FROM ALLEN CIRCUIT COURT HONORABLE JANET J. CROCKER, JUDGE
ACTION NO. 15-CR-00017
FOR APPELLANT ROY ALYETTE DURHAM II FRANKFORT, KENTUCKY
FOR APPELLEE ANDY BESHEAR ATTORNEY GENERAL OF KENTUCKY JOHN
PAUL VARO ASSISTANT ATTORNEY GENERAL FRANKFORT, KENTUCKY
BEFORE: CLAYTON, CHIEF JUDGE; ACREE AND TAYLOR, JUDGES.
CLAYTON, CHIEF JUDGE
Allen County Circuit Court jury convicted William Madden of
third-degree assault, first-degree criminal mischief, and
being a first-degree persistent felony offender. Madden now
appeals from these convictions, and raises four issues: (1)
the trial court erred when it failed to timely follow the
procedures required by Faretta v. California, 422
U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); (2) Madden
suffered undue prejudice when the trial court denied his
motion for a continuance on the eve of trial; (3) the trial
court erred when it denied Madden's motion for a directed
verdict after the Commonwealth's case-in-chief; and (4)
the trial court's denial of a missing evidence
instruction was unduly prejudicial. For the following
reasons, we affirm the trial court on each of the foregoing
convictions from which Madden now appeals arose from events
which took place on November 6, 2014, in which Madden, who
was at that time incarcerated at the Allen County Detention
Center, purportedly broke a window of his cell door and spit
on a corrections officer. At Madden's two-day trial, the
Commonwealth called three witnesses to the incident: Deputy
Jailers Kenneth Pardue, Angela Payne, and Nick Pierce, as
well as the Allen County Jailer, Larry Piper.
Pardue testified that he was in the detention center's
control room with Deputy Payne when the incident began. The
deputies had just finished nightly "store call,"
where inmates are sold phone cards and other items. Madden
was in a cell with approximately four or five other inmates,
and such cell was around forty feet from the control room.
The cell contained two rooms where the inmates sleep known as
"pods," as well as a day room or foyer-type area in
front of the pods.
Deputy Pardue and Deputy Pierce testified that they sold
Madden a phone card during store call, but Madden called the
control room from a speaker in the cell demanding another
phone card. The deputies declined, as they had completed
store call for the evening. Deputy Pardue testified that
Madden got extremely angry and started "hollering,
raising hell, [and] beating on the door." Madden was the
only individual whom Deputy Pardue could hear. Subsequently,
both Deputy Pardue and Deputy Pierce heard one "loud
pop." At that point, Deputy Pardue walked to the cell,
which he estimated took roughly thirty seconds, and saw that
the glass in the door had been shattered. He also saw Madden
standing in the day room area of the cell, alone, between the
door and the shower area. At that point, Deputy Pardue
testified that he did not know what had caused the damage to
the door, as Madden could not have broken it with his fists
and everything else in the cell was bolted down.
Pardue returned to the control room and retrieved Deputy
Pierce, and both deputies went back to the cell, where Deputy
Pierce testified that Madden was the only inmate in the foyer
area that he could see. Both deputies testified that Madden
was mad, pacing, and using foul language, and all the other
inmates were in the pods with the doors closed. The deputies
called dispatch, and once the police arrived, Madden was
removed from the cell, placed in a restraint chair, where he
was strapped down at his feet, arms, waist, and shoulders,
and moved to a separate room with the door open. Madden's
head and neck remained free. Both deputies testified that
Madden was calm while he was being placed in the restraint
chair, but once the police left, he became angry again and
continued to "raise hell." The deputies further
testified that none of the other inmates came out of the pods
until Madden was removed from the cell.
Pardue and Deputy Pierce returned to the cell later to
investigate and discovered that the showerhead, although not
out of place, was the only item in the cell that could have
been removed and that was solid enough to break the glass.
The showerhead was not damaged, but it was solid metal and
matched the hole in the glass. The showerhead was
photographed, but no fingerprints were taken.
that evening, Deputy Pierce went to check on Madden in the
restraint chair. Madden continued to be verbally abusive and
extremely angry. Deputy Pierce testified that he walked up
behind Madden and looked over him. At that point, Madden
moved his head back and spit upwards. Deputy Pierce jumped
back to avoid the spit hitting his face, but it landed on his
shirt. Deputy Pierce showed Deputy Pardue and Deputy Payne
the spit before washing it off. The deputies then put a
"spit mask" on Madden to avoid any further
Piper testified that it cost $2, 163.62 to fix the broken
window. The jury convicted Madden of third-degree assault,
first-degree criminal mischief, and being a persistent felony
offender in the first degree and imposed consecutive ten-year
sentences. Thereafter, the trial court imposed the jury's
verdict but ordered the sentences to run concurrently. This
facts will be developed as required to address the specific
first argues that the trial court failed to timely establish
whether his waiver of representation was made knowingly,
intelligently, and voluntarily as required by
Faretta. At Madden's arraignment hearing on
April 21, 2015, Madden informed the court of a conflict with
his court-appointed counsel, Mr. Roemer. The following
exchange occurred between Madden and the trial court:
Court: At this time, you are before this court for
arraignment. Are you requesting that the court appoint an
attorney to represent you, sir?
Madden: Um. I think I've made it apparent before that I
don't approve of Mr. Roemer. I have a conflict with him,
so if that's who you intend on appointing me, I'm
afraid I can't accept his counsel.
Court: So the alternative, sir, is that, do you desire to
Court: Well, you can't have it both ways, Mr. Madden. You
can either have a court-appointed attorney, which is Mr.
Roemer, or you can represent yourself, sir.
Madden: Well, as I said, I have a conflict with Mr. Roemer.
If my only other option is to represent myself, then
that's what I'll do.
Court: Alright, and so then Mr. Madden, can you tell me have
you ever studied law before?
Madden: I've read some law books.
Court: Okay. Have you ever represented yourself in any other
criminal matter before, sir?
Madden: I've requested to, but I never have.
Court: Do you realize that you are charged with two Class D
felonies, assault third-degree on an inmate and criminal
mischief first-degree, that if convicted as charged could be
potentially enhanced to 20 years as a persistent felony
offender, first-degree. Do you understand that, sir?
Madden: No, I believe I was charged with assault on a
Court: Alright, and so you've been charged with assault,
third-degree. You've been charged with criminal mischief
first-degree, both of which are Class D felonies which carry
a minimum sentence of one year, a maximum sentence of five.
You have also been indicted in the status offense of being a
PFO first, which carries ...