author: WINTERSHEIMER, Justice.

text:
    Walter Gary MATTHEWS, Jr., Appellant, v. COMMONWEALTH OF KENTUCKY, Appellee.
    No. 2003-SC-0364-MR.
    Supreme Court of Kentucky.
    April 21, 2005.
    Rehearing Denied Aug. 25, 2005.

      Euva D. May, Assistant Public Advocate, Appellate Division, Department of Public Advocacy, Frankfort, Walter Gary Matthews, Jr., West Liberty, pro se, Counsel for Appellant.
    Gregory D. Stumbo, Attorney General of Kentucky, Gregory C. Fuchs, Assistant Attorney General, Criminal Appellate Division, Office of the Attorney General, Frankfort, Counsel for Appellee.
   WINTERSHEIMER, Justice.

This appeal is from a judgment based on a jury verdict that convicted Matthews of manufacturing methamphetamine, possession of marijuana, possession of drug paraphernalia and being a first-degree persistent felony offender. He was sentenced to a total of forty-five years in prison.

The questions presented are whether an alleged violation of the Interstate Agreement on Detainers (IAD) required dismissal of this case; whether prosecutorial misconduct occurred; whether the trial judge abused his discretion by failing to hold an evidentiary hearing on the IAD issue; whether Matthews was denied effective assistance of counsel; whether the defendant’s confession should have been suppressed; whether Matthews was entitled to a directed verdict on the manufacturing methamphetamine charge; and whether the trial judge erred by falling to hold a Faretta hearing before making Matthews co-counsel.

Matthews was arrested following a high speed car chase in Paducah, Kentucky. The car he was driving turned out to be a “rolling meth lab.” Matthews was questioned by police and then released on bond. Before he was indicted, his parole on a federal conviction was revoked and he was sent back to prison in Illinois. Matthews was eventually returned to Kentucky and was tried on charges of manufacturing methamphetamine, possession of marijuana, possession of drug paraphernalia and being a first-degree persistent felony offender. He was convicted of all the charges and sentenced to forty-five years in prison. This appeal followed.

I. Interstate Agreement on Detainers

Matthews argues that the trial judge erred by failing to grant his motion to dismiss the indictment based on the Commonwealth’s failure to bring him to trial within the 120 days allotted under Article IV of the IAD. We disagree.

When a state initiates a request for temporary custody pursuant to Article IV of the IAD, the trial must begin no later than 120 days from the date the defendant arrives in that jurisdiction. KRS 440.450, Article IV(3). Under Article III, when a defendant requests a final disposition of retainer, the time limit is 180 days from the date of receipt of the prisoner’s request. KRS 440.450, Article III(l).

The Commonwealth filed the appropriate form with the holding state of Illinois on September 30, 2002, proposing to bring Matthews to trial within the time specified in Article IV of the IAD, i.e., within 120 days of the prisoner’s arrival in the jurisdiction. On October 10, 2002, Illinois sent a letter and the proper forms to Kentucky indicating that Matthews requested disposition of pending charges under Article III of the IAD. Again, that article requires a prisoner to be brought to trial within 180 days after he files the appropriate request.

If the 120-day limit applies, absent other circumstances, Matthews, who arrived at the McCracken County jail on November 6, 2002, should have been tried by March 6, 2003. The trial was ultimately held on March 17, 2003. On the other hand, if the 180-day time limit applies, then Matthews was tried within the time specified.

The question before this Court is what time limit applies when both the Commonwealth and the prisoner file documents to effectuate speedy disposition. Courts across the country have generally taken three different approaches to this issue. The first approach holds that where the defendant initiates Article III proceedings he invariably waives his Article IV rights, including the shorter time limit. Yellen v. Cooper, 828 F.2d 1471 (10th Cir.1987); United States v. Eaddy, 595 F.2d 341 (6th Cir.1979); State v. York, 66 Ohio App.3d 149, 583 N.E.2d 1046 (1990). These cases determine that, as Article IV procedures and Article III procedures are inconsistent, an Article III filing automatically waives those Article TV procedures favorable to the defendant.

The second approach holds that the determining factor is which party first initiates IAD procedures. State v. Webb, 570 N.W.2d 913 (Iowa 1997) (Article IV applies where state is first to file after a detainer on the charges is lodged with the other jurisdiction); Shewan v. State, 396 So.2d 1133 (Fla.Dist.Ct.App.1980) (180-day limit applied where defendant made Article III request for disposition before State took custody).

The third approach applies both articles when both parties initiate IAD procedures and ascertains which, if any, provisions have been violated in determining which time limit applies. State v. Willoughby, 83 Hawai’i 496, 927 P.2d 1379 (Ct.App.1996) (Article IV applies where state was first to file request and Article IV time limit expired first); State v. Burrus, 151 Ariz. 572, 729 P.2d 926 (Ct.App.1986) (Article III governs where defendant initiated by letter, state indicated willingness to accept transfer under either Article III or Article IV, and 180-day limit expired first).

Before deciding the proper approach, we must dispel the notion that it is unnecessary for this Court to reach this issue. On December 13, 2002, in open court and without objection by defense counsel, trial in this case was scheduled for March 10, 2003. Thus, it would appear that even if we applied the 120-day time limit, defense counsel’s agreement to a trial date outside this IAD period bars the defendant from seeking dismissal on the ground that trial did not occur within that period. New York v. Hill, 528 U.S. 110, 120 S.Ct. 659, 145 L.Ed.2d 560 (2000).

The problem here is that on March 6, 2003, the trial judge after “being advised that the trial scheduled in this matter needed to be continued,” entered an order continuing the trial until March 17, 2003. There is nothing in the record to indicate whether one of the parties sought the continuance or whether the trial judge acted on his own. Hill, supra, does not involve a purported prospective waiver of all protection of the IAD’s time limits or of the IAD generally, but merely agreement to a specified delay in trial. That case also observed that the IAD allows the court to grant “good-cause continuances” when either the “prisoner or his counsel” is present. Hill.

In this case, Matthews only agreed to a specified delay in trial, that is, until March 10, 2003. An order was entered continuing the trial until March 17, 2003, but there is nothing in the record to support that it was granted for good cause or that either the prisoner or his counsel was present when that determination was made.

Returning to the central issue, after careful consideration of the three approaches taken by other jurisdictions, we are persuaded that the first approach is the better way to proceed. Article IV affords the prisoner certain procedural and substantive rights. See United States v. Mauro, 436 U.S. 340, 98 S.Ct. 1834, 56 L.Ed.2d 329 (1978). These rights may be waived, however, when the prisoner makes an affirmative request to be treated in a manner contrary to the procedures prescribed by Article IV. Yellen, supra; Eaddy, supra; York, supra. Here, Matthews completed an IAD form on October 10, 2002, expressly requesting disposition under Article III. Such affirmative action on his part clearly constituted a waiver of any rights he may have had as the result of the state’s Article IV request on September 30, 2002. Yellen; Eaddy; York.

We must observe that the United States Court of Appeals for the Sixth Circuit held in Eaddy that if “a prisoner is aware of and understands the provisions of [the IAD], as well as his rights thereunder, a prisoner can waive those rights, so long as the waiver is voluntary.” Id. at 344. Matthews contends that there is no evidence in the record which demonstrates that the waiver was knowing and voluntary. The 6th circuit also stated, however, that a prisoner may waive his IAD rights, even though he is not aware of those rights, “where there is an affirmative request to be treated in a manner contrary to the procedures.” Id. Here, Matthews made an affirmative request to be treated in a manner contrary to the procedures in Article IV when he sought disposition under Article III. Accordingly, we hold that the Commonwealth had one hundred eighty days from October 10, 2002, within which to bring Matthews to trial and that such requirement was satisfied in this case. The trial judge did not err in overruling the motion to dismiss.

II. Prosecutorial Misconduct

Matthews makes an assertion of prosecutorial misconduct based on his allegation that the prosecutor lied to the court about which party was the first to file under the IAD. When evaluating claims of prosecutorial misconduct, the appellate court must focus on the overall fairness of the trial and not the culpability of the prosecutor. Slaughter v. Commonwealth, 744 S.W.2d 407 (Ky.1987). The relevant inquiry is whether the conduct of the prosecutor was of such an egregious nature as to deny the accused his constitutional right of due process. Donnelly v. DeChristoforo, 416 U.S. 637, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974).

Here, there is no credible evidence in the record that the prosecutor deliberately lied or misled the court in who filed first under the IAD. Although the record is now clear that the Commonwealth filed first, this fact did not impact the overall fairness of the trial and did not deny Matthews his constitutional right of due process.

Matthews also claims that the Commonwealth made three offensive statements during the persistent felony offender penalty phase. He concedes that no objection was made to any of the statements, but seeks review pursuant to RCr 10.26.

The first statement complained of by Matthews was as follows: “The misdemeanor sentences you gave the defendant have no meaning under the law.” Matthews also complains of this statement: “If you give him life, he is parole eligible as a PFO after ten years. It really has no meaning that 20 — life. It really has no meaning that 20 — life other than he may end up serving that 20 years to life but he is parole eligible at least at 10 years.”

The first statement has been taken out of context. The prosecutor continued by explaining that the misdemeanor sentences have no meaning because they will run concurrent with the felony sentences. The second statement was attempting to explain when Matthews would be eligible for parole. Neither of these statements diminished the role of the jury in this case and neither constitutes palpable error.

Finally, Matthews finds fault with this statement: “He has committed more crimes than what you have already seen the record of.” We must agree that the statement was inappropriate. However, this isolated comment certainly does not rise to the level of palpable error. Matthews received a fair trial and was not denied any of his due process rights.

III.Evidentiary Hearing

Matthews argues that the trial judge abused his discretion by failing to hold an evidentiary hearing on the IAD issue. He contends that he presented the trial judge with evidence that the Commonwealth filed first under the IAD and that Illinois responded to that request. Matthews concedes that this issue is not preserved for appeal, but maintains that the error is palpable.

This argument has no merit. Under the approach adopted by this Court, it is irrelevant that the state filed first. Further, there was no requirement for the trial judge to hold a hearing on this matter. Thus, there could be no palpable error.

IV.Ineffective Assistance of Counsel

Matthews asserts that his defense counsel was ineffective for failing to object to the prosecutor’s remarks during closing argument, the IAD violations, and to request an evidentiary hearing on the IAD. We decline to address this issue on direct appeal. See Humphrey v. Commonwealth, 962 S.W.2d 870 (Ky.1998).

V.Confession

Matthews claims that the trial judge erred by failing to suppress his confession. We disagree.

The trial judge held a hearing on the motion to suppress and the two police detectives that interviewed Matthews were the only witnesses that testified. Following the hearing, the trial judge made findings of fact and conclusions of law and ordered that the statements given to the first detective be suppressed, but, pursuant to Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975), he allowed the statements given to the second detective wherein Matthews admitted his involvement in illegal methamphetamine activity.

The following is a summary of the findings of fact made by the trial judge: Approximately one hour after his arrest, the defendant was first questioned by a police detective and invoked his right to remain silent. After being told that his conversation was not being recorded, the defendant began speaking with the detective. The defendant admitted smoking marijuana that evening, but denied that the methamphetamine lab was his. Contrary to what he had been told, all of the defendant’s statements were videotaped and audio taped by the police.

Some four hours after the questioning by the first detective ceased, the defendant was re-approached by a second detective and was asked if he would answer questions. Matthews denied any responsibility for the methamphetamine lab in the car, but when told he was going to be charged with manufacturing based on other evidence gathered, he began to change his story. The detective read Matthews his Miranda warnings, and told the defendant if he were to give a statement, he would be waiving those rights. The defendant stated that he understood and would talk. He then gave a taped confession to knowingly transporting the methamphetamine lab found in his car and attempting to evade a police officer who had chased him.

Whenever the defendant asked, the two detectives provided the defendant with drinks, allowed him to use the bathroom, allowed him to smoke, and brought him food. The defendant’s statement to the second detective after his Miranda warnings were read to him was a knowing, voluntary and valid waiver of his right to remain silent. The statement was an attempt to talk his way out of trouble after he learned he would be charged with manufacturing methamphetamine.

Our review of the record indicates that the findings of the trial judge are supported by substantial evidence, and thus are conclusive. RCr 9.78. Further, the trial judge correctly concluded from the record that Matthew’s statement to the second detective was admissible pursuant to Mosley, supra. In that case, the U.S. Supreme Court held that the police may question a defendant after he has initially asserted his right to remain silent, provided they have not attempted to talk him out of asserting his privilege, and provided a time lapse occurs between his initial assertion of his privilege and a subsequent questioning. Here, the police did not attempt to talk Matthews out of asserting his privilege and six hours elapsed between his initial assertion of his privilege and his subsequent questioning by the second detective. The questioning of Matthews by police was proper.

Matthew’s confession was voluntary. Viewing the taped confession in its entirety, there is no evidence of police coercion of a confession obtained by physical violence or a deliberate means calculated to break the will of Matthews. See Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985). As correctly found by the trial judge, Matthew’s statement was his attempt to talk himself out of trouble.

The deception employed by the police was not coercive, nor could it have overborne Matthew’s will. The mere employment of a ruse, or “strategic deception,” does not render a confession involuntary so long as the ploy does not rise to the level of compulsion or coercion. Illinois v. Perkins, 496 U.S. 292, 110 S.Ct. 2394, 110 L.Ed.2d 243 (1990). Matthews may not have made incriminating statements to the detectives if he had known the conversation was being recorded, but his ignorance of the concealed recording system could hardly have compelled him to confess.

The question of whether a defendant has voluntarily waived his Miranda rights is analyzed somewhat differently than the question of whether the underlying confession is voluntary. In order for a confession obtained by state action to be admissible, the Commonwealth only needs to prove a waiver of Miranda rights by a preponderance of the evidence. A statement is not compelled for Fifth Amendment purposes if an individual voluntarily, knowingly and intelligently waives his constitutional privilege. Colorado v. Spring, 479 U.S. 564, 107 S.Ct. 851, 93 L.Ed.2d 954 (1987); Mills v. Commonwealth, 996 S.W.2d 473 (Ky.1999).

The inquiry of whether a waiver is coerced “has two distinct dimensions.” Moran v. Burbine, 475 U.S. 412, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986): First, the relinquishment of the right by the defendant must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Id. at 421, 106 S.Ct. at 1141. Second, the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. Id. Only if the ‘totality of the circumstances surrounding the interrogation’ reveal both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived by the defendant. Id. (quoting Fare v. Michael C., 442 U.S. 707, 725, 99 S.Ct. 2560, 61 L.Ed.2d 197 (1979)).

As to the first prong of the inquiry, the record does not demonstrate any credible evidence of police coercion. Therefore, we must conclude that Matthews voluntarily waived his Fifth Amendment privilege. Considering the second prong of the inquiry, the record reveals that Matthews was read his Miranda rights and was fully aware of the nature and consequences of abandoning his rights. Based on the totality of the circumstances, it is clear that Matthews waived his Miranda rights. The trial judge did not err in denying the motion to suppress the statement by Matthews given to the second detective.

VI. Manufacturing Methamphetamine

Matthews argues that the trial judge erred to his substantial detriment by instructing the jury on the manufacture of methamphetamine. He claims that the trial judge should have directed a verdict on this issue because the Commonwealth failed to prove he possessed all the chemicals or equipment. (Matthews was prosecuted under KRS 218A.1432(l)(b) as opposed to subsection (l)(a) of that statute.) Specifically, he asserts the officers did not find anhydrous ammonia or lithium batteries. We disagree.

According to a police detective, Matthews admitted that the container recovered from the scene was methamphetamine that was cooking. Contrary to the claim by Matthews, this was not the only evidence of the presence of the two disputed ingredients. A police officer who responded to the scene testified that the container that was dropped during the pursuit was smoking and had a strong smell of ammonia. Further, a state crime lab technician stated that when he opened the sample sent to him, it had a strong ammonia smell. This was sufficient evidence that ammonia was present and used to manufacture methamphetamine. See Varble v. Commonwealth, 125 S.W.3d 246 (Ky.2004).

As to the lithium, the lead detective was shown a videotape of the crime scene where he had been present and specifically identified the dark strips on the bubbling container as the lithium. Interestingly, the lab technician was shown an inventory list at trial from American Envi-ro-Services, Inc., which had cleaned up the site on the night in question. He examined the list and said that it contained everything to make methamphetamine by the Nazi method except for the lithium batteries. However, our examination of the document shows that among other items on the inventory, the fifth line reads: Anhydrous Ammonia, L [or possibly Li], pill dough (cooking). A key at the bottom of the document reveals that L is an abbreviation for Lithium. Matthews clearly possessed the lithium.

After careful review of the record, we find that there was sufficient evidence that Matthews possessed all the chemicals necessary to manufacture methamphetamine. The trial judge properly denied the motion for a directed verdict.

VII. Faretta Hearing

We next address the issue raised in Matthew’s supplemental brief. He contends that the trial judge erred to his substantial detriment by failing to hold a Faretta hearing, Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), before making him co-counsel in this case. We disagree.

Prior to trial, Matthews filed a pro se motion to dismiss based on the Commonwealth’s alleged violation of the IAD. The trial judge overruled the motion, stating that the defendant had counsel and counsel had to file the motion. At a hearing in March, the defendant asked why he could not file his own motions and the trial judge informed him he had not asked to be made co-counsel. Matthews inquired how to be made co-counsel and the trial judge told him to ask. The defendant did and the trial judge granted the request, stating, “it is as simple as that.” No hearing was held on the issue.

In Hill v. Commonwealth, 125 S.W.3d 221 (Ky.2004), a majority of this Court determined that a trial judge’s “Faretta duties” in response to a defendant’s waiver of counsel manifest themselves in three concrete ways: (1) the trial judge must hold a hearing in which the defendant testifies on the question of whether the waiver is voluntary, knowing, and intelligent; (2) during the hearing, the trial judge must warn the defendant of the hazards arising from and the benefits relinquished by waiving counsel; and (3) the trial judge must make a finding on the record that the waiver is knowing, intelligent, and voluntary. The waiver of counsel is ineffective unless all three requirements are met. The majority also held that the accused need not proceed completely pro se in order to trigger the trial judge’s Faretta duties.

Under the circumstances presented here, Faretta, supra, and Hill, supra, have no application. Unlike the defendants in Hill, Faretta, and similar cases, Matthews did not participate as counsel at trial in front of the jury. He did not ask questions of the witnesses nor did he make opening or closing statements. His only participation upon being made co-counsel was to file pro se motions and, like other defendants, confer with his counsel. Matthews never waived his right to counsel in any manner. No Faretta hearing was required in this circumstance.

Finally, we have considered the issues in Matthew’s pro se supplemental brief and find no additional merit in his arguments. His ineffective assistance of counsel claim is better considered in an RCr 11.42 motion. Matthews was not denied any of his due process rights under the federal or state constitutions. He received a fair trial.

The judgment of conviction is affirmed.

All concur.


source: Caselaw Access Project

author: COOPER, Justice. WINTERSHEIMER, Justice, KELLER, Justice,

license: Public Domain

text:
    Stacy Lynn PARTIN, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    No. 2003-SC-0596-MR.
    Supreme Court of Kentucky.
    May 19, 2005.
    Rehearing Denied Aug. 25, 2005.

      Karen Maurer, Assistant Public Advocate, Department of Public Advocacy, Frankfort, Counsel for Appellant.
    Gregory D. Stumbo, Attorney General, State Capitol, Michael Harned, James Ha-vey, Assistant Attorneys General, Office of Attorney General, Criminal Appellate Division, Frankfort, Counsel for Appellee.
   COOPER, Justice.

A McCracken Circuit Court jury convicted Appellant, Stacy Lynn Partin, of kidnapping, two counts of unlawful imprisonment in the first degree, wanton endangerment in the first degree, wanton endangerment in the second degree, and assault in the fourth degree; and found him to be a persistent felony offender in the second degree. He was sentenced to life in prison. He appeals to this Court as a matter of right, Ky. Const. § 110(2)(b), asserting four claims of reversible error, viz: (1) denial of his right of self-representation; (2) failure to sustain his motion to dismiss the indictment; (3) admission into evidence of portions of letters that he wrote to one of the victims and suppression of another such letter and of letters written to him by the same victim; and (4) failure to grant a mistrial after the prosecutor engaged in a “tirade” against him. Finding no reversible error, we affirm.

On April 28, 2002, Appellant and his wife, Vicki, were visiting with Vicki’s twenty-year-old son, Bobby Knight, inside the mobile home where Appellant and Vicki resided. Appellant became enraged when he noticed a “caller ID” number on their telephone that he believed to be the telephone number of Vicki’s ex-boyfriend. When Appellant began choking Vicki, Bobby intervened and suggested that he and Vicki go to Bobby’s residence “until things cooled down.” Appellant then brandished a .25 caliber pistol, “put [it] to both of [their] heads [and] said the only way [they] were leaving was in a body bag.” When Vicki grabbed Appellant, Bobby escaped through the front door, ran to a nearby residence, and told the occupants to call the police. Appellant then grabbed Vicki by the hair, forced her into her car, and drove her to the home of a friend, Ronnie Rudd. Appellant forced his way into Rudd’s residence and held Rudd and others at gunpoint until police surrounded the residence and convinced Appellant to surrender. (Though Rudd attempted to extenuate the incident, he admitted that Appellant was armed when he entered his residence.)

I. SELF-REPRESENTATION.

On June 6, 2003, two weeks before trial, the trial court held a hearing on Appellant’s motion to act as co-counsel at his trial. Appellant expressed concern that his appointed counsel’s workload was so heavy that she did not have time to devote full attention to his case. (He had also filed a complaint with the Kentucky Bar Association against his counsel claiming that she was not providing him with adequate representation.) During this hearing, Appellant expressed a desire to have input in jury selection, to cross-examine “certain witnesses” (not further identified), but to have his appointed counsel give the opening statement and the closing argument and examine other witnesses. After the hearing, the trial court received an ex parte letter from the victim’s advocate advising that Appellant’s wife was terrified of him, that she had received threats on her life and the life of her son, and that she was afraid Appellant would try to intimidate her and her son if permitted to personally cross-examine them. On June 9, 2003, the trial court entered an order sustaining Appellant’s motion to act as co-counsel but denying him the right to personally conduct the cross-examination of the victims. Instead, the trial court allowed Appellant to prepare questions to be asked by his counsel during such cross-examination. The court placed the letter from the victim’s advocate in the record.

The trial court held another hearing on the morning of trial, June 16, 2003, at which it expressed regret that it had received an ex parte communication from the victim’s advocate, but reiterated that it did not believe Appellant should personally conduct the cross-examination of the victims. During this hearing, Appellant stated that he was “not objecting too loudly to not being allowed to cross-examine the victims,” but that he wanted to cross-examine other witnesses and make his own opening statement and closing argument. He had prepared a number of questions to be posed by his counsel to the victims but agreed that counsel should exercise her own judgment during cross-examination so long as she generally followed Appellant’s desired line of questioning. The trial court ruled that some of Appellant’s proposed questions to Bobby Knight were improper, e.g., “Have you been arrested a lot in your life and are you in jail now?” and “Were you arrested once while staying at the [spouse abuse] shelter?” and “Did [Appellant] help bail you out of jail?” Defense counsel declined to ask other proposed questions, e.g., “On the day your Mom married [Appellant], did you and your friend drive to the bar they were at?” and “Did her ex-boyfriend take you to bars sometimes?” and “Did your mother send you and a girl named Amanda to Illinois to buy more beer?” and “Did you drink a little whiskey while you were gone?” Appellant does not claim on appeal that counsel’s failure to ask any particular question of one of the victims was reversible error — only that he should have been permitted to personally conduct the cross-examinations.

In addition to preparing questions used to cross-examine the victims, Appellant conducted a portion of the voir dire (only to the extent of asking the jurors if any of them believed he was guilty and assuring them of his innocence), made his own opening statement, cross-examined the investigating officer, conducted the direct examination of four defense witnesses, and made his own closing argument (thrice informing the jury that there was other evidence of his innocence that had not been presented at trial). He also testified in his own behalf.

It is clear that Partin had the right, implicit under the Sixth Amendment of the United States Constitution and explicit under Section 11 of the Constitution of Kentucky, to decline representation by counsel and represent himself at his trial. Faretta v. California, 422 U.S. 806, 819-20, 95 S.Ct. 2525, 2533, 45 L.Ed.2d 562 (1975); Wake v. Barker, 514 S.W.2d 692, 695-96 (Ky.1974). That, however, does not mean that he had a constitutional right to personally cross-examine the victim(s) of his crimes. In McKaskle v. Wiggins, 465 U.S. 168, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984), the United States Supreme Court explained the extent, nature, and purpose of the right of self-representation.

The pro se defendant must be allowed to control the organization and content of his own defense, to make motions, to argue points of law, to participate in voir dire, to question witnesses, and to address the court and the jury at appropriate points in the trial.
[However], [t]he right to appear pro se exists to affirm the dignity and autonomy of the accused and to allow the presentation of what may, at least occasionally, be the accused’s best possible defense. Both of these objectives can be achieved without categorically silencing standby counsel.
[W]hether the defendant had a fair chance to present his case in his own way ... [and t]he specific rights to make his voice heard ... form the core of a defendant’s right of self-representation.

Id. at 174, 176-77, 104 S.Ct. at 949, 950.

In Fields v. Murray, 49 F.3d 1024 (4th Cir.1995), a majority of an en banc United States Court of Appeals for the Fourth Circuit held that the trial court did not err in refusing to allow the defendant to personally cross-examine the victims who testified against him in his trial on child sexual abuse charges. Instead, the trial court permitted standby counsel to conduct the cross-examination and to ask questions written by the defendant. The Fourth Circuit likened this partial restriction on the right of self-representation to the partial restriction on the right of confrontation approved in Maryland v. Craig, 497 U.S. 836, 857, 110 S.Ct. 3157, 3170, 111 L.Ed.2d 666 (1990) (child sexual abuse victims permitted to testify against alleged abuser out of his presence and outside of the courtroom by closed circuit television); and held that the defendant’s right to personally cross-examine the witnesses against him could be restricted if the purposes of the self-representation right would have been “otherwise assured,” and if denial of personal cross-examination was necessary to further an important public policy. Fields, 49 F.3d at 1035.

[W]hile Fields’ ability to present his chosen defense may have been reduced slightly by not being allowed personally to cross-examine the girls, it would have been otherwise assured because he could have personally presented his defense in every other portion of the trial and could even have controlled the cross-examination by specifying the questions to be asked. As a result, we are convinced that the purposes of the self-representation right were better “otherwise assured” here, despite the denial of personal cross-examination, than was the purpose of the Confrontation Clause right in Craig when the defendant was denied face-to-face confrontation with the witnesses.

Id. at 1035-36.

In State v. Estabrook, 68 Wash.App. 309, 842 P.2d 1001 (1993), the defendant had no standby counsel, and the trial judge read the defendant’s questions to the victim. Applying the McKaskle test, the court concluded that the procedure did not violate the defendant’s right of self-representation.

First, it appears that Estabrook was permitted to maintain “actual control over the case he [chose] to present to the jury.” He prepared the questions asked of J.H. He had the opportunity to ask follow-up questions. Furthermore, the judge was persistent in asking Esta-brook’s questions, rephrasing questions and obtaining answers when J.H. initially did not understand certain questions. Secondly, the procedure followed did not “destroy the jury’s perception that [Es-tabrook was] representing himself.” The court carefully explained to the jury several times that Estabrook was representing himself, and indeed, that that was the reason why the judge was asking the questions prepared by the defendant. After reviewing the entire record before this court, we are satisfied that Estabrook had a fair chance to present his case in his own way and to make his voice heard.

Id. at 1006. See also State v. Taylor, 562 A.2d 445, 453 (R.I.1989) (defendant was properly denied right to personally cross-examine victim upon finding that such cross-examination would harm victim).

It would have been the better course to hold an evidentiary hearing and make a finding of necessity similar to that required in Craig, 497 U.S. at 855-56, 110 S.Ct. at 3169, and Price v. Commonwealth, 31 S.W.3d 885, 894 (Ky.2000). However, the trial court did not conjure his decision out of thin air. He had before him the victim’s advocate’s letter, Appellant’s prior history of criminal assaultive behavior (rape, robbery), and the allegation in this case that Appellant threatened to kill both his wife and his stepson while holding a gun to their heads. We agree with the conclusion reached by the Fourth Circuit in Fields that the failure to hold a Craig- type evidentiary hearing on this issue did not violate Appellant’s constitutional rights.

It is far less difficult to conclude that a child sexual abuse victim will be emotionally harmed by being personally cross-examined by her alleged abuser than by being required merely to testify in his presence. Further, the right denied here, that of cross-examining witnesses personally, lacks the fundamental importance of the right denied in Craig, that of confronting adverse witnesses face-to-face. As a result, we do not believe it was essential in this case that psychological evidence of the probable emotional harm to each of the girls be presented in order for the trial court to find that denying Fields personal cross-examination was necessary to protect them.

Fields, 49 F.3d at 1036-37. Fields acknowledged that the Massachusetts Supreme Judicial Court had held otherwise in Commonwealth v. Conefrey, 410 Mass. 1, 570 N.E.2d 1384, 1390-91 (1991), but specifically declined to follow its reasoning, Fields, 49 F.3d at 1037 n. 13—as do we.

Cross-examination can be used to attack the human components of the prosecution’s case-in-chief through intimidation. In certain cases, the intimidation of the witness during cross-examination and the tactical advantage gained by it may exceed what the Constitution and fundamental fairness in the adversarial process require. William F. Lane, Note, Explicit Limitations on the Implicit Right to Self-Representation in Child Sexual Abuse Trials: Fields v. Murray, 74 N.C. L.Rev. 863, 894 (March 1996). Furthermore, KRE 611(a) provides that a trial court “shall exercise reasonable control over the mode ... of interrogating witnesses ... so as to ... [p]rotect witnesses from harassment or undue embarrassment.” In the context of a Confrontation Clause claim, the United States Supreme Court has held that “trial judges retain wide latitude ... to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness’ safety-” Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 1435, 89 L.Ed.2d 674 (1986). See also Delaware v. Fensterer, 474 U.S. 15, 20, 106 S.Ct. 292, 294, 88 L.Ed.2d 15 (1985) (The Confrontation Clause only “guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.”).

[T]he defendant’s right to proceed pro se exists in the larger context of the criminal trial designed to determine whether or not a defendant is guilty of the offense with which he is charged. The trial judge may be required to make numerous rulings reconciling the participation of standby counsel with a pro se defendant’s objection to that participation; nothing in the nature of the Faretta right suggests that the usual deference to “judgment calls” on these issues by the trial judge should not obtain here as elsewhere.

McKaskle, 465 U.S. at 177 n. 8, 104 S.Ct. at 950 n. 8.

Appellant participated in the cross-examination of the victims by preparing questions to be asked, and he does not claim that counsel’s cross-examination was deficient in any respect. The trial court’s decision to require counsel to actually pose the questions to the victims was not an abuse of discretion and did not violate Appellant’s right of self-representation.

II. GRAND JUROR BIAS.

Appellant’s indictment was rendered June 14, 2002. On the morning of trial, June 16, 2003, Appellant made an oral motion to dismiss the indictment because the grand jury foreperson, Cliff Gill, who was also the jailer of McCracken County, had known Appellant for twenty-four years and had previously pressed charges against him. We note at the outset that while both the Sixth Amendment of the United States Constitution and Section 11 of the Constitution of Kentucky require a trial by an “impartial jury,” neither the Fifth Amendment nor Section 12 require indictment by an “impartial grand jury.” The United States Supreme Court has suggested that such is implicit in the Fifth Amendment. Costello v. United States, 350 U.S. 359, 363, 76 S.Ct. 406, 409, 100 L.Ed. 397 (1956) (“An indictment returned by a legally constituted and unbiased grand jury ... if valid on its face, is enough to call for trial of the charge on the merits.” (emphasis added)). Obviously, the makeup of a grand jury can be challenged on the basis that, e.g., the method of its selection was discriminatory. See, e.g., Vasquez v. Hillery, 474 U.S. 254, 262, 106 S.Ct. 617, 622, 88 L.Ed.2d 598 (1986); Rose v. Mitchell, 443 U.S. 545, 556, 99 S.Ct. 2993, 3000, 61 L.Ed.2d 739 (1979). However, with respect to individual grand jurors, most courts follow the view enunciated in United States v. Knowles, 147 F.Supp. 19 (D.D.C.1957):

Challenges for bias, or for any cause other than lack of legal qualifications, are unknown as concerns grand jurors. No provision is made for peremptory challenges of grand jurors and no such challenges are permitted. Likewise no voir dire examination exists in respect to grand jurors. In other words, the status of a member of a grand jury may not be questioned except for lack of legal qualifications.
The basic theory of the functions of a grand jury, does not require that grand jurors should be impartial and unbiased. In this respect, their position is entirely different from that of petit jurors. The Sixth Amendment to the Constitution of the United States expressly provides that the trial jury in a criminal case must be “impartial”. No such requirement in respect to grand juries is found in the Fifth Amendment, which contains the guaranty against prosecutions for infamous crimes unless on a presentment or indictment of a grand jury. It is hardly necessary to be reminded that each of these Amendments was adopted at the same time as a part of the group consisting of the first ten Amendments. A grand jury does not pass on the guilt or innocence of the defendant, but merely determines whether he should be brought to trial. It is purely an accusatory body. This view can be demonstrated by the fact that a grand jury may undertake an investigation on its own initiative, or at the behest of one of its members. In such event, the grand juror who instigated the proceeding that may result in an indictment, obviously can hardly be deemed to be impartial, but he is not disqualified for that reason.

Id. at 20-21. See also Estes v. United States, 335 F.2d 609, 613 (5th Cir.1964); In re Grand Jury of S. Dist. of Ala., 508 F.Supp. 1210, 1215 (S.D.Ala.1980); United States v. Anzelmo, 319 F.Supp. 1106, 1114 (E.D.La.1970); Reed v. United States, 383 A.2d 316, 322 (D.C.1978); Creamer v. State, 150 Ga.App. 458, 258 S.E.2d 212, 214 (1979); People v. Edmond, 86 Mich.App. 374, 273 N.W.2d 85, 92 (1978); State v. Laskay, 103 N.M. 799, 715 P.2d 72, 73 (App.1986); State v. Beck, 56 Wash.2d 474, 349 P.2d 387, 389 (1960).

Courts that have permitted challenges to indictments on grounds of grand juror bias have placed the burden on the defendant to show (1) that the grand juror was, in fact, biased and could not act impartially, and (2) excluding the biased grand juror’s vote, the indictment was returned by fewer persons than required by law (nine in Kentucky, Ky. Const. § 248). United States v. Fuentes, 432 F.2d 405, 407 (5th Cir.1970); Castle v. United States, 238 F.2d 131, 136 (8th Cir.1956); United States v. Remington, 191 F.2d 246, 252 (2nd Cir.1951) (fact that grand jury foreman had financial interest in book being written by government’s chief witness did not require dismissal of indictment absent proof of actual undue influence).

We need not dwell on the effect of the language in Costello, because the United States Supreme Court was therein interpreting the Grand Jury Clause of the Fifth Amendment, which has not been made applicable to the states by the Fourteenth Amendment. Apprendi v. New Jersey, 530 U.S. 466, 477 n. 3, 120 S.Ct. 2348, 2355 n. 3, 147 L.Ed.2d 435 (2000); Hurtado v. California, 110 U.S. 516, 534-35, 4 S.Ct. 111, 120, 28 L.Ed. 232 (1884). Our case law is in line with Knowles.

The grand jury proceeding is not a trial. Such a body does nothing more than accuse a person of the offense he is alleged to have committed. The grand jury is merely required to find an indictment where they have received what they believe to be sufficient competent evidence to support it. See RCr 5.10. Even if the two who are objected to [county attorney’s wife and Department of Highways employee] were ineligible to sit, which ineligibility is not established, this is not a valid reason for quashing the indictment....

Rice v. Commonwealth, 387 S.W.2d 4, 5 (Ky.1965). See also Hammer v. Commonwealth, 332 S.W.2d 267 (Ky.1959), in which the foreman of the grand jury was one of the victims of the defendant’s crime and actually testified during the grand jury proceedings. “It is readily apparent that the giving of testimony by a grand juror is consistent with his duty as a grand juror and affords no ground for quashing the indictment.” Id. at 268.

The trial court properly overruled Appellant’s motion to dismiss the indictment on grounds that the grand jury foreperson was allegedly biased against him.

III. ADMISSION AND SUPPRESSION OF EVIDENCE.

The Commonwealth introduced portions of ten letters written by Appellant to his wife, Vicki, while awaiting trial. The letters tended to suggest to Vicki that she falsify evidence in order help him obtain an acquittal. The letters were admissible under the admissions exception to the hearsay rule. KRE 801A(b)(l). Appellant claims, however, that the letters should not have been admitted because some of the pages were missing, thus precluding him from exercising his right under KRE 106 to introduce other parts of those writings that allegedly would have explained the seemingly inculpatory statements. However, as explained in Soto v. Commonwealth, 139 S.W.3d 827 (Ky.2004), “KRE 106 is a rule of admission, not exclusion .... It does not require the exclusion of a relevant portion of a document because other portions cannot be found.” Id. at 865-66. The trial court did not err in admitting these writings.

During his own testimony, Par-tin sought to admit another letter he had written to Vicki that allegedly was exculpatory in nature. The trial court sustained the Commonwealth’s objection to the admission of this letter, presumably because it was a prior consistent statement made after Appellant’s motive to fabricate exculpatory evidence arose. KRE 801A(a)(2). Appellant did not offer the letter by way of avowal; thus, this claim of error was not preserved for appellate review. KRE 103(a)(2); Garrett v. Commonwealth, 48 S.W.3d 6, 15 (Ky.2001). Appellant also claimed to have letters written to him by Vicki that would explain statements in his own letters. The prosecutor objected on grounds that the letters had not been furnished to him pursuant to an order of reciprocal discovery. The trial court indicated it would probably sustain the objection on that basis, but advised Appellant that “[i]f you want you can provide them to me. I’ll look through them for a way to work around that.” The record does not reflect that the letters were ever provided to the trial court, that Appellant ever moved for their admission into evidence, or that he offered them by way of avowal. Thus, this claim of error is also not preserved for appellate review.

IV. MOTION FOR MISTRIAL.

During a recess in the trial and while the jurors were outside the courtroom, Appellant approached the bench and moved for a mistrial, “because me and the prosecutor had words, which the jury could have well heard. He asked me, ‘Did I have a problem?’ ” The prosecutor explained that the incident occurred when Appellant accused him of unethical conduct because he had talked to one of Appellant’s witnesses. Appellant referred to this incident as a “tirade.” Since the exchange occurred during a recess, it is not part of the videotaped record. Appellant, however, did not dispute the prosecutor’s assertion during the bench conference that no one’s voice was raised. The jury was in the jury room and there is no evidence that the door was open. The trial court did not abuse its discretion in determining that there was no manifest necessity for a mistrial. Shabazz v. Commonwealth, 153 S.W.3d 806, 810-11 (Ky.2005); Kirkland v. Commonwealth, 53 S.W.3d 71, 75-76 (Ky.2001).

Accordingly, the judgment of convictions and sentences imposed by the McCracken Circuit Court are affirmed.

LAMBERT, C.J.; GRAVES, JOHNSTONE, and SCOTT, JJ„ concur.

WINTERSHEIMER, J., concurs by separate opinion.

KELLER, J., dissents by separate opinion.

WINTERSHEIMER, Justice,

concurring.

I concur in the result achieved by the majority opinion, but I write separately to express my concern about reconciling Hill v. Commonwealth, 125 S.W.3d 221 (Ky.2004), with our reasoning today.

Partin wished to have an active role in his defense. A defendant has a state and federal constitutional right to proceed without a lawyer. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); Ky. Const. § 11. Hill, swpra, held that the trial court was required under the Kentucky Constitution § 11 to grant the defendant’s request to serve as co-counsel, where he sought a limited waiver of counsel in order to examine and cross-examine certain witnesses, by himself, in prosecution for engaging in organized crime. A majority of this Court held in Hill that the trial court has “Faretta, supra, duties” when a defendant makes a limited waiver of counsel. These include: (1) holding a hearing in which the defendant testifies on the question of whether the waiver is voluntary, knowing, and intelligent; (2) warning the defendant of the hazards arising from and the benefits relinquished by waiving counsel; and (3) making a finding that the waiver is knowing, intelligent, and voluntary. Furthermore, it was held that this is a structural issue and the waiver is ineffective without all the elements.

At the hearing to appoint co-counsel, defense counsel stated that Partin insisted on having an active role. The trial judge warned Partin that his assigned attorney was very familiar with trial strategies and competent in defense work and that he would be losing her expertise in preparing a trial for him. Partin argued on his own behalf that he felt no one else had as much interest in his case as did he. Thus, he desired to “drive the car” himself. He made this point several times. Even his opening argument to the jury began with Partin explaining to the jury that he felt his own life was in the balance and, therefore, he must have a part in making his own defense.

The trial judge warned Partin about the dangers and explained that there were rules to be followed in court. Partin explained to the court that he had been studying the rules of court and rules of evidence. He reaffirmed many times that he felt best situated to present the facts of his case and manage the interrogation of witnesses because he had conducted his own investigations. Partin said he wanted the assistance of counsel for matters of following procedure, handling voir dire, and for following the trial process itself.

The prosecutor questioned the fairness to its case of allowing Partin to proceed as co-counsel. He said he feared that if Par-tin perceived the case was not going favorably, he would break rules knowingly to create a mistrial. The prosecutor explained that contempt for 30 days was no deterrent against life imprisonment. In fact, Partin broke several admonishments from the trial judge, eventually being held in contempt of court with a 30-day sentence.

Contrary to the requirements framed by the majority in Hill, the record here lacks a direct finding by the trial judge that Partin’s waiver was knowing, intelligent, and voluntary. Therefore, I must reluctantly view the reasoning in this case to appear to be at variance with Hill. Thus, I concur in result only.

KELLER, Justice,

dissenting.

I respectfully dissent because the trial court clearly violated Appellant’s Sixth Amendment right to self-representation by prohibiting him from personally cross-examining the victims.

Time and again, courts, including this Court, have honored the right of an accused to defend him or herself and to question witnesses as guaranteed by the Sixth Amendment. Although “[t]he right of self-representation is not a license to abuse the dignity of the courtroom” or to ignore the “relevant rules of procedural and substantive law,” it is not a right to be taken lightly, as the trial judge may only terminate it when “a defendant ... deliberately engages in serious and obstructionist misconduct.” But here, without any evidence of disruptive, disorderly, or disrespectful behavior by Appellant, the trial court banned Appellant from cross-examining the victims due to the concerns of a victim’s advocate, which were communicated ex parte to the trial court, that the victim-witnesses might be intimidated if Appellant questioned them. This was error.

As the United States Supreme Court has pointed out, in a passage that the majority opinion also quotes:

A defendant’s right to self-representation plainly encompasses certain specific rights to have his voice heard. The pro se defendant must be allowed to control the organization and content of his own defense, to make motions, to argue points of law, to participate in voir dire, to question witnesses, and to address the court and the jury at appropriate points in the trial.

“The specific right[] to make his voice heard ... form[s] the core of a defendant’s right of self-representation.” And if only standby counsel is allowed to question witnesses, i.e., “to speak instead of the defendant on [a] matter of importance,” the defendant’s right of self-representation is eroded. In the present case, requiring standby counsel to conduct cross-examination of the victims over Appellant’s objection clearly violated this right. Appellant had no choice as to whether counsel would be helpful in cross-examining the victims, and “forcing a lawyer upon an unwilling defendant is contrary to his basic right to defend himself if he truly wants to do so.”

The Massachusetts Supreme Court in Commonwealth v. Conefrey evaluated a trial court’s similar ban on a defendant personally cross-examining the victim and determined that a restriction based on perceived harm violated the defendant’s Sixth Amendment rights. The Conefrey Court’s words are equally applicable here:

The judge appears to have concluded, based on his own experience and feelings as to this trial ... that trauma and intimidation of the complainant, and possibly untruthful answers, would be the inevitable result of the defendant cross-examining the complainant....
The record contains nothing to show that the defendant intended to exploit or manipulate the right of self-representation for ulterior purposes. There is also no indication that the defendant’s questioning of the complainant would harm her, that it would violate the rules of evidence and protocol which normally apply in this sort of trial, or that the complainant would not respond truthfully to his questions.... “The possibility that reasonable cooperation may be withheld, and the right later waived, is not a reason for denying the right of self representation from the start.” United States v. Dougherty, [473 F.2d 1113, 1126 (D.C.Cir.1972) ].
There also can be no question that cross-examination of witnesses, in particular the principal accuser of the defendant, is a fundamental component of the right of self-representation....
The mere belief held by the judge that the complainant could be intimidated or harmed beyond the normal limits associated with a trial involving a young complainant, or that she might respond untruthfully if she was questioned by the defendant, is not sufficient to justify the restriction placed on cross-examination.

The majority opinion cites several cases that have held that restricting a defendant’s personal cross-examination of a victim was not error. The difference between those cases (and, for that matter, Conefrey) and this case is that Appellant’s victims were not subjected to sexual abuse. While the victims in this case are no less “victims” because the crime committed against them was not a form of sexual assault or abuse, American jurisprudence has recognized that sex crimes, especially those committed against children, are simply different because the nature of these crimes presents a heightened potential for retraumatizing the victim at trial. The concerns about further trauma to the victims that drove the judges to limit the defendants’ rights to personally cross-examine their victims in the cases cited in the majority opinion simply were not present in this case. The majority opinion, however, fails to recognize the distinction and instead broadens the rule in Fields to include all crime victims. The effect of such a rule is to put an end to the truly pro se defendant who chooses to proceed without counsel at all. Such a defendant would never have a chance to cross-examine the alleged victim, and would, in effect, be forced to accept the help of counsel regardless of whether the cross-examination actually presented a heightened potential for retraumatizing of the victim.

The denial of a defendant’s right to personally cross-examine the victims cannot be dismissed as harmless error on the basis that his or her appointed standby attorney effectively questioned the witnesses. This is because the harmless error analysis is inappropriate when addressing the right of self-representation: “Since the right of self-representation is a right that when exercised usually increases the likelihood of a trial outcome unfavorable to the defendant, its denial is not amenable to ‘harmless error’ analysis. The right is either respected or denied; its deprivation cannot be harmless.” Nevertheless, “it is not inconceivable that in some rare instances, the defendant might in fact present his case more effectively by conducting his own defense” since “[f]rom the jury’s perspective, the message conveyed by the defense may depend as much on the messenger as on the message itself.” In this case, the “jury might have received a significantly different impression” of the victims’ credibility had Appellant himself been permitted to cross-examine them. This is especially so when we consider that the victims were the key witnesses against Appellant. Thus in addition to the Constitutional infringement, the Appellant may have also suffered actual harm from the trial court’s denial of his Sixth Amendment right to personally cross-examine the victims.

I would also note that the right of self-representation in Kentucky’s Constitution is broader than that contained in the United States Constitution. We have specifically held that the right in Kentucky is more expansive than the reading of the Sixth Amendment in McKaskle, and “that ‘an accused may make a limited waiver of counsel, specifying the extent of services he desires, and he then is entitled to counsel whose duty will be confined to rendering the specified kind of services (within, of course, the normal scope of counsel services).’ ” Surely this right to limit stand-by or co-counsel to certain services includes the right to direct who cross-examines the victim.

And though a trial court has the discretion to limit scope of cross-examination or to assign the presentation of the defense to standby counsel when defendant’s conduct is disruptive, disorderly, or disrespectful, this discretion is abused when a trial court implements a prospective bar on a defendant’s right to personally cross-examine his or her accusers when the defendant has not engaged in such behavior. The majority opinion expands the rule in an attempt to erase the trial court’s mistake in this regard. The core of the Confrontation Clause, however, is the right to confront one’s accuser, and no one is more likely to be such an accuser than the alleged victim of a crime. To create a rule that exempts the primary accuser from questioning by the defendant serves only to gut the Confrontation Clause and the right to proceed pro se. For this reason, I respectfully dissent. Accordingly, I would reverse and remand this case to the trial court for a new trial.

      . In his concurring opinion, Justice Winter-sheimer expresses concern that the trial court did not make a finding on the record that Appellant’s waiver of counsel was "knowing, intelligent, and voluntary.” Hill v. Commonwealth, 125 S.W.3d 221, 226 (Ky.2004). Appellant does not raise that issue as a claim of error on appeal. In fact, his claim is exactly the opposite — that the trial court erred by not permitting him to voluntarily, knowingly and intelligently waive his right to have counsel cross-examine the victims.

      . Although Appellant also has a right of self-representation under Section 11 of the Kentucky Constitution, for the sake of brevity, I will refer only to his Sixth Amendment right of self-representation.

      . See, e.g., McKaskle v. Wiggins, 465 U.S. 168, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984); Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973); Mason v. Mitchell, 320 F.3d 604 (6th Cir.2003); Wake v. Barker, 514 S.W.2d 692 (Ky.1974).

      . Faretta, 422 U.S. at 834, 95 S.Ct. at 2541 n. 46.

      . Id. (second and third emphases added).

        .McKaskle, 465 U.S. at 174, 104 S.Ct. at 949 (emphasis added); accord Davis v. Alaska, 415 U.S. 308, 315, 94 S.Ct. 1105, 1110, 39 L.Ed.2d 347, 353 (1974) ("Confrontation means more than being allowed to confront the witness physically.”); Chambers, 410 U.S. at 295, 93 S.Ct. at 1046 (1973) ("The right of cross-examination is more than a desirable rule of trial procedure.”).

      . McKaskle, 465 U.S. at 177, 104 S.Ct. at 950.

      . McKaskle, 465 U.S. at 178, 104 S.Ct. at 951.

      . Faretta, 422 U.S. at 817, 95 S.Ct. at 2532.

      . 410 Mass. 1, 570 N.E.2d 1384 (1991).

      . Id. at 1390-91.

      . See Fields v. Murray, 49 F.3d 1024 (4th Cir.1995); State v. Estabrook, 68 Wash.App. 309, 842 P.2d 1001 (1993); State v. Taylor, 562 A.2d 445, 453 (R.I.1989).

      . See, e.g., Maryland v. Craig, 497 U.S. 836, 851, 110 S.Ct. 3157, 3167, 111 L.Ed.2d 666 (1990) (allowing child sex abuse victim to testify outside of the presence of the defendant because of the compelling state interest in protecting “minor victims of sex crimes from further trauma and embarrassment”).

      . McKaskle, 465 U.S. at 177 n. 8, 104 S.Ct. at 950; accord Neder v. United States, 527 U.S. 1, 8, 119 S.Ct. 1827, 1833, 144 L.Ed.2d 35, 46 (1999) ("Indeed, we have found an error to be 'structural,’ and thus subject to automatic reversal, only in a ‘very limited class of cases’.... McKaskle v. Wiggins, 465 U.S. 168, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984) (denial of self-representation at trial)”).

      . Faretta, 422 U.S. at 834, 95 S.Ct. at 2540.

      . McKaskle, 465 U.S. at 179, 104 S.Ct. at 951.

      . Delaware v. Van Arsdall, 475 U.S. 673, 680, 106 S.Ct. 1431, 1436, 89 L.Ed.2d 674, 684 (1986).

      . Hill v. Commonwealth, 125 S.W.3d 221 (Ky.2004).

      . Id. at 225 (quoting Wake v. Barker, 514 S.W.2d 692, 696 (Ky.1974)) (emphasis added).

      . Mason v. Mitchell, 320 F.3d 604, 633 (6th Cir.2003).

      . Wake v. Barker, 514 S.W.2d 692, 697 (Ky. 1974).

      . California v. Green, 399 U.S. 149, 157, 90 S.Ct. 1930, 1934-35, 26 L.Ed.2d 489 (1970) ("[I]t is this literal right to 'confront' the witness at the time of trial that forms the core of the values furthered by the Confrontation Clause.”).