RENDERED: NOVEMBER 10, 2022; 10:00 A.M. TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2021-CA-1038-MR
KACY LEE SIGRIST APPELLANT
APPEAL FROM CALLOWAY CIRCUIT COURT v. HONORABLE JAMES T. JAMESON, JUDGE ACTION NO. 19-CR-00180
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING IN PART AND REVERSING AND VACATING IN PART
** ** ** ** **
BEFORE: CLAYTON, CHIEF JUDGE; ACREE AND TAYLOR, JUDGES.
CLAYTON, CHIEF JUDGE: Kacy Lee Sigrist appeals from a Calloway Circuit
Court judgment after a jury found him guilty of one count of first-degree
possession of a controlled substance, one count of first-degree promoting
contraband, and one count of being a first-degree persistent felony offender (“PFO I”). Having reviewed the record and applicable law, we reverse the conviction for
possession of methamphetamine and vacate the three-year sentence for that charge.
The judgment is affirmed in all other respects.
FACTUAL AND PROCEDURAL BACKGROUND
Sigrist’s convictions stem from an incident which occurred while he
was incarcerated at the Calloway County Jail. Sigrist was housed in a cell with
seven other inmates. At around 3:20 a.m., three deputy jailers, Josh Lovett, Slade
McCuiston, and Brandy Cashion, entered the cell to conduct a search for
contraband. Most of the inmates were awake, playing cards or chess, watching
TV, or talking. The deputies ordered the men to stand up and be escorted out of
the cell before the search. One of the inmates, who apparently did not hear the
deputies’ orders because he was wearing earplugs, went into the bathroom. He
was handcuffed by McCuiston, who decided to take him to the booking room for a
more thorough search. Deputy Cashion, a female, was not permitted to pat down
the remaining inmates so Deputy Lovett had to perform this task by himself. After
Lovett had patted down two of the men, Deputy Cashion left to change places with
a male deputy who could come down and assist him. Meanwhile, Lovett was left
alone with the five remaining men. He directed them to go from the hallway
immediately outside the cell through a door into the main hallway. The first
inmate to walk through the doorway was Joseph Ben Hendrick. Deputy Lovett
-2- testified that Hendrick did not drop anything. Sigrist was the second of the men to
go through. Lovett testified that as Sigrist walked past him through the doorway,
he removed a small object resembling a note from his waistband, dropped it on the
floor, threw his hands in the air and said, “This is bulls**t. Why are we being
searched?” Sigrist also kicked his feet in an apparent attempt to move the object.
Lovett did not immediately retrieve the object because he was the only deputy in
the area and the object did not appear to be dangerous. Deputy McCuiston
eventually picked up the object. It was a piece of lined white note paper wrapped
around a clear plastic bag containing methamphetamine. The note paper had a
commissary list handwritten on it. Deputy McCuiston testified that the
handwriting resembled Sigrist’s.
The defense claimed that the inmate Hendrick, who walked through
the doorway immediately before Sigrist, dropped the contraband. Because
Hendrick had been incarcerated at the jail for only four days before the search,
whereas Sigrist had been an inmate there for months, the defense argued it was far
more likely that Hendrick would have possessed the contraband.
A key piece of evidence at trial was the video surveillance tape of the
hallway immediately outside the cell and the doorway into the hall beyond.
Defense investigator Cary Grey analyzed the video with computer assistance and
created enlarged still photographs showing the area during the period the inmates
-3- were being removed from the cell hallway and the object was dropped. The
photographs showed a small dark spot on the hallway floor after Hendrick passed
through the doorway. The defense argued that this object was actually the note
containing the methamphetamine.
The jury convicted Sigrist of first-degree possession of a controlled
substance, first-degree promoting contraband, and PFO I. He received sentences
of three years for the possession charge and five years for the promoting charge,
enhanced to ten years by the PFO I. In accordance with the recommendation of the
jury, the trial court ordered the sentences to be run consecutively for a total of
thirteen years. This appeal followed. Additional facts will be set forth below as
necessary.
ANALYSIS
1. Whether the convictions for first-degree possession and first-degree promoting contraband violated the prohibition against double jeopardy
Sigrist argues that his convictions for first-degree possession of a
controlled substance and first-degree promoting contraband violate the prohibition
against double jeopardy because both charges were predicated on the same
quantity of methamphetamine recovered from the jail floor. “When a single course
of conduct of a defendant may establish the commission of more than one (1)
offense, he may be prosecuted for each such offense. He may not, however, be
convicted of more than one (1) offense when: . . . [o]ne offense is included in the
-4- other[.]” Kentucky Revised Statutes (KRS) 505.020(1)(a). “An offense is so
included when: . . . [i]t is established by proof of the same or less than all the facts
required to establish the commission of the offense charged[.]” KRS
505.020(2)(a). The possession of a controlled substance count required the proof
of no additional facts beyond those required to prove the charge of promoting
contraband.
The Commonwealth has conceded that Sigrist’s argument is correct in
light of clear precedent, most recently set forth in Collins v. Commonwealth, 640
S.W.3d 55 (Ky. App. 2021), discretionary review denied (Mar. 16, 2022). In
Collins, the Court held that the appellant’s convictions for first-degree promoting
contraband and first-degree possession of a controlled substance violated double
jeopardy “because both crimes did not require proof of an additional fact that the
other did not.” Id. at 59 (citing Stewart v. Commonwealth, 306 S.W.3d 502, 505
(Ky. 2010) (“Possession of a controlled substance does not require proof of an
additional fact that promoting contraband does.”)).
“[T]he remedy for this type of statutory double jeopardy violation is
to vacate the lesser conviction, and only allow sentencing on the greater
conviction.” Collins, 640 S.W.3d at 59 (quoting Taylor v. Commonwealth, 611
S.W.3d 730, 739-40 (Ky. 2020)).
-5- In light of the statute and controlling precedent, as well as the
Commonwealth’s concession, Sigrist’s conviction on the lesser charge of
possession of a controlled substance must be reversed and the three-year sentence
which he received for that charge must be vacated.
2. Whether the trial court improperly assumed the role of the prosecutor in questioning witnesses
Next, Sigrist argues that the trial court improperly assumed the role of
the prosecutor when it questioned two witnesses. This alleged error is unpreserved
and Sigrist requests palpable error review pursuant to Kentucky Rules of Criminal
Procedure (RCr) 10.26. “Under RCr 10.26, an unpreserved error may generally be
noticed on appeal if the error is ‘palpable’ and if it ‘affects the substantial rights of
a party.’” Martin v. Commonwealth, 409 S.W.3d 340, 344 (Ky. 2013). An error is
palpable when it is “easily perceptible, plain, obvious and readily noticeable.”
Brewer v. Commonwealth, 206 S.W.3d 343, 349 (Ky. 2006) (citation omitted).
“Even then, relief is appropriate only ‘upon a determination that manifest injustice
resulted from the error.’” Martin, 409 S.W.3d at 344 (quoting RCr 10.26).
“[W]hat it really boils down to is that if upon a consideration of the whole case this
court does not believe there is a substantial possibility that the result would have
been any different, the irregularity will be held nonprejudicial.” Schoenbachler v.
Commonwealth, 95 S.W.3d 830, 836 (Ky. 2003) (citation omitted).
-6- As we have already outlined, Sigrist’s defense was that his fellow
inmate, Hendrick, dropped the note containing the methamphetamine. Cary Gray’s
photographs showed that there was nothing on the outer hallway floor before
Hendrick entered the doorway. Two seconds later, after Hendrick had walked
through the door, an object appeared on the floor under his heel. Later, after all the
men had passed through the doorway, the photographs showed the object had
disappeared.
Following Gray’s testimony, the Commonwealth recalled Deputy
Lovett to testify in rebuttal. Lovett repeated his earlier testimony that Hendrick did
not drop anything. He agreed that a small black dot appeared on Gray’s still photo
of the floor and had disappeared in her next photo. He described the dot as
shadowy grey to black, whereas the note containing the methamphetamine was
white. He also testified that the object in the photo was not “anywhere near”
where the note was recovered. He testified that the dark spot was to the right of
the hallway whereas the note was found to the left. He opined that the black spot
was probably a smudge or some trash. He testified that he had no doubt he saw
Sigrist drop the note.
The trial judge then proceeded to question Lovett. He held up the
photograph of the hallway to the jury and asked Lovett to clarify where he saw
“whatever it was,” referring to the dark spot which the defense argued was dropped
-7- by Hendrick, and then pointed to the area where the note was found, “a few feet
from there.”
During the penalty phase of the trial, the trial judge questioned a
probation and parole officer, Shannon Farley, who testified about the penalty
ranges for the charged offenses, parole eligibility, and how the length of a sentence
may be reduced by presentence credit, meritorious good time, statutory good time,
and program completion credit. The judge inquired, “[I]f someone is sentenced to
a year, and they serve that year out, how much time will they serve, close?” The
officer replied that it would be a question for offender records. The judge
continued, “Yeah, worst case scenario, say no credits, none of that, what is a one-
year serve out?” The officer replied that “the colloquial wisdom is that nine
months kills an institutional year.” The judge then remarked to the prosecutor, “I
didn’t remember if you covered it or not, and I thought that was important for
everybody to know.” The prosecutor agreed and directed some follow-up
questions to Farley, stating, “If you get a year on a felony sentence, nine months
usually is what you serve,” to which the officer agreed. The prosecutor then asked,
“So if someone receives say a five- or ten-year sentence, even if they don’t make
parole and serve out, they’re not going to serve the full ten years, are they?” The
officer replied, “No.” “They’re going to get some credit off their sentence?”
“Yes.”
-8- A trial court is permitted to interrogate witnesses under Kentucky
Rules of Evidence (KRE) 614(b). This power is to be used “sparingly and always
with sensitivity to the potential for unfairness to the litigants.” Terry v.
Commonwealth, 153 S.W.3d 794, 802 (Ky. 2005), superseded by statute on other
grounds as recognized by Gaither v. Commonwealth, 521 S.W.3d 199 (Ky. 2017)
(quoting KRE 614(b) Drafters’ Commentary (1989)). The judge cannot “by the
form of his question or his manner indicate to the jury his opinion as to the
credibility of the witness being interrogated or the guilt or innocence of the
accused.” Terry, 153 S.W.3d at 802 (citation omitted). “[A] judge should not
express his opinion about the veracity of a witness through the nature of his
questioning, especially through leading questions.” Id. at 802-03 (citation
omitted). And “a trial judge cannot ask questions that place him in the role of a
prosecutor rather than an arbiter.” Id. at 803 (internal quotation marks and citation
omitted).
Three factors determine whether a trial judge has good reason to inject
himself into the trial:
First, in a lengthy, complex trial, judicial intervention is often necessary for clarification. Second, if the attorneys in a case are unprepared or obstreperous or if the facts are becoming muddled and neither side is succeeding at attempts to clear them up, judicial intervention may be necessary for clarification. Third, if a witness is difficult, if a witness’ testimony is unbelievable and counsel fails to adequately probe, or if the witness
-9- becomes inadvertently confused, judicial intervention may be needed.
Id. (quoting United States v. Slone, 833 F.2d 595, 597 (6th Cir. 1987)).
In the first instance, when the trial judge questioned Deputy Lovett
about the defense photographs, he was seeking to clarify where the two objects at
issue were located in the hallway. In his direct testimony, Lovett had indicated on
the video screen the location where the note landed, and he testified that it was on
the right side looking down the hallway from the angle indicated by the
Commonwealth. The video record of the trial does not show where Lovett is
pointing. The trial court’s questions appear directed to clearing up any confusion
that may have been caused by viewing the scene from the different angles recorded
by the surveillance cameras. In that regard, the trial court’s questions were
justified.
On the other hand, the trial court’s references to “whatever it was” to
describe the object which the defense claimed to be the note are more problematic,
as the term could imply the trial court had decided that the dark spot was not the
note containing the contraband. In that sense, the trial court’s questions veered
from those of an impartial arbiter. But “[a] palpable error must be so grave in
nature that if it were uncorrected, it would seriously affect the fairness of the
proceedings.” Brewer, 206 S.W.3d at 349. The jury was required to resolve a
well-defined factual dispute based on the video surveillance footage and the
-10- testimony of Lovett and Gray. In light of the evidence in the record, it is unlikely
that the trial court’s choice of words in questioning Lovett would have affected the
jury’s decision regarding which of the objects was the methamphetamine and by
whom it was dropped. The allegedly improper questioning does not rise to the
level of reversible, palpable error.
In the penalty phase, the trial court’s questioning of the probation and
parole officer informed the jury that the defendant would not in reality serve the
full sentence the jury chose to impose. The judge’s questions did not serve to
clarify the officer’s testimony because a defendant would serve nine months of a
one-year sentence only if the defendant received statutory good time credit, which
is not automatic. See KRS 197.045(1). “The use of incorrect, or false, testimony
by the prosecution is a violation of due process when the testimony is material.”
Robinson v. Commonwealth, 181 S.W.3d 30, 38 (Ky. 2005), as modified on denial
of reh’g (Jan. 19, 2006). “When the prosecution knows or should have known that
the testimony is false, the test for materiality is whether there is any reasonable
likelihood that the false testimony could have affected the judgment of the jury.”
Id. (internal quotation marks and citation omitted).
Under the PFO statute, Sigrist would serve a minimum sentence of ten
years on the charge of promoting contraband, regardless of the underlying sentence
imposed by the jury. KRS 532.080(6)(b) provides that “[i]f the offense for which
-11- he presently stands convicted is a Class C or Class D felony, a persistent felony
offender in the first degree shall be sentenced to an indeterminate term of
imprisonment, the maximum of which shall not be less than ten (10) years nor
more than twenty (20) years.” The jury imposed the lowest possible sentence for a
PFO I convicted of a Class D felony. Any error in Farley’s testimony was not
material.
To find reversible, palpable error, “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. McIntosh, 646 S.W.2d 43, 45 (Ky.
1983). The testimony elicited by the trial court’s questions did not create a
“substantial possibility that the result [of the sentencing phase] would have been
any different[.]” Schoenbachler, 95 S.W.3d at 836.
The trial court’s questioning of Lovett and Farley did not constitute
palpable error.
3. Whether the trial court abused its discretion in allowing Deputy Lovett to testify that Sigrist acted as other inmates do when disposing of contraband
As outlined above, Deputy Lovett testified that when Sigrist passed
through the doorway he removed something from his waistband, dropped it on the
floor, threw his hands up and said, “This is bulls**t. Why are we being searched?”
and kicked his feet. The jail surveillance video, which does not have any audio,
shows Sigrist making a hand gesture as he walks through the door.
-12- On direct examination, the Commonwealth attorney asked Lovett why
he believed Sigrist threw up his hands. He replied that it was to distract him.
Defense counsel objected. The Commonwealth attorney asked Lovett whether, in
his experience of numerous cell searches, inmates will attempt to distract the
guards. The defense objected again. The trial court ruled that the question was
leading and sustained the objection. The defense further objected on the grounds
that Lovett was trying to establish what Sigrist did by comparing him to other
inmates. The trial court stated that the subject was fine.
The Commonwealth then asked Lovett whether he had encountered
inmates in the past who attempted to distract deputy jailers when getting rid of
contraband. Lovett replied that he had. The Commonwealth attorney then asked
what some of the things were that they did to distract. Lovett testified that “they
will talk off subject, they will make erratic movements to get you to focus on
something other than what they are doing. They will act erratic, they will, let’s say
[during] the booking process where most contraband is dropped, they’ll scream,
they’ll holler, they’ll be very discreet and try to drop it out of anything that is on
their possession. Turning their back to you, anything is in motion to try to get rid
of what they have.” When the Commonwealth attorney asked, “So you’ve had
inmates make unnecessary hand movements to try and create a distraction?”
Lovett replied, “Yes, yes. In multiple situations.”
-13- “We review a trial court’s rulings on evidentiary issues for an abuse of
discretion. The test for abuse of discretion is whether the court’s decision was
arbitrary, unreasonable, unfair, or unsupported by sound legal principles.” Carson
v. Commonwealth, 621 S.W.3d 443, 446 (Ky. 2021) (citations omitted).
Under KRE 701, a lay or non-expert witness “may provide opinion
testimony only if their opinion is (1) based on their perception; (2) helpful to a
clear understanding of the witness’ testimony or the determination of a fact at
issue; and (3) not based on scientific, technical, or specialized knowledge.”
Carson, 621 S.W.3d at 446. Specifically in regard to law enforcement officers, the
Kentucky Supreme Court has stated they “may provide lay opinion testimony as to
their experience-based interpretations of certain facts which they personally
observed.” Id. at 447. Thus, the Supreme Court “has permitted law enforcement
officers to testify as to their interpretation of drug-sniffing dogs behavior; that a
juice bottle appeared to be a homemade silencer; and that a suspect appeared
intoxicated due to his performance on a field sobriety test. But when the subject
matter of the officer’s opinion is either not based on personal knowledge or based
on specialized knowledge, the trial court must first qualify the officer as an
expert.” Id. (footnotes and citations omitted).
Lovett’s testimony falls squarely within this type of lay testimony, as
-14- it was an experience-based interpretation of facts he had personally observed and
was not based on scientific or specialized knowledge.
Sigrist nonetheless argues that Lovett’s testimony violated his due
process right to a fair trial, in reliance on Johnson v. Commonwealth, 885 S.W.2d
951 (Ky. 1994). In that case, the defendant was accused of driving a coal truck
through a red light, killing another driver. During his examination of the
defendant, the prosecutor observed that “[s]ome people, who drive these coal
trucks make it a practice to run red lights[,]” and then asked, “Isn’t it a fact that
that’s what you were doing on that particular day?” Id. at 953. This question was
held impermissible under KRE 404(b), for if a defendant cannot be accused of
acting in conformity with his prior bad acts, he also cannot be accused of acting in
conformity with a class of people to whom he belongs. Id. Sigrist’s case is
distinguishable, however, because the deputy was testifying based on his personal
experience and observation of inmates, from which he concluded that Sigrist was
trying to distract him. In Johnson, the Commonwealth attorney in effect testified
about the alleged practice of coal trucks running red lights, with no evidentiary
foundation whatsoever, and then accused the defendant of engaging in this
practice.
-15- The trial court did not abuse its discretion in allowing Lovett to testify
about his personal observation of inmate behavior and to draw conclusions about
Sigrist’s actions based on those personal experiences.
4. Whether the trial court erred in allowing Deputy McCuiston to testify that Sigrist’s handwriting matched that on the note enclosing the methamphetamine
This issue is preserved by objection and will be reviewed for an abuse
of discretion. Deputy McCuiston testified that the methamphetamine was wrapped
in what appeared to be a handwritten commissary shopping list and that he was
familiar with Sigrist’s handwriting. The defense objected on the grounds that the
witness was not qualified to identify the handwriting. The trial court sent the jury
out and told the prosecution it needed to lay a foundation. McCuiston thereafter
testified, outside the presence of the jury, that he was familiar with Sigrist’s
handwriting because Sigrist had sent him several handwritten notes during his time
in jail. The Commonwealth attorney gave McCuiston two letters Sigrist had
written to him about the case at bar. McCuiston stated that they were signed by
Sigrist and appeared to be in his handwriting. He testified that he was not a
handwriting expert and had no training on handwriting identification. The trial
court examined the two letters and observed that the handwriting was not even
consistent between the two. Ultimately the parties agreed that one of the letters
-16- would be introduced into evidence, with some irrelevant comments redacted. The
jury was called back to the courtroom.
McCuiston testified that Sigrist had been an inmate for several
months, that he had received twelve letters directly from Sigrist and many more
letters from him indirectly. He testified that he recognized the handwriting in the
letter and that it was consistent with Sigrist’s handwriting. The defense stated that
it was not objecting to the admission of the letter but wanted an admonition.
McCuiston was shown a photograph of the commissary shopping list that was
wrapped around the methamphetamine and testified that the handwriting was
consistent with the letter and with other notes of Sigrist’s he had seen in the past.
He said it appeared to be Sigrist’s handwriting. The trial court gave the jury the
following admonition:
I’d just like to remind you that the jury itself must alone decide the credibility of the evidence, its weight, its value, and its sufficiency. The deputy with regard to the identity of the handwriting is testifying as a lay witness, not an expert, so for you to take as you see fit.
In his closing arguments, the Commonwealth attorney stated that
“McCuiston’s familiar with what his [Sigrist’s] handwriting looks like and he
testified that the handwriting on the note the methamphetamine was wrapped up in
and that Deputy Lovett watched Kacy Sigrist drop is Kacy Sigrist’s handwriting.
He recognizes it was his handwriting.”
-17- Under KRE 701, “Kentucky caselaw has . . . recognized the propriety
of admitting such lay witness testimony [about handwriting] when the lay witness
is very familiar with the signatory’s handwriting, and the testimony would be
helpful to the jury.” Roach v. Commonwealth, 313 S.W.3d 101, 107 (Ky. 2010).
In Hampton v. Commonwealth, 133 S.W.3d 438 (Ky. 2004), for example, a bank
manager was allowed to testify, based on her personal observation, that a signature
on a loan document did not resemble the signature of the victim on his driver’s
license. Id. at 440-41. In Roach, a police detective was permitted to opine that the
signatures on certain checks were likely the victim’s. Roach, 313 S.W.3d at 107.
In these cases, testimony that handwriting on two documents purportedly by the
same person was dissimilar was allowed, but the witnesses did not directly opine
that the documents were forged.
Sigrist argues that the Commonwealth went farther in his case because
McCuiston testified that the writing on the letter he received from Sigrist was
consistent with the note. If a witness may testify that handwriting on documents is
dissimilar, a witness may also certainly be permitted to testify that the handwriting
on two documents is similar. Sigrist urges us to reconsider allowing lay witnesses
to make handwriting comparisons at all, but we are bound by the precedent set
forth by the Kentucky Supreme Court. “[A]s an intermediate appellate court, this
-18- Court is bound by established precedents of the Kentucky Supreme Court. SCR[1]
1.030(8)(a). The Court of Appeals cannot overrule the established precedent set by
the Supreme Court or its predecessor court.” Smith v. Vilvarajah, 57 S.W.3d 839,
841 (Ky. App. 2000).
The admission of McCuiston’s testimony was not an abuse of
discretion, particularly in light of the trial court’s admonition to the jury that he
was not a handwriting expert.
5. Whether the prosecutor should have been disqualified because he previously represented Sigrist in one of the convictions underlying the PFO charge
This allegation of error is partially preserved by Sigrist’s pro se verbal
request for the prosecutor to be removed. To the extent it is unpreserved, Sigrist
requests palpable error review. At a pre-trial hearing, Sigrist requested the
removal of the prosecutor James Burkeen from his case, stating that he believed
Burkeen had a conflict of interest because he had represented him in another case.
Sigrist accused Burkeen of being unethical and “shooting him down.” Sigrist’s
counsel stated that she did not believe it was a conflict of interest and told Sigrist
that such a conflict would exist only if Burkeen “knows such personal knowledge
of your past record . . . he does bring up your past record, but that’s what
1 Rules of the Supreme Court.
-19- prosecutors do. He’s bringing up what you’ve been charged with and what you’ve
been convicted of in the past which is not unethical for him to do.”
The trial court denied the motion to remove Burkeen, stating, “He is
in the same status ethically as I would be. If this was a case that I had represented
you on, then I couldn’t be the judge on it. If this was a case Mr. Burkeen had
represented you on, he could not be the prosecutor on it. But these are new cases.
So, unless he has some sort of information that he would only have because he was
your lawyer about these particular cases . . . his job is to prosecute you and put you
in jail. Now that’s why you have a neutral party in the judge, okay? Somebody
who can sort out the difference between the defendant and the prosecutor.”
Burkeen represented Sigrist in one of the two prior cases which were
used to support the charge of PFO I. The case involved an Alford 2 plea of guilty to
theft by unlawful taking. The final judgment, which was entered into evidence as
an exhibit for the Commonwealth, states in part that Sigrist appeared in open court
on June 2, 2008, with his attorney, James Burkeen, to enter the plea. This
document was made available to the jury in its deliberations during the penalty
phase.
Sigrist argues that it would have been highly prejudicial for the jury to
discover that the prosecutor on the case they were hearing had actually represented
2 North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).
-20- him in the past and was now using that conviction to send him to prison for a
lengthy sentence. He contends that it is entirely possible for the jury to conclude
that Burkeen knew Sigrist was a particularly bad individual from his prior
representation of him and that this explained why he was now “throwing the book”
at him.
A prosecuting attorney is required to disqualify himself “in any
proceeding in which he . . . [h]as served in private practice or government service,
other than as a prosecuting attorney, as a lawyer or rendered a legal opinion in the
matter in controversy[.]” KRS 15.733. The issue is whether a prosecutor should
be disqualified if, like Burkeen, he served as the defense attorney in the conviction
used to support the current PFO charge. In Brown v. Commonwealth, 892 S.W.2d
289 (Ky. 1995), the defendant Brown was represented by attorney John Stewart in
entering an Alford plea to several charges. The conviction was reversed on appeal
and Brown was retried. A special prosecutor was appointed for those retrial
proceedings because, in the meantime, Stewart had gone to work at the
prosecutor’s office. Brown was convicted in the retrial. That conviction was
subsequently used to support a charge of PFO in subsequent proceedings. Brown
sought to disqualify the entire Jefferson County Commonwealth Attorney’s office.
The Kentucky Supreme Court held that “[t]he disqualification upon retrial was
proper as appellant’s former counsel, Mr. Stewart, had become associated with the
-21- Commonwealth’s Attorney’s office between the time of appeal and retrial.” Id. at
291. “In the present case, however, there was no personal and substantial
relationship between Stewart’s representation during appellant’s first case and the
trial of this case. Stewart had no connection with the conviction used for
enhancement in this case. Not only is there no substantive need for
disqualification, this case presents no appearance of impropriety.” Id. Sigrist
argues that by contrast, there was a direct connection between Burkeen, and the
conviction used for the enhancement in this case, in that Burkeen directly
represented him in those proceedings.
The Commonwealth argues that the trial court did not abuse its
discretion in refusing to disqualify Burkeen in reliance on Cole v. Commonwealth,
553 S.W.2d 468 (Ky. 1977), which states as a general principle that “[a]
prosecuting attorney is disqualified from acting in a criminal case only if he has
previously represented or been consulted professionally by the accused with
respect to the same offense charged or in matters so closely interwoven as to be in
effect a part thereof.” Id. at 472. In Cole, the prosecutor had represented the
defendant many years before. The Kentucky Supreme Court held that he did not
have to be disqualified because he “acquired no confidential information when he
defended Cole 29 years previous to this trial which he could have used in the case
at bar. The existence of the prior conviction of Cole for the habitual criminal
-22- offense was established by the testimony of the clerk of the Logan Circuit Court.
It was a matter of public record. Thus, there was no conflict of interest so as to
disqualify the Commonwealth’s Attorney.” Id.
There is no allegation here that Burkeen had information about Sigrist
that he could use against him at trial. The issue is whether Burkeen’s name
appearing on the judgment underlying the PFO charge could have improperly
influenced the jury during the penalty phase. If it influenced the jury to
recommend his sentences to run consecutively rather than concurrently, any
prejudice has been erased because the conviction for possession has been reversed
and that sentence vacated. The sentence for the other charge was enhanced by the
PFO I to ten years, the lowest possible sentence. Therefore, even if any prejudice
resulted from Burkeen’s name appearing on the judgment, it had no effect on the
final sentence and certainly did not rise to the level of palpable error.
6. Whether the trial court erred in allowing Sigrist to appear in an orange jumpsuit and ankle shackles during the penalty phase of the trial
After the jury returned its verdict finding Sigrist guilty of charges of
possession of contraband and promoting contraband, the trial court ordered him to
be taken into custody, based on its stated fear that Sigrist might commit a new
crime, get high, or flee because he was facing a lengthy sentence. The next day, at
the commencement of the penalty phase of the trial, Sigrist arrived in court dressed
in an orange jail jumpsuit with his hands and feet shackled. Defense counsel
-23- requested that he be unchained. The trial court stated that it would prefer him to be
unchained, at least at the hands. Sigrist’s hands were unchained, but he wore the
jumpsuit and had his feet shackled throughout the penalty phase. To the extent the
issue is unpreserved, Sigrist requests palpable error review.
“Except for good cause shown the judge shall not permit the
defendant to be seen by the jury in shackles or other devices for physical restraint.”
RCr 8.28(5). And, “a trial court that compels a criminal defendant to appear before
the jury in prison clothing threatens the defendant’s fundamental right to a fair
trial.” Deal v. Commonwealth, 607 S.W.3d 652, 658 (Ky. 2020) (citing Estelle v.
Williams, 425 U.S. 501, 504-05, 96 S. Ct. 1691, 1693, 48 L. Ed. 2d 126 (1976)).
The jury was aware that Sigrist had been imprisoned in the past. The
crime for which he was being tried occurred while Sigrist was incarcerated and a
key piece of evidence at trial was the video surveillance tape of the jail, in which
Sigrist appeared in prison garb. The jury had already found Sigrist guilty of two
charges when he appeared in prison garb and the ankle shackles at the penalty
phase. Although we recognize that a defendant is entitled to due process
protections throughout the trial, Barbour v. Commonwealth, 204 S.W.3d 606, 610-
11 (Ky. 2006), any material prejudice stemming from his appearance at the penalty
phase is difficult to discern and does not rise to the level of manifest injustice
necessitating reversal.
-24- CONCLUSION
Sigrist’s conviction for possession of contraband in the first degree is
reversed and the three-year sentence imposed for that charge is vacated. The
remainder of the Calloway Circuit Court’s judgment and sentence are affirmed in
full.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Emily Holt Rhorer Daniel Cameron Frankfort, Kentucky Attorney General of Kentucky
Christopher Henry Assistant Attorney General Frankfort, Kentucky
-25-