dissenting:
I must respectfully dissent from the majority’s opinion because I disagree that the trial court’s order, requiring the participation of standby counsel at bench conferences on Appellant’s behalf, violated his Sixth Amendment rights by leaving him unrepresented at critical stages of the trial. Given Appellant’s disrespectful and disruptive conduct, and past criminal record, the order was thoroughly justified.
The Sixth Amendment guarantees criminal defendants the right to self-representation, Faretta v. California, 422 U.S. 806, 834, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), so long as the criminal defendant is “able and willing to abide by rules of procedure and courtroom protocol.” McKaskle v. Wiggins, 465 U.S. 168, 173, 104 S.Ct. 944, 79 L.Ed.2d 122(1984). The right to self-representation is “not a ... license not to comply with relevant rules of procedural and substantive law.” Faretta, 422 U.S. at 834, 95 S.Ct. 2525. Moreover, a disruptive defendant may have his right to self-representation terminated if he does not comply with courtroom protocol. Id. at 834 n. 46, 95 S.Ct. 2525. “Even at the trial level, therefore, the government’s interest in ensuring the integrity and efficiency of the trial at times outweighs the defendant’s interest in acting as’ his own lawyer.” Martinez v. Court of Appeal of Cal., 528 U.S. 152, 162, 120 S.Ct. 684, 145 L.Ed.2d 597 (2000).
In the present case, the balance of the two competing interests tipped heavily in favor of the Commonwealth. And given Appellant’s extensive criminal background and past courtroom behavior, the trial judge did not abuse his discretion in ruling that Appellant would not be allowed to approach the bench during sidebar conferences.
In addition to the present case, Appellant faced six additional indictments. By trial, Appellant had already been sentenced to twenty years’ imprisonment for escape in the second degree and first degree PFO. The trial judge also had firsthand knowledge of Appellant’s “frequent and uninvited interruptions in the court room,” having had to personally order Appellant be removed from a pretrial conference for disruptive behavior. Most importantly, the trial judge knew that Appellant was a “flight risk.” He had already escaped once from the sheriffs custody in the same courthouse.
Although it was within the trial judge’s discretion to completely deny Appellant’s request for self-representation, Hummel v. Commonwealth, 306 S.W.3d 48, 53 (Ky.2010) (citing Faretta, 422 U.S. at 834-35 n. 46, 95 S.Ct. 2525 (1975)), he instead implemented what he believed to be the least intrusive means of preserving Appellant’s right to self-representation. The trial judge required only that Appellant remain at the table during bench conferences and that standby counsel keep Appellant apprised of what transpired during those conferences.
In particular, a violation of defendant’s Sixth Amendment right to self-representation may only be found if defendant can show that the participation of standby counsel either 1) deprived him of actual control over the case presented to the jury or 2) destroyed the perception of the jury that defendant was representing himself and in control of the case. See McKaskle, 465 U.S. at 178-79, 104 S.Ct. 944. The majority now holds that standby counsel’s participation in bench conferences due to the exclusion of the pro se defendant may jeopardize that defendant’s control over the case and the perception of defendant’s control by the jury. However, it must be pointed out that the exclusion should be viewed “in the context of the trial as a whole.” United States v. Mills, 895 F.2d *147897, 905 (2d Cir.1990). The majority concedes as much when it states that “these are factual determinations that should be made on a case-by-case basis.”
Appellant’s brief does not contend that his exclusion from bench conferences destroyed his control over his case or the jury’s perception that he was handling his own case. Rather, Appellant alleges that the trial court infringed on his “right to self-representation and [his] right to have his counsel present during critical portions of the trial.”
To support its position that Appellant’s Sixth Amendment rights were violated, the majority cites to three cases finding error in the refusal of trial judges to allow a pro se criminal defendant to participate in bench conferences. See United States v. McDermott, 64 F.3d 1448, 1452 (10th Cir.1995) (finding error where defendant was excluded from bench conferences because he lacked legal knowledge of procedural and evidentiary rules); Oses v. Massachusetts, 961 F.2d 985, 986 (1st Cir.1992) (holding that it was improper to exclude defendant, who was also bound and gagged, from bench conferences without so much as a hearing); Snowden v. State, 672 A.2d 1017, 1018-22 (Del.1996) (finding error where no reason whatsoever was given for defendant’s exclusion from sidebar conferences). While I agree with the majority that the cases they cite involved violations of the Sixth Amendment right to self-representation, these cases, however, are distinguishable from the present case because none of them involve a defendant who posed a flight risk or threat to courtroom security.
I find this case more akin to State v. Davenport, 177 N.J. 288, 827 A.2d 1063 (2003), in which the New Jersey Supreme Court examined each of the three cases above as well as Mills, 895 F.2d 897. The Davenport court upheld security measures the trial court imposed that prevented the pro se defendant from leaving the defense table and required standby counsel to represent him at bench conferences. 827 A.2d at 1072-75. Davenport held that the exclusion of a criminal defendant from bench conferences is proper when there are “legitimate security concerns” that are “detailed clearly on the record.” Id. at 1075.
The majority attempts to distinguish Davenport by arguing that the defendant in Davenport was more of a security risk than Appellant. In support of this argument, the majority relies on the Davenport defendant’s young age, large physical stature, and numerous drug- and weapon-related charges. Comparing Appellant to the Davenport defendant, the majority states, “Allen was arrested and charged with theft offenses; and the record is factually inconclusive regarding Allen’s involvement, past or present, in violent activity or any supposed violent disposition.” Yet, police testimony at trial indicated that the theft was discovered when officers were called to Appellant’s home to handle a domestic dispute in which Appellant had threatened his girlfriend and her son. Further testimony was offered to show that Appellant had specifically threatened to beat his girlfriend’s son’s brains out with a crowbar.
The majority further attempts to distinguish Appellant from the Davenport defendant by arguing that “Allen was not in possession of a weapon at the time of arrest.” Nonetheless, part of the basis for Appellant’s PFO conviction was that he was previously convicted of being a felon in possession of a firearm — a fact which the trial judge was aware of when he determined that Appellant would be excluded from bench conferences. Putting aside value judgments on the relative dangerousness of Appellant, evidence of Ap*148pellant’s threats, possession of firearms, and prior escape from custody established an adequate basis for the trial judge to determine Appellant presented legitimate security concerns.
Because I believe that an exclusion from bench conferences must be looked at in the context of the trial and parties as a whole, I disagree with the majority that Appellant’s right to be represented at critical stages of the proceeding was violated. The trial court was in the best position to determine how to balance the defendant’s Sixth Amendment rights against the integrity of the proceedings and courtroom security concerns.
As I believe the trial judge did not abuse his discretion in ruling that Appellant would be excluded from bench conferences, I would uphold Appellant’s convictions. Thus, I respectfully dissent.
CUNNINGHAM, J., joins.