David Lynn Morgan v. Commonwealth of Kentucky

• Court: Kentucky Supreme Court
• Decided: March 12, 2024
• Docket: 2023 SC 0045
• Status: Unknown

Opinion

IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED “NOT TO BE PUBLISHED.” PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, RAP 40(D), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD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 OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. RENDERED: MARCH 14, 2024 NOT TO BE PUBLISHED

Supreme Court of Kentucky 2023-SC-0045-MR

DAVID LYNN MORGAN APPELLANT

ON APPEAL FROM LOGAN CIRCUIT COURT V. HONORABLE JOE W. HENDRICKS, JR., JUDGE NO. 22-CR-00141

COMMONWEALTH OF KENTUCKY APPELLEE

MEMORANDUM OPINION OF THE COURT

AFFIRMING

David Lynn Morgan was convicted in Logan Circuit Court following a jury

trial of bail jumping and being a persistent felony offender in the first degree

(PFO I). The jury recommended an enhanced sentence of twenty years’

imprisonment, and the trial court sentenced him accordingly. He now appeals

as a matter of right 1 raising three allegations of error. Following a careful

review, we affirm.

On March 24, 2022, Morgan entered guilty pleas to numerous criminal

charges from three separate indictments in Logan Circuit Court. Morgan and

his counsel signed an agreed order as part of the plea process which allowed

Morgan to be released from custody on a $5,000 bond contingent on his

1 KY. CONST. § 110(2)(b). reporting back to the Logan County Jail on April 1, 2022. Morgan did not

return to the jail as required.

In the early morning hours of April 8, 2022, Logan County Sheriff’s

Deputy Jason Brent received information Morgan was at his ex-wife’s home

and made his way to that location to serve an arrest warrant. Upon arriving at

the location, Deputy Brent parked across the street in a church parking lot and

observed Morgan outside the residence holding what appeared to be a rifle. 2

Deputy Brent contacted his superiors to inform them he had located Morgan

and that Morgan appeared to be armed. The Kentucky State Police were called

for assistance. Multiple officers arrived on scene and spent several hours

attempting to persuade Morgan to surrender to no avail. After a special

response team was called in from Lexington, Morgan surrendered without

incident. He was subsequently indicted for bail jumping and being a PFO I.

A jury trial was convened on August 22, 2022. After jurors were selected

but before the presentation of evidence commenced, the trial court conducted a

lengthy conference with the Commonwealth, Morgan, and his defense counsel.

Morgan indicated he had not returned to jail as ordered because he learned

that his attorney, Stuart Wheeler, had been suspended from the practice of law

on the same day he had entered his guilty plea in the three pending criminal

cases. Morgan insisted the trial court and Commonwealth had allowed

Wheeler to represent him though both were aware of the suspension. He was

2 It was later determined the weapon was actually an air rifle.

2 not dissuaded from this belief despite being told multiple times by the trial

court and Commonwealth that the suspension order was issued while court

was being held on March 24, 2022, which meant there was no way anyone

would have been on notice of it until afterwards. The trial court informed

Morgan he had twice contacted the Clerk of the Supreme Court of Kentucky to

express his concern over Wheeler’s handling of multiple cases on the date of

his suspension, and the Commonwealth indicated it would not have agreed to

amending Morgan’s bond nor allowed him to enter a guilty plea had he been

aware of Wheeler’s impending suspension. The trial court also noted Wheeler’s

suspension was immaterial to the bail jumping charge as the real issue was

whether Morgan was subject to a valid court order to return to jail on a date

certain and had failed to do so.

Morgan remained defiant and insisted he could not receive a fair trial

with a presiding judge and prosecutor who were aware of Wheeler’s suspension

yet still allowed him to act as Morgan’s attorney. He contended it was the fault

of the trial court and prosecutor that he was “sitting in this position.” Morgan

continued to complain for over twenty minutes, insisting he would not be in

this situation had the judge not allowed Wheeler to represent him. The trial

court repeatedly reminded Morgan that a new judge would have no impact on

the true issue which was whether Morgan had returned to jail as ordered.

Ultimately, the matter proceeded to trial and the jury found Morgan guilty,

sentencing him to five years for bail jumping, enhanced to twenty years by

virtue of his being a PFO I. This appeal followed.

3 Morgan first asserts testimony by Chief Deputy Gary Martin of the Logan

County Detention Center referring to Morgan’s “rap sheet” was more prejudicial

than probative and requires reversal. Morgan concedes this alleged error is not

preserved for appellate review, but requests palpable error review pursuant to

RCr 3 10.26. “Under this rule, an error is reversible only if a manifest injustice

has resulted from the error. That means that if, upon consideration of the

whole case, a substantial possibility does not exist that the result would have

been different, the error will be deemed nonprejudicial.” Martin v.

Commonwealth, 207 S.W.3d 1, 3 (Ky. 2006) (quoting Graves v. Commonwealth,

17 S.W.3d 858, 864 (Ky. 2000)). A palpable error is “easily perceptible, plain,

obvious and readily noticeable.” Brewer v. Commonwealth, 206 S.W.3d 343,

349 (Ky. 2006) (quoting Burns v. Level, 957 S.W.2d 218, 222 (Ky. 1997)).

Relevant evidence is defined in KRE 4 401 as “evidence having any

tendency to make the existence of any fact that is of consequence to the

determination of the action more probable or less probable than it would be

without the evidence.” Relevant evidence is admissible unless excluded by the

Constitution, statutes, evidentiary rules, or other rules promulgated by this

Court. KRE 402. “Although relevant, evidence may be excluded if its probative

value is substantially outweighed by the danger of undue prejudice, confusion

of the issues, or misleading the jury, or by considerations of undue delay, or

needless presentation of cumulative evidence.” KRE 403.

3 Kentucky Rules of Criminal Procedure. 4 Kentucky Rules of Evidence.

4 On examination by the Commonwealth, Chief Deputy Martin was asked

to refer to a document which was identified as Morgan’s rap sheet. Chief

Deputy Martin testified such documents contain booking and release

information for a particular person as well as all charges pending against that

individual. 5 He was then directed to the second page of the document which

contained information regarding the indictment numbers to which Morgan had

entered guilty pleas on March 24, 2022. He testified the rap sheet indicated

Morgan was released from custody on those charges on March 24, 2022, and

his next booking date into the Logan County Detention Center relative to those

charges was April 8, 2022. The Commonwealth then clarified Morgan was not

booked in on April 1, 2022, as required by the agreed order.

Morgan now contends it was unnecessary to reference his rap sheet to

prove whether he had abided by the terms of his bond as the Commonwealth

could simply have inquired of Chief Deputy Martin whether Morgan turned

himself in on April 1, 2022, as ordered. He avers explaining the nature of a rap

sheet was irrelevant and unnecessary. Further, Morgan argues allowing the

jury to know his rap sheet was multiple pages long and showed multiple

criminal cases was unduly prejudicial. He also claims introduction of this

5 In discussions with the trial court outside the presence of the jury, the parties

agreed it would be inappropriate for jurors to see Morgan’s rap sheet because it contained information about unrelated criminal charges and prior convictions. Although the rap sheet was introduced by the Commonwealth as an exhibit, the document was neither published nor provided to the jury to use during their deliberations.

5 evidence violated the prohibition of KRE 404(b) relative to improper character

evidence. We disagree.

The Commonwealth was required to prove Morgan did not abide by his

bond conditions when he failed to return to jail as ordered on April 1, 2022. To

do so, it utilized the records of the Logan County Detention Center which

showed he had not complied. The jury was not informed of any criminal

charges or movements in or out of the jail relative to any charges other than

the three felonies to which Morgan had entered guilty pleas and agreed to bond

conditions. The jury was already aware Morgan’s alleged violation of the bond

conditions served as the basis for the bail jumping charge. The evidence

contained in the rap sheet simply laid the foundation for Chief Deputy Martin’s

testimony regarding noncompliance and was plainly relevant as to an essential

element of the crime for which Morgan stood accused. Thus, we discern no

undue prejudice arising from Chief Deputy Martin’s testimony relative to

information contained in the rap sheet and hold there was no palpable error.

Second, Morgan asserts Deputy Brent was permitted to give unduly

prejudicial testimony during his direct examination. Again, Morgan concedes

this error is unpreserved and requests palpable error review.

Deputy Brent testified he did not initially make contact with Morgan after

seeing him with what appeared to be a rifle and instead waited for backup to

arrive. When asked why officers did not move in immediately, Deputy Brent

indicated officer safety was a key concern as Morgan had

6 nothing to lose. You know, he had the warrants. He knew he had a long time on the shelf. So, there’s no point in rushing in and, you know, create a situation that didn’t have to be created.

No objection was lodged, but the trial court immediately sua sponte called a

bench conference and instructed Deputy Brent to not refer to any plea deals or

“sentences hanging over his head.” The trial court then admonished the jury to

disregard the offending testimony, stating:

Um, for members of the jury, any testimony regarding potential penalties that Mr. Morgan would’ve faced at the time are irrelevant. And I’m instructing you to disregard the testimony.

No request for further relief was made.

Morgan now argues Deputy Brent’s statements were suggestive of his

being a dangerous individual who could potentially resort to violence or

extreme measures. He asserts the resulting prejudice could not be overcome or

cured by the trial court’s admonition. We disagree.

“A jury is presumed to follow an admonition to disregard evidence and

the admonition thus cures any error.” Johnson v. Commonwealth, 105 S.W.3d

430, 441 (Ky. 2003) (citing Mills v. Commonwealth, 996 S.W.2d 473, 485 (Ky.

1999)). Admonitions will be presumed to be ineffective under only two

circumstances. First, “when there is an overwhelming probability that the jury

will be unable to follow the court’s admonition and there is a strong likelihood

that the effect of the inadmissible evidence would be devastating to the

defendant[.]” Id. Or second, “when the question was asked without a factual

basis and was ‘inflammatory’ or ‘highly prejudicial.’” Id. (citing Derossett v.

7 Commonwealth, 867 S.W.2d 195, 198 (Ky. 1993); Bowler v. Commonwealth,

558 S.W.2d 169, 171 (Ky. 1977)).

Contrary to Morgan’s unsupported assertions, nothing in the record

reveals any reason—much less an overwhelming probability—the jury would be

unable to follow the trial court’s admonition. Further, Deputy Brent’s brief

statements cannot reasonably be said to have been “devastating” to Morgan.

The jury was aware Morgan had entered guilty pleas in the three underlying

felony cases, he had been released from custody following those pleas and

agreement to the bond conditions, and he had failed to comply with the

requirement of returning to jail at the appointed time. Thus, it would come as

no surprise to the jury that Morgan was potentially facing additional jail time

due to his guilty pleas to the three felonies. Finally, Deputy Brent’s testimony

was based on the factual record and his fleeting testimony cannot be

characterized as inflammatory or highly prejudicial. Morgan has simply failed

to present a sufficient basis to rebut the presumption that the trial court’s

admonition cured any potential error. Thus, we conclude there was no error,

much less palpable error.

Finally, Morgan contends the trial court erred in failing to hold a Faretta 6

hearing after he requested to proceed pro se. Citing King v. Commonwealth,

374 S.W.3d 281, 295 (Ky. 2012), he asserts the failure constituted a structural

6 Faretta v. California, 422 U.S. 806 (1975).

8 error mandating reversal. Our review of the record reveals no error, structural

or otherwise.

“The Sixth Amendment to the United States Constitution and Section

Eleven of the Kentucky Constitution guarantee criminal defendants the right to

counsel as well as the converse right to self-representation.” Id. at 290 (citing

Faretta, 422 U.S. at 817). See also Crawford v. Commonwealth, 824 S.W.2d

847, 849 (Ky. 1992) (“A defendant has an absolute right to waive counsel and

to represent himself . . . .”) However, “courts indulge ‘every reasonable

presumption against a waiver of counsel.’” Winstead v. Commonwealth, 283

S.W.3d 678, 683 (Ky. 2009) (quoting Buhl v. Cooksey, 233 F.3d 783, 790 (3d

Cir. 2000)). To overcome the presumption against waiver, “[a] request to

proceed pro se or with counsel in a limited fashion must be timely and

unequivocal.” Deno v. Commonwealth, 177 S.W.3d 753, 757-58 (Ky. 2005)

(citing Moore v. Commonwealth, 634 S.W.2d 426, 430 (Ky. 1982)). “It is not

enough to express dissatisfaction with counsel or to request different counsel;

the defendant, rather, must unequivocally ask to proceed pro se.” Winstead,

283 S.W.3d at 683 (citing Deno, 177 S.W.3d at 758). “[O]nce a defendant

invokes his right to proceed pro se, in whole or part, the trial court is required

to hold the Faretta hearing and allow the defendant to exercise the right, if at

all possible.” Swan v. Commonwealth, 384 S.W.3d 77, 93 (Ky. 2012) (citing Hill

v. Commonwealth, 125 S.W.3d 221, 228 (Ky. 2004)). Here, because Morgan’s

alleged request was both untimely and equivocal, no Faretta hearing was

required.

9 On the morning of trial, after the jury had been selected, Morgan asked

to speak with the trial court. Reiterating his concerns about Wheeler’s

representation and believing the trial court and prosecutor was biased, Morgan

inartfully requested a change of venue. During the ensuing conversation,

Morgan expressed his desire to speak with another attorney before moving

forward. After explaining the trial was going forward that day, the judge told

Morgan he should not try to represent himself. In response, Morgan asked

that the trial be put off and continued to assert reasons the trial court was

biased and should be removed.

To be timely, a request to proceed pro se must be made before

meaningful trial proceedings have begun. Id. (citing United States v. Bishop,

291 F.3d 1100, 1114 (9th Cir. 2002)). “A request is timely if made before the

jury is selected or before the jury is empaneled.” Id. (quoting Bishop, 291 F.3d

at 1114). “The trial court may, of course, grant an untimely request but that is

a decision lying within its sound discretion.” Soto v. Commonwealth, 139

S.W.3d 827, 857 (Ky. 2004) (citing Robards v. Rees, 789 F.2d 379, 384 (6th

Cir. 1984). It is undisputed jury selection had been completed prior to Morgan

asking to speak with the trial court to voice his concerns. Clearly, meaningful

trial proceedings had begun, rendering any request untimely. Swan, 384

S.W.3d at 93.

More importantly, however, Morgan did not make an unequivocal request

to represent himself in whole or part sufficient to require a Faretta hearing.

The concerns Morgan raised centered on his dissatisfaction with the trial

10 court’s allowance of Wheeler’s representation of him when guilty pleas were

accepted regarding the underlying three charges and his belief the trial court

was biased and would not be fair relative to the bail jumping charge. He

expressed no dissatisfaction with his then-present counsel, articulated no

desire to represent himself, and asked only for the opportunity to speak with

another lawyer. His overarching aspiration was to have the trial presided over

by a different judge. It was the trial court who broached the subject of Morgan

representing himself and Morgan’s response was only to ask for clarification of

what the court was telling him.

“The defendant . . . must clearly indicate that he desires to dispense with

counsel’s services in whole or in part and to substitute himself for counsel.

After all, where the defendant does not to any extent seek to waive counsel,

there can be no need to warn him against the perils of waiver.” Commonwealth

v. Martin, 410 S.W.3d 119, 123 (Ky. 2013) (citing United States v. Leggett, 81

F.3d 220 (D.C. Cir. 1996); Matthews v. Commonwealth, 168 S.W.3d 14 (Ky.

2005)). Even under the broadest possible view of the proceedings, Morgan at

best asked for different representation. He was concerned only with receiving a

fair trial which he did not believe could occur based on his perception of bias

by the trial court. At no point did he convey any want to dispense with counsel

and proceed pro se. His current assertions to the contrary are unsupported by

the record. There was no structural error as Morgan was not entitled to a

Faretta hearing.

For the foregoing reasons, the Logan Circuit Court is affirmed.

11 All sitting. VanMeter, C.J.; Bisig, Conley, Keller, Lambert, and Nickell,

JJ., concur. Thompson, J., concurs in result only.

COUNSEL FOR APPELLANT:

Erin Hoffman Yang Assistant Public Advocate

COUNSEL FOR APPELLEE:

Russell M. Coleman Attorney General of Kentucky

Jenny L. Sanders Assistant Attorney General