription against double jeopardy by charging him with both attempted murder and assault, first degree. The trial court inquired into the alleged breakdown and defense strategy. Henderson argued that the victim climbed out of a broken window after a consensual sexual encounter; when she was outside and screaming, he ran because he was scared of the reaction of bystanders. Henderson argued there had been no discussions as to trial strategy and his counsel insisted he would "go by the evidence." Henderson did concede that his attorney had forwarded all the discovery to him, other than what he claimed was a missing page (page 18) in the discovery packet.

         The trial court asked Henderson what conflict counsel could do that his current attorney had refused to do. In response, Henderson stated: "My spirit just don't bear witness with Mr. Lemke no more." Henderson admitted that his attorney had met with him at least eight to nine times, asking him questions about discovery. But Henderson decided that the relationship "just won't work." He wanted an attorney who would put forth "some kind of effort" for his defense. Henderson described conversations with his attorney that sound like an attorney explaining certain legal rules on evidence admissibility and limitations. He stated that he and his attorney had discussed the option of testifying at trial but that he hoped the parties would be able to come to some kind of agreement before trial.

         Appointed counsel adamantly argued he was doing all he could to provide effective counsel for Henderson. He stated that he and Henderson had met on multiple occasions and discussed strategy. Many of the statements Henderson cited were, as Lemke argued, parts of conversations about what could or may happen at trial. He explained some of the admission or evidentiary issues that may arise at trial, as reference by some of Henderson's remarks. Lemke described their conversation on testifying, explaining how some statements that may otherwise be inadmissible could be utilized as impeachment evidence if he did testify. He admitted to saying that he would "go by the evidence," because he had stated he could not prove Henderson's argument as to victim's impairment because he had no evidence she was under the influence at the time of the alleged assault. As to the expert witness issue, Henderson wanted to hire a glass and cut specialist (amongst other various experts) in reference to the victim's cuts and injuries. Lemke informed the court that he had contacted a specialist in cuts, who evaluated the evidence for him for free. Lemke stated that, after receiving that opinion, he was not going to call the expert as a witness or contact any further experts on that particular issue. As to the double jeopardy issue, Lemke informed the court he did not believe there was a mechanism to remove one of the charges before trial but had case law as to objecting to instruction on one of the charges at the close of evidence.

         Lemke stated that the Commonwealth had made an offer of 25 years and that he believed that offer was still available. However, Henderson interrupted, stating he was unwilling to take any offer more than 3 years. Lemke stated he felt he had done nothing improper and had done everything that competent counsel would do under the circumstances; he added that he would object to being removed. Henderson, as an additional point, stated that many of his friends had been represented by Lemke and had not had good outcomes and felt this was not a good "track record" for an attorney to represent him and simply stated "he's not for me." The trial court entered a final order denying Henderson's motion on August 8, 2014.

         At an appearance on October 2, 2014, Henderson reiterated that he wanted new counsel and stated that he was "not going to trial" with this attorney. On January 16, 2015, the parties appeared for another update. Attorneys stated there were no pending issues, but Henderson interrupted, stating that he no longer needed an attorney and that God would be representing him. Henderson followed up this statement with a pro se motion to dismiss his public defender and a letter to the court. On April 7, 2015, the court held another hearing. Henderson's conduct led to the court's order requiring a competency evaluation in June 2015.

         On September 10, 2015, Henderson sent a letter to the court, informing it that he had filed a pro se federal lawsuit against his public defenders and the Department of Public Advocacy. He again requested conflict counsel. The court entered another order on October 27, 2015 denying the request for substitute counsel. On February 26, 2016, Henderson then filed a motion to represent himself. After a hearing on March 28, 2016, the trial court entered an order allowing the defendant to forego counsel and represent himself at trial.

         "[A] defendant who is represented by a public defender or appointed counsel does not have a constitutional right to be represented by any particular attorney, and is not entitled to the dismissal of his counsel and the appointment of substitute counsel except for adequate reasons or a clear abuse by counsel." Henderson v. Commonwealth, 636 S.W.2d 648, 651 (Ky. 1982) (citations omitted). "When an indigent defendant seeks to change his appointed counsel, he carries the burden of demonstrating to the court that there exists 'good cause, such as a conflict of interest, a complete breakdown of communication or an irreconcilable conflict.'" Stinnett v. Commonwealth, 364 S.W.3d 70, 81 (Ky. 2011) (quoting Shegog v. Commonwealth, 142 S.W.3d 101, 105 (Ky. 2004)). The Court has "further described good cause as '(1) a complete breakdown of communications between counsel and defendant; (2) a conflict of interest; and (3) where the legitimate interests of the defendant are being prejudiced.'" Stinnett, 364 S.W.3d at 81 (quoting Deno v. Commonwealth, 177 S.W.3d 753, 759 (Ky. 2005) (citing Baker v. Commonwealth, 574 S.W.2d 325, 326-27 (Ky. App. 1978))). Whether there is such "good cause" for substitute counsel is a matter within the discretion of the trial court. See Pillersdorf v. Department of Public Advocacy, 890 S.W.2d 616, 621 (Ky. 1994) (decided under now-repealed KRS 31.130 on "Assignment of substitute attorney"). "Accordingly, the bar is set high for a defendant to force appointed counsel off the case." Stinnett, 264 S.W.3d at 81. "[M]ere dissatisfaction with appointed counsel's performance is insufficient to support a motion to support his removal." Id.

         The reasons posited by Henderson for counsel's removal are simply insufficient and unfounded from review of the record. Most of his allegations were refuted by his appointed counsel. Even Henderson's own statements were contradictory, at one point complaining that his attorney never discussed strategy and then describing conversations that were clearly about strategy. This is a high bar and there must be good cause for removal. Given all the evidence before the court after this hearing, we cannot say that the judge abused his discretion by denying the motion for substitute counsel.

         Henderson also cites to his federal lawsuit as grounds for needing substitute counsel. He filed a complaint in the Western District of Kentucky. Admittedly, the filing of a lawsuit may lead to a conflict, creating a "good cause" for substitute counsel. However, "while we have recognized that a bar complaint or a lawsuit filed by an indigent defendant against his appointed counsel may give rise to good cause for his replacement, such filings do not warrant an automatic substitution of an assigned public defender." Stinnett, 364 S.W.3d at 81 (citing Grady v. Commonwealth, 325 S.W.3d 333, 345-46 (Ky. 2010)). Allowing such an "automatic substitution" "would allow a dissatisfied client to manufacture 'good cause' by simply filing a bar complaint" or frivolous lawsuit. Stinnett, 364 S.W.3d at 81. To allow this abuse of the system "would usurp [this Court's] holding that defendants are not entitled to replace their counsel without good cause and would not serve the judicial economy of the courts of this Commonwealth." Grady, 325 S.W.3d at 346 (citing Deno, 177 S.W.3d at 759). Henderson's complaint was summarily dismissed by the district court in January 2016 for failure to state a claim upon which relief could be granted. There is no foundation for finding that the trial court abused its discretion in determining that this lawsuit did not provide "good cause" for dismissing Lemke and appointing new counsel.

          "[S]o long as the trial court allows the defendant to state on the record the reasons why he seeks substitution of counsel, the trial court may exercise discretion to determine how extensive the hearing needs to be in light of the factual circumstances of each individual case." Grady, 325 S.W.3d at 346; see also Deno v. Commonwealth, 177 S.W.3d 753, 759-60 (Ky. 2005). The trial court here conducted a lengthy hearing into Henderson's allegations. He allowed Henderson ample time to discuss his reservations, complaints, and allegations regarding his attorney's conduct. The court also allowed defense counsel to respond to those complaints. Given all the evidence, statements, and conduct before the trial judge, the court did not abuse its discretion in denying Henderson's motion.

         C. Stand-by or Hybrid Counsel

         Henderson also alleges error by the trial court misadvising him of his choices if he wanted to dismiss appointed counsel and in failing to appoint hybrid[7] or stand-by[8] counsel for him once he was permitted to represent himself. As to the first allegation, at the status hearing on October 2, 2014, Henderson reiterated his request for new counsel, "I'm still seeking new counsel. I'm not satisfied." The trial court told him he could hire any attorney he wanted. When Henderson said he was not going to trial with Mr. Lemke, the trial court stated, "You asked this Court to appoint counsel for you ... [Michael Lemke is] a very good, competent lawyer and he's your lawyer. So, you have two options. You can either go to trial with your appointed counsel or you can hire any attorney who's a member of the Kentucky Bar Association, if you choose to, to represent you. You don't get to pick and choose who your appointed counsel is." When Henderson reiterated his dissatisfaction, the trial court merely requested that he file a new motion and they would take it up at another time.

         Henderson also alleges error in the trial court's failure to appoint another attorney as hybrid counsel for him at trial. When Henderson seemed amicable to the idea of stand-by counsel, the trial court explained that he could have Lemke available to assist on certain procedural issues. Henderson asked if his counsel could be someone other than Lemke. The trial court stated that was a decision left to the office of the public defender and that Lemke's "boss," Dan Goyette, decides which attorney represents which client. Henderson now claims this statement was in error and, in failing to appoint a different attorney as hybrid or stand-by counsel, the court violated his constitutional rights.

         These two allegations of error become highly intertwined upon review; they both infringe upon Henderson's right to hybrid or stand-by counsel. However, that right is not absolute. A request for hybrid counsel must be "timely and unequivocal." Deno, 177 S.W.3d at 758. Henderson never requested hybrid counsel. He wanted a different attorney; when that request was repeatedly denied, without error by the court, he then decided to represent himself. He never requested stand-by counsel. At his Faretta[9] hearing, the trial court explained he could have Lemke stay on to assist Henderson in various matters, like ensuring Henderson had street clothes for the trial. Henderson did not want Lemke to stay on, even in a stand-by capacity. He asked if he could have another attorney, but the trial court informed him that the appointment of a particular attorney for him was not the court's choice.[10] Trial courts are not required to "sua sponte inform defendants of their right to hybrid representation." Mitchell v. Commonwealth, 423 S.W.3d 152, 162 (Ky. 2014). Thus, the court did not err in failing to inform Henderson of the various forms his hybrid or stand-by counsel could take, without being requested.

         Additionally, Henderson was open to the idea of a stand-by attorney if it could have been someone other than Lemke; this once again returns to the idea of substitute counsel, even as a stand-by counsel. There was no good cause shown for Lemke to be removed. Thus, the trial court did not err in failing to appoint a different attorney as stand-by counsel. Even if the court was mistaken in the process, as the trial court could undoubtedly find a conflict or cause necessitating substitute counsel thus clouding his statement to Henderson with some doubt, it made no difference for Henderson's case. Lemke was his attorney; Lemke's representation could have been limited through Henderson's waiver to hybrid or stand-by counsel. However, even if Henderson decided to knowingly waive certain rights and choose one of these options, that decision does not create good cause for Lemke to be removed. There was still no error in such a decision.

         Henderson also claims that the court erred in failing to sua sponte appoint stand-by counsel for Henderson after he informed the court of a sleep condition that caused him to fall asleep. Importantly, there does not appear to be any medical proof in the record of Henderson's condition. Instead, he was falling asleep during voir dire and he informed the court he had a medical condition causing him to fall asleep involuntarily. This happened again on the third day of trial and Henderson asked the court to instruct the jury on his medical condition.[11] The court did so. A trial court may appoint stand-by counsel over the objection of a defendant. Allen v. Commonwealth, 410 S.W.3d 125, 134 (Ky. 2013) (citing Chapman v. Commonwealth, 265 S.W.3d 156, 166-67 (Ky. 2007)). However, we have never recognized a duty of a trial court to impose stand-by counsel over the defendant's objection. If a defendant is incompetent to represent himself, then he cannot represent himself, pursuant to Faretta. That is a clear duty for the trial court. However, we have never required an affirmative duty to impose upon an unwilling defendant a stand-by or hybrid counsel. Even if we did, "when a trial court appoints standby counsel over a defendant's objections, the defendant typically may define standby counsel's participation in the trial." Allen, 410 S.W.3d at 134-35 (citing Chapman, 265 S.W.3d at 169-70). If the court had appointed stand-by counsel, it would have been Michael Lemke, Henderson's prior attorney. Henderson did not want Lemke to have anything to do with his case. Henderson still would have been opposed to Lemke's involvement in his case, even as stand-by counsel, and Lemke would have been unable to provide assistance.

         However, the issue remaining is whether the trial court's misstatement of the law is sufficient to create structural error and require reversal. "A trial court acts erroneously where it affirmatively misrepresents a defendant's choice of counsel as being between 'only two alternatives: either represent himself or accept appointed counsel."' Nunn, 461 S.W.3d at 748 (quoting Baucom v. Commonwealth, 134 S.W.3d 591, 592 (Ky. 2004)). "[I]t is error for the trial court to misstate that a form of hybrid representation is unavailable in response to an inquiry by a defendant or his counsel." Mitchell, 423 S.W.3d at 162.

         The "complete abridgment of the defendant's right to hybrid counsel" has been found to be "structural error." Nunn, 461 S.W.3d at 750 (Deno, 177 S.W.3d at 757). In Mitchell, "the trial court failed to correct its misstatement of the law, thus Appellant proceeded to trial under the belief that hybrid counsel was not an option." 423 S.W.3d at 162. Such error amounted to a structural error requiring reversal. See id. However, structural error is not always present when there are errors related to a hybrid counsel arrangement. In Nunn, this Court determined that arbitrary limitations upon the defendant's arrangement with hybrid counsel was, although error, harmless as there was no prejudice. Nunn, 461 S.W.3d at 750.

         Here, the trial court misstated the law: he informed Henderson he had a choice to either accept Lemke as his appointed counsel or hire another attorney. At first blush, this is clearly an error. However, we must look beyond a sole statement to understand the context. This conversation was not happening in the midst of Henderson requesting self-representation, hybrid counsel, or stand-by counsel. He simply wanted another attorney. If he Wanted a licensed attorney to represent him, then he did have two options: either accept his appointed counsel (absent a showing of good cause for substitute counsel) or hire an attorney. Even if the trial court's statement was in error, there is no structural error here. Henderson's rights to hybrid counsel were not completely abridged. He ultimately determined he wanted to proceed pro se, without even stand-by counsel, and was ...


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