Richie Mayes v. Commonwealth of Kentucky

• Court: Court of Appeals of Kentucky
• Decided: June 20, 2024
• Docket: 2023 CA 000237
• Status: Unknown

Opinion

RENDERED: JUNE 21, 2024; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals

NO. 2023-CA-0237-MR

RICHIE MAYES APPELLANT

APPEAL FROM FAYETTE CIRCUIT COURT v. HONORABLE THOMAS L. TRAVIS, JUDGE ACTION NO. 22-CR-00642

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION AFFIRMING

** ** ** ** **

BEFORE: EASTON, ECKERLE, AND LAMBERT, JUDGES.

EASTON, JUDGE: A jury found the Appellant, Richie Mayes (“Mayes”), guilty

of First-Degree Stalking and multiple related misdemeanor offenses. Because

Mayes was a First-Degree Persistent Felony Offender (in part due to a prior

stalking conviction with the same victim), the circuit court sentenced Mayes to

serve fifteen years. On appeal, Mayes argues the circuit court erred in denying his

last-minute request to act as hybrid counsel, erred in failing to excuse a juror for cause, and erred in permitting Mayes to wear an identification bracelet for part of

the first day of the trial. Finding no error, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A grand jury indicted Mayes for the felony of First-Degree Stalking

with an additional count of Second-Degree Criminal Mischief, and nine1 counts of

Violation of a Stalking Restraining Order. The Indictment also included the charge

of Mayes being a First-Degree Persistent Felony Offender.

Although represented from the beginning by the Department of Public

Advocacy (“DPA”), Mayes filed numerous pro se motions and petitions for writs,

two of which are of note. In one motion, Mayes demanded an evidentiary bond

hearing and specifically instructed his attorney to subpoena the victim of the

stalking charge so that he could question her. More to the point regarding the

errors claimed, Mayes filed a written motion asking for a Faretta2 hearing. This

motion appears to have been dated August 2, 2022, by Mayes but was not filed by

the court clerk until September 2, 2022. The one-page, handwritten motion does

not state whether Mayes sought to act as his own counsel for all purposes or as

1 Recognizing an issue raised by the defense about a specific date and the charge being addressed in prior court proceedings, the circuit court dismissed Count 7 prior to trial with the Commonwealth’s agreement. 2 Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975).

-2- hybrid counsel. In fact, there is no indication of it being any specific request about

counsel other than the bare reference to Faretta.

Mayes’ ultimately denied request for self-representation or hybrid

counsel must be placed in context. At arraignment in July 2022, a DPA attorney

noted that conflict counsel would be needed. Mayes then himself asked for his

case to be dismissed, for a speedy trial (which he in fact received at his insistence

despite his issues with appointed counsel), and to disqualify the prosecutor because

the same prosecutor had been involved in his prior case.

The next appointed DPA conflict counsel discussed Mayes’ case with

him. Then, at a court appearance on October 5, 2022, Mayes explained that he

“wrote up” this attorney because of how discovery had been handled. It appears

the write up was a promptly dismissed bar complaint. Mayes insisted he no longer

had any issue with this attorney. The attorney insisted on withdrawing anyway,

which the court granted.

On November 10, 2022, Mayes appeared for the first time with

another (now third) DPA attorney (“Fallahi”). Fallahi expressed concern about

being prepared for the upcoming trial date. Mayes made it clear he wanted to

proceed to trial as scheduled. When the court mentioned the prior Faretta motion,

Mayes asked “is there any way to be hybrid counsel?” The court responded this

was a possibility but encouraged Mayes to discuss his case with the new attorney

-3- before making any such decision about hybrid counsel. Before this hearing ended,

Mayes personally made further arguments about the charges in his case. The court

then set a hearing to address any question of self-representation.

This next hearing took place on December 1, 2022. The court recalled

the pending question of self-representation that Mayes “might have wanted . . . to

represent himself in this case or at the upcoming trial.” The court then listed some

specifics by asking if Mayes wanted to make opening statements or closing

arguments, question witnesses, and doing all the things a lawyer does.

Mayes clearly withdrew his request during this hearing. At no point

did Mayes ask to readdress any level of self-representation during the remainder of

this hearing, even when the Commonwealth withdrew its protective motion to

prohibit Mayes from himself cross-examining the victim. Mayes, who never

showed hesitance to speak up, listened as both his attorney and the court said the

question about what Mayes might do at trial was now a moot point because the

appointed attorney would be “carrying the ball entirely.”

The trial date arrived. On the morning of December 12, 2022, before

the seating of a jury, the court sought to address any pretrial matters. It should be

noted that Mayes then had a fourth DPA attorney (“Alcorn”) who was there as trial

counsel with Fallahi. We do not see any specific complaint by Mayes about

-4- Alcorn, who would be present with Mayes for the trial and post-trial proceedings,

including sentencing.

Up to this point, the circuit judge had been remarkably patient with

Mayes. The review of the overall record reveals that frustration was inevitable.

Some frustration was revealed at the hearing before the jury was called in on the

morning of trial. We have repeatedly reviewed this hearing between 8:37:54-

9:02:30 on December 12, 2022.

Mayes immediately renewed his complaints about his DPA counsel,

repeating his understanding that he should have “conflict” counsel, which to him

meant attorneys completely unaffiliated with DPA. Mayes incorrectly referred to

DPA as “the Legal Aid Department” and went on to list his lawsuits in the past

against DPA. The circuit judge asked Mayes if he thought his conflict was with

every DPA attorney in the state. Mayes responded that is what he understood.

Fallahi and Alcorn then explained how they had been appointed and that they knew

of no conflict.

The court asked Mayes about the prior discussion on December 1

when he decided he did not want to represent himself and asked whether he now

wanted to represent himself to which Mayes responded: “I didn’t exactly use those

words.” The circuit judge then said to Mayes: “it doesn’t seem like you get along

really well with anybody.” The court denied Mayes request to dismiss the

-5- appointed attorneys. Only then, within minutes of the jury coming in, did Mayes

say: “can we make it hybrid counsel?” The court responded: “not today. . . it’s

too late.” The Court also reminded Mayes of his decision on December 1 hearing:

“we discussed that last week.”

Mayes’ attorneys explained to him how he could participate with them

by letting them know what he wants them to do, including his ability to make and

send notes. For the rest of the pre-trial hearing on the morning of trial, Mayes

successfully had his counsel raise points he wanted to make. When Mayes asked

about how certain evidence would be presented, the court told Mayes: “it’s up to

you and your attorneys to decide what sort of defense to put on.” There was no

renewal of the question about hybrid counsel or other self-representation during

that hearing after which the jury came in for selection.

Subsequent events illustrated Mayes’ continuing issues with not just

the attorneys but also the court. We need not belabor this Opinion with a moment-

by-moment account of Mayes’ conduct. Suffice it to say that the circuit judge

eventually had Mayes removed from the courtroom during a portion of the

proceedings to prevent further interruption. Significantly, Mayes did not appeal

this decision, which was clearly justified for the court to properly control the

proceedings.

-6- During jury selection, Juror 3140 was asked questions3 about her

serving as a juror for the case. She worked at the Fayette County Attorney’s office

dealing with child support cases. She knew who attorney Alcorn was and had

worked with her. She knew nothing about Mayes or his victim as a result of her

work. She has no part in domestic violence matters. She had graduated from law

school and was preparing to take the bar exam, so she was not yet an attorney

practicing with the county attorney. While her work did put her in a position to

suggest jail time for some defendants who did not pay child support, her job was

helping with enforcement of support orders generally. She thought of her job as

only “semi-prosecutorial.” The juror had no hesitation in expressing her ability to

be impartial.

On the video, the defense attorneys seemed hesitant to make a motion

to strike this juror. The judge did not immediately strike the juror but left the

matter open for further consideration. Ultimately, the motion to strike was denied.

During the afternoon of the first day of trial, Mayes brought up that he

was wearing a jail bracelet. Mindful of the quality of the video recording with

respect to details, we see that the bracelet appears to be white. It can be seen

3 The questions asked of this potential juror and the arguments about her qualification to serve appear at 10:05:59-10:12:52 and 11:50:35-11:52:45 on 12-12-22.

-7- because Mayes was wearing a short-sleeved green and white striped shirt despite

this being a mid-December trial.

Mayes lectured the court on RCr 8.28 and claimed the judge was not

following the law because Mayes was not supposed to appear in “jail clothing.”

The judge responded that he had not noticed the bracelet, which was described as a

jail identification bracelet. There is no indication that any juror had noticed or

identified the bracelet as jail attire. The judge suggested Mayes could wear a long-

sleeved shirt to cover it. The judge overruled Mayes’ objection about the bracelet.

The next day, Mayes brought it up again. Mayes did not have the bracelet on the

next morning nor apparently for the rest of the trial.

STANDARD OF REVIEW

The decisions for which Mayes seeks review are reviewed by this

court for 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.” Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1993).

Misapplication of the law alone may result in an abuse of discretion. “[W]hen the

issue presented involves a question of law, we review the question of law de

novo.” Southern Financial Life Ins. Co. v. Combs, 413 S.W.3d 921, 926 (Ky.

2013).

-8- ANALYSIS

MAYES’ QUESTION ABOUT HYBRID COUNSEL WAS NOT AN UNEQUIVOCAL INVOCATION OF THE RIGHT

Faretta recognizes a federal constitutional right to self-representation

but not hybrid counsel. The wording of the Kentucky Constitution protects both

choices for a defendant as well as the option for a court to appoint standby counsel

even against the defendant’s wishes. Wake v. Barker, 514 S.W.2d 692, 696-97

(Ky. 1974). To request hybrid counsel requires a defendant to specify the extent of

the services he wants. Id. at 696.

A failure to consider a proper request for hybrid counsel is a structural

error, not subject to harmless error analysis. Hill v. Commonwealth, 125 S.W.3d

221, 228 (Ky. 2004). “However, hybrid representation may only be granted to a

defendant who makes a timely and unequivocal request for such representation.”

Deno v. Commonwealth, 177 S.W.3d 753, 757 (Ky. 2005). To assess this question,

we must consider “the circumstances under which the request was made.” Id. at

758. Generally, a request for self-representation or hybrid counsel will be timely if

made before jury selection. Swan v. Commonwealth, 384 S.W.3d 77, 94 (Ky.

2012).

Timeliness is subject to assessment of whether the demand is made

for an improper purpose, such as delay. Id. Late invocation of the right cannot be

used “as a ploy to frustrate the orderly procedures of a court in the administration

-9- of justice.” Robards v. Rees, 789 F.2d 379 (6th Cir. 1986) (quoting unpublished

opinion of the Kentucky Supreme Court). A court may consider circumstances

showing that a defendant has “flip-flopped” or had a previous “change of mind.”

Horton v. Dugger, 895 F.2d 714, 717 (11th Cir. 1990). A last minute request may

not be used as “a ploy to plant the seed of trial error.” Id. at 718 n.4.

“A waiver may be found if it reasonably appears to the court that

defendant has abandoned his initial request to represent himself.” Swan, supra, at

94 (citation omitted). We recognize that, once a right is waived, there is no

automatic right to assert the right again as is evidenced by that body of law which

gives our trial courts discretion not to allow withdrawal of a voluntary guilty plea.

See, e.g., Bronk v. Commonwealth, 58 S.W.3d 482 (Ky. 2001). But even with a

prior waiver, to some extent, a defendant should be able to change his mind about

self-representation. The prior waiver simply enters into the equation of whether a

later request is unequivocal. Accepting that the question posed by Mayes about

hybrid counsel just before the jury came in was a technically timely invocation of

the right, we ultimately conclude his request was not unequivocal.

If something is unequivocal, it leaves no doubt. There is no deliberate

evasiveness. Mayes’ initial written demand did not specify self-representation or

hybrid counsel. Mayes knew about the option for hybrid counsel before the

hearing on December 1, 2022. Yet he allowed the withdrawal of his motion. Even

-10- when he again changed his mind, Mayes did not specify what he wanted to do

instead of counsel and just asked a question about hybrid counsel generally. When

considering all the circumstances, we cannot say that the circuit court abused its

discretion by not allowing last-minute consideration of Mayes’ hybrid counsel

question. Mayes’ later behavior also would illustrate how his actions were part of

an ongoing effort to frustrate the orderly procedures of the court.

THE CIRCUIT COURT DID NOT ERR BY NOT STRIKING THE JUROR FOR CAUSE

Mayes’ counsel properly preserved the objection to the circuit court’s

denial of the motion to strike Juror 3140 for cause. Gabbard v. Commonwealth,

297 S.W.3d 844, 854 (Ky. 2009). RCr 9.36(1) calls for removal if there “is

reasonable ground to believe that a prospective juror cannot render a fair and

impartial verdict . . . .” Recent cases emphasize the breadth of the “reasonable

ground to believe” aspect of this standard. Sturgeon v. Commonwealth, 521

S.W.3d 189, 194-95 (Ky. 2017). But this does not change the more absolute verb

used in the standard of “cannot” be fair and impartial.

As we have previously recounted, Juror 3140 worked in the local

county attorney’s office. She handled child support cases. She knew nothing of

Mayes or his victim. While this juror may become an attorney, she was not one at

the time of this trial. Mayes’ argument speaks of the juror’s “semi-prosecutorial”

role as disqualifying.

-11- Mere connection with law enforcement alone does not disqualify.

Smith v. Commonwealth, 734 S.W.2d 437, 444 (Ky. 1987). For this reason, our

courts have held that a former secretarial employee of the prosecutor is not

automatically disqualified. Id. at 445. If a juror is a current secretary for the

Commonwealth’s Attorney, then bias is assumed. Randolph v. Commonwealth,

716 S.W.2d 253, 255 (Ky. 1986).

We have recognized other circumstances where an implied bias should be

acknowledged to disqualify a juror. An assistant county attorney who worked with

attorneys in the Commonwealth’s Attorney’s office and was a personal friend of

the trial judge is disqualified. Farris v. Commonwealth, 836 S.W.2d 451, 455 (Ky.

1992), overruled on other grounds by Commonwealth v. Day, 983 S.W.2d 505

(Ky. 1999). An assistant county attorney who actually participated in the initial

presentation of the case on trial is disqualified. Godsey v. Commonwealth, 661

S.W.2d 2, 4-5 (Ky. App. 1983).

When we consider the entirety of what Juror 3140 said in this case, we

cannot say that she crossed the line into any implied bias. We should not extend

automatic dismissal criteria any more than absolutely necessary. The circuit court

did not abuse its discretion in denying the motion to strike Juror 3140.

-12- WEARING OF JAIL BRACELET DURING FIRST DAY OF TRIAL DID NOT VIOLATE RCR 8.28

The final contention of error is about the jail bracelet. RCr 8.28(5)

provides: “During his or her appearance in court before a jury the defendant shall

not be required to wear the distinctive clothing of a prisoner. 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.” We find it curious (if not

suspicious) that Mayes was ready to recite this particular rule on the first day of

trial while wearing a short-sleeved shirt and the bracelet which obviously was not

required as shown by its later removal.

Mayes did not show that he was “required” to wear the bracelet during

the trial. Indeed, he was not wearing it the next trial day. Nor is that bracelet

“distinctive clothing of a prisoner.” See Scrivener v. Commonwealth, 539 S.W.2d

291 (Ky. 1976). There is no indication that any juror noticed the bracelet with the

jurors seated across the room. The circuit judge had not noticed it. There is no

showing that anyone other than those in close proximity to Mayes could have read

anything on the bracelet indicating anything about the jail.

Cases from around the country establish that the wearing of a jail

bracelet in these circumstances does not present any error by the trial court, and,

even if there was any error, harmless error analysis may be applied. See United

States v. Alsop, 12 Fed. Appx. 253 (6th Cir. 2001); Kansas v. Ward, 495 P.3d 414

-13- (Kan. Ct. App. 2021) (unpublished); Brown v. Indiana, 848 N.E.2d 699 (Ind. App.

2006), affirmed on rehearing, 856 N.E.2d 739 (Ind. App. 2006), vacated on other

grounds, 868 N.E.2d 464 (Ind. 2007); Perry v. Alabama, 741 So.2d 467 (Ala. App.

1999). With the overwhelming evidence against Mayes, any error about the jail

bracelet, which we do not find, would have been harmless.

CONCLUSION

The circuit court committed no errors in the denial of Mayes’

equivocal and repeated question about hybrid counsel on the morning of trial, the

denial of the motion to strike Juror 3140, or the wearing of a jail bracelet during

the first day of trial. The Fayette Circuit Court is AFFIRMED.

ALL CONCUR.

BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:

Roy Alyette Durham II Russell Coleman Frankfort, Kentucky Attorney General of Kentucky

Matthew R. Krygiel Assistant Attorney General Frankfort, Kentucky

-14-