IMPORTANT NOTICE
NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."
PURSUANT TO THE RULES OF CIVIL PROCEDURE
PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),
THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS BINDING PRECEDENT IN ANY OTHER
CASE IN ANY COURT OF THIS STATE; HOWEVER,
UNPUBLISHED KENTUCKY APPELLATE DECISIONS,
RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR
CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED
OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE
BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION
BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED
DECISION IN THE FILED DOCUMENT AND A COPY OF THE
.
ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE
DOCUMENT TO THE COURT AND ALL PARTIES TO THE
ACTION.
RENDERED: AUGUST 20, 2015
NOT TO BE PUBLISHED
uprrmr CrAiurf iif/firttfurku
2014-SC-000356-MR
JOSEPH WAYNE ALLEN APPELLANT
ON APPEAL FROM JEFFERSON CIRCUIT COURT
V HONORABLE OLU ALFREDO STEVENS, JUDGE
NO. 04-CR-001360
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
A Jefferson Circuit Court jury found Appellant, Joseph Wayne Allen,
guilty of three counts of first-degree rape and one count each of first-degree
sodomy, kidnapping, first-degree sexual abuse, and tampering with physical
evidence. For these crimes, Appellant was sentenced to a total of seventy years'
imprisonment. He now appeals as a matter of right, Ky. Const. § 110(2)(b), and
raises the following issues: (1) the trial court erred in awarding nine
peremptory challenges to the Commonwealth, as it was not entitled to any; and
(2) the trial court erred in informing Appellant as to his right to counsel under
KRS Chapter 31, as that chapter does not permit the appointment of hybrid
counsel.
I. BACKGROUND
Appellant was originally tried and convicted of the underlying charges
(and one count of first-degree burglary) in 2007. We heard his direct appeal in
Allen v. Commonwealth, 276 S.W.3d 768 (Ky. 2008) and reversed and
remanded to the trial court for a new trial. The current appeal arises from
Appellant's retrial, in which Appellant represented himself with the assistance
of appointed counsel. Further facts will be developed as necessary for our
analysis.
II. ANALYSIS
A. Peremptory Challenges
Appellant first argues that the trial court erred in awarding nine
peremptory challenges to the Commonwealth. In framing his argument,
Appellant challenges the constitutionality of KRS 29A.290(2)(b) which provides
that "parties shall have the right to challenge jurors," and further specifies that
"[t]he number of peremptory challenges shall be prescribed by 'the Supreme
Court." Appellant asserts that, as the prosecution was not allowed peremptory
strikes under common law, the Supreme Court may not allow them now. In
his reply brief, however, Appellant acknowledges that this Court recently
squarely addressed this issue in White v. Commonwealth, No. 2014-SC-
000069-MR, 2015 WL 1544230, at *1-3 (Ky. Apr. 2, 2015).
In White, we stated:
this Court has recently addressed the propriety of
prosecutorial peremptory strikes. In Glenn v. Commonwealth, we
declared that "although KRS 29A.290(2)(b) constitutes an
encroachment by the General Assembly upon the prerogatives of
the judiciary, it is not inconsistent with our rules, and is,
therefore, upheld as a matter of comity." 436 S.W.3d 186, 188
(2013) (citing Commonwealth v. Reneer, 734 S.W.2d 794, 797 (Ky.
1987) (internal quotations omitted). Citing our authority under
Section 116 of the Kentucky Constitution, we affirmed RCr 9.40
2
substantively, and reaffirmed our constitutional power as a Court
to promulgate rules of practice and procedure—including our
authority to set the rules for the allocation of peremptory strikes.
"We alone are the final arbiters of our rules of 'practice and
procedure."' 436 S.W.3d at 188.
So although the Glenn decision did not squarely address the
constitutionality of KRS 29A.290(2)(b), this Court deemed the
statute acceptable by way of comity. "Comity, by definition, means
the judicial adoption of a rule unconstitutionally enacted by the
legislature not as a matter of obligation but out of deference and
respect." Taylor v. Commonwealth, 175 S.W.3d 68, 77 (Ky. 2005)
(internal citations omitted). In extending comity, we recognized that
KRS 29A.290(b)(2) is consistent with our rules of practice and
procedure. Glenn, 436 S.W.3d at 188.
. . . Glenn held that the allocation of peremptory strikes falls
within the Court's procedural rulemaking authority and extended
comity to KRS 29A.290(2)(b). Id. Therefore, . . . let us be clear: the
Court has upheld KRS 29A.290(2)(b) under the principles of
comity. We reaffirm that decision today.
Id. at *2-3. We decline to depart from our recently-rendered opinion in White
and reaffirm its holding today. This Court exercised its procedural rulemaking
authority in allocating the number of peremptory strikes allowed to the parties
and the trial court followed our mandates.
Furthermore, KRS 418.075 requires that the Attorney General be notified
prior to the entry of judgment in a case calling into question the
constitutionality of a statute. Appellant did not comply with this statute and
we decline to further address the matter.
For the foregoing reasons, the trial court did not err by allocating nine
peremptory strikes to the Commonwealth.
3
B. Hybrid Counsel
Appellant next argues that he was improperly informed of his rights
related to hybrid counsel and asks that this Court reverse his convictions and
remand for a new trial on this basis. In order to properly address this issue, a
thorough discussion of the conversations which took place during Appellant's
ex parte hearing is required.
Appellant's trial counsel, Ms. Eschner, had also represented him in 2007
in his first trial. At the ex parte hearing, she explained that the policy at the
Louisville Metro Public Defender's Office is that the same public defender
represents a client on retrial. Ms. Eschner expressed that she was ready,
willing, and able to represent Appellant.
Appellant presented two separate motions to the trial court at the ex
parte hearing. When the trial court asked Appellant which motion he would
like to address first, Appellant indicated his motion to dismiss counsel.
Appellant relied upon two grounds for his desire to dismiss Ms. Eschner: first,
that he would like to subpoena her and have her testify in his defense and,
second, that he did not feel Ms. Eschner was there to help him. When
questioned by the trial court regarding what he would have Ms. Eschner testify
about, Appellant indicated he wanted her to testify about the DNA expert,
discovery issues, and about their conversations regarding his case. The trial
court told Appellant that Ms. Eschner would not be permitted to testify about
those matters, as they have nothing to do with whether or not Appellant
committed the offenses in question. The trial court informed Appellant that if
4
Appellant's only reason for wanting to dismiss Ms. Eschner was so that he
could call her as a witness, the court would dismiss the motion summarily.
Appellant's next reason to dismiss Ms. Eschner was that he felt she was
not on his side. Appellant indicated that, dating back to his first trial, Ms.
Eschner ignored his directions about specific questions to ask witnesses and
about giving him access to discovery materials. Appellant then indicated that
he wanted to represent himself.
The trial judge gave Ms. Eschner an opportunity to respond. She
indicated that she had turned over all of the more than five-hundred pages of
discovery materials to Appellant during his first trial. She said it was true that
Appellant had theories on his case that she did not agree with. Appellant's
defense at trial was that he did not commit these crimes and that there was a
problem with the DNA. In the first trial, Ms. Eschner hired a DNA expert who
testified at trial. However, Appellant also wanted Ms. Eschner to present a
theory that he had been set up by the police. She admitted that she did not
present that theory at trial, as she did not find evidence to support it. Ms.
Eschner kept Appellant's file open for seven years awaiting his extradition from
Florida—where he was held on unrelated charges—and appeared at all
hearings in the interim on Appellant's behalf. She explained that when
Appellant told her he wanted to dismiss her as his counsel, she informed him
that it would be difficult for another attorney to prepare for his case given the
limited time frame, which Appellant was unwilling to extend. Ms. Eschner also
indicated that Appellant asked her about being his co-counsel, but stated she
5
told Appellant this may present a problem if they disagreed on trial issues. She
advised Appellant that he has a Constitutional right to represent himself and
that he would need a hearing in front of the trial court if he wished to pursue
that option.
The trial court agreed with Ms. Eschner that it would be impossible to
find substitute counsel to try the case unless Appellant was willing to get a
continuance (and Appellant indicated that he was unwilling to do so).
However, the trial court told Appellant that, depending on his answers to the
colloquy required by Faretta v. California, 422 U.S. 806 (1975), he may be
allowed to represent himself. The trial court instructed Appellant that there
were a lot of decisions he would not be able to make—that the trial court would
require certain things regardless of whether he had counsel. The trial court
informed Appellant he would be much better represented by his attorney and
strongly urged him against self-representation, especially considering the fact
that the penalty could be up to seventy years' imprisonment. Following the
Faretta colloquy, the court then asked if it was still Appellant's desire to
dismiss his attorney and represent himself and Appellant responded in the
affirmative.
It was only after Appellant's indication that it was his desire to dismiss
his attorney and represent himself, that Appellant then asked the trial court if
his trial counsel could still help him subpoena witnesses and acquire an
expert. The trial court indicated that this issue was addressed in Appellant's
second motion, where, as the trial court described, Appellant asked for
6
"whisper counsel." The trial court told Appellant that if it completely dismissed
Ms. Eschner, she would be entirely off the case and, as previously explained,
bringing in substitute counsel was not an option given the time constraints.
The trial court then asked Appellant if his desire was to have Ms. Eschner do
some of the things he described (such as subpoena witnesses and find an
expert), but that Appellant wished to conduct the majority of the in-court
representation himself. Appellant agreed that was what he wanted. He
specified that he would like for Ms. Eschner to agree to be his co-counsel on
limited terms.
Ms. Eschner stated that she did go over Appellant's options with him at
their meeting. She told him that, as the lawyer in the case, she gets to decide
on things like trial strategy and whether to put a witness on the stand. She
said she told Appellant that, if she agreed to be his co-counsel, that did not
mean that he got to tell her what to do. The trial court agreed and told
Appellant that by making Ms. Eschner co-counsel, he did not demote her to a
lesser role and gain control over her. The trial court indicated that if it allowed
Ms. Eschner to stay on as "whisper counsel," she retained the authority to
make certain decisions. The court informed Appellant that he could make
requests of her, but that she could still decline to follow his requests.
The trial court then asked Appellant if it was his desire to go forward
either on his own or with Ms. Eschner as "whisper counsel" and Appellant
indicated that he would prefer the latter option. The trial court made a finding
that Appellant knowingly, voluntarily, and intelligently waived his right to
7
counsel and that he would be permitted to represent himself. The court then
designated Ms. Eschner as, in its words, "whisper counsel" and said that role
would be specifically defined with specific tasks.
Appellant now argues that the trial court erred in appointing Ms.
Eschner as hybrid counsel, as "nothing in Chapter 31 permits appointment of
`hybrid' counsel."' Appellant admits that this argument was not preserved at
trial and asks this Court to review for palpable error under RCr 10.26.
"Palpable error affects the substantial rights of the party and results in
manifest injustice. Furthermore, an appellant claiming palpable error must
show that the error was more likely than ordinary error to have affected the
jury." Boyd v. Commonwealth, 439 S.W.3d 126, 129-30 (Ky. 2014). "In
determining whether an error is palpable, 'an appellate court must consider
whether on the whole case there is a substantial possibility that the result
would have been any different." Commonwealth v. Pace, 82 S.W.3d 894, 895
(Ky. 2002) (citing Commonwealth v. McIntosh, 646 S.W.2d 43. 45 (Ky. 1983)).
Appellant argues that he did not adequately waive his right to counsel,
as the trial court did not follow the statutory provisions for waiver. Specifically,
he points to KRS 31.140 which states, in pertinent part: "A person who has
been appropriately informed under KRS 31.120 may waive in writing, or by
other record, any right provided by this chapter, if the court concerned, at the
time of or after waiver, finds of record that he has acted with full awareness of
his rights and of the consequences of a waiver and if the waiver is otherwise
according to law. . . ." He argues that the right to trial counsel contained in the
8
KRS 31.110(2)(a) does not include anything about hybrid counsel. Therefore,
he argues that he was not given accurate information about his options for
representation at trial.
We find this argument disingenuous. First of all, Appellant's first motion
was to dismiss his counsel. The trial court granted this motion after
conducting a Faretta hearing and determining that Appellant did so knowingly,
voluntarily, and intelligently. Then, and at Appellant's behest, the trial court
appointed Ms. Eschner as "whisper counsel." Appellant did not rely on the
trial court appointing hybrid counsel in making his decision to represent
himself. Rather, he requested Ms. Eschner still be available to help him with
certain aspects of the trial after he had already asked for her dismissal.
Furthermore, we agree with the Commonwealth that Appellant invited,
and therefore waived, any alleged error.
This situation presents circumstances akin to those where an
appellant has "invited error." See, e.g., Wright v. Jackson, 329
S.W.2d 560 (Ky.1959) ("We have often held that a party is estopped
to take advantage of an error produced by his own act."); Miles v.
Southeastern Motor Truck Lines, 173 S.W.2d 990, 998, 295 Ky.
156, 173 (1943) ("It is the rule that one cannot complain of an
invited error."). . . . [T]he rationale behind the notion [is] that one
cannot commit to an act . . . and later complain on appeal that the
trial court erred to his detriment . . . . "A defendant cannot
complain on appeal of alleged errors invited or induced by himself,
particularly where . . . it is not clear that the defendant was
prejudiced thereby." United States v. Lewis, 524 F.2d 991, 992 (5th
Cir.1975).
Gray v. Commonwealth, 203 S.W.3d 679, 686 (Ky. 2006). Any error Appellant
now alleges was brought about by his request for Ms. Eschner's continued
representation in a limited role—and we will not further entertain any
9
arguments on those grounds. The trial court did not err, much less did it err
to the degree of creating a manifest injustice.
III. CONCLUSION
For the foregoing reasons, we affirm Appellant's convictions and
sentence.
All sitting. All concur.
10
COUNSEL FOR APPELLANT:
Daniel T. Goyette, Louisville Metro Public Defender of Counsel
Joshua Michael Reho, Assistant Appellate Public Defender
COUNSEL FOR APPELLEE:
Jack Conway, Attorney General of Kentucky
Micah Brandon Roberts, Assistant Attorney General