RENDERED: FEBRUARY 3, 2023; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2021-CA-1265-MR
JOHNNIE WIDNER APPELLANT
APPEAL FROM LETCHER CIRCUIT COURT v. HONORABLE JAMES W. CRAFT, II, JUDGE ACTION NO. 20-CR-00315
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: EASTON, JONES, AND LAMBERT, JUDGES.
JONES, JUDGE: Johnnie Widner appeals as a matter of right from the Letcher
Circuit Court’s final judgment following his conviction at a jury trial. The trial
court sentenced Widner to an enhanced sentence of ten years’ imprisonment after
he was found guilty of being a convicted felon in possession of a handgun and of
being a second-degree persistent felony offender. After a thorough review of the
facts and the law, we affirm. I. BACKGROUND
On September 19, 2020, Trooper Jarrett Fields of the Kentucky State
Police received a radio call from dispatch regarding the presence of a suspicious
vehicle at Gordon Park in Letcher County. When the trooper arrived to
investigate, he saw a vehicle matching the description given to the dispatcher. The
vehicle, a silver passenger car, was parked with its left turn signal on, the driver’s
door open, and a person’s legs jutting out from the open door. Trooper Fields
approached the vehicle and found Widner asleep in the driver’s seat. No other
individuals were in the vehicle, and the vehicle’s keys were in the ignition.
After rousing Widner and conversing with him, Trooper Fields
ordered Widner to exit the vehicle. Trooper Fields eventually conducted a
probable-cause search of the vehicle1 and found a Smith & Wesson .32 caliber
revolver, loaded with two rounds, in the unlocked glove compartment. Upon
transporting Widner to the detention center based on what he would later describe
as “other charges,” the trooper learned Widner was a convicted felon. While
Widner was cooperative throughout the encounter with Trooper Fields, he did not
admit to owning the vehicle or the handgun. The vehicle had valid registration
tags but was not registered in Widner’s name.
1 It is not clear from the record the exact grounds relied upon by the trooper to support the search. However, we need not dwell on this issue because the reasonableness of the trooper’s search and seizure is not at issue in this case.
-2- Next, the Letcher County grand jury indicted Widner on charges of
being a convicted felon in possession of a handgun2 and being a first-degree
persistent felony offender (PFO).3 At trial, the Commonwealth presented
testimony from Trooper Fields which conformed to the aforementioned narrative.
The Commonwealth also presented testimony from a deputy circuit clerk who
stated Widner had been previously convicted in Letcher Circuit case number 06-
CR-00207. The judgment in that case, entered on July 30, 2008, sentenced Widner
to a five-year sentence, probated for five years. Furthermore, this probation period
was to be served consecutively to Widner’s conviction in Letcher Circuit case
number 06-CR-00206; the judgment in 06-CR-00207 specified that its five-year
probationary period would begin “when defendant is released from prison by
parole or if conviction is reversed on appeal in 06-CR-206.” (Record (R.) at 32.)
Finally, the Commonwealth presented testimony from a probation and parole
officer who testified that Widner served out his sentence in 06-CR-00206 on April
2, 2012, and he would have begun serving his five-year probation period in 06-CR-
00207 the following day. The probation and parole officer then testified that
Widner had a probation revocation hearing in 2015 due to an absconder warrant,
2 Kentucky Revised Statutes (KRS) 527.040(2)(a), a Class C felony. 3 KRS 532.080.
-3- after which he was reinstated to probation. According to the officer, Widner then
served another four years on probation, which finally ended on May 23, 2019.
After hearing the evidence in the case, the jury convicted Widner of
being a convicted felon in possession of a handgun and of being a second-degree
PFO and recommended a sentence of ten years’ imprisonment. The trial court
sentenced Widner in accordance with the jury’s recommendation. This appeal
followed.
II. ANALYSIS
Widner presents four separate issues on appeal. First, he argues the
trial court erred when it failed to conduct a proper Faretta4 hearing. Second,
Widner contends the trial court erroneously failed to grant a mistrial when Trooper
Fields testified that Widner was taken to the detention center on “other charges.”
Third, Widner argues Trooper Fields improperly commented on his pre-arrest
silence, which denied him a fair trial. Fourth, and finally, Widner contends the
trial court erroneously failed to grant a directed verdict. We will consider each
issue in turn.
Widner first argues that the trial court erroneously failed to explore
the appropriate parameters for hybrid counsel or to issue specific warnings or
findings as required in a proper Faretta hearing. In the months leading up to trial,
4 Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975).
-4- despite being represented by appointed counsel, Widner habitually filed pro se
motions with the trial court. Eventually, the Commonwealth objected to what it
termed an “onslaught of far too many Pro Se Motions to list” (R. at 11) and moved
the trial court to conduct a Faretta hearing.
In the pretrial hearing on the Commonwealth’s motion, Widner’s
counsel opened the discussion by saying, “We’re here on what looks like a Faretta
hearing?” He continued by stating that Widner wanted to continue filing his
motions and that Faretta may be implicated. Counsel then outlined Widner’s three
possibilities for representation: Widner could retain his appointed counsel, he
could represent himself pro se, or he could have hybrid representation. Finally,
Widner’s counsel informed the court that Widner wanted to keep his appointed
counsel, but he also wanted to be able to file his motions. The Commonwealth
then expressed its own concerns, noting that Widner may not understand that he
would be held to the standards of an attorney if he were to represent himself pro se.
The Commonwealth also reiterated concerns about the confusion sown by
Widner’s pro se motion practice, pointing out that it had received the same motion
filed multiple times within the span of just a few days.
In its resolution of the matter, the trial court told Widner that it wanted
him to take an active role in his own defense, but all motions should come through
one point to prevent confusion. The court asserted it “can’t have motions coming
-5- from all directions, and [defense counsel] is going to be that point.” For future
motions, the court asked Widner to “get together what you feel like needs to be
done, and you send it to [defense counsel].” Widner responded, “I agree to that.”
The court then told Widner that defense counsel would “make the decision whether
or not it’s a valid motion, if it is a valid motion, the form and format it needs to be
put into, and he will file it with the court.” Again, Widner agreed with the court.
At this point, defense counsel attempted to clarify whether this was going to be a
hybrid counsel scenario. The trial court answered that it wanted defense counsel
“to review everything and counsel with him, and then you all make the decision
together as to what is properly before the court.”
Concurrent with the constitutional right to counsel in criminal cases,
the United States Supreme Court held in Faretta v. California, 422 U.S. 806, 95 S.
Ct. 2525, 45 L. Ed. 2d 562 (1975), that “forcing a lawyer upon an unwilling
defendant is contrary to his basic right to defend himself if he truly wants to do
so.” Hill v. Commonwealth, 125 S.W.3d 221, 225 (Ky. 2004), holding modified by
Depp v. Commonwealth, 278 S.W.3d 615 (Ky. 2009) (quoting Faretta, 422 U.S. at
817, 95 S. Ct. at 2532). The federal constitution gives a criminal defendant the
right to counsel or to proceed pro se; however, “[t]he wording of Section 11 of the
Kentucky Constitution, unlike that of the similar provision which appears in the
United States Constitution, guarantees a criminal defendant the right: (1) to
-6- represent himself pro se; (2) to be represented by counsel; or (3) to have hybrid
representation.” Deno v. Commonwealth, 177 S.W.3d 753, 757 (Ky. 2005)
(citations omitted).
Procedurally, “[w]hen a defendant makes a request to proceed pro se
or for hybrid representation, the principles of Faretta become applicable.” Id. at
758 (citation omitted). The request to proceed pro se or by hybrid counsel must be
unequivocal. Moore v. Commonwealth, 634 S.W.2d 426, 430 (Ky. 1982); see also
Deno, 177 S.W.3d at 757-58. After receiving such a request, the trial court must
thereafter conduct a Faretta hearing to ascertain whether the defendant’s waiver of
counsel is done knowingly and intelligently. Depp, 278 S.W.3d at 617. Widner’s
Faretta arguments are unpreserved; however, if a trial court violates the
defendant’s rights under Faretta or its progeny, the error is structural and requires
reversal. Baucom v. Commonwealth, 134 S.W.3d 591, 592 (Ky. 2004).
Widner now contends that the trial court’s hearing failed to comport
with Faretta’s requirements, arguing that he was acting as a form of hybrid
counsel, and the trial court should have informed him of the extent of services he
could require from his counsel. In addition, also pursuant to Faretta, Widner
contends the trial court failed to provide specific warnings before accepting his
partial waiver of representation, and the trial court failed to issue a finding that
Widner’s waiver was knowing, intelligent, and voluntary. In its response, the
-7- Commonwealth points out that Widner did not make an unequivocal request to
represent himself pro se or to serve as hybrid counsel.
We agree with the Commonwealth. “A request to proceed pro se or
with counsel in a limited fashion must be timely and unequivocal.” Deno, 177
S.W.3d at 757-58 (emphasis added) (citation omitted). In the hearing on the
Commonwealth’s motion, the attorneys discussed the applicability of Faretta in an
attempt to address Widner’s penchant for filing his own motions. However,
Widner readily agreed to submit his motions to his attorney for consideration
instead. Most importantly, Widner never made an unequivocal request to serve as
either his own counsel or as hybrid counsel. He simply wanted to file his motions,
and he agreed when the trial court offered him a method to do so within the normal
parameters of his existing attorney-client relationship. Faretta is not
unequivocally invoked when a defendant merely asks to perform a task normally
done by an attorney; see id. at 758 (emphasis added) (citations omitted) (“A
request for hybrid representation is unequivocal if the defendant specifies the
extent of the services he desires. Neither a request for different counsel nor a
request to make a closing argument is enough.”). Because Widner did not make
an unequivocal request invoking Faretta, the trial court cannot be said to have
erred in its application.
-8- For his second issue on appeal, Widner argues the trial court
erroneously denied his motion for a mistrial after Trooper Fields testified Widner
was taken to jail on “other charges.” Although the trial court admonished the jury
to disregard the statement, Widner contends it nonetheless diluted his presumption
of innocence, irreversibly tainting his trial. The Commonwealth disagrees, arguing
Widner suffered no prejudice and the trial court’s admonition cured any error.
We discern no error. “[A] mistrial is an extreme remedy and should
be resorted to only when there is a fundamental defect in the proceedings and there
is a ‘manifest necessity for such an action.’” Commonwealth v. Padgett, 563
S.W.3d 639, 645 (Ky. 2018) (quoting Woodard v. Commonwealth, 147 S.W.3d 63,
68 (Ky. 2004)). Here, there was no manifest necessity for a mistrial. “A jury is
presumed to follow an admonition to disregard evidence[,] and an admonition is
presumed sufficient to cure errors.” Parker v. Commonwealth, 291 S.W.3d 647,
658 (Ky. 2009) (internal quotation marks and citation omitted). An admonition is
only considered insufficient:
(1) 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, or (2) when the question was asked without a factual basis and was inflammatory or highly prejudicial.
Id. (citation omitted). Despite Widner’s claims to the contrary, Trooper Fields’s
reference to “other charges,” a single oblique slip in his testimony, was not so
-9- overwhelming, devastating, or inflammatory as to require the extraordinary remedy
of a mistrial, and the trial court’s admonition was sufficient to cure any error.
In his third issue on appeal, Widner contends Trooper Fields
improperly commented on his pre-arrest silence, denying him a fair trial. The issue
is not preserved; however, Widner requests review for palpable error under RCr5
10.26. “An error is palpable only if it is ‘shocking or jurisprudentially
intolerable.’” Allen v. Commonwealth, 286 S.W.3d 221, 226 (Ky. 2009) (quoting
Martin v. Commonwealth, 207 S.W.3d 1, 4 (Ky. 2006)). To demonstrate palpable
error, a party “must show a ‘probability of a different result or [an] error so
fundamental as to threaten a defendant’s entitlement to due process of law.’” Id.
(quoting Martin, 207 S.W.3d at 3).
Widner correctly cites Baumia v. Commonwealth, 402 S.W.3d 530
(Ky. 2013), for the proposition that a criminal defendant’s pre-arrest, pre-Miranda
right to remain silent may not be used against the defendant in the
Commonwealth’s case-in-chief. Id. at 536. However, “not every comment upon
silence is reversible error.” Ragland v. Commonwealth, 191 S.W.3d 569, 589 (Ky.
2006). For example, a detective may fairly comment upon a defendant’s silence
when it is in direct response to a question by the defendant’s attorney on cross-
5 Kentucky Rules of Criminal Procedure.
-10- examination; see, e.g., Allen, 286 S.W.3d at 227; Coulthard v. Commonwealth, 230
S.W.3d 572, 585 (Ky. 2007).
Here, on direct examination, the Commonwealth questioned Trooper
Fields as follows:
COMMONWEALTH: Now, did Mr. Widner make any statements whatsoever that night to you?
TROOPER FIELDS: Not that I can recall, no.
COMMONWEALTH: Do you remember asking him about the handgun?
TROOPER FIELDS: I don’t recall asking him. I don’t remember.
There was no further inquiry on the subject in direct questioning. On cross-
examination, Widner’s counsel explicitly questioned Trooper Fields about whether
Widner made statements about ownership of the vehicle or the handgun, to which
the trooper responded that he did not remember asking those questions, and he did
not write anything of the sort in his notes. When questioned on redirect, Trooper
Fields testified that, if Widner had claimed the gun was his, or, alternatively, if
Widner had denied the gun was his, he would have written those responses in his
notes. Finally, the Commonwealth asked, “So to the best of your memory, he did
not deny to you personally that that was his firearm?” Trooper Fields answered,
“Yes, to the best of my memory.”
-11- A prosecutor should be careful not to invite a damaging inference
from a defendant’s silence. “Miranda[6] warnings contain an ‘implicit assurance’
that ‘silence will carry no penalty[.]’” Baumia, 402 S.W.3d at 537 (quoting Doyle
v. Ohio, 426 U.S. 610, 618, 96 S. Ct. 2240, 2245, 49 L. Ed. 2d 91 (1976)).
Nevertheless, we must consider that it was Widner’s counsel who opened the door
for further discussion when, on cross-examination, he asked whether Widner made
any statements about owning the handgun. It was only on redirect that the
Commonwealth elicited testimony from Trooper Fields which could be considered
questionable, and then the Commonwealth made no other reference to it thereafter.
Even assuming an error exists, we cannot consider it “shocking or jurisprudentially
intolerable.” Allen, 286 S.W.3d at 226. We discern no manifest injustice rising to
the level of palpable error.
Finally, Widner contends the trial court erroneously failed to grant a
directed verdict. The Kentucky Supreme Court has explained how a trial court
should decide a directed verdict motion in the following way:
On a motion for directed verdict, the trial court must draw all fair and reasonable inferences from the evidence in favor of the Commonwealth. If the evidence is sufficient to induce a reasonable juror to believe beyond a reasonable doubt that the defendant is guilty, a directed verdict should not be given. For the purposes of ruling on the motion, the trial court must assume that the evidence for the Commonwealth is true, but reserving to
6 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
-12- the jury questions as to the credibility and weight to be given to such testimony.
Hall v. Commonwealth, 645 S.W.3d 383, 392 (Ky. 2022) (quoting Commonwealth
v. Benham, 816 S.W.2d 186, 187 (Ky. 1991)). “To defeat a directed verdict
motion, the Commonwealth must only produce ‘more than a mere scintilla of
evidence.’” Lackey v. Commonwealth, 468 S.W.3d 348, 352 (Ky. 2015) (quoting
Benham, 816 S.W.2d at 187).
Widner asserts he was entitled to a directed verdict on two separate
grounds. First, he argues the Commonwealth failed to produce evidence that he
had physical possession or ownership of the handgun. Throughout his trial, the
basis of Widner’s defense was that the vehicle was not registered to him, and there
was no evidence that Widner even knew the handgun was in the glove
compartment. Nonetheless, the Commonwealth successfully argued Widner
possessed the handgun under a constructive possession theory.
Despite Widner’s arguments, the facts of the case were sufficient to
support a conviction based on constructive possession. “The person who owns or
exercises dominion or control over a motor vehicle in which contraband is
concealed, is deemed to possess the contraband.” Leavell v. Commonwealth, 737
S.W.2d 695, 697 (Ky. 1987) (citing United States v. Vergara, 687 F.2d 57 (5th Cir.
1982)). We have applied Leavell to constructive possession of a firearm in a
vehicle by a convicted felon. Deboy v. Commonwealth, 214 S.W.3d 926, 930 (Ky.
-13- App. 2007). Even though Widner did not own the vehicle, the evidence showed he
was in a position to “exercise[] dominion or control” over it. Leavell, 737 S.W.2d
at 697. Widner was found in the driver’s seat, with the keys in the ignition, and
within reach of the unlocked glove compartment where the handgun was found.
The trial court correctly denied the directed verdict motion because the
Commonwealth produced “more than a mere scintilla of evidence” to support the
charge. Lackey, 468 S.W.3d at 352 (quoting Benham, 816 S.W.2d at 187).
Second, Widner argues the Commonwealth failed to produce
sufficient proof of one element of the PFO charge. The most relevant provision of
the second-degree PFO statute requires the Commonwealth to prove the defendant
was released on probation or parole “within five (5) years prior to the date of
commission of the felony for which he now stands convicted[.]” KRS
532.080(2)(c)3. Widner testified under avowal that he served out his predicate
offenses in 2012, more than five years before this incident in 2020. However, the
Commonwealth produced testimony from a probation and parole officer that
Widner was under probationary supervision until May 23, 2019. Furthermore,
documents from the Justice and Public Safety Cabinet submitted by the
Commonwealth show that Widner was on probation as late as April 3, 2017. (R. at
17.) Despite Widner’s avowal testimony, the evidence of record sufficed to
-14- establish the applicability of the PFO statute, and the trial court did not err in
denying the directed verdict motion.
III. CONCLUSION
For the foregoing reasons, we affirm the trial court’s judgment.
EASTON, JUDGE, CONCURS.
LAMBERT, JUDGE, DISSENTS AND DOES NOT FILE SEPARATE OPINION.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Roy Alyette Durham, II Daniel J. Cameron Frankfort, Kentucky Attorney General of Kentucky
Todd D. Ferguson Assistant Attorney General Frankfort, Kentucky
-15-