Leonard Hornsby v. Commonwealth of Kentucky

• Court: Court of Appeals of Kentucky
• Decided: August 13, 2020
• Docket: 2018 CA 001083
• Status: Unknown

Opinion

RENDERED: AUGUST 14, 2020; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals

NO. 2018-CA-001083-MR

LEONARD HORNSBY APPELLANT

APPEAL FROM KENTON CIRCUIT COURT v. HONORABLE PATRICIA M. SUMME, JUDGE ACTION NO. 16-CR-00901

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION AFFIRMING

** ** ** ** **

BEFORE: ACREE, COMBS, AND MAZE, JUDGES.

ACREE, JUDGE: Appellant, Leonard Hornsby, appeals his convictions for assault

in the first degree and possession of a handgun by a convicted felon. He alleges

multiple errors by the Kenton Circuit Court. After careful review of the record, we

affirm. BACKGROUND

On May 9, 2016, Hornsby was crossing the street in Covington,

Kentucky, when he encountered Mark Snell. Hornsby and Snell disliked each

other. An argument ensued.

Ethan Mattrella and Vincent James, who were sitting on a porch

nearby, intervened. This led to a confrontation between Hornsby and Mattrella.

Mattrella picked up a board or stick and swung it at Hornsby. Hornsby left the

scene, went to his nearby apartment, then returned moments later. The argument

reignited, and Hornsby shot Mattrella in his groin area. Hornsby fled.

Mattrella was rushed to the University of Cincinnati Medical Center,

where he was treated by Dr. Malcom Baxter. According to Dr. Baxter, the bullet

lodged in the subcutaneous tissue of Mattrella’s right gluteal region. Dr. Baxter

found it best to leave the bullet where it was rather than cutting through tissue to

remove it.

Hornsby was arrested a few months later by police in Davidson

County, Tennessee. He was indicted on charges of assault in the first degree and

possession of a handgun by a convicted felon. The charges were tried separately.

Hornsby was appointed counsel;1 however, at his first trial, he expressed his

1 Ashley Graham, and Daniel Schubert, the directing attorney at the Department of Public Advocacy’s Covington trial office, as second chair.

-2- dissatisfaction with counsel. He sought appointment of new counsel or, in the

alternative, to represent himself. The circuit court refused to substitute counsel

and, after holding a Faretta2 hearing, granted Hornsby’s request to represent

himself, with standby counsel present.

A jury found Hornsby guilty on both counts. He was sentenced to

nine years of imprisonment on the possession charge and ten years of

imprisonment on the charge of assault in the first degree. The sentences were to

run concurrently for a total of ten years. This appeal followed.

ANALYSIS

Hornsby asserts the circuit erred by: (1) failing to appoint substitute

counsel to represent him; (2) failing to grant a directed verdict in his favor on

assault in the first degree; (3) allowing the Commonwealth to introduce his prior

felony convictions to prove he was a convicted felon; and (4) allowing the

Commonwealth to elicit expert testimony from Dr. Baxter, who was called to the

stand as a fact witness. We address each issue in turn.

Substitute Counsel

Hornsby asserts the circuit court deprived him of his constitutional

right to counsel when it denied his request to substitute counsel. Specifically,

2 Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975).

-3- Hornsby contends there was a complete breakdown in communication, warranting

the appointment of new representation. We disagree.

Hornsby was appointed a public defender on October 26, 2016. It was

not until April 5, 2017, the day of his trial for possession of a firearm, that he

expressed dissatisfaction with appointed counsel. The circuit court inquired into

his dissatisfaction. Hornsby asserted he did not trust appointed counsel, counsel

did not have his best interest in mind, they were unprepared, and that he had only

seen them three times since his incarceration. Counsel, on the other hand, recalled

having at least five meetings with Hornsby, four of which were substantive in

nature. Moreover, they had conducted a complete investigation into his case. One

of his attorneys stated that Hornsby refused to communicate with her the day

before trial.

The circuit court refused to substitute counsel and granted a

continuance to allow Hornsby time to prove he could competently represent

himself under Faretta. On June 12, 2017, the circuit court held a Faretta hearing

and, again, addressed whether replacement counsel was warranted. Hornsby

reiterated his concerns and alleged that evidence was being withheld from him.

His counsel rebutted these assertions. The circuit court did not find good cause to

substitute counsel, but granted Hornsby’s request to represent himself, with

appointed counsel as standby.

-4- “The Sixth Amendment of the United States Constitution and Section

Eleven of the Kentucky Constitution provide a defendant with the right to

counsel.” Grady v. Commonwealth, 325 S.W.3d 333, 341 (Ky. 2010). However,

an indigent defendant who is appointed counsel “does not have a constitutional

right to be represented by any particular attorney, and is not entitled to the

dismissal of his counsel and the appointment of substitute counsel except for

adequate reasons or a clear abuse by counsel.” Henderson v. Commonwealth, 563

S.W.3d 651, 668 (Ky. 2018) (citation omitted). An indigent defendant seeking the

appointment of substitute counsel “carries the burden of demonstrating to the court

that there exists good cause, such as a conflict of interest, a complete breakdown of

communication or an irreconcilable conflict.” Stinnett v. Commonwealth, 364

S.W.3d 70, 81 (Ky. 2011) (internal quotation marks and citation omitted).

“Whether good cause exists for substitute counsel to be appointed is

within the sound discretion of the trial court.” Deno v. Commonwealth, 177

S.W.3d 753, 759 (Ky. 2005) (citation omitted). Therefore, we will not disturb the

circuit court’s determination of insufficient cause absent an abuse of discretion.

“The test for abuse of discretion is whether the trial judge’s decision was arbitrary,

unreasonable, unfair, or unsupported by sound legal principles.” Ryan v. Ryan,

473 S.W.3d 637, 639 (Ky. App. 2015) (citation omitted).

-5- The record reflects Hornsby’s appointed counsel met with him on at

least five separate occasions, prior to his initial trial date. Four of these meetings

related to the substance of his case. His appointed counsel also provided him with

all discovery in their possession. Hornsby’s refusal to meet with or communicate

with appointed counsel does not amount to a complete breakdown in

communication. Nor does his dissatisfaction with how appointed counsel was

managing his case amount to good cause sufficient to substitute counsel. See

Stinnett, 364 S.W.3d at 81 (concluding mere dissatisfaction with appointed

counsel’s performance is insufficient to support a motion to support his removal).

We conclude the circuit court did not abuse its discretion in refusing to substitute

counsel.

Hornsby also contends that the circuit court’s failure to hold this

hearing ex parte is reversible error. The Commonwealth was present during the

hearings relating to his request for substitute counsel. However, the record does

not indicate that Hornsby requested an ex parte hearing. Nor has he pointed to any

case law establishing the requirement of an ex parte hearing in this instance.

However, the Kentucky Supreme Court has noted that ex parte hearings “should

only occur in the rarest of circumstances and only when the trial court feels that

such a hearing is necessary to ensure a just trial.” Lester v. Commonwealth, 132

S.W.3d 857, 862 (Ky. 2004).

-6- Hornsby has not shown, or attempted to show, that an ex parte hearing

was necessary to ensure a just trial. The circuit court reminded Hornsby that the

Commonwealth was present, and anything he said could be used against him.

Moreover, substantive and strategic issues were not discussed during the hearing,

rendering any error harmless.

Directed Verdict

Hornsby’s next point of contention is that the circuit court erred by

failing to grant a directed verdict in his favor on the charge of assault in the first

degree. We disagree.

“[T]he elements of assault in the first degree are that [the defendant]

(1) intentionally (2) caused serious physical injury to [his victim] (3) by means of a

deadly weapon or dangerous instrument.” Dixon v. Commonwealth, 263 S.W.3d

583, 589 (Ky. 2008); KRS3 508.010(1). The Commonwealth must present at least

a scintilla of evidence to support each of these elements to justify instructing the

jury on first-degree assault. Lackey v. Commonwealth, 468 S.W.3d 348, 352 (Ky.

2015) (citation and internal quotation marks omitted) (“To defeat a directed verdict

motion, the Commonwealth must only produce more than a mere scintilla of

evidence.”).

3 Kentucky Revised Statutes.

-7- At the close of evidence, Hornsby moved for a directed verdict. His

basis, however unartfully articulated,4 was that the Commonwealth had failed to

present even a scintilla of evidence to support the second element – that Mattrella

suffered a “serious physical injury.” Hornsby’s motion put into play the following

rule of law: “[A] trial judge cannot enter a directed verdict unless there is a

complete absence of proof on a material issue or if no disputed issues of fact exist

upon which reasonable minds could differ.” Wright v. Carroll, 452 S.W.3d 127,

132 (Ky. 2014) (citation omitted).

After considering the evidence presented, the circuit court denied

Horsnby’s motion, finding that a reasonable jury could conclude he shot Mattrella

and caused serious physical injury. We find no error in the circuit court’s denial of

the motion.

Whether the assault on Mattrella resulted in a serious physical injury

was a question of fact for the jury. See Clift v. Commonwealth, 105 S.W.3d 467,

471 (Ky. App. 2003) (emphasis in original) (quoting Rowe v. Commonwealth, 50

S.W.3d 216, 221 (Ky. App. 2001)) (“whether the injury created ‘prolonged

impairment of health’ ‘was a proper question for the jury to determine’”); see also

4 The Commonwealth persuasively argues that Hornsby did not preserve this specific argument for appeal because his directed verdict motion related to other elements of the charge. (Appellee’s brief, pp. 13-15.) Nevertheless, we reviewed this argument as though it was preserved.

-8- Meece v. Commonwealth, 348 S.W.3d 627, 716 (Ky. 2011) (“jury should

determine the essential elements of an offense”). That question could only be

taken from the jury if, considering the evidence as a whole, it would be clearly

unreasonable for a jury to conclude Mattrella’s physical injury was serious. Such a

conclusion would not be clearly unreasonable.

Dr. Baxter provided detailed testimony regarding Mattrella’s injuries

and treatment. He testified that a projectile entered Mattrella’s left groin region

and lodged in his right gluteal region. Because the projectile was lodged in soft

tissue, it would likely remain there indefinitely but could work its way out of the

body; most likely, however, is that scar tissue will form around it. Additionally,

Dr. Baxter testified as to potential complications from an injury of this type, such

as infection. Mattrella himself testified to the severity of his pain.

This injury was not superficial. See Luttrell v. Commonwealth, 554

S.W.2d 75, 77 (Ky. 1977) (finding no serious physical injury where an officer was

struck in the chest with birdshot, leaving “superficial” wounds). The bullet entered

his groin area near the femoral artery and femoral vein and penetrated deeply into

his flesh, passing from the front of his body to the backside, where it remains. This

evidence is sufficient to justify presenting to the jury the fact question of whether

the physical injury was serious and denying a directed verdict.

-9- Prior Felony Convictions

At Hornsby’s trial for possession of a handgun by a convicted felon,

the Commonwealth sought to introduce his 1988 judgment of conviction for

robbery, theft, and kidnapping. Hornsby’s objection to the proof was overruled.

He concedes the Commonwealth must prove he is a convicted felon,

but asserts that “reading the charges for which [he] was convicted, and imparting

their serious nature to the jury, unfairly prejudices [him] . . . .” He argues it would

have been sufficient for the Commonwealth to state that he had a prior felony

conviction, instead of stating the basis for that conviction.

In Old Chief v. United States, the Supreme Court of the United States

acknowledged “that evidence of the name or nature of the prior offense generally

carries a risk of unfair prejudice to the defendant.” 519 U.S. 172, 185, 117 S. Ct.

644, 652, 136 L. Ed. 2d 574 (1997). The Kentucky Supreme Court, adopting this

rationale in Anderson v. Commonwealth, held:

upon request, a criminal defendant charged with being a felon in possession of a firearm may stipulate (with the Commonwealth’s agreement) or admit (if the Commonwealth does not agree) that the defendant has been previously convicted of a felony. Such a stipulation or admission would mean that the jury would simply be informed that the defendant was a convicted felon, for purposes of the felon in possession of a firearm charge, but would not be informed of the specifics of the defendant’s previous felony conviction(s).

281 S.W.3d 761, 766 (Ky. 2009).

-10- Here, the record does not indicate that Hornsby stipulated to having a

prior felony conviction, nor did Hornsby “request to stipulate to his prior felony

conviction” as in Ward v. Commonwealth, 568 S.W.3d 824, 836 (Ky. 2019).

Absent both, proof was necessary and reading the conviction to the jury sufficed.

However, Justice Cunningham, in a concurring opinion in Anderson

which Justice Scott joined, suggested that a defense objection such as Hornsby

made should be sustained because the circuit court cannot compel the

Commonwealth to agree to stipulate. Anderson, 281 S.W.3d at 767 (Cunningham,

J., concurring). This is not what the majority opinion says and, therefore, is not

precedent this Court must follow. However, if it were the law, it would not justify

reversal here because the error would be harmless.

“[N]o error or defect in any ruling . . . is ground for granting a new

trial or for setting aside a verdict . . . unless it appears to the court that the denial of

such relief would be inconsistent with substantial justice.” Id. at 766 (quoting

Kentucky Rule of Criminal Procedure (RCr) 9.24). “A non-constitutional

evidentiary error may be deemed harmless . . . if the reviewing court can say with

fair assurance that the judgment was not substantially swayed by the error.”

Winstead v. Commonwealth, 283 S.W.3d 678, 688-89 (Ky. 2009); see Ward, 568

S.W.3d at 836. Other than the basis of the conviction, the jury was not given any

details of Hornsby’s prior conviction, nor were they given information regarding

-11- the elements of his prior conviction. This Court is fairly assured that the jury was

not substantially swayed, nor the outcome affected, by any error if such it was.

Any error here was harmless.

Expert Testimony

Hornsby next asserts the circuit court erred by allowing the

Commonwealth to elicit expert testimony from Dr. Baxter, who was called as a

fact witness. We review the circuit court’s ruling for an abuse of discretion.

Both parties elicited testimony from Dr. Baxter. The Commonwealth

noted its intention to call him as a fact witness, while Hornsby sought to introduce

him as an expert witness. Prior to trial, Hornsby objected to the Commonwealth’s

use of Dr. Baxter as an expert; the Commonwealth objected to Hornsby’s asking

Dr. Baxter whether there was a serious physical injury. Prosecutors again stated

they were only calling him as a fact witness. The circuit judge allowed Hornsby to

ask whether Mattrella suffered a serious physical injury and, to the extent Hornsby

intended to use Dr. Baxter as an expert, noted, “within the bounds I will sustain

your request, but we will see where it goes.”

During trial, the Commonwealth first questioned Dr. Baxter on his

qualifications. It then proceeded to elicit both lay and expert testimony from Dr.

Baxter. For example, Dr. Baxter testified about possible risks associated with

being shot in the groin area, such as infections. He was also asked to identify the

-12- major organs around the bullet when explaining Mattrella’s CAT scan. Likewise,

Hornsby was also allowed to elicit expert testimony from Dr. Baxter. He

questioned Dr. Baxter about Mattrella’s medical reports, the extent of his injuries,

and whether his injuries were life-threatening. The only objections sustained

during Hornsby’s examination related to hearsay, relevance, and information

outside the scope of Dr. Baxter’s expertise.

Lay witnesses may not give opinions “based on scientific, technical,

or other specialized knowledge within the scope of Rule 702.” KRE5 701(c).

However, in McDaniel v. Commonwealth, expert opinions were elicited from a

doctor who was tendered as a lay witness. 415 S.W.3d 643, 654-55 (Ky. 2013).

The Kentucky Supreme Court noted KRE 701 “is specifically intended to combat

the possibility of counsel avoiding the reliability standards set out in Daubert v.

Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469

(1993) . . . .” Id. at 654. And, because the Commonwealth provided a sufficient

basis for the doctor’s expertise, there was no violation of KRE 701 “because the

evil that this rule seeks to avoid, the introduction of unreliable expert opinions

through a lay witness, was prevented by [the doctor’s] qualification pursuant to

KRE 702.” Id. at 655.

5 Kentucky Rules of Evidence.

-13- Likewise, although Dr. Baxter was tendered as a lay witness, the

Commonwealth provided a sufficient basis for his expertise. Therefore, KRE 701

and 702 were not violated.

Hornsby’s argument that he was denied his right to present a defense

because the circuit court deprived him access to Dr. Baxter, as an expert, lacks

merit. As noted above, Hornsby was given the opportunity to, and, in fact, did

question Dr. Baxter as an expert.

Cumulative Error

Finally, Hornsby contends there is cumulative error. “We have found

cumulative error only where the individual errors were themselves substantial,

bordering, at least, on the prejudicial.” Brown v. Commonwealth, 313 S.W.3d 577,

631 (Ky. 2010) (citation omitted). None of the errors alleged by Hornsby was

prejudicial. Therefore, we find no cumulative error.

CONCLUSION

We affirm the decision of the Kenton Circuit Court.

ALL CONCUR.

-14- BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:

John Gerhart Landon Andy Beshear Molly Mattingly Attorney General of Kentucky Frankfort, Kentucky James Havey Assistant Attorney General Frankfort, Kentucky

-15-