Crawley v. Commonwealth , 2003 Ky. LEXIS 148 ( 2003 )

Opinion of the

Court by Justice STUMBO.

Appellant, Ronald Douglas Crawley, was convicted in the Fayette Circuit Court of first-degree robbery and of being a first-degree persistent felony offender (PFO) for participating in the armed robbery of Thee Clubhouse, an adult dancing establishment in Lexington, Kentucky. Appellant was sentenced to twenty-five years imprisonment and appeals to this Court as a matter of right. Ky. Const. § 110(2)(b). Appellant advances four issues on appeal, namely that: (1) he was improperly denied his right to testify on his own behalf; (2) the jury instructions for complicity to robbery did not include the element of intent; (3) he was effectively denied the ability to call a witness to testify about a co-conspirator’s motive to lie; and (4) the Commonwealth failed to provide notice of its intention to introduce evidence of Appellant’s prior bad acts pursuant to KRE 404(c). We reverse and remand because the trial court did not sufficiently determine that Appellant’s waiver of his right to testify on his own behalf was knowingly and intelligently made.

I. DENIAL OF APPELLANT’S RIGHT TO TESTIFY ON HIS OWN BEHALF

At the close of the defense case, Appellant’s counsel approached the bench and moved for a directed verdict. The trial court denied the motion and asked if, before closing arguments began, counsel would like to put on the record that Appellant was aware he had the right to testify on his own behalf but that he was waiving such right. Counsel responded that she did not wish to do so because Appellant wanted to testify but she had not allowed him to take the stand. Again, during closing arguments, counsel told the jury that they were not to hold against the defendant the fact that he did not testify because he had in fact wanted to, but she would not allow it.

The right of a defendant to testify on his own behalf is firmly established by the Fifth Amendment to the United States Constitution and Section 11 of the Kentucky Constitution. See also Rock v. Arkansas, 483 U.S. 44, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987). Further, the Sixth Amendment to the United States Constitution ...

grants to the accused personally the right to make his defense. It is the accused, not counsel, who must be “informed of the nature and cause of the accusation,” who must be “confronted with the witnesses against him,” and who must be accorded “compulsory process for obtaining witnesses in his favor.”

Id. at 52, 107 S.Ct. at 2709, 97 L.Ed.2d at 46-47 (quoting Faretta v. California, 422 U.S. 806, 819, 95 S.Ct. 2525, 2533, 45 L.Ed.2d 562, 572 (1975)). “As a constitutional right ‘essential to due process of law in a fair adversary process,’ a defendant’s waiver of the right to testify must be knowing and intelligent.” United States v. Pennycooke, 65 F.3d 9, 11 (3d Cir.1995) (citations omitted). Although trial courts are not generally required to advise a defendant that he has a right to testify, there are certain circumstances, as in the case at bar, where a direct colloquy with a defendant is necessary to protect his constitutional right to testify at his own trial. Pennycooke, supra at 12. The Penny-cooke court held in relevant part:

[w]here, in furtherance of trial strategy, defense counsel nullifies a defendant’s right to testify over the defendant’s protest, the defendant clearly has been denied the right to testify. In such a case, it may be advisable that the trial court inquire discreetly into the disagreement and ensure that constitutional rights are not suppressed wrongly.

Id. at 13.

This Court examined the reasoning of the Pennycooke court in our opinion in Riley v. Commonwealth, Ky., 91 S.W.3d 560 (2002). There, however, we noted that “the trial court was aware only that [Riley] was dissatisfied with the representation he received, but the court had no indication that [Riley’s] attorney frustrated his desire to testify.” Id. at 562. The facts are different here. Although Appellant here did not protest his counsel’s decision to keep him from testifying, the trial court knew that Appellant wanted to testify but was kept from the stand by defense counsel. Since the court was aware of the conflict, it had a duty to further inquire into the situation. When the trial court failed to do so, it failed to insure that Appellant’s silence was the result of a knowing and intelligent waiver of his right to testify and such was error. Therefore, we hold that a trial court has a duty to conduct further inquiry when it has reason to believe that a defendant’s waiver of his right to testify was not knowingly or intelligently made or was somehow wrongly suppressed.

II. JURY INSTRUCTIONS ON COMPLICITY TO ROBBERY

Appellant contends that the jury instructions did not require the jury to find that Appellant, as an accomplice, intended that the principal commit robbery. Instruction No. 3, under which Appellant was convicted, states:

You will find Defendant, Ronald Craw-ley, guilty of First-Degree Robbery under this Instruction if, and only if, you believe from the evidence beyond a reasonable doubt all of the following:

A. That in this county on or about the 28th day of February, 2000 and before the finding of the Indictment herein, he, alone or in complicity with another, stole money from Angie Sullivan, an employee of Thee Clubhouse.

B. That in the course of doing so and with intent to accomplish the theft, he, alone or in complicity with another used or threatened the immediate use of physical force upon Angie Sullivan, an employee of Thee Clubhouse. AND

C. That when he did so, he, alone or in complicity with another was armed with a gun.

Robbery requires not only the element of an intent to accomplish a theft, but also the element of the use or threat of immediate use of physical force upon the victim. KRS 515.020(l)(c). Thus, the instruction also should have required that Appellant, as an accomplice, intended that the principal use or threaten the immediate use of physical force upon the victim. Often, this element of intent is satisfied by giving a separate instruction defining complicity. However, the instructions used in this case defined complicity as:

Complicity means that a person is guilty of an offense committed by another person when, while acting recklessly with regards to another’s conduct, he solicits, commands, or engages in a conspiracy with such other person to engage in that conduct, or aids, counsels, or attempts to aid such person in planning or committing such conduct.

(Emphasis added).

The instructions therefore erroneously failed to require that Appellant intended that the principal commit the robbery. Harper v. Commonwealth, Ky., 43 S.W.3d 261, 263-265 (2001). Appellant concedes this issue is not preserved; we address it merely because the issue may occur upon remand. We note that a better instruction defining complicity would read:

A person is guilty of an offense committed by another person when, with the intention of promoting or facilitating the commission of the offense, he solicits, commands, or engages in a conspiracy with such other person to commit the offense, or aids, counsels, or attempts to aid such person in planning or committing the offense.

KRS 502.020(l)(a) and (b) (emphasis added).

III. CROSS-EXAMINATION OF APPELLANT’S WITNESS ADAM BREWSTER

Appellant intended to call Adam Brewster to testify about William Searight’s (Appellant’s co-conspirator) possible bias against Appellant. Appellant would have asked Brewster to testify that Searight had made statements to him while the two were in prison together that indicated Sea-right was “out to get” Appellant because of his relationship -with Angela Banta, thus giving Searight a motive to lie in his testimony against Appellant at trial. The Commonwealth argued that if Brewster were called to testify it should be allowed to ask Brewster on cross-examination if he thought there were any other reasons that Searight might dislike Appellant. Brewster testified on avowal that he thought Searight could be angry (and that hypothetically he himself would be angry) at Appellant because Searight had received a twenty-year sentence in connection with the robbery. However, Brewster would not have testified to any direct statements made to him by Searight regarding this matter. As a result of the trial court’s ruling that the Commonwealth would be allowed to cross-examine Brewster on this issue, Appellant chose not to call Brewster as a witness. However, avowal testimony pursuant to RCr 9.52 was taken from Brewster.

In Hayes v. Commonwealth, Ky., 58 S.W.3d 879 (2001), we addressed a similar situation. There, the defendant who was charged with rape claimed to have been precluded from testifying at his trial by an erroneous evidentiary ruling made by the trial court. Specifically, the trial court ruled that should the defendant take the stand and testify that sexual contact with the complaining witness was consensual, the Commonwealth could use evidence of a prior conviction of misdemeanor sexual assault for impeachment purposes. The defendant chose not to testify and no avowal testimony was taken. This Court made a broad ruling that an alleged error of denial of the right to testify by implication can only be preserved by the defendant taking the stand. Avowal is insufficient. Hayes, supra at 882.

"While the Hayes case involved the testimony of a defendant as opposed to a defense witness, we believe the reasoning therein to be sound when applied to this case. It is only when the complained of testimony is considered in fight of the record of the entire trial that its impact can be judged. Luce v. United States, 469 U.S. 38, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984). Because Appellant’s witness, Brewster, did not testify, the alleged error is not preserved and will not be addressed.

IV. INTRODUCTION OF PRIOR BAD ACTS INTO EVIDENCE

It is also not necessary to address Appellant’s contention that the Commonwealth failed to provide notice of its intention to introduce evidence of Appellant’s prior bad acts as required by KRE 404(c). For purposes of retrial, Appellant now has notice of the Commonwealth’s intention to introduce such evidence.

V. CONCLUSION

For the reasons set forth herein, the judgment of the Fayette Circuit Court is reversed and the case is remanded to said court for a new trial.

LAMBERT, C.J.; COOPER, GRAVES, and JOHNSTONE, JJ., concur as to Issue I.

COOPER, J., concurs by separate opinion as to Issue I, with GRAVES, J., joining that opinion.

KELLER, J., dissents by separate opinion as to Issue I. WINTERSHEIMER, J., dissents by separate opinion as to Issue I.

All concur as to Issue II.

LAMBERT, C.J.; COOPER, GRAVES, JOHNSTONE, and KELLER, JJ., concur as to Issue III.

COOPER, J., concurs by separate opinion as to Issue III, with GRAVES, and JOHNSTONE, JJ., joining that opinion.

WINTERSHEIMER, J., concurs in result only as to Issue III.

STUMBO, J., dissents by separate opinion as to Issue III.

All concur as to Issue IV.