Gary H. Cochran v. Commonwealth of Kentucky ( 2020 )

IMPORTANT NOTICE
NOT TO BE PUBLISHED OPINION
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PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),
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RENDERED: OCTOBER 29, 2020
NOT TO BE PUBLISHED
Supreme Court of Kentucky
2019-SC-0263-T
2019-SC-0349-MR
GARY HAVEN COCHRAN APPELLANT
ON APPEAL FROM LAWRENCE CIRCUIT COURT
v. HONORABLE JOHN DAVID PRESTON, JUDGE
NO. 18-CR-00174
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
REVERSING AND REMANDING
Over forty-five years ago, the United States Supreme Court held a
defendant wishing to represent himself could not be forced to accept
representation by a court-appointed attorney so long as he was “made aware of
the dangers and disadvantages of self-representation, so that the record will
establish that he knows what he is doing and his choice is made with eyes
open.” Faretta v. California, 422 U.S. 806, 835, 95 S. Ct. 2525, 2541, 45
L. Ed. 2d 562 (1975) (citation and internal quotation marks omitted). While no
“magic words” or specific colloquy are required, trial courts must ensure the
decision to relinquish the right to counsel and proceed pro se is made
“knowingly and intelligently.” Depp v. Commonwealth, 278 S.W.3d 615, 617
(Ky. 2009) (citing Faretta). The record before us reveals the trial court failed to
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ensure Gary Haven Cochran’s waiver of counsel was made with his “eyes
open,” resulting in structural error requiring reversal and remand for a new
trial.
Cochran was convicted following a jury trial for possession of a controlled
substance in the first degree; fleeing or evading police in the first degree;
possession of drug paraphernalia, first offense; operating a motor vehicle under
the influence of alcohol or drugs, first offense; failure of owner to maintain
required insurance, first offense; and being a persistent felony offender in the
first degree. His punishment was fixed at twenty years’ imprisonment.
Cochran appealed to this Court as a matter of right.
Cochran raises five issues, most of which are unpreserved for appellate
review. However, because we agree the trial court’s failure to conduct a Faretta
hearing warrants reversal and the remaining issues are unlikely to recur on
remand, we need not consider nor discuss those additional arguments. As
such, while a truncated recitation of the procedural history is needed for
context, a detailed presentation of facts is unnecessary to resolve this appeal
because the facts underlying Cochran’s offenses are not relevant to the core
issue presented.
Cochran was indicted on December 14, 2018, by a Lawrence County
grand jury for the previously-stated offenses stemming from his arrest on
October 4, 2018. Cochran’s first two court-appointed attorneys were permitted
to withdraw from representation based on alleged conflicts which are not fully
explained in the record.
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Prior to a pretrial hearing on January 25, 2019, Cochran alleged in a pro
se motion that a conflict existed with his latest court-appointed counsel and
requested he be permitted to act as co-counsel. During the hearing, Cochran’s
counsel informed the court he would not be arguing any pro se motions filed by
Cochran; the motion to act as co-counsel did not include a request for a
Faretta hearing; Cochran had the right to represent himself; and, if the trial
court concluded Cochran could not adequately do so, counsel would be happy
to represent him. The Commonwealth informed the court Cochran had
previously been found “very competent” to represent himself following a Faretta
hearing in a prior case and stated he believed nothing had changed since that
time. Cochran then indicated his desire to act as co-counsel and have an
attorney represent him who did not share offices with the previously appointed
counsel. The Commonwealth responded that Cochran was entitled to “a
lawyer, not the lawyer of his choosing.” After sitting silent throughout the
foregoing exchange, the trial court asked Cochran if he “wanted to present his
motions.” Cochran answered in the affirmative.
The hearing went forward on ten pro se motions Cochran had previously
filed. Although most of the motions were summarily denied orally on the
record, the trial court did grant Cochran’s motion for a speedy trial, setting a
jury trial for February 18, 2019. No additional discussion nor ruling—oral or
written—appears on the record regarding Cochran’s request to act as co-
counsel.
At trial, though seated at the defense table, counsel did not actively
participate nor assist Cochran in presenting his defense. Cochran conducted
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voir dire, delivered opening and closing statements, called and cross-examined
witnesses, lodged objections, and testified on his own behalf. Counsel’s only
involvement during trial was arguing motions for directed verdict and making a
short statement on Cochran’s behalf during the sentencing phase after
Cochran had overturned counsel table in view of the jury, had been taken out
of the courtroom, and had refused to return. The jury convicted Cochran on all
charges and sentenced him to the maximum penalty of twenty years’
imprisonment.
Our review of the record reveals nothing from which we can conclude
Cochran made a knowing, intelligent, and voluntary waiver of his right to
counsel. The trial court asked not a single question related to Cochran’s
motion to act as co-counsel to determine the propriety of the request, made no
findings thereon, and never made an explicit ruling on the motion. Nowhere
was Cochran warned of the dangers of self-representation or the consequences
of waiving counsel. There was no attempt to comply in any way with the
requirements of Faretta.
We reject the Commonwealth’s assertion that Cochran’s previous
interactions with the judicial system, his basic familiarity with procedural and
evidentiary rules, his ability to make objections during trial, and his
qualification under Faretta to represent himself in a prior case, somehow
obviated the need for a Faretta hearing in the case sub judice. At best, Cochran
had some legal knowledge, but merely having such rudimentary knowledge
does not equate to a knowing, intelligent, and voluntary waiver of the right to
counsel.
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Because the colloquy between a defendant and the trial court need
not follow a script, a determination of whether the eyes of a
defendant who seeks to represent himself were sufficiently opened
is a determination that must be made on a case-by-case basis. At
a minimum, however, “before a defendant may be allowed to
proceed pro se, he must be warned specifically of the hazards
ahead.”
Commonwealth v. Terry, 295 S.W.3d 819, 822 (Ky. 2009) (quoting Iowa v.
Tovar, 541 U.S. 77, 88-89, 124 S. Ct. 1379, 158 L. Ed. 2d 209 (2004)).
It is clear from the record the trial court never discussed self-
representation issues or attempted to ensure Cochran was making the decision
to forgo counsel with his “eyes open.” The trial court’s failure to comply with
Faretta’s baseline requirements constitutes structural error. “Structural errors
are defects affecting the entire framework of the trial and necessarily render the
trial fundamentally unfair. Such errors preclude application of the harmless
error rule and warrant automatic reversal under that standard.” McCleery v.
Commonwealth, 410 S.W.3d 597, 604 (Ky. 2013) (internal citations omitted).
For the foregoing reasons, we reverse the judgment and sentence of the
Lawrence Circuit Court and remand for further proceedings consistent with
this Opinion.
All sitting. Minton, C.J.; Hughes, Keller, Lambert, and Nickell, JJ.,
concur. Wright, J., dissents by separate opinion in which VanMeter, J., joins.
WRIGHT, J., DISSENTING: While in agreement that a full Faretta
hearing with all steps and safeguards is generally required when a defendant
seeks self or hybrid-representation, I would hold this case presents a narrow
exception to that general rule. During the hearing on Cochran’s motion to act
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as co-counsel, the Commonwealth pointed out that Cochran had recently
represented himself in another case before the same trial judge. Due to this
history, “the court had the benefit of knowing all the discussions it had with
the Appellant, and it was aware that the Appellant knew and understood.”
Depp v. Commonwealth, 278 S.W.3d 615, 618 (Ky. 2009). The Faretta hearing
in the prior case, Cochran acting as co-counsel in that prior case, and the trial
court’s history with him provided Cochran with a broader base of
understanding and the trial court more opportunity to evaluate Cochran’s
understanding than most Faretta hearings.
This Court previously held that a defendant “filing a writ of habeas
corpus, instituting a federal lawsuit against his appointed counsel and the
Jefferson County Public Defender’s Office, and arguing preservation issues
before the Jefferson Circuit Court” were not a sufficient replacement for a full
Faretta hearing in that case. Grady v. Commonwealth, 325 S.W.3d 333, 341
(Ky. 2010). However, there are vital differences in the facts of the case before
us. In the case at bar, the parties and judge had a recent history that included
a Faretta hearing and the trial court’s finding that Cochran had knowingly and
intelligently waived his right to representation. The trial court in hearing
Cochran’s motion to act as co-counsel should be allowed to rely on that
experience with Cochran.
The facts of this case are much closer akin to United States v. McDowell,
814 F.2d 245, 249 (6th Cir. 1987), abrogated on other grounds by Godinez v.
Moran, 509 U.S. 389, 396 (1993). While the Sixth Circuit’s precedent is not
binding upon us, we often find it instructive. In McDowell, the defendant
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sought to represent himself, but the trial court did not hold an in-depth
colloquy. The Sixth Circuit held:
a fair reading of the record as a whole that McDowell understood
the dangers and disadvantages of self-representation at the time he
made his choice. It is clear that he was not a stranger to the
courts, he knew he was entitled to counsel, and he was not faced
with a situation of enduring representation by counsel he
considered ineffective or being forced to proceed immediately on
his own . . . . We conclude from the record that McDowell elected
to defend himself at trial with his “eyes open.”
In reaching its holding the Sixth Circuit noted McDowell was able to use
documents to cross-examine witnesses and called witnesses to testify and
testified on his own behalf. Id. at 247-48.
The same is true here. Cochran was “not a stranger to the courts.” He
was aware of his right to counsel—and equally aware of his right to represent
himself, as he had recently done so in front of the same trial judge. Just like
McDowell, Cochran was afforded co-counsel and not forced to proceed on his
own. He cross-examined witnesses and impeached them. Cochran called
witnesses to testify and testified himself—just as McDowell had. Furthermore,
Cochran demonstrated knowledge of the Kentucky Rules of Evidence and the
Kentucky Rules of Civil Procedure. He was certainly aware of the dangers and
disadvantages of self-representation and made a knowing, intelligent, and
voluntary decision to represent himself.
In examining this issue, the court must consider the purpose of the
Faretta hearing, which is to ensure Cochran was “made aware of the dangers
and disadvantages of self-representation, so that the record will establish that
he knows what he is doing and his choice is made with eyes open.” Faretta,
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422 U.S. at 835 (internal quotation omitted). Further, as noted, Cochran’s
motion was to be co-counsel. The dangers and disadvantages of acting as co-
counsel are far less than if Cochran had represented himself without the
assistance of an attorney. Cochran had recently represented himself in
another case before the same trial judge. “[T]he court had the benefit of
knowing all the discussions it had with the Appellant, and it was aware that
the Appellant knew and understood.” Depp, 278 S.W.3d at 618.
Cochran had a Faretta hearing in a prior before the same trial judge and
proceeded to trial in that case representing himself. The knowledge,
understanding, and experience gained from representing himself in a trial—
after the trail court conducted a Faretta hearing–would empower Cochran with
far greater understanding of the dangers and disadvantages of self-
representation than any explanation from the court could achieve. The trial
court must be given the benefit of its knowledge of Cochran, its discussions
with Cochran and observation of Cochran’s prior experience representing
himself in a trial before the court.
In Depp, “to the extent [our caselaw] purport[ed] to require a rigid,
formulaic review of waiver of counsel, [we] modified [it] to comport with
common sense.” 278 S.W.3d 615, 619. Today, the majority takes a step back
from the precedent and “common sense” approach of Depp in favor of returning
to a “formulaic review.”
For the foregoing reasons, I would not reverse the trial court.
VanMeter, J., joins.
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COUNSEL FOR APPELLANT:
Brandon Neil Jewell
Assistant Public Advocate
COUNSEL FOR APPELLEE:
Daniel J. Cameron
Attorney General of Kentucky
Micah Brandon Roberts
Assistant Attorney General
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