Tirrell Barbour v. Commonwealth of Kentucky ( 2020 )

RENDERED: NOVEMBER 20, 2020; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-1129-MR
TIRRELL BARBOUR APPELLANT
APPEAL FROM HARDIN CIRCUIT COURT
v. HONORABLE KEN M. HOWARD, JUDGE
ACTION NO. 18-CR-01167
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: COMBS, GOODWINE, AND LAMBERT, JUDGES.
LAMBERT, JUDGE: Tirrell Barbour has appealed as a matter of right from the
judgment of the Hardin Circuit Court convicting him of first-degree fleeing or
evading police, operating a motor vehicle under the influence, speeding, and being
a first-degree persistent felony offender. The court sentenced him to 15 years’
imprisonment. Finding no error, we affirm.
The Hardin County grand jury returned a multiple count indictment
against Barbour related to an attempted traffic stop on September 28, 2018, by
Kentucky State Trooper Jeremy Duvall while he was patrolling on southbound
Interstate 65. Barbour refused to pull over and continued to drive at an excessive
speed as Trooper Duvall pursued him on the interstate, which was an active
construction zone. As Barbour attempted to exit the interstate on an exit ramp, he
flipped his automobile, hit a light pole and construction signs, crawled out of his
car, ran across the ramp, jumped over a fence, and ran away from the officers. The
officers apprehended him in a muddy field. As a result, the grand jury charged him
with first-degree fleeing or evading police (while operating a motor vehicle); first-
degree wanton endangerment, police officer; resisting arrest; operating a motor
vehicle under the influence of intoxicants, second offense, aggravated (DUI);
speeding, 26 mph over; first-degree wanton endangerment; first- and third-degree
criminal mischief; failure to signal; second-degree fleeing or evading police (as a
pedestrian); and being a first-degree persistent felony offender (PFO I). Barbour
entered a plea of not guilty at his arraignment, and a jury trial was scheduled. Prior
to trial, and on the Commonwealth’s motion, the court dismissed counts 2, 3, 6, 9,
and 10 of the indictment related to wanton endangerment, resisting arrest, first-
degree criminal mischief, and the second-degree fleeing or evading police charge
(as a pedestrian).
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A three-day jury trial commenced on May 29, 2019. Following the
close of evidence, the trial court instructed the jury on five counts: first- and
second-degree fleeing or evading police, DUI, speeding, third-degree criminal
mischief, and failure to signal. The jury ultimately returned guilty verdicts on the
charges of first-degree fleeing or evading police, DUI, and speeding. The jury
found Barbour not guilty of criminal mischief and failure to signal. After the
penalty phase, the jury recommended a five-year sentence for the fleeing or
evading police conviction, enhanced to 15 years for his status offense of being a
PFO I.
Following the trial, Barbour filed a motion pursuant to Kentucky
Rules of Criminal Procedure (RCr) 10.02 and 10.24 requesting the trial court to
enter a verdict of not guilty or, in the alternative, to grant him a new trial. He
argued that there was insufficient evidence to support his convictions and raised
issues related to the introduction of video evidence of the vehicle and foot pursuit,
hyperbole used by the Commonwealth in describing the applicable portion of I-65
as one of the busiest in the country, and the introduction of photographs of the
scene where Barbour’s vehicle came to a stop.
The trial court ultimately entered a judgment and sentence on July 19,
2019, finding Barbour guilty of the offenses as found by the jury and sentencing
him to an enhanced 15-year sentence for the first-degree fleeing or evading police
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conviction and a $100.00 fine for the speeding conviction. By a separate order, the
court entered a sentence for the DUI conviction, which was a fine and four days of
imprisonment with a four-day credit. Barbour was ordered to complete a treatment
program and attend a DUI victim impact panel. This appeal now follows.
On appeal, Barbour raises three arguments. These address his
representation by appointed counsel, testimony from Trooper Duvall regarding
blood testing, and jury instructions. We shall consider each issue in turn.
For his first issue, Barbour seeks palpable error review pursuant to
RCr 10.26, to the extent it was not preserved, related to whether the trial court
should have held a hearing as to whether his public defender should remain his
trial counsel. The Supreme Court of Kentucky defined a review for palpable error
in Schoenbachler v. Commonwealth, 95 S.W.3d 830, 836 (Ky. 2003), as follows:
A palpable error is one of that [sic] “affects the
substantial rights of a party” and will result in “manifest
injustice” if not considered by the court, and “[w]hat it
really boils down to is that if upon a consideration of the
whole case this court does not believe there is a
substantial possibility that the result would have been any
different, the irregularity will be held nonprejudicial.”
(Footnotes omitted); see also Miller v. Commonwealth, 283 S.W.3d 690, 695 (Ky.
2009) (“[A]n unpreserved error that is both palpable and prejudicial, still does not
justify relief unless the reviewing court further determines that it has resulted in a
manifest injustice; in other words, unless the error so seriously affected the
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fairness, integrity, or public reputation of the proceeding as to be ‘shocking or
jurisprudentially intolerable.’”).
This issue arose as a result of an exchange between the trial court and
Barbour at a pretrial conference on May 14, 2019, shortly before the trial in this
action. Barbour’s appointed counsel informed the court that the Commonwealth
had made a guilty plea offer, which counsel had advised him to accept. However,
Barbour chose not to follow this advice. The following discussion then occurred:
Court: Mr. Barbour, you understand that it’s your
attorney’s responsibility to, obviously, convey any offer
that’s made, to give you his best advice, but then it’s
ultimately your final decision, and you understand that.
Barbour: Yes, sir, I understand, but I honestly don’t feel
like my attorney’s been helping me, I feel like he’s not
really trying.
Court: I don’t want you to talk about what you all have
discussed, that’s between you and him.
Barbour: Okay.
Court: I just want to make sure you understand that any
final plea decision is yours.
Barbour: Yes, sir.
Court: And so, we will go to trial next Wednesday.
Counsel: Yes, sir.
Court: Thank you.
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Barbour then asked his counsel about medical records he had been
trying to give to the trial court for six months related to a recommended medical
treatment he had been seeking but that the jail had refused to approve. Barbour
specifically sought a reduction of his bond so that he could go to the hospital and
have the procedure performed. The court did not reduce Barbour’s bond and
indicated that it was not a medical professional and could not tell other medical
professionals what to do. The discussion regarding Barbour’s experience with the
jail staff and his pending lawsuit against the jail continued, which prompted the
court to remind Barbour that it was presiding over his criminal action. Barbour
then began to leave the courtroom with the bailiffs. As he was walking, Barbour
stated:
Your honor, can you put it on the record, I don’t want
him [his appointed counsel] on my case. I don’t want
him on my case. He’s going to get me killed. He ain’t
trying to help me. He’s buddies with the prosecutor.
Buddy-buddy.
The issue was not raised again, and the trial took place with the same appointed
counsel representing Barbour.
Based upon this conversation at the pretrial conference, Barbour now
argues that he was entitled to a hearing to determine whether he had shown
sufficient cause for a substitute counsel to be appointed. We disagree that Barbour
has shown palpable error that would support reversal on this issue.
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In Deno v. Commonwealth, 177 S.W.3d 753, 759 (Ky. 2005), the
Supreme Court of Kentucky discussed an indigent defendant’s right to substitute
counsel:
An indigent defendant is not entitled to the
appointment of a particular attorney, and a defendant
who has been appointed counsel is not entitled to have
that counsel substituted unless adequate reasons are
given. When a defendant requests substitution of counsel
during trial, “the defendant must show good cause, such
as a conflict of interest, a complete breakdown of
communication or an irreconcilable conflict which leads
to an apparently unjust verdict.” Good cause has been
described as: (1) a “complete breakdown of
communications between counsel and defendant;” (2) a
“conflict of interest;” and (3) that the “legitimate interests
of the defendant are being prejudiced.” Whether good
cause exists for substitute counsel to be appointed is
within the sound discretion of the trial court.
(Footnotes omitted.) “[M]ere dissatisfaction with appointed counsel’s performance
is insufficient to support a motion to support his removal.” Stinnett v.
Commonwealth, 364 S.W.3d 70, 81 (Ky. 2011).
While Barbour contends that Deno contains an implicit hearing
requirement on a motion to substitute appointed counsel by citing to an
unpublished opinion, the Commonwealth counters that a formal hearing is not
required in the absence of good cause for a defendant’s dissatisfaction.
The trial court has an affirmative duty to inquire
into the source and nature of a criminal defendant’s
expressed dissatisfaction with counsel. Benitez v. United
States, 521 F.3d 625, 634 (6th Cir. 2008). However, a
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searching inquiry is not required unless the defendant
raises some “substantial basis for dissatisfaction.”
Monroe v. United States, 389 A.2d 811, 820 (D.C. App.
1978). The nature and scope of the inquiry is not rigid.
Instead, the necessary scope depends on the
circumstances of each case. Id. at 821. Whatever the
inquiry requires, though, it must be sufficient to elicit
whether counsel has both the ability and the preparedness
to effectively assist the defendant. Id.
Padgett v. Commonwealth, 312 S.W.3d 336, 343 (Ky. 2010). Here, we agree with
the Commonwealth that Barbour’s statements at the end of the pretrial proceeding
did not provide a substantial basis for replacing his appointed counsel shortly
before trial was scheduled to begin or for even holding a hearing to explore this
request. We find no error, palpable or otherwise, to justify reversal on this issue.
Next, Barbour contends that the admission of testimony that he had
declined an independent blood test constituted palpable error. Trooper Duvall
provided this information during his examination after he stated that Barbour had
consented to a blood draw at the hospital and Duvall had read the implied consent
form to Barbour. Barbour argues that this testimony resulted in an unfair inference
that he was guilty of intoxication and constituted a violation of his Fifth
Amendment right against self-incrimination, citing Griffin v. California, 380 U.S.
609, 85 S. Ct. 1229, 14 L. Ed. 2d 106 (1965), as well as his Fourth Amendment
rights against unreasonable searches. We disagree that any manifest injustice
occurred to support reversal.
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Kentucky Revised Statutes (KRS) 189A.103 requires an officer to
inform a person who has undergone a test at the officer’s request that he or she
may request an independent test:
The following provisions shall apply to any person who
operates or is in physical control of a motor vehicle or a
vehicle that is not a motor vehicle in this
Commonwealth:
(1) He or she has given his or her consent to one (1) or
more tests of his or her blood, breath, and urine, or
combination thereof, for the purpose of determining
alcohol concentration or presence of a substance which
may impair one’s driving ability, if an officer has
reasonable grounds to believe that a violation of KRS
189A.010(1) or 189.520(1) has occurred;
...
(7) After the person has submitted to all alcohol
concentration tests and substance tests requested by the
officer, the person tested shall be permitted to have a
person listed in subsection (6) of this section of his or her
own choosing administer a test or tests in addition to any
tests administered at the direction of the peace officer.
Tests conducted under this section shall be conducted
within a reasonable length of time. Provided, however,
the nonavailability of the person chosen to administer a
test or tests in addition to those administered at the
direction of the peace officer within a reasonable time
shall not be grounds for rendering inadmissible as
evidence the results of the test or tests administered at the
direction of the peace officer.
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KRS 189A.105 addresses, in part, the option to request an independent test, and
subsection (2)(a)3. provides:1
At the time a breath, blood, or urine test is requested, the
person shall be informed . . . [t]hat if the person first
submits to the requested alcohol and substance tests, the
person has the right to have a test or tests of his blood
performed by a person of his choosing described in KRS
189A.103 within a reasonable time of his arrest at the
expense of the person arrested.
The same statute requires the officer to inform the arrested person a second time of
his or her right to have an independent blood test:2
(4) Immediately following the administration of the final
test requested by the officer, the person shall again be
informed of his right to have a test or tests of his blood
performed by a person of his choosing described in KRS
189A.103 within a reasonable time of his arrest at the
expense of the person arrested. He shall then be asked
“Do you want such a test?” The officer shall make
reasonable efforts to provide transportation to the tests.
We agree with the Commonwealth that Barbour’s constitutional rights
were not impacted by the testimony that he had declined an independent blood test.
“Exclusion of evidence for violating the provisions of the informed consent statute
is not required. It has been held in Kentucky and elsewhere that in the absence of
an explicit statutory directive, evidence should not be excluded for the violation of
1
We are utilizing the version of this subsection of KRS 189A.105 in effect between June 24,
2015, and June 30, 2020.
2
See footnote 1.
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provisions of a statute where no constitutional right is involved.” Beach v.
Commonwealth, 927 S.W.2d 826, 828 (Ky. 1996). There was no such statutory
directive here that evidence should be excluded for the violation of this statute.
Furthermore, “the Fifth Amendment is not implicated here. The Fifth Amendment
protection applies to evidence of a testimonial nature. It does not apply to physical
evidence such as bodily fluids, breath, and hair.” Deno, 177 S.W.3d at 760
(footnote omitted). Finally, the Fourth Amendment is not implicated because
Barbour was not coerced into taking an independent blood test or into declining the
offer of one. We find no error on this issue, palpable or otherwise.
For his final argument, Barbour contends that the jury instructions for
first-degree fleeing or evading police and DUI constituted a violation of double
jeopardy under both statutory and constitutional grounds. Again, this issue was not
preserved for review, although we agree with the Commonwealth that Barbour did
not waive his constitutional double jeopardy claim:
[A]lthough Appellant failed to raise this issue at trial,
“the constitutional protection against double jeopardy is
not waived by failing to object at the trial level.” Walden
v. Commonwealth, 805 S.W.2d 102, 105 (Ky. 1991)
(overruled on other grounds by Commonwealth v. Burge,
947 S.W.2d 805 (Ky. 1996)). Accordingly, Appellant’s
constitutional double jeopardy argument is properly
raised for our review. It is important to note that this rule
is premised upon the constitutional stature of the right,
and as further discussed below, we ultimately resolve this
issue upon statutory grounds. Nevertheless, review of
the unpreserved claim of a violation of statutory double
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jeopardy is proper upon application of the palpable error
rule, see RCr 10.26. Cardine v. Commonwealth, 283
S.W.3d 641 (Ky. 2009) (“Double jeopardy violation
resulting when defendant was retried following trial
court’s sua sponte declaration of mistrial on less than
manifest necessity constituted palpable error.”).
Kiper v. Commonwealth, 399 S.W.3d 736, 740-41 (Ky. 2012) (footnote omitted).
In Adams v. Commonwealth, 564 S.W.3d 584, 591 (Ky. App. 2018),
this Court explained the protections against double jeopardy:
The Fifth Amendment to the United States
Constitution guarantees that no person shall “for the
same offense, be twice put in jeopardy of life or limb[.]”
Section 13 of the Kentucky Constitution is virtually
identical and affords the same prohibition against
convicting or charging a person twice for the same
offense. In order to determine whether a double jeopardy
violation has occurred, the Blockburger same-elements
test is employed: “whether the act or transaction
complained of constitutes a violation of two distinct
statutes and, if it does, if each statute requires proof of a
fact the other does not. Put differently, is one offense
included within another?” Commonwealth v. Burge, 947
S.W.2d 805, 811 (Ky. 1996) (internal citation omitted)
(adopting the test set forth in Blockburger v. U.S., 284
U.S. 299, 304, 52 S. Ct. 180, 182, 76 L. Ed. 306 (1932)).
Both Barbour and the Commonwealth have put forth several arguments in support
of their respective positions. However, we hold that Barbour’s arguments must fail
because the jury instructions at issue permitted the jury to decide that he was guilty
under instructions that required proof of a fact that the other did not. We shall now
examine the instructions at issue in this case as well as their statutory bases.
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KRS 520.095(1) provides that a person is guilty of first-degree fleeing
or evading police:
(a) When, while operating a motor vehicle with intent to
elude or flee, the person knowingly or wantonly disobeys
a direction to stop his or her motor vehicle, given by a
person recognized to be a police officer, and at least one
(1) of the following conditions exists:
1. The person is fleeing immediately after
committing an act of domestic violence as
defined in KRS 403.720;
2. The person is driving under the influence
of alcohol or any other substance or
combination of substances in violation of
KRS 189A.010;
3. The person is driving while his or her
driver’s license is suspended for violating
KRS 189A.010; or
4. By fleeing or eluding, the person is the
cause, or creates substantial risk, of serious
physical injury or death to any person or
property[.]
Instruction No. 4 addressed this charge under the indictment:
You will find the Defendant guilty of First-Degree
Fleeing/Evading Police under this Instruction if, and only
if, you believe from the evidence beyond a reasonable
doubt all of the following:
A. That in Hardin County on or about September
28, 2018 and before the finding of the Indictment
herein, he operated a motor vehicle with the intent
to flee or elude;
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AND
B. That he knowingly or wantonly disobeyed a
direction to stop his motor vehicle, which direction
was given by a person whom he recognized to be a
police officer;
AND
C. That he was operating the motor vehicle under
the influence of intoxicants which may impair
one’s driving ability;
OR
That his act of fleeing or eluding caused or created
a substantial risk of serious physical injury or
death to any person or serious injury to property.
As to the DUI charge, KRS 189A.010(1)(c) provides that “[a] person
shall not operate or be in physical control of a motor vehicle anywhere in this state
. . . [w]hile under the influence of any other substance or combination of
substances which impairs one’s driving ability[.]” Instruction No. 6 addressed this
charge:
You will find the Defendant Guilty of Operating a
Motor Vehicle While Under the Influence of Alcohol or
Other Substance Which Impairs Driving Ability if, and
only if, you believe from the evidence beyond a
reasonable doubt all of the following:
A. That in Hardin County on or about September
28, 2018 and within 12 months before the finding
of the Indictment herein he operated a motor
vehicle;
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AND
B. That while doing so, he was under the
influence of a substance which may impair one’s
driving ability[.]
The Commonwealth argues that the jury could have found Barbour
guilty of the fleeing or evading police charge by finding that he caused or created a
substantial risk of serious physical injury or death or serious injury to property, and
the instruction did not require a finding that he was operating his motor vehicle
under the influence in order to find guilt. Therefore, there can be no double
jeopardy violation. It cites to Davis v. Commonwealth, 967 S.W.2d 574, 582 (Ky.
1998), in support of this argument, in which the Supreme Court addressed the
unanimous verdict requirement in criminal prosecutions:
Nothing less than a unanimous verdict is permitted
in a criminal case. KRS 29A.280(3); Wells v.
Commonwealth, Ky., 561 S.W.2d 85 (1978). Unanimity
becomes an issue when the jury is instructed that it can
find the defendant guilty under either of two theories,
since some jurors might find guilt under one theory,
while others might find guilt under another. If the
evidence would support conviction under both theories,
the requirement of unanimity is satisfied.
On the other hand, Barbour argues that by using this reasoning, the
Commonwealth was ignoring its theory of the case that he was driving while he
was impaired, which he asserts the jury validated by convicting him of the DUI
charge.
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We must agree with the Commonwealth that the instructions at issue
did not require the jury to find that Barbour had been operating his motor vehicle
under the influence in order to convict him of fleeing or evading police. The
evidence certainly established proof of both alternatives included in Instruction No.
4. Therefore, we hold that Barbour’s right to be protected against double jeopardy
was not violated in this instance and that vacation of the DUI conviction is not
warranted.
For the foregoing reasons, the judgment of the Hardin Circuit Court is
affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Steven J. Buck Daniel Cameron
Assistant Public Advocate Attorney General of Kentucky
Frankfort, Kentucky
Mark D. Barry
Assistant Attorney General
Frankfort, Kentucky
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