*1 Wiley GIBBS, Appellant, KENTUCKY,
COMMONWEALTH OF
Appellee.
No. 2004-SC-000286-MR.
Supreme Kentucky. Court of
Sept.
As Modified Dec.
sexual abuse the second victim, second Sarah Smith. Gibbs was sentenced to the maximum on count, consecutively each all to be served *3 for a of 105 of years imprisonment. total Appellant years IQ is 65 old and has an 66, of generally being which is classified as mentally retarded.3 was He married years they Linda Gibbs almost 26 and Appellant raised three children. is the father of Doe. other victim is Jane friend, January Jane’s Sarah Smith. 2002, Doe girl Jane told a who attended her that Appellant sexually church was abusing youth This girl pas- her. told the tor, eventually who convinced Jane to tell her Appellant mother. then was forced to allegations leave the home. The were re- 11, ported police February to the on Appellant gave videotaped statement Ransdell, M. Thomas Assistant Public police, admitting having abused his Advocate, Department Public Advocacy, of daughter having sexually and also touched Frankfort, Counsel for Appellant. Sarah Smith. Stumbo, Gregory Attorney D. General of Appellant by Logan was indicted Fuchs, Kentucky, Gregory C. Assistant At- 2, County Jury 2003, April Grand and General, torney Appellate Criminal Divi- charged with criminal offenses. On sion, General, Attorney of Office 2003, June the court entered order Frankfort, for Appellee. Counsel for a of psychiatric Appellant. examination The record does not that any reflect fur- Opinion of the by Court Chief Justice ther was thereon held but there LAMBERT. objection by was Appellant no made Appellant, Wiley Gibbs, appeals with continuing January as a trial. On right1 matter of from final judgment the case went to trial. Jane Doe old, of A Logan years Circuit Court. she found testified that was seventeen (5) incest, Gibbs of guilty sexually five counts of and that she had been abused (1) sodomy Appellant count of second degree, regular age basis from the (4) foui’ in the rape counts second de- of seven to fifteen. indicated that She she (2) gree, bathroom, and sexual sexually two counts of abuse in was abused in the her degree, bedroom, the second all Appellant’s and bedroom. She victim, first Jane Doe.2 He was also had found stated that sexual inter- (1) guilty bedroom, of one count of sexual abuse course with her his her bed- (3) room, the first and three counts of and the bank where 110(2)(b). Ky. § 3.Appellant guidelines Const. does not indicate the for this determination. pseudonyms 2. Jane Doe and Sarah are Smith protect anonymity used to of the victims. motion for directed fur- renewed as She worked custodians. wife counts as some on verdict was sustained being orally
ther sodomized testified to Concern- overruled as the others. frequent a less basis. Doe, the trial court instructed ing Jane Sarah Smith testified that (2) (6) incest, six counts of two jury on in the since babysat wife her Gibbs’ home degree, sodomy in the second counts years she six old. testified was She (4) in the rape second de- four counts subjected she contact sexual (4) in the rape four third gree, counts his home and vehicle when rape degree as lesser included offenses ages she was between the of thirteen (2) second, abuse and two counts sexual fifteen. *4 degree. respect With to in the second other also testified at Several witnesses Smith, jury the court instructed the Sarah regarding trial abuse. Detec- sexual (1) in of abuse the first on one count sexual tive Kenneth Edmonds testified that he (4) four counts of sexual abuse degree and couple days Jane Doe a interviewed of degree. jury in The found the second after the of abuse. allegations He (5) incest, Appellant guilty five counts police depart- at Appellant interviewed (1) sodomy in one count of the second ment, Appellant an to and made admission (4) rape in the degree, four counts of sec- as police to some instances miscon- (2) degree, and two counts of sexual ond Douglas, family Dr. practi- duct. Todd degree respect second with to abuse Morgantown, that he tioner testified jury guilty Doe. The found Gibbs Jane examined Jane Doe and found evidence of (1) sexual abuse in the count of first posterior an scar on old her fourchette. (3) degree three counts of sexual and irregularities hymen. He also found in her in the second with to abuse At the close of the Commonwealth’s case jury Sarah Smith. was instructed Appellant’s for motion a directed verdict imposed on aggregate that sentence was denied. (20) twenty could not exceed Appellant instruction from the years. Despite this Gibbs, wife, Linda testified the maxi- judge, recommended for Appel- the defense. She testified that They count. fur- mum sentence each job lant part had a full time as well aas felony ther recommended that all offenses job required time that fifteen additional consecutively for a total be served twenty of work week. per hours She years and this recommended sentence was people further testified that to six five judg- court’s final imposed by trial At living were the Gibbs’ home. various ment. friend, times, grandmother her and Jane’s Puckett, Lucy family lived with the Gibbs on ap- raises issues Appellant several stayed room with Jane. Jane’s She in turn. and each will be addressed peal, she could not how Appellant
testified see argues that the trial Appellant first court’s have often could abused Jane as as Jane hearing a competency failure to hold fol- stated. lowing court-ordered evaluation for Appel- trial violated competency also testified and admitted stand right procedural substantive sexually abusing having intercourse lant’s However, by noting begin process. he denied that due We Jane. request competency many as times as did misconduct occurred hearing following competency evalua- alleged. Jane He also admitted to touch- However, now relies on ing four or five times. tion. Sarah Smith Gabbard v. Commonwealth4 and claims determine whether or compe- not he was tent to preserved issue because stand trial.7 places 504.100 an affirmative duty Results of competency evalu trial court to hold an evidentiary hearing ation are similar to those in v.Mills Comm following a competency evaluation.5 KRS Mills, omvealth.8 the defendant was 504.100(1)requires appoint court to trial, found competent stand but on psychologist examine, or psychiatrist “to appeal, on the trial order relied court’s report treat and on the defendant’s mental to show that evaluation he condition” whenever “the court reason- has incompetent to stand trial and de able believe the defendant a competency hearing. served This Court incompetent stand trial.” KRS held that due to the evalua tion’s determination of tri report competence, states that after such a filed, al court further “the was not hold a court shall hold a hearing.9 determine whether is com- the defendant
petent to stand trial.”
found
This Court
standard
is,
in such a case
“[w]hether
review
bar,
We note
the case
*5
judge,
reasonable
situated as was the trial
psychologist
Appellant
the
found
was com
judge
court
whose failure to conduct an
petent to
Appellant’s compe
stand trial.
reviewed,
evidentiary hearing
being
tency
Appel
evaluation determined that
with re
experienced
should have
doubt
mentally
lant was
and he had a
retarded
trial.”10
spect
competency
to
to stand
this,
depressive
Despite
disorder.
the
Mills, Appellant
Similar to
relies on the
evaluation further
Appellant
determined
directing
competency
trial court’s
a
order
did not suffer from a mental condition hearing to
that
show
there was reasonable
impaired
which
ability
his
to understand
grounds
incompetent
to believe he was
requirements
regard
of the law with
therefore,
Kentucky
Correctional
after
prevented
to his sexual behavior or
him
(KCPC)
a hear
Psychiatric
report,
Center
from conforming his behavior to the re
should
been
ing
have
held on
quirements of
The expert
the law.
However,
report
competency.
specifi
although Appellant may
concluded
re
cally
compe
concluded that
was
quire
legal
extra time to understand
con
Furthermore,
pre
in a
tent to stand trial.
cepts
he
terminology,
capable
was
hearing,
the court asked wheth
trial
when
rationally in
participating
his own defense
compe
er
was
need to conduct
there
working
attorney
on his be
tency hearing, Appellant’s counsel advised
Gabbard, expert reports
half.
indicat
trial court that the evaluation indicated
incompetent.6
ed Defendant was
This
competent
was
and there
finding
of in
Court held that based
no
at that time.
hearing
was
need to hold
Gabbard,
court
competence
objection
the trial
made no further
con
Counsel
“[Tjrial
tinuing
judges
required
hearing
to hold
to further
with trial.
cannot
(Ky.1994).
4.
be aware offense. particular the instruction before them and cannot be case sua, counts, multiple contained Some offenses sponte hold competency hear- for each count varied and the instructions ings.” has in a number This Court said only in location of where the offense that “reasonable hold [to of cases multiple For some of occurred. hearing] must be called counts, not to re- the trial court decided the attention of trial court instead, instructions, indicat- read the but or defendant must be so obvious the same as the ed that the instruction was court fail aware of cannot to be exception as to with the prior instruction them.”12 offense occurred. where the Nevertheless, to ig is difficult 9.54(1) provides, “It shall be the RCr mandatory appears nore what be jury instruct duty of the court to 504.100(3). requirement hearing case, in- writing the law of the hearing not be but the complex, need jury prior be to the structions shall read and the must Commonwealth defendant be These closing summations counsel. opportunity present evidence requirements may except not be waived oppor on the issue of and an agreement of both defense and tunity psychologist to cross-examine the or claims that be- prosecution.” prepared report. psychiatrist who cause was no waive agreement there practice While better is to hold such a read requirement that the instructions be trial, hearing prior a retrospective com to the or that the instructions be permissible when petency cir put writing, preserved. into this issue *6 cumstances time and with to wit 9.54(2) RCr states as follows: availability ness “are to at adequate arrive may assign giving No as error the party an assessment labeled could be as or an instruction un- give the failure than speculation.”13 more mere fairly party’s has position less the been case, in In this trial was 2004 trial adequately and the presented any and we are unaware of reason that a by judge by an instruction or offered not proper hearing could be held. Accord motion, objec- party or unless the makes ingly, we remand this case to the trial jury, tion the instructs the before court for a as court KRS specifically the matter to which stating 504.100(3) in proceed which shall accor objects the and the or party ground Thompson dance with v. Commonwealth.14 objection. of the argument second comply with subsec Failure to court in not each in- reading (2) consistently trial erred 9.54 tion of RCr has been entirety in alleged struction its and in prohibit held review of error from prop that the oral instructions differed of the failure to instructions because is the reading erly preserve instructions. the claimed error.15 It During written Commonwealth, Gabbard, Thompson at 13. v. 56 S.W.3d 887 S.W.2d 552. Estelle, 406, (quoting v. 583 F.2d 409 Martin (5th Cir.1978)). 1374 Commonwealth, (quoting Via v. Id. 522 (Ky.1975)); 849 see Mat (Ky.2001). 406 14. 56 S.W.3d Commonwealth, (Ky. 313 v. 468 S.W.2d thews Commonwealth, 1971); Duke, Pate S.W.2d 46 v. 769 750 S.W.2d 15. See Commonwealth (Ky.1989). (Ky.1988). duty counsel who to claim error Appellant argues wishes tations. that he was con- keep law, current on object (5) and to victed of five misdemeanor offenses specificity judge so that the trial will year prior which occurred more than one be advised on how to The un- instruct.16 proceedings against Appel- to the date the derlying purpose of such a rule is to obtain lant were commenced. KRS possible the best trial at trial level and “[ejxeept expressly states as otherwise to call error to the attention of the provided, prosecution of an offense judge, thereby him affording op- felony other than a must be commenced portunity give the correct instructions.17 (1) year within one it after is commit- 9.54(2) “requires lawyers RCr assist the ted.” judge giving correct and instructions objection report- disallows an ex The crimes this post facto as a case were 11, 2003, means obtaining judg- police a reversal ed February to the until ment appeal.”18 felony and indictment charging misdemeanor offenses was returned While this claim of error is not April 2003. The offenses misdemeanor preserved, this Court may review for degree, are sexual abuse the second palpable error.19 court in The trial are identified the Instructions as the case did not read each instruction ver 4, 5, 6, 24 numbers and 25. From the batim, carefully but did each in explain presented, evidence set forth offenses supplemented struction and the oral in 4, 5, 6, in Instructions and 24 occurred copy structions with a written of the year proceedings more than before the jurors instructions follow. commenced, they therefore were Court has recognized practical This limitations, by the barred statute of considerations must into ac be taken 500.050(2). The in In- offense set forth count for such technical errors however, struction occurred some of a Muncy course trial.20 In v. Comm onwealth,21 time between 1998 and 2002. This we held that definition trial court that did not misdemeanor offense that could have (1) directly come from legal text and was been within stat- possibly year the one *7 orally jury to the in violation of applicable ute of limitations to misdemean- 9.54(1), unduly impact RCr did not jury if the offense ors. Even believed this bar, appellant’s rights. case at (and the occurred 2002 therefore have provided jury the trial court the a full limitations), by not barred the statute of of compliance set instructions prosecution the offense also the 9.54(1) tenor of the RCr and committed age that the victim the prove was under no error. years of old at time the of- fourteen forth in fense occurred. The offense set argument third is that his (5) against 25 Doe. As convictions for five of- Instruction was Jane misdemeanor (more 20, limi- by May fenses were barred of she fourteen on 2000 statute turned Commonwealth, 845, Muncy Id. 16. 20. 132 S.W.3d (Ky.2004). 848 Id. 17. Id. Smith, Energy, 18. Sand Hill Inc. v. (Ky.2004) (quoting Cox v. 500.050(2) added). Hardy, (emphasis KRS (Ky.1963)). 371 S.W.2d 19. RCr 10.26. term length longest extended imum years prior two to the commencement
than authorized KRS which would be Appellant), it too proceedings against of for class of crime hand, highest for the if the 532.080 barred. the other time On imposed. any of the sentences within jury believed this offense occurred con- aggregate of In no event shall com- year proceedings one before terms exceed (in indeterminate 2002) secutive by the and is not menced barred (70) years. seventy limitations, could not statute of Jane Doe age when have been under fourteen felony conviction highest degree The committed, the offense was and an element was a C Appellant received Class jury missing. The of the offense would be Therefore, longest felony. aggregate age not have found both the could have Appellant could received sentence met and offense requirement was that the length maximum authorized for was limitations occurred within the statute of Felo- felony the Persistent Class C under The statute of limitations for offense. statute: KRS 582.080. KRS ny Offender charges barred first fom*misdemeanor 532.080(6)(b)provides, complained of and the offense set forth presently he If the offense for which Instruction was either barred felony or is a Class C stands convicted age ele- statute limitations and/or felony D of- felony, persistent Class Accordingly, ment was not met. these in the shall sen- fender first be misdemeanor convictions will be reversed im- to an indeterminate term of tenced for dismissal. shall prisonment, the maximum which (10) years more not be less than ten nor argument fourth (20) twenty years.23 than year him imposed the 105 sentence longest Appellant could The sentence statutory provided violates maximum D felo- receive for Class C Class jury The by law. trial court instructed the convicted twen- nies for which he was (19) against on nineteen different counts (20) years. trial court erred ty The ver Appellant. guilty rendered years sentencing Appellant impris- to 105 (5) against for dicts five misde does While the Commonwealth onment. (10) meanors, felonies, ten Class C error, it admit expressly concede does (1) D felony. Class states 582.110 to find that there was it would be difficult the law with to concurrent and in- remand this case with no error. We consecutive sentences. KRS Appellant to im- to re-sentence structions pertinent part following: states years for not to period prisonment imprison- sentences multiple When years. twenty exceed imposed [Appellant] ment are a[n] *8 (1) crime, including more than one argument Appellant’s fifth is of previous crime for which a sentence it his the trial court erred when denied probation discharge or conditional has for the offense motion for directed verdict revoked, multiple been sentences degree. first The abuse in the of sexual consecutively concurrently run or shall degree in the of sexual abuse first offense as the court determine at the time shall an took allegation involved sentence, except that: of placed and it on his Smith’s hand Sarah (c) pants penis The inde- where his was. aggregate consecutive shall not in max- states that: terminate terms exceed 532.080(6)(b). 23. KRS
A person guilty physical sexual abuse in the definition to provide resistance first when: necessary the victim is [Appel- not (a) compul- acts to forcible subjects lant’s] constitute person He another to sexual sion.28 compulsion; contact forcible or (b) subjects He person another to sexu- This question Court addressed the al incapable contact who of consent compulsion forcible Miller v. Common-
because he: wealth.29 The defendant that case was 1. Is physically helpless; convicted of and his raping sodomizing (12) old; 2. Is less than twelve years daughter 225 times. The victim did not
or testify that physical Defendant used force 3. mentally incapacitated.24 Is or harm if threatened to her or another she refused his advances. Further- sexual already Since Sarah Smith fourteen more, the victim never stated that she years old touching allegedly when this oc- submitted to out of Defendant’s advances curred, prosecution was required to fear or harm herself or The another. prove touching that the was accomplished that, threat she described was by a compulsion. means of forcible Forc- occasion, unspecified her Defendant told compulsion ible is defined as follows: they would both trouble if she told get [Pjhysical or physical force threat of anyone they doing.30 what were force, express implied, places or which person in fear immediate death of Miller, however, differs from the case physical injury self or person, another rape sodomy, bar because it dealt fear kidnap of immediate to self or an- both of form require pen- some person, other fear of or offense un- abuse, only etration. As contact for sexual Physical der chapter. resistance on by required, force is and force cannot be the part of the shall not victim be neces- implied. Since sexual contact does sary to meet this definition.25 implied compulsion have an forcible ele- ment, question is whether act there a close examination of must be of placing Sarah Smith’s hand on his or physical physi- whether force threats of pants was, contact, penis where his cal sexual constitutes force caused the physical meeting force the definition must into of offender’s intention be taken Here, compulsion. forcible Prior physi- consideration. act taking cal force as placing was defined force that “over- Sarah hand Smith’s physical comes earnest In penis resistance.”26 his force and legislature removed the “earnest resis- his intent was to cause the sexual contact requirement, divorcing tance” the force between the two. Unlike victim Miller, requirement from victim testified that Appel- resistance.27 Sarah Smith legislature further lant touch penis. amended the her to Sarah forced KRS510.110. See id. 510.010(2); 25. KRS see also Robert G. Law- 28. See id. Fortune, Kentucky &son William H. Criminal Law, *9 (Lexis 1998) ll-2(a)(2) § (empha- at 424 566, Commonwealth, 29. Miller v. 77 S.W.3d added). sis (Ky.2002). 575 Fortune, & Robert G. William H. Lawson Law, 2(a)(2) Kentucky § Criminal at 424 11— See id. (Lexis 1998).
857 that not to the of the trial court’s denial of did consent or contribute view Smith penis; motion, it was touching Appellant’s specific act of In no men- motion.33 act that Appellant the sole caused Sarah as to made of a lack evidence tion was placed Appellant’s hand to be on Smith’s charges; Ap- of the any particular element there was no duress or penis. Although in- merely asserted that there was pellant on part, resistance Smith’s forcible Sarah every evidence as to each and sufficient requirement. It compulsion has no such charge pending against him. Without force or simply requires physical threat of objection, specific court was “[t]he physical force. The evidence was suffi- to opportunity never address jury beyond permit cient to believe there was lack of evi- question of whether reasonable doubt that the defendant was of the this element particular dence on guilty.31 The trial court did not err object- should have Appellant offense.”34 denying Appellant’s motion for directed of an instruction on giving ed to verdict. charges individual and stated his reasons miss- and disclosed which elements were argument sixth ing. in submitting the trial court instruc erred jury rape tions to for four counts of Appellant asks this Court the second and four counts related if this palpable the issue for error review argues incest. Appellant it was unpre- determines this claim be Court for the error trial court submit instruc “af Palpable error is served. on rape occurring tions incest and in the rights party.”35 the substantial fects at bathroom the home because palpable This is not error because testify the victim did not act of statutory not location of the offense is
intercourse occurred in the bathroom.
element of the offense.
the current
this
pre
claims
issue is
situation,
simply
the location was
used
verdict,
served
his motion for directed
identify
each offense.
admitted
but it is not.
9.22
pertinent
RCr
states in
having sexual
under
intercourse
his
that a
known
part,
party must
“ma[k]e
age daughter on three occasions at
the court
action which that
de
party
home; therefore,
improper
it was
any objection
sires the court to take or
trial court to instruct the
court,
the action of
request
rape
three
and incest
least the
incidents
court,
grounds
Appel
therefor.”32
court’s
at the home. The trial
mistake
general
lant made
for a
motion
location,
any,
if
rise to
level of
does not
verdict,
directed
which is insufficient to
injustice necessary
re
manifest
preserve
appeal.
issue for
This Court
justify
palpable
when
recently
versal for
error
has
reaffirmed that
failure to
specific
three
of sexual inter
state
for a motion for
admitted
occasions
appellate
Accordingly,
directed verdict will foreclose
re-
course at his home.
instruc-
Commonwealth,
Benham,
144,
31. Commonwealth v.
34. Hicks v.
805
816 S.W.2d
S.W.2d
186,
(Ky.1991);
Commonwealth v. Saw
187
see also Anastasi v. Com-
(Ky.App.1990);
148
hill,
monwealth,
see also Jackson
(Ky.1983);
tions were for three inci- 2002. May Since Jane Doe turned 14 on in rape 20, 2000, dents of his home.36 jury the could have believed that required act of intercourse oc- sexual Appellant also mentions an ineffective curred before or after this date. in reply assistance counsel claim his brief, but it was not in initial However, raised his required the instructions Moreover, brief to this Court. no such jury only to find not the offenses presented claim has been court. frame, within occurred the stated time but proper RCr 11.42 is the pre- vehicle for also that the victims were less than four- senting such claims and we will await the teen or sixteen the time of sexual con- appeal, any, if question.37 to resolve that tact age or intercourse. The element was statutory requirement for each of the argument final is that complained of offenses.38 The instructions instructions in jury this case allowed the jury allowed the to find Appellant guilty find upon based facts that if guilty the act fell within the stated time support would not the charged offense. frame and in which the child victim was admittedly unpreserved This issue is than less fourteen or sixteen. The instruc- VI, as addressed issues II and a specific tions were not erroneous or otherwise con- objection to the instructions was not made. jury fusing findings as to the However, Appellant asks this Court to re- needed to make. not The instructions did palpable view for error. jury finding relieve from that the act Appellant argues that the instruc occurred before the victims attained the tions years included time frame of maximum age requirement because the which the offenses had be committed paragraph second each the instruc- victim, against the but that the time frame Therefore, finding. tions years included some victims there was no error. palpable were older than age the maximum require Accordingly, we have determined that ment for the offense. The Commonwealth conducting the trial court erred had to prove that the offenses occurred a court hearing following or- when the victims were under fourteen or evaluation, dered and that the years of age, depending sixteen on the year imposed sentence Appellant argues jury offense. in statutory provided violates the maximum him right structions denied to a unani such, by law. As this cause is remanded right mous verdict and the to have the retrospective trial court for a com- jury guilty every determine he was ele petency hearing re-sentencing. On all ment of the crime. asserts claims, judgment other of the trial could have found that the offense court is affirmed. occurred within the time frame instructions, after the had but victims GRAVES, MCANULTY, MINTON, and age attained an that exceeded the maxi SCOTT, concur. age mum element for the offense. For ROACH, J., instance, by separate dissents rape instructions J., WINTERSHEIMER, jurors opinion second in which degree allowed to find that joins. occurred offense between 1998 510.080; 510.050; RCr 10.26. 38.KRS KRS See 510.120; KRS 510.060. Commonwealth, Humphrey See (Ky.1998). S.W.2d 870 *11 ROACH, Justice, attorney claimed to because his dissenting. competency to have concerns about his majority’s I as to hold- dissent report psychiatrist’s trial. The indi- stand ing competency a requires that retroactive competent to stand cated was case, I appropriate In the have hearing. subsequent pretrial hearing, At a trial. no qualms concept of retroactive Appellant’s attorney court the trial asked in competency hearings as forth set was competency hearing a neces- whether Commonwealth, Thompson v. 56 S.W.3d attorney express sary. The continued to However, majority 406 (Ky.2001). of ... concern about his client’s “level fails properly apply Mills Common- advised functioning,” intellectual but wealth, which (Ky.1999), 996 S.W.2d psychiatric of the court about content held in circumstances identical to almost told report. Appellant’s attorney also that those in this case it was harmless that he no reason to believe trial court had error a a com- to allow defendant to waive would be to assist unable I petency hearing. that also believe incompetent. or was defense otherwise Thompson and Mills were decided errone- this, attorney Based on de- in that ously part they recog- failed to competency the offer of a hearing. clined separate nize that statu- two interests —a tory and a right right constitutional —are These facts are almost identical to those analyzing stake in whether a defendant majority recognizes even Mills. and, competent, more importantly, Yet, similarity factual to Mills. this case’s govern different standards those interests. than the harmless applying rather error Mills, the with, aspect majority opinion, rely- begin while that a
To Mills held ing competency on the notion Mills that competency hearing “cannot be waived defendant,” hearings mandatory are under KRS S.W.2d at 504.100(3),has a retroactive com- held ordered hearing that waiver of such a could be for But Mills, petency Appellant. harmless error. Id. the Court similarity the factual case psychiatric noted that the indicated between report Mills, that the reason- assuming even competent defendant was tri- stand al, (meaning latter was ing correct present any that the defendant failed to waiver other of a hear- incompetence, evidence of and that error), ing in this case was it is clear that had psychiatric trial court ordered the Appellant’s waiver was harmless error. examination because defendant filed respectfully alone would me to This cause notice of intent introduce evidence of illness, defect, majority opinion. from insanity, dissent mental or mental because belief or evidence Mills, However, I also believe Id. Be- incompetent. defendant Thompson, rise to which in turn the gave cause the defendant “failed to establish majority require relies on to a retroactive any factual basis which have caused should hearing, significant contains experience the trial court to reasonable correctly notes that error of law. Mills competence to stand trial [his] doubt as who prosecution of defendant “[c]riminal ... that it error we was harmless h[e]ld incompetent stand trial is violation trial court to to waive allow [him] the Four- process of due law under ” .... mandatory competency hearing Amendment” of the United States teenth Id. Id. at 486. Under Constitution. case, facts In this the trial court ordered that Fourteenth Amendment “once known place to KRS trial court pursuant be examined to a are sufficient *12 competence defendant’s in correctly to stand trial Mills also held that plain 504.100(3) question, the trial court must hold an evi- words of require hearing KRS a dentiary hearing ques- to determine the if the court ordered an examination under 504.100(1). tion.” Id. at 486. Mills also stated cor- KRS Id. Mills then held that rectly that Supreme mandatory the “United States KRS “is and cannot strongly Court decisions indicate that a be waived a defendant.” Id. competency defendant cannot waive a point It is this last where I believe Mills at hearing.” Id. 486. Under this federal astray. Primarily, ig- went I think Mills standard, constitutional once the threshold evidentiary nores that threshold at made, showing has been a defendant can- right which each attaches is different. competency hearing. not waive a Howev- The right Fourteenth Amendment to a er, Amendment, under the Fourteenth a competency hearing play comes into competency hearing only necessary is judge when the has “substantial evidence “where there is substantial evidence that a incompetent,” Filiaggi, that a defendant is incompetent.” defendant is Filiaggi v. statutory 445 at F.3d whereas the (6th Cir.2006). Bagley, 445 F.3d merely in judge mechanism kicks when the “ appeal, On the test is ‘whether a reason- grounds “has reasonable to believe the de- ” judge, able situated as was the trial court incompetent fendant is .... KRS judge whose failure to conduct an eviden- 504.100(1). The Fourteenth Amendment reviewed, tiary hearing being is should right requires higher significantly evi- have experienced doubt with dentiary statutory than the right. burden ” competency (quoting to stand trial.’ Id. I think the difference is akin to that be- Bordenkircher, Williams 696 F.2d “probable tween the notions of cause” and (6th Cir.1983)). suspicion” articulable “reasonable Kentucky has a statutory jurisprudence. mechanism Fourth Amendment Under framework, initiating inquiry into a defendant’s that possible is the evi- competence to trial. A trial dentiary statutory right stand court is threshold for the required to if rising have defendant examined it could be met without that evidence “has reasonable de- believe the level sufficient to invoke the Four- ” incompetent right. fendant trial .... stand teenth Amendment 504.100(1). requires that The statute fact, exactly In I think what that examined, after the “the court defendant is happened statutory right this case. shall hold to determine whether in this case was invoked when the defense competent or not the defendant is to stand attorney the trial court that he had told 504.100(3). trial.” KRS concerns about his client’s Mills, we addressed the interaction the trial court ordered be requirements process pursuant between the of the examined to the statute. The regards predicated and out' court’s order was on the state- statute hearings. explained, As Mills KRS ment that “there is reason believe “entirely mentally capa- 504.100 with defendant is not consistent these above understanding charge against process rights under the Fourteenth ble of [due him/her, aiding or counsel requirements.” constitutional Amendment] his/her clearly point, ....” At that how- at 486. This is the case trial of said case statute, ever, followed, relying only on provides since the if the trial court was attorney’s representations as to his protection least as much for defendants as concerns; presented court had been requires. the Fourteenth Amendment tion, there was no evidence before the no other evidence as to representa- counsel’s to create doubt incompetent. While court may start the point, Appellant’s tions have been sufficient to At competency. into com- inquiry compe- KRS 504.100 right Amendment Fourteenth (with petency findings the trial court’s tency hearing still had not attached. regard enjoying great of defer- deal Mills, Unfortunately, subsequently *13 appeal), sup- to ence on absent evidence process the due and Thompson, conflated them, invoke port they are insufficient to and, statutory rights process, in the erro- to a right the Fourteenth Amendment statutory lower neously grafted the much hearing. concerns competency Verbalized evidentiary standard of “reasonable to competency about a defendant’s made to onto the unwaivable believe” court, by attorney trial as an the even But I think so right. constitutional Court, of the not “sub- officer do constitute right the has not long process as due that a is in- stantial evidence defendant attached, to our should be limited inquiry competent.” different, statutory separate, quite the and And no such substantial was evidence clearly waived right, presented later to the trial court. As dis- this case. above, cussed after the trial court entered easy to this response The is that be- 504.100(1), order under its KRS employs the word “shall” cause statute by psychiatrist, was examined whose re- respect holding competency to hear- with port was returned to the court as trial 504.100(3), mandatory it once ing, KRS is 504.100(2). required by psychia- KRS The trial court a defendant to be orders competent, trist found that for competency. appears evaluated This attorney, having no reason at least of the part to be basis question report, accepted it and holding that “[t]he Mills hearing. waived the 504.100(3) mandatory hearing of KRS above, process As noted due not does defendant,” cannot be 996 waived every require competency hearing in majority’s at reason Rather, process right case. the due in this ordering hearing retroactive unwaivable, hearing, perhaps while stat- case. But such a construction nonetheless conditional and depends appears require ignore ute we RCr the existence of substantial evidence rule, 9.24, applying our error harmless incompetence.1 As the court not- Filiaggi fact, majority opin- 504.100. In ed, inquiry appropriate is whether rule ion fails even cite or discuss the the time the court order declined to and, above, fails to apply as discussed hearing, “a reasonable judge, situated of Mills. aspect harmless error judge as was trial court whose failure evidentiary hearing being ignores long- to conduct an This our construction reviewed, experienced standing “may should have doubt rule that a defendant waive statutory right.” stand trial.” mere Keith v. Com- monwealth, Ky. 297 Filiaggi, F.3d at 858. Under S.W. (1922). review, afforded a rights I believe that it is clear defendant standard like ma- psychiatric that even examina- under KRS 504.100 are the vast after Although my further than Amendment does not mean that is even afield Fourteenth concern, subject to harm- current I would also that the an erroneous waiver is note unwaivability hearing error. less jority of rights other numerous that are enjoyed by a they can be defendant —
waived. Appellant never asserted his
right object nor did he to the lack of a fact,
hearing. attorney affirmative-
ly declined the offer of a after he
saw the psychiatric report about his client. I
Ultimately, think this case is an exam-
ple of how Justice Wintersheimer charac- Thompson:
terized “This is a clear case of
appellate counsel desiring change
actual
facts
the trial.”
ing). still, Worse claim
amounts to little more than a request that
KRS 504.100 applied blindly be and formu-
laieally, regard without to the actual evi-
dence, so as to manufacture error where
none exists. I majority fear that the opin- just
ion has done that.
I respectfully dissent.
WINTERSHEIMER, J., joins this
dissenting opinion.
JEFFERSON COUNTY PUBLIC COUNTY
SCHOOLS/JEFFERSON EDUCATION, Appellant,
BOARD OF
Mary STEPHENS, Alice Hon. Donna H.
Terry, Judge, Administrative Law Compensation Board, Appel
Workers’
lees.
No. 2006-SC-0320-WC.
Supreme Kentucky. Court of
Dec.