author: NOBLE.

text:
    Mark PADGETT, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    No. 2008-SC-000632-MR.
    Supreme Court of Kentucky.
    March 18, 2010.
    Rehearing Denied June 17, 2010.

      Emily Holt Rhorer, Department of Public Advocacy, Frankfort, KY, Counsel for Appellant.
    Jack Conway, Attorney General, Christian Kenneth Ray Miller, Assistant Attorney General, Office of Attorney General, Office of Criminal Appeals, Frankfort, KY, Counsel for Appellee.
   Opinion of the Court by Justice

NOBLE.

Appellant, Mark Padgett, was convicted in Campbell Circuit Court of criminal attempt to commit first-degree manslaughter, second-degree assault, and violation of an emergency protective order. On appeal, Appellant raises five issues: that he was compelled to incriminate himself, that the trial court failed to hold a proper hearing on his counsel’s performance, that the trial court failed to inform him of his right to standby counsel, that the trial court denied him his right to a competency hearing, and that the prosecutor committed misconduct during her closing argument. For the reasons set forth below, Appellant’s convictions are affirmed.

I. Background

On the evening of June 29, 2007, Appellant was looking for his two teenage sons in Ft. Thomas. He was unable to contact them by phone, so he drove around town in his truck, searching for them at the places they frequented. After a while, Appellant gave up his search and decided to return home. At this point, he noticed that a nearby church was hosting a festival, so he decided to park his truck and to go look for some friends.

While walking to the festival, Appellant heard his son P. J., a teenager, call for him. He testified that he then saw P.J. carelessly cross the street, in front of oncoming traffic. He testified that he yelled at P.J. to stop, as he watched a car pass in front of him. This deeply upset Appellant, who then asked P.J. whether his mother, Susan Padgett, was supervising him. P.J. warned Appellant that Susan was across the street, in a laundromat. This was a problem because, after their divorce, Susan had an emergency protective order against Appellant, requiring him to stay at least 500 feet away from her.

Appellant returned to his truck, intending to drive home, to avoid violating the protective order. He testified that he then saw P.J. cross the street once more, again in front of oncoming traffic. This made Appellant extremely upset. He testified that his eyes were blinking, he was having trouble breathing, and that he could not feel the ground beneath his feet. Apparently, Appellant then decided that he was going to show Susan that her failure to supervise P.J. was unacceptable. So, he pulled his truck into a parking spot near the laundromat, grabbed an SKS rifle from the back of his truck, and went inside to scare her. He testified that he left his truck running so that he could easily flee after he was done scaring Susan.

Inside the laundromat, a fight between Appellant and Susan ensued. Appellant testified that he kept his rifle to his side, but that Susan grabbed it, causing them to struggle for control over it. He insisted that he never intentionally hit Susan, but that she was hit as a result of their mutual struggle over the rifle.

Susan, however, testified that she felt an impelling force approach her, and by the time she turned around, she saw a rifle pointed at her head. Then, Appellant beat her several times with the butt of his rifle, as she attempted to flee and deflect his blows. Susan’s testimony was corroborated by a witness inside the laundromat who testified that Appellant entered the laundromat, declared “it’s show time,” attempted to fire his rifle, and when that failed, began to beat Susan with it. Another witness, who was looking into the laundromat through a window from outside, also testified that Appellant beat Susan with his rifle.

Eventually, Susan escaped and made her way outside. She ran down the street, screaming for help. Apparently, while Appellant was inside the laundromat, fireworks in his truck, which he was keeping for Independence Day celebrations, mysteriously exploded, setting his truck on fire. This alerted police officers and some additional witnesses to the scene. Appellant testified that this turned the incident into his “worst nightmare” because he could not flee in his truck after scaring Susan, as he had planned.

Appellant left the laundromat. Witnesses, including a nearby police officer who came to the scene after the fireworks exploded, testified that Appellant then pointed his rifle at Susan as she ran down the street. One witness testified that Appellant pulled his rifle up in a “firing-type” pose; the officer testified that Appellant pulled his rifle up in a “ready-fire” pose. The officer also testified that he saw Appellant pull the trigger on his rifle, and when it did not fire, adjust its bolt action.

Appellant explained their testimony by positing that the strap on his rifle was bothersome, which caused him to move his rifle around as he ran. But he insisted that he never posed "with his rifle, pointed it at Susan, or pulled its trigger. Soon thereafter, Appellant dropped his rifle, ran, and was eventually arrested. Susan had found a hiding spot nearby, and was treated for injuries to her head and hand.

The jury convicted Appellant of criminal attempt to commit first-degree manslaughter, second-degree assault, and violation of an emergency protective order. He was sentenced to twenty years’ imprisonment and appeals to this Court as a matter of right. Ky. Const. § 110(2)(b).

II. Analysis

A. Compelled Self-incrimination

Appellant argues that the trial court compelled him to incriminate himself by requiring him to testify to receive an instruction on extreme emotional disturbance. At trial, Appellant’s theory was that he acted under extreme emotional disturbance, triggered by his seeing his son carelessly cross the street. To support his theory, Appellant planned to call an expert witness to testify. The trial court ruled that the expert’s testimony would be inadmissible because his opinion was based on Appellant’s out-of-court statements, including what Appellant saw his son do and how this made Appellant feel. After the trial court ruled that the expert could not testify without some evidence beyond Appellant’s out-of-court statements, Appellant took the stand to testify to the triggering event giving rise to his extreme emotional disturbance. The trial court then allowed the expert to testify.

An extreme emotional disturbance instruction must be supported by “some definite, non-speculative evidence.” Holland v. Commonwealth, 114 S.W.3d 792, 807 (Ky.2003) (quoting Hudson v. Commonwealth, 979 S.W.2d 106, 109 (Ky. 1998)). Specifically, the evidence must show that some triggering event caused the defendant to suffer “a temporary state of mind so enraged, inflamed, or disturbed as to overcome one’s judgment, and to cause one to act uncontrollably from [an] impelling force of the extreme emotional disturbance rather than from evil or malicious purposes.” Greene v. Commonwealth, 197 S.W.3d 76, 81 (Ky.2006) (alteration in original, quoting McClellan v. Commonwealth, 715 S.W.2d 464, 468-69 (Ky.1986)); see also KRS 507.020(l)(a), 507.030(l)(b).

As in every other context, the evidence supporting extreme emotional disturbance must come from some admissible source. In Talbott v. Commonwealth, 968 S.W.2d 76 (Ky.1998), the defendant attempted to prove the presence of her extreme emotional disturbance with expert testimony based primarily on her out-of-court statements. In that case, the trial court refused to permit the expert testimony, and without any other evidence, refused to instruct the jury on extreme emotional disturbance. This Court affirmed, stating:

Where the defendant does not testify and there is no other factual basis to support a defense of extreme emotional disturbance, that defense cannot be bootstrapped into the evidence by an expert opinion premised primarily on out-of-court information furnished by the defendant.... To permit this type of evidence would allow a defendant to testify by proxy without being subjected to the crucible of cross-examination. The objection to [the expertj’s testimony was properly sustained and Appellant’s request for jury instructions on extreme emotional disturbance ... was properly denied.

Id. at 85.

In this case, the trial court’s statements make clear that it was not requiring Appellant to testify, but was instead excluding inadmissible evidence, as in Talbott The trial court said that it would not allow the expert to testify about the triggering event of Appellant’s extreme emotional disturbance because that testimony would be supported only by Appellant’s out-of-court statements to the expert. Indeed, the only evidence up to that point contradicted Appellant’s out-of-court statements. Appellant’s son P.J. testified that he looked both ways before crossing the street and that the only cars near him were stopped at red traffic lights. Susan also saw P.J. cross the street, but she testified that she could not see whether any traffic was approaching P.J. from her vantage point. Appellant was trying to introduce evidence of the triggering event, P.J. carelessly crossing the street in front of oncoming traffic, with his out-of-court statements, through the expert.

The trial court determined that Appellant would have to show the triggering event with some evidence other than testimony by proxy. Defense counsel argued that “circumstantial evidence” supported the expert’s opinion in addition to Appellant’s out-of-court statements. When the trial court disagreed, counsel asserted that “there’s no evidence to the contrary.” The trial court responded: “That’s the point. There’s no evidence.”

In fact, there was evidence, but the evidence actually contradicted Appellant’s out-of-court statements. Regardless, the record supports the trial court’s conclusion that the expert opinion was based on Appellant’s out-of-court statements, and not other evidence. Consequently, the court properly refused to let the extreme emotional disturbance issue be bootstrapped into the evidence, as in Talbott. KRE 104(a). To permit the expert’s testimony would have been to improperly allow the defendant to testify by proxy. Talbott, 968 S.W.2d at 85.

Moreover, Appellant’s right against self-incrimination was not implicated by the trial court’s ruling. The trial court did not require Appellant to testify; it simply required him to produce some admissible evidence to support the extreme emotional disturbance instruction. The fact that Appellant may have only been able to support this instruction by testifying does not implicate the Fifth Amendment. Just as this Court held in the context of the self-protection defense, the reasoning applies here:

where circumstantial or indirect evidence fails to raise the issue of self-protection, the fact that a defendant must testify or forgo this defense does not implicate the Fifth Amendment. The defendant’s “choice between complete silence and presenting a defense has never been thought an invasion of the privilege against compelled self-incrimination.”

Hilbert v. Commonwealth, 162 S.W.3d 921, 925 (Ky.2005) (quoting United States v. Rylander, 460 U.S. 752, 759, 103 S.Ct. 1548, 75 L.Ed.2d 521 (1983)). Accordingly, there was no error.

B. Failure to Hold Hearing on Counsel’s Performance

Appellant next argues that the trial court failed to hold a proper hearing on his counsel’s inadequate performance. After the prosecutor had presented her case, but before Appellant had started to present his, Appellant declared that he was firing his attorneys. The trial court spoke to Appellant about his right to proceed pro se, the risks of proceeding pro se, and his complaints about his trial counsel. Appellant explained that his complaint was that his counsel was refusing to call certain witnesses on his behalf. The trial court explained that some of the testimony would be inadmissible; Appellant’s counsel explained that he had tactical reasons for not calling others. The trial court ultimately gave Appellant some time to think about his decision to fire his attorneys and gave him the opportunity to make a phone call. When Appellant returned, he decided to keep his attorneys.

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 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.

Here, the trial judge sufficiently elicited that counsel had the ability to effectively assist Appellant. In their conversation, the trial judge told Appellant that one of the two of his attorneys had twenty-one years of experience, including in murder trials, and that he was representing Appellant to the best of his ability. The judge also questioned how Appellant could represent himself better than his attorneys, given their different levels of experience. The record of the above conversation shows that the trial judge was convinced that counsel had the ability to effectively assist Appellant, and nothing was revealed to the contrary.

Indeed, Appellant’s complaint was not one of ability, but one of tactics. In particular, he complained that his counsel was refusing to call certain witnesses. Appellant said he wished to call the expert witness to testify as to his extreme emotional disturbance; the trial court explained, however, that it would not allow the expert to testify without evidence of the triggering event, based on its prior ruling. Appellant also read a list of witnesses he wished to subpoena. His counsel stated that he did not plan to call the people on Appellant’s list, based on an investigator’s interviews and contacts with them. Apparently, Appellant wanted some of the witnesses to testify to subjects that would open the door to evidence of his history of domestic violence against Susan, which had not yet been introduced. And some of the other witnesses would contradict Appellant’s theory, or otherwise testify contrary to his expectations. Counsel was not unprepared, but was simply making reasonable tactical decisions with which Appellant disagreed.

Accordingly, the record shows that the trial court elicited that counsel was both able and prepared to effectively assist Appellant, despite Appellant’s tactical disagreements with him. There was no error.

C. Failure to Inform of Right to Hybrid Counsel

Appellant next argues that the trial court committed error by failing to inform him of his right to hybrid counsel under Section 11 of the Kentucky Constitution. See Hill v. Commonwealth, 125 S.W.3d 221, 228-29 (Ky.2004) (recognizing the right to hybrid counsel under Ky. Const. § 11). Appellant’s claim is not that he was denied his right to hybrid counsel. Indeed, Appellant never requested hybrid counsel, and thus was not entitled to it. Deno v. Commonwealth, 177 S.W.3d 753, 757 (Ky.2005) (“[H]ybrid representation may only be granted to a defendant who makes a timely and unequivocal request for such representation.” (citing Moore v. Commonwealth, 634 S.W.2d 426, 430 (Ky.1982))). Rather, his argument is that, when the trial court asked him why he wanted to make a complete waiver of his right to counsel and proceed pro se, he was entitled to be informed that he could make a limited waiver and proceed with hybrid counsel instead.

To date, there is no case which requires a trial court to sua sponte inform a defendant of his right to hybrid counsel. If error, it is beyond a reasonable doubt that it did not affect the verdict in this case.

D. Failure to Hold Competency Hearing

Appellant next argues that the trial court failed to hold a mandatory competency hearing. KRS 504.100(1) requires the court to order a competency examination upon “reasonable grounds to believe the defendant is incompetent to stand trial.” And KRS 504.100(3) states that “[a]fter the filing of a report (or reports), the court shall hold a hearing to determine whether or not the defendant is competent.” (Emphasis added.) Appellant claims his case must be reversed (or at least remanded for a retrospective hearing) because the court ordered a competency report under KRS 504.100(1) without holding the hearing required by KRS 504.100(3).

The relevant facts are undisputed. Pri- or to trial, defense counsel indicated that he would present evidence that Appellant suffered from a mental illness or from an extreme emotional disturbance. Based on this, the court sua sponte ordered a report from the Kentucky Correctional Psychiatric Center (KCPC) on Appellant’s criminal responsibility and competency to stand trial. However, at this time, defense counsel indicated that competency was not an issue. Indeed, the report, which was later filed with the court, concluded that Appellant was competent. In addition, Appellant’s private psychiatrist agreed that he was competent and testified as to this opinion (among others) at trial. The Appellant did not request a competency hearing, and no hearing was held. In fact, the record indicates that all concerned considered the Appellant to be competent to stand trial. Nonetheless, he now argues he was entitled to the competency hearing the judge was required to conduct.

However, absent constitutional considerations, such a hearing on the facts of this ease could serve only to elevate form over substance. This Court has struggled with this scenario for some time now, and the current state of the law requires just that.

The discussion regarding a trial court’s failure to hold a competency hearing began with Mills v. Commonwealth, 996 S.W.2d 473 (Ky., 1999). In Mills, there was no evidence before the trial court suggesting that the defendant was incompetent. However, the court ordered a competency report because defense counsel “filed notice of his intention to introduce evidence concerning mental illness, insanity, or mental defect.” Id. at 485. After the filing of the report, which concluded the defendant was competent, “defense counsel stated that competency was not an issue and waived the hearing.” Id. at 486. No hearing was held.

Mills began its analysis by describing the nature of competency hearings. First, it noted that they are rooted in due process under the Fourteenth Amendment. Id. (citing Medina v. California, 505 U.S. 437, 439, 112 S.Ct. 2572, 120 L.Ed.2d 353 (1992)). Second, it noted that they are constitutionally mandatory if the trial court knows facts that place the defendant’s competency in doubt, id. (citing Drope v. Missouri, 420 U.S. 162, 180, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975); Pate v. Robinson, 383 U.S. 375, 385-86, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966)), as well as “clearly mandatory” under the Kentucky statute once a court-ordered competency report is filed, id. (citing KRS 504.100(3)). Mills further opined that the hearing cannot be waived. Id. (citing KRS 504.100(3); Medina, 505 U.S. at 449-50, 112 S.Ct. 2572; Pate, 383 U.S. at 384, 86 S.Ct. 836). Despite this, Mills then held that not holding the hearing was harmless error because the defendant had “failed to establish any factual basis which should have caused the trial court to experience reasonable doubt as to ... competence to stand trial.” Id.

This logic was later followed in Turner v. Commonwealth, 153 S.W.3d 823 (Ky.2005), and Bray v. Commonwealth, 177 S.W.3d 741 (Ky.2005). In Turner, where there was no factual basis to doubt the defendant’s competency, this Court held that failure to hold a hearing after a report was filed did not rise to palpable error. 153 S.W.3d at 831-32. That same year, in Bray, this Court held that the court’s refusal to hold a hearing was harmless, where the appellant requested a hearing despite the fact that “two psychological opinions [which] were virtually identical” had found him competent. 177 S.W.3d at 751. These cases indicated that without some evidence of incompetence after the defendant is examined, the failure to hold a hearing could not be prejudicial error. These cases, like Mills, appear to say that a hearing is necessary under constitutional principles, but what they actually do is find a way to preserve the conviction through harmless or palpable error analysis.

However, as Thompson v. Commonwealth, 56 S.W.3d 406 (Ky.2001) makes clear, there may be prejudicial error on constitutional grounds if sufficient, specific facts suggest that the defendant could be incompetent. In Thompson the court ordered a competency report, but the defense “conceded” the issue of competency and no hearing was held. On appeal, this Court noted that it is a violation of Due Process if an incompetent defendant stands trial or enters a plea. Unlike the cases discussed above, when the court ordered the competency report, there were serious concerns about the defendant’s competency, which were noted in the judge’s order, including “possible serious and chronic mental illnesses, neurological problems which may be organic in nature, and the presence of a mental condition which may affect defendant’s ability to perceive and interpret information provided to him by counsel.” Id. at 407-08. And even though the report ordered by the court found the defendant competent, this Court found that failure to hold the hearing was clearly prejudicial, given these concerns.

In so doing, this Court established a standard of review as to whether failure to conduct the competency hearing violated Due Process: “Whether a reasonable judge, situated as was the trial court judge whose failure to conduct an evidentiary hearing is being reviewed, should have experienced doubt with respect to competency to stand trial.” Id. at 408 (quoting Mills, 996 S.W.2d at 486). This is the appropriate standard when reviewing the constitutional dimensions of the failure to conduct a competency hearing. Thus, if there are sufficient, specific facts pointing toward incompetence, a hearing is absolutely mandatory, whether it is held at trial or retrospectively, see id. at 407-08; however, without such specific facts, the failure to hold a hearing could not be prejudicial error, see Bray, 177 S.W.3d at 751; Turner, 153 S.W.3d at 832; Mills, 996 S.W.2d at 486. This is how things stood, until Gibbs v. Commonwealth, 208 S.W.3d 848 (Ky.2006).

The facts in Gibbs are virtually identical to those in Mills: the court ordered a competency report, this report concluded that the defendant was competent, defense counsel indicated no hearing was needed based on the report, and the trial continued without a hearing. Id. at 852. Unlike Thompson, there were no specific facts indicating incompetence. Despite the holding in Thompson, this Court reversed, noting that “it is difficult to ignore what appears to be a mandatory hearing requirement in KRS 504.100(3).” Id. at 853. That statute states that “[a]fter the filing of a report (or reports), the court shall hold a hearing” to determine competency. (Emphasis added.) In concluding that “the trial court erred by not conducting a competency hearing following a court ordered competency evaluation,” this Court remanded with orders to conduct a retrospective competency hearing. Gibbs, 208 S.W.3d at 853.

Gibbs made a clear departure from the previous rule. It held that failure to hold a hearing after the filing of a court-ordered report is automatically reversible, without regard to whether there is substantial evidence in the record supporting incompetency, waiver, or error review, or even whether a retrospective hearing is feasible considering the current state of the evidence. Because the statute states that a hearing “shall” be held, Gibbs gives every case constitutional magnitude based solely on the language of the statute rather than by actually conducting constitutional analysis. It is our most recent case on failure to hold the statutorily required hearing, and is thus where the law currently stands.

However, Gibbs is an aberration, given our previous cases. The analysis in Gibbs is based almost exclusively on Mills, it has nearly identical facts to that case, and yet it adopts the opposite holding without explanation. Also, its remedy departs from that of Thompson, again without explanation. In Thompson, this Court clearly indicated that not every case could be in the posture to conduct a viable retrospective competency hearing that would satisfy due process because of a possible lack of or deterioration of evidence. Thompson, 56 S.W.3d at 409. In Gibbs, however, this Court simply declared that it was “unaware of any reason that a proper hearing could not be held,” and, substituting its judgment for that of the trial court as to the current state of the evidence of competency, remanded for a retrospective competency hearing regardless of the state of the evidence. This was a mistake in analysis.

The effect of Gibbs is to create a bright-line rule that the mandatory language in our statute requires reversal for a retrospective hearing in any case where the court orders a competency report. However, in doing so, Gibbs makes no constitutional analysis and ignores our long-standing rule that defendants may generally waive mere statutory rights if there are no constitutional implications. Keith v. Com monwealth, 195 Ky. 635, 243 S.W. 293, 297 (1922). It also ignores our rule that if errors are statutory only, they must be reviewed for either harmless or palpable error, see RCr 9.24, 10.26, depending on whether or not they were preserved.

The confusion this Court had in Gibbs is understandable. If, as Mills noted, competency hearings are rooted in due process, mandatory under U.S. Supreme Court precedent, and cannot be waived, see Mills, 996 S.W.2d at 486, then our typical rules about statutory waiver and statutory error would be inadequate to vindicate the constitutional right which may be at stake. Indeed, it is contradictory to say in one breath that the right to a hearing is constitutionally based and cannot be waived, and in the next breath to say that reversal is not required because failure to hold the hearing is harmless under our statute. Yet, this is exactly what our previous cases did. The holding in Gibbs no doubt came, in part, to rectify this.

However, as the dissent to Gibbs correctly points out, the prior cases (and Gibbs itself) went astray because “they failed to recognize that two separate interests — a statutory right and a constitutional right — are at stake in analyzing whether a defendant is competent, and, more importantly, that different standards govern those interests.” Id. at 859 (Roach, J., dissenting). Our prior cases, especially Gibbs, conflated these two separate rights.

The first .important difference between the constitutional and statutory rights is “the evidentiary threshold at which each right attaches.” Id. at 860. “The [Fourteenth Amendment] due-process right to a fair trial is violated by a court’s failure to hold a proper competency hearing where there is substantial evidence that a defendant is incompetent.” Filiaggi v. Bagley, 445 F.3d 851, 858 (6th Cir.2006) (emphasis added, citing Pate v. Robinson, 383 U.S. 375, 385-86, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966)). Relevant evidence includes “a defendant’s irrational behavior, his demeanor at trial, and any prior medical opinion on competence.” Drope v. Missouri, 420 U.S. 162, 180, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975). This last factor makes clear that the relevant inquiry is whether there was substantial evidence when it was time to hold the hearing, which occurs after evaluative opinions on competence are filed with the court.

In contrast, the statutory right to a hearing requires only that, once an exam and report have been ordered based on reasonable grounds and the report has been filed with the court, the court shall conduct a competency hearing. KRS 504.100(3). The obvious inference is that, lacking substantial evidence of incompetency, constitutional grounds are not implicated, though statutory grounds may be. Because “[t]he Fourteenth Amendment right requires a significantly higher evi-dentiary burden than the statutory right ... it is possible that the evidentiary threshold for the statutory right could be met without that evidence rising to the level sufficient to invoke the Fourteenth Amendment right.” Gibbs, 208 S.W.3d at 860 (Roach, J., dissenting). Our prior cases have not recognized this distinction, instead analyzing the two rights as one combined right. '

The second difference is whether the rights can be waived. Mills correctly noted that U.S. Supreme Court cases “indicate strongly that a defendant cannot waive a competency hearing.” Mills, 996 S.W.2d at 486. What Mills and our other cases were not careful to point out, however, was that these U.S. Supreme Court cases deal with the federal, constitutional right to a hearing which is invoked when there is substantial evidence in the record of incompetency. In contrast, our statutory right to a hearing is not constitutional, and can be waived when there is not substantial evidence of incompetency in the record, because our long-standing rule is that defendants may generally waive statutory rights. Keith, 195 Ky. 635, 248 S.W. at 297. Our prior cases have not recognized this either.

If there is substantial evidence that a defendant is incompetent, and thus the constitutional right to a hearing attaches, the trial court must conduct a competency hearing (at trial or retrospectively) even if both counsel and the defendant expressly waive it. Waiver alone cannot satisfy due process. But, if there are not substantial grounds to believe the defendant is incompetent, only the statutory right has attached. And because any statutory right can be waived, there would be no error if the trial court declined to hold a hearing upon a valid waiver, despite the mandatory language in the statute. Certainly, if only the statutory right is at issue, the best practice would be for the judge to establish on the record whether the hearing has been waived, after the filing of the report.

To illustrate, a record where there is no history of prior mental problems, the defendant comports himself well in court, and the report indicates he is competent, would not give rise to a due process hearing requirement, as there is not substantial evidence to support a finding of incompetency. On this record, a defendant could waive his competency hearing, and the trial court would be justified in not holding one. To illustrate further, if there is no evidence of incompetence but the trial court orders an evaluation anyway, the court’s order and an evaluation indicating he is competent, standing alone, would not be substantial evidence triggering the constitutional right to a hearing. This is no more than applying the standard of review set forth in Thompson, and is consistent with federal law, see Filiaggi, 445 F.3d at 858; Williams v. Bordenkircher, 696 F.2d 464, 467 (6th Cir.1983).

If only the statutory hearing is at issue, and the constitutional considerations are not applicable, our general rules with respect to waiver, palpable error, or harmless error if the lack of a hearing is preserved, apply just as they do for any other non-constitutional errors. RCr 9.24, 10.26. It is difficult to imagine a case in which the statutory error would be prejudicial as long as the constitutional right to a hearing was not implicated.

In light of the above distinctions, the purpose of the retrospective competency hearing becomes clear. It is only in the limited situation of a violation of the constitutional right to a hearing (when there is substantial evidence of incompetency in the record) where it is necessary to remand for a retrospective hearing. Even then, on remand, the trial court must determine if a retrospective hearing is feasible, considering the state of the evidence, and conduct such a hearing if it is. Thompson, 56 S.W.3d at 409. A retrospective hearing, if appropriate, can satisfy due process. If the evidence does not allow for an adequate retrospective hearing, then the defendant is entitled to a new trial.

However, if only the statutory right to a hearing is at issue (when there is not substantial evidence of incompetency in the record), a retrospective hearing is not absolutely mandatory, contra Gibbs, 208 S.W.3d at 853, because it can be waived, Keith, 195 Ky. 635, 243 S.W. at 297, and would rarely be prejudicial error by itself in any event, RCr 9.24, 10.26. What this means to the trial court, being subject to the statutory mandate, is that the hearing can be waived, or simply not done (in the court’s discretion), when there is no constitutional requirement for a hearing (when there is not substantial evidence of incompetency in the record).

Our prior eases did not properly analyze the two distinct rights at stake. Gibbs, 208 S.W.3d at 859 (Roach, J., dissenting). Henceforth, the approach outlined above is the one to be followed. To the extent that our prior cases are inconsistent with this approach, they are overruled.

Turning to this case, there is no constitutional error because there was not substantial evidence that should have given the trial court doubt with respect to competency. True, some initial doubts were raised when defense counsel indicated that he might present evidence of a mental illness or extreme emotional disturbance. But defense counsel’s statements alone could not have been substantial evidence. The fact is that Appellant’s competency was no longer in doubt after the KCPC report specifically concluded that he understood courtroom proceedings and that he was competent. Appellant’s own private psychiatrist agreed, and no contrary evidence was produced. In short, the evidence was entirely one-sided, and it pointed to Appellant’s competence. This certainly does not rise to the level of substantial evidence of incompetence, meaning that no hearing was required by due process.

Although there was no hearing held pursuant to the statute, none is required in this case. Before the examination was ordered, counsel told the court competency was not an issue. Arguably, any hearing was waived at this point, and failing to hold one was not error. After the filing of the report, the issue of a hearing was never raised. All of the evidence at that time suggested that Appellant was competent. No evidence at that time, or later during the trial, suggested anything else. Certainly, even if there was no waiver, failing to hold a hearing does not rise to the level of palpable error, there being no manifest injustice. Consequently, there is no need for a retrospective competency hearing in this case.

E. Misconduct during Closing Arguments

Last, Appellant assigns as error seven different misstatements from the prosecutor during closing argument. The first four of these are characterized as misstatements of fact, one as a misstatement of law, one as an improper accusation that Appellant was lying, and the last as improper expression of opinion.

1. Four Misstatements of Fact

Counsel has wide latitude during closing arguments. Brewer v. Commonwealth, 206 S.W.3d 343, 350 (Ky.2006). The longstanding rule is that counsel may comment on the evidence and make all legitimate inferences that can be reasonably drawn therefrom. East v. Commonwealth, 249 Ky. 46, 52, 60 S.W.2d 137, 139 (1933). This Court recently explained the appropriate standard of review for prose-cutorial misconduct during closing arguments, stating that reversal is required “only if the misconduct is ‘flagrant’ or if each of the following are satisfied: (1) proof of defendant’s guilt is not overwhelming; (2) defense counsel objected; and (3) the trial court failed to cure the error with sufficient admonishment.” Miller v. Commonwealth, 283 S.W.3d 690, 704 (Ky.2009) (emphasis removed, quoting Barnes v. Commonwealth, 91 S.W.3d 564, 568 (Ky.2002)). Additionally, this Court “must always consider these closing arguments ‘as a whole.’ ” Id. (quoting Young v. Commonwealth, 25 S.W.3d 66, 74-75 (Ky.2000)).

First, Appellant assigns as error the prosecutor beginning her closing argument by holding up Appellant’s rifle to her shoulder in a firing position while declaring “it’s show time.” The prosecutor continued by telling the jury that this is what Appellant had said as he entered the laundromat. At trial, Appellant objected to her holding the gun up to her shoulder while saying “it’s show time” because no evidence supported the inference that these two actions occurred simultaneously. Instead, the most the testimony showed was that Appellant walked into the laundromat, declared “it’s show time,” and that some time while in the laundromat he pointed his rifle at Susan.

Appellant is correct that the evidence did not affirmatively show that these events happened simultaneously. However, given the ambiguity in the testimony, the prosecutor’s implication that these acts occurred simultaneously (or close to simultaneously) is reasonable. The witness inside the laundromat testified that Appellant said “it’s show time,” aimed his rifle at Susan, and that everything happened very quickly. Susan testified that she felt an impelling force enter the laundromat and that by the time she could turn around Appellant was already aiming his rifle at her. Although the precise timing of events is ambiguous, the evidence shows that Appellant held his rifle in a firing position and said “it’s show time” in very short order. Accordingly, linking the two events temporally, as the prosecutor did, is not misconduct. Thus, there was no error.

Second, Appellant assigns as error the prosecutor indicating that Susan injured her hand while fighting with Appellant. At trial, Appellant objected to this statement, stating that Susan injured her hand later while she was hiding from Appellant, not while she was fighting with him. The evidence, however, was unclear on this point. Susan appeared to first notice how profusely she was bleeding while she was hiding, but it is not clear when she first sustained the injury to her hand.

Yet, enough evidence was introduced to make the prosecutor’s inference reasonable. Appellant testified that, while struggling with Susan over his rifle, he cut his own hand on his rifle’s bayonet. It is reasonable to believe Susan also suffered injuries to her hand in that struggle. Additionally, Susan testified that, when Appellant was beating her with the butt of his rifle, she attempted to deflect his blows with her hands. This is certainly enough to reasonably infer that she injured her hand during this fight, and not later when she was hiding. There was no error.

Third, Appellant assigns as error the prosecutor preparing a diagram for the jury of the area surrounding the laundromat. Appellant objected at trial that one of the witnesses was not in the position shown on the diagram. While using the diagram, the prosecutor conceded to the jury that the diagram was not to scale, was not completely accurate, and was being used to show, in general, where witnesses were standing. Apparently, the prosecutor used the diagram to show that the witnesses’ testimony was consistent from their respective vantage points, to refute Appellant’s argument to the contrary. Insofar as the diagram was not completely accurate, this misconduct was not “flagrant,” given the prosecutor’s admission to the jury that the diagram was not completely accurate and was only being used to show generalities. This is not error.

Last, Appellant assigns as error the prosecutor’s misstatement as to where a witness said Appellant was standing when he aimed his rifle outside the laundromat. Specifically, Appellant objected at trial when the prosecutor said the witness testified that Appellant was standing “at the corner,” pointing on her diagram to a corner between two buildings. Appellant asserted this was a misstatement because the witness actually said he was standing “at the street corner.” As the Commonwealth correctly points out in its brief, however, the witness testified that he saw Appellant “pose up on' the corner in a firing-type pose.” The witness did not describe Appellant’s location as the street corner. It thus appears that Appellant’s trial counsel made an erroneous objection at trial, and his appellate counsel simply repeated it to this Court. Accordingly, there was no error.

2. Misstatement of Law

Counsel may, during closing arguments, discuss the law applicable to the case as instructed by the court. Counsel may not, however, misstate the law or make comments on the law inconsistent with the court’s instructions. East, 249 Ky. at 52-58, 60 S.W.2d at 140 (“Neither has such counsel the right to intentionally and knowingly misapply the instructions given by the court to the facts in the case so as to mislead the jury and cause its members to depart from the instructions and return a verdict not authorized thereby.”). The standard for whether or not prosecutorial misconduct is reversible error in this context is the same as in the context of misstating the facts, as described above, and is generally satisfied if the misconduct is flagrant-or prejudicial to the defendant. Miller, 283 S.W.3d at 704.

Appellant argues that the prosecutor misled the jury by misstating the standard for extreme emotional disturbance. In particular, he objected at trial that the prosecutor characterized the standard as whether Appellant’s actions were reasonable, as opposed to whether his reaction to the triggering event giving rise to his extreme emotional disturbance was reasonable. Appellant points out that the jury asked the court a question about extreme emotional disturbance during its deliberations, and he suggests that this indicates the jury remained confused by the prosecutor’s misstatements.

The potentially misleading effect of the prosecutor’s misstatements, however, was not prejudicial. After Appellant first objected to the prosecutor’s misstatement, the trial court allowed the prosecutor to correct her error. The prosecutor then described the appropriate standard. Later, in response to another objection,, the trial court re-read the relevant portion of the instructions to the jury, indicating that the court’s instructions, and not anything the parties said, were the law the jury must apply. The prosecutor then continued her closing argument, referencing the appropriate standard.

Contrary to Appellant’s argument, the jury’s question to the court did not indicate it was confused by the prosecution’s misstatements. During deliberations, the jury gave a note to the trial court reading only “Extreme Emotional Disturbance.” The trial court then called the jury to receive a specific question. The subsequent discussion was not recorded, but the court and parties summarized it once the recording had resumed. Apparently, the jury was confused in thinking that anyone who tried to kill another person must be, in some sense, extremely emotionally disturbed. They thus, it appears, thought that any attempted killing would be an attempted first-degree manslaughter rather than an attempted murder. Ultimately, the trial court told the jury to re-read the instructions and told them they could ask further questions if they continued to be confused. The jury later found Appellant guilty of attempted first-degree manslaughter.

Here, the jury’s confusion was contrary to the standard as initially misstated by the prosecutor. The prosecutor misstated that the standard was whether the accused acted reasonably. But the jury did not think that every person who attempted to commit murder acted reasonably; they thought that every person who attempted to commit murder must be extremely emotionally disturbed. The prosecutor made no misstatements about this.

Regardless, after the jury expressed its confusion, the court told them to re-read the instructions defining extreme emotional disturbance, and then to resume deliberation. This removed any remaining doubt that the jury acted on the prosecution’s misstatement of the law, rather than the court’s instructions. Accordingly, the prosecution’s misstatements were not prejudicial, and thus they do not constitute reversible error.

3. Accusing Appellant of Lying

The prosecutor’s assertion that Appellant was lying is a more serious matter, but is likewise not reversible error. Consistent with the general rule that in closing arguments counsel may make reasonable inferences based on the evidence, the Commonwealth may suggest that a defendant was lying if this is a reasonable inference. United States v. Francis, 170 F.3d 546, 551-52 (6th Cir.1999); see also People v. Wilson, 36 Cal.4th 309, 30 Cal. Rptr.3d 513, 114 P.3d 758, 779 (2005). To make this a reasonable inference, the defendant must take the stand and there must be discrepancies between the evidence and the defendant’s testimony.

In this case, it was reasonable to infer that Appellant was lying. In fact, Appellant’s testimony directly contradicted the testimony of several other witnesses. Consequently, either Appellant was lying or several other witnesses were. For example, Appellant testified that Susan was injured while she struggled with him over the rifle but that he never intentionally hit her with it. Testimony from Susan, which was consistent with her injuries and the testimony of two other witnesses, indicated that he rather aggressively beat her over the head with the butt of the rifle as she attempted to run away and deflect his blows. Additionally, Appellant denied trying to shoot his rifle; other witnesses testified that he aimed the gun and pulled the trigger. And Appellant’s own son testified that he crossed the street in front of two cars stopped at red traffic lights, contrary to Appellant’s testimony that the traffic was oncoming. The above contradictions support the inference the prosecutor made that Appellant’s story “just doesn’t make sense, and it doesn’t make sense because he’s lying.” There was no error.

4. Expression of Opinion

Last, Appellant makes the claim that the prosecutor improperly vouched for the evidence and improperly expressed her opinion. In particular, at trial he objected to the prosecutor making comments prefaced with phrases such as “I think” and “I find.” The trial court then told the prosecutor to preface her comments with phases such as “we think,” which she then did. Appellant contended, however, that statements such as “we think” would also be impermissible, as they turn a statement into an opinion.

It is improper for counsel to express personal opinions as to a person’s guilt or innocence, or to make any inferences unwarranted by the evidence. See generally United States v. Young, 470 U.S. 1, 9-11, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985). However, counsel may make any arguments reasonably supported by the evidence. Id.; East, 60 S.W.2d at 139. Indeed, the key is whether the statement is reasonably supported by the evidence, as this is what distinguishes normal, proper argument from something improper, such as suggesting that evidence outside of the record supports a particular conclusion.

In this case, the prosecutor did nothing improper. Her statements prefaced by phrases such as “I think” or “we think” were not misconduct. Prefatory phrases such as “I think” are often used unintentionally, as a matter of habit, to make the claims that follow seem less bold. Such phrases hedge one’s argument, making it seem less authoritative, and their use is a habit that is often difficult to change. Importantly, nothing suggests these phrases were used to attempt to inflame the jury, bolster the credibility of witnesses by personally vouching for them, or to make the jury consider anything other than the evidence presented a trial. To the contrary, this is a natural way of speaking when presenting an argument. Accordingly, there was no error.

III. Conclusion

For the foregoing reasons, the judgment of the Campbell Circuit Court is affirmed.

All sitting. All concur.

      . The rifle was loaded, but it did not Are. An expert testified that, due to the poor construction of the rifle, a cartridge could have been improperly seated such that a person could pull the trigger without causing it to fire.

      . Interestingly, in both Mills and Turner, defense counsel did not object to the lack of a hearing. Yet, Mills used harmless error review, rather than palpable error review as it should have, like Turner.

      . Typically, this was done by citing the standard for the constitutional right, followed by analyzing whether or not the error was harmful or palpable under our statute. E.g., Mills, 996 S.W.2d at 486; Bray, 111 S.W.3d at 749-51.

      . For example, the appellant in Mills waived the hearing, and only the statutory right could have been implicated. Yet, Mills resolves the issue by saying the failure to hold a hearing was harmless, rather than saying no error occurred at all due to the waiver.

      . The Commonwealth asserts that this section of Appellant’s brief should be stricken. The Commonwealth’s assertion seems to be that Appellant’s brief cited both the record and the law, but failed to actually make an argument, thus contravening CR 76.12(4)(c)(v), our rule requiring the ’’contents'’ of briefs to include ”[a]n ‘ARGUMENT.’ ” In his reply brief, Appellant notes that the Commonwealth made a typographical error, misciting the relevant provision as CR 76.12(4)(fc )(v), which, as Appellant points out, does not exist. This Court finds such quibbling to be an unfortunate distraction. And in any event, Appellant’s brief contains a sufficient argument to be duly considered.


source: Caselaw Access Project

author: VENTERS.

license: Public Domain

text:
    Cassandra SMITH, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    No. 2008-SC-000060-DG.
    Supreme Court of Kentucky.
    March 18, 2010.
    Rehearing Denied June 17, 2010.

      Daniel T. Goyette, Louisville Metro Public Defender, Elizabeth B. McMahon, Assistant Public Defender, Office of the Jefferson District Public Defender, Louisville, KY, Counsel for Appellant.
    Jack Conway, Attorney General, Jeffrey Allan Cross, Criminal Appellate Division, Office of the Attorney General, Frankfort, KY, Counsel for Appellee.
   Opinion of the Court by Justice

VENTERS.

Appellant, Cassandra Smith, appeals from a Court of Appeals decision affirming a Jefferson Circuit Court judgment entered upon a jury verdict convicting her of first-degree possession of a controlled substance and possession of drug paraphernalia. For these crimes, pursuant to a sentencing agreement with the Commonwealth, Smith was sentenced to a total of three years to serve, probated for five years.

On appeal, Smith contends that the trial court erred by denying her motion to suppress several incriminatory statements she made to police during the execution of a search warrant at her residence, and by precluding her from introducing evidence concerning her husband’s prior felony drug convictions. For the reasons stated below, we conclude that the trial court erred by failing to suppress Smith’s statement, which implied that she had drugs in her pocket, made in response to a question asked by police after she was handcuffed. Because the admission of this evidence was not harmless, we reverse Smith’s conviction for first-degree possession of a controlled substance and remand for a new trial. We affirm the decision of the Court of Appeals in all remaining respects.

FACTUAL AND PROCEDURAL BACKGROUND

Following an investigation which appeared to implicate Smith in drug trafficking, Louisville Police obtained a warrant to search her residence. On April 24, 2003, police executed the warrant. In executing the warrant police used what was characterized as a “dynamic entry,” which involved ramming the door open to gain entry into the residence. Smith and her two children, ages twelve and eleven, were home at the time.

After entering the residence, Sergeant Yvette Gentry found Smith in her bedroom. Upon encountering Smith, Gentry immediately handcuffed her and, without advising her of her rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), asked her if she had any drugs or weapons on her. Smith replied to the effect that “she had something in her pocket.” Based upon this response, Gentry found and removed a packet containing four rocks of crack cocaine from Smith’s pants pocket. This cocaine served as the basis of her indictment for trafficking in cocaine and her eventual conviction for possession of the drug.

After recovering the cocaine, Gentry arrested Smith and escorted her into the living room where she was met by Detective Scott Gootee. Gootee testified that pursuant to normal routine, he then gave Smith the Miranda warnings; however, no other witness recalled this and the trial court concluded he had not. The record is unclear about what prompted Smith to make her next comments, though there was testimony that one of the officers may have said something about the children being present and whether they could be moved elsewhere. In any event, Smith made statements to the effect “well, I knew this was going to happen one day so that’s why I’ve told my kids this may happen one of these days”, and that she “was not a big drug dealer but just did it to get by.” In effect, the statements amounted to an admission of drug dealing.

In the remaining course of the search, police discovered baggies which appeared to contain cocaine residue. The baggies were the basis for the possession of the drug paraphernalia charge.

On February 24, 2004, Smith was indicted for first-degree trafficking in a controlled substance (cocaine) and possession of drug paraphernalia. In due course she moved to suppress the incriminating statements as previously set forth.

Following an evidentiary hearing, the trial court initially ordered all of the statements suppressed. The Commonwealth filed a motion for reconsideration which persuaded the trial court to reverse its ruling. Under the trial court’s ultimate ruling the statement made in the bedroom, implying she had drugs in her pocket, was held to be admissible on the basis that Smith was not in custody at the time she made it. The living room statements were held to be admissible on the basis that those statements were not made in response to any police inquiry designed to elicit an incriminating statement, and thus it was irrelevant whether or not she had been Mirandized.

At trial, Smith’s defense was that before the police executed the warrant, her husband, while out on work-release from jail, came by her residence and, while she was visiting with him, placed something in her pants pocket. She assumed it was money, but, as it turned out, was actually the crack cocaine police found in her pants pocket. Smith thus argued that she did not knowingly possess the cocaine discovered in her pocket.

The jury found Smith not guilty of trafficking in cocaine, but convicted her of the lesser-included offense of possession of cocaine. She was also convicted of possession of drug paraphernalia. Following the jury’s verdict in the guilt phase, Smith entered into a sentencing agreement with the Commonwealth under which she would receive a sentence of three years, probated for five years.

The Court of Appeals affirmed Smith’s conviction, and we thereafter granted discretionary review.

THE TRIAL COURT ERRED BY FAILING TO SUPPRESS THE BEDROOM STATEMENT

Smith first argues that the trial court erred by failing to grant her motion to suppress the statement she made to Officer Gentry in her bedroom. The trial court denied the motion based upon its conclusion, affirmed by the Court of Appeals, that Smith was not in custody for Miranda purposes when she was asked by Gentry whether she had any drugs or weapons on her.

As previously discussed, immediately after entering Smith’s residence, Officer Gentry found her in the bedroom. Gentry handcuffed Smith and, without Mirandiz-ing her, asked if she had any drugs or weapons on her. Smith responded that she “had something in her pocket.” Gentry searched Smith’s pocket and discovered a packet containing crack cocaine, the only drugs found during the execution of the search warrant.

Smith argues that her statement should be suppressed because it was the product of an un-mirandized custodial interrogation. She also argues that the statement was not harmless because it directly contradicted her trial defense that she was unaware the drugs were in her pocket. Relying on Taylor v. Commonwealth, 182 S.W.3d 521 (Ky.2006), the Commonwealth argues that the handcuffing of Smith did not constitute custody for Miranda purposes and thus her statement was admissible.

We do not regard Taylor as controlling here for the simple reason that Taylor was not interrogated. Taylor spontaneously told the officer that handcuffed him thát he had crack cocaine and marijuana in his pockets. “The statements made by Taylor were not in response to any police statement reasonably calculated to elicit an incriminating response. Miranda requires an individual who is stopped to be apprised of his/her rights only in the context of a custodial interrogation. Here, there was no custodial interrogation.” Id. at 523. Thus, Miranda and Fifth Amendment rights were not implicated. Because no interrogation occurred in Taylor, its indication that “Taylor was not in custody for Miranda purposes simply because he was handcuffed and detained in order to prevent his flight until the investigation was completed” is pure dicta and is not persuasive. Taylor, 182 S.W.3d at 524.

In reviewing whether Smith’s statement was admissible, we address three questions: whether Smith was placed in custody for Miranda purposes as a result of being handcuffed; whether Gentry’s questioning was interrogation; and if she was in custody for Miranda purposes and was interrogated, whether the public safety, or any other, exception applies to allow the admission of her statement.

We first address whether Smith was in custody at the time she made the bedroom statement. We review the question of whether a defendant was in custody de novo. Commonwealth v. Lucas, 195 S.W.3d 403, 405 (Ky.2006).

It is fundamental that Miranda only applies to situations implicating compelled self-incrimination. “Indeed, far from being prohibited by the Constitution, admissions of guilt by wrongdoers, if not coerced, are inherently desirable.... Absent some officially coerced self-accusation, the Fifth Amendment privilege is not violated by even the most damning admissions.” Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985) (quoting United States v. Washington, 431 U.S. 181, 97 S.Ct. 1814, 52 L.Ed.2d 238 (1977)) (Emphasis added). To the contrary, custodial questioning is inherently coercive, and protection against this inherent coercion is what Miranda is intended to prevent. Michigan v. Mosley, 423 U.S. 96, 112, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975). Thus, “Miranda warnings are only required when the suspect being questioned is ‘in custody.’ ” Lucas, 195 S.W.3d at 405 (citing Thompson v. Keohane, 516 U.S. 99, 116 S.Ct. 457, 133 L.Ed.2d 383 (1995)).

“Custodial interrogation has been defined as questioning initiated by law enforcement after a person has been taken into custody or otherwise deprived of freedom of action in any significant way.” Id. “Miranda warnings are required only where there has been such a restriction on the freedom of an individual as to render him in custody.” Id. “The inquiry for making a custodial determination is whether the person was under formal arrest or whether there was a restraint of his freedom or whether there was a restraint on freedom of movement to the degree associated with formal arrest.” Id. (citing Thompson, 516 U.S. 99, 116 S.Ct. 457; United States v. Mahan, 190 F.3d 416 (6th Cir.1999)).

Custody does not occur until police, by some form of physical force or show of authority, have restrained the liberty of an individual. Baker v. Commonwealth, 5 S.W.3d 142, 145 (Ky.1999). The test is whether, considering the surrounding circumstances, a reasonable person would have believed he or she was free to leave. Id. (Citing United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980)). The United States Supreme Court has identified factors that suggest a seizure has occurred and that a suspect is in custody: the threatening presence of several officers; the display of a weapon by an officer; the physical touching of the suspect; and the use of tone of voice or language that would indicate that compliance with the officer’s request would be compelled. Mendenhall, 446 U.S. at 544, 100 S.Ct. 1870; Cecil v. Commonwealth, 297 S.W.3d 12 (Ky.2009). Other factors which have been used to determine custody for Miranda purposes include: (1) the purpose of the questioning; (2) whether the place of the questioning was hostile or coercive; (3) the length of the questioning; and (4) other indicia of custody such as whether the suspect was informed at the time that the questioning was voluntary or that the suspect was free to leave or to request the officers to do so, whether the suspect possessed unrestrained freedom of movement during questioning, and whether the suspect initiated contact with the police or voluntarily admitted the officers into the residence and acquiesced to their requests to answer some questions. U.S. v. Salvo, 133 F.3d 943, 950 (6th Cir.1998).

We are persuaded that, upon application of the above factors to the facts of this matter, under the totality of the circumstances, Smith was in custody for Miranda purposes when she made the bedroom statement to Officer Gentry. First, the police’s use of a “dynamic entry” followed by the influx of several police officers set the tone for an inherently coercive atmosphere. Having several police officers burst through the front door of one’s residence is obviously threatening to anyone inside. Moreover, in connection with her handcuffing, there was a physical touching of Smith. Further, under the described circumstances, it is clear that Smith was not free to leave, and did not possess unrestrained freedom of movement. And finally, the handcuffing itself was a restraint on freedom akin to formal arrest. Based upon the totality of circumstances, in view of the factors enumerated, we are constrained to conclude that Smith was in custody for Miranda purposes.

Since we hold that Smith was in custody at the time she made the statement, we next consider whether Officer Gentry’s question “do you have any weapons or drugs” amounted to police interrogation. Interrogation has been defined to include “any words or actions on the part of police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect ... foeusfing] primarily upon the perceptions of the suspect, rather than the intent of the police.” Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980); Wells v. Commonwealth, 892 S.W.2d 299, 302 (Ky.1995). It is self-evident that Gentry’s unambiguous question (“Do you have any drugs or weapons on you?”) intended to illicit, and indeed did illicit, .an incriminating response, the statement, “yes, in my pocket.”

In summary, the bedroom statement was the product of un-mirandized custodial police interrogation.

When a statement is made in violation of Miranda, the usual remedy would be to suppress the statement. Miranda, 384 U.S. 436, 86 S.Ct. 1602. However, the Commonwealth argues that even if Smith’s statement was a product of custodial interrogation, the statement was nevertheless admissible pursuant to the public safety exception identified in New York v. Quarles, 467 U.S. 649, 104 S.Ct. 2626, 81 L.Ed.2d 550 (1984), which we recently adopted in Henry v. Commonwealth, 275 S.W.3d 194 (Ky.2008).

In Quarles, the United States Supreme Court recognized an exception to the Miranda warning requirement which would allow the admission of a statement made in response to a custodial interrogation if the questioning was designed to elicit an answer to protect the public. In Quarles, police were pursuing a rape suspect who abandoned a gun in a grocery store. Upon apprehending the suspect, a police officer asked him where the gun was without Mirandizing him, and the suspect stated where the gun was located. The Court held that the statement regarding the gun’s location was admissible stating, “We do not believe that the doctrinal underpinnings of Miranda require that it be applied in all its rigor to a situation in which police officers ask questions reasonably prompted by concern for the public safety.” Quarles, 467 U.S. at 655-656, 104 S.Ct. 2626.

Unlike the present case, Quarles involved an identifiable and specific danger requiring immediate and unfettered questioning of the defendant to alleviate the risk. As explained in Quarles:

The police in this case, in the very act of apprehending a suspect, were confronted with the immediate necessity of ascertaining the whereabouts of a gun which they had every reason to believe the suspect had just removed from his empty holster and discarded in the supermarket. So long as the gun was concealed somewhere in the supermarket, with its actual whereabouts unknown, it obviously posed more than one danger to the public safety: an accomplice might make use of it, a customer or employee might later come upon it.
In such a situation,, if the police are required to recite the familiar Miranda warnings before asking the whereabouts of the gun, suspects in Quarles’ position might well be deterred from responding. Procedural safeguards which deter a suspect from responding were deemed acceptable in Miranda in order to protect the Fifth Amendment privilege; when the primary social cost of those added protections is the possibility of fewer convictions, the Miranda majority was willing to bear that cost. Here, had Miranda warnings deterred Quarles from responding to Officer Kraft’s question about the whereabouts of the gun, the cost would have been something more than merely the failure to obtain evidence useful in convicting Quarles. Officer Kraft needed an answer to his question not simply to make his case against Quarles but to insure that further danger to the public did not result from the concealment of the gun in a public area.

Id. at 657, 104 S.Ct. 2626.

In this matter, we find that Officer Gentry’s interrogation of Smith was not made in relation to any quantifiable public safety threat. While the Commonwealth argues that the police here faced legitimate safety concerns since weapons could be present in Smith’s apartment, a vague belief that a weapon could be present is unlike the certain knowledge in Quarles and Henry that a gun had been discarded in an area open to the public. If a gun was present in Smith’s apartment, it posed no danger to the public at large. Thus, we are persuaded that the public safety exception does not apply.

In summary, the bedroom statement was a product of an un-mirandized custodial interrogation not subject to the public safety exception. As such, the trial court erred by failing to suppress the statement. Moreover, the error was prejudicial because the statement contradicted Smith’s defense that she was unaware that the drugs were in her pocket. Thus the error was not harmless. Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) (requiring that constitutional error be “harmless beyond a reasonable doubt”). Upon retrial, the statement should be excluded.

STATEMENTS IN THE LIVING ROOM

Smith next argues that the trial court erred by denying her motion to suppress the statements she made in the living room after being arrested. Again, Smith contends that the statements were a product of custodial interrogation.

After Officer Gentry arrested Smith for being in possession of the cocaine and escorted her into the living room, Smith made comments to the effect of “well, I knew this was going to happen one day so that’s why I’ve told my kids this may happen one of these days”, and that she “was not a big drug dealer but just did it to get by.”

It is uncontested that Smith was in custody for Miranda purposes at the time she made these statements. The trial court factually concluded that Smith did not receive Miranda warnings prior to making the statements, but nevertheless permitted the statements to be admitted upon its conclusion that they were not made in response to police interrogation. We agree with the trial court’s ruling.

There was conflicting testimony at trial regarding the circumstances which caused Smith to make the incriminating statements. Some testimony indicated that Smith’s statements were made spontaneously and were not in response to anything said by the police. If the statements were made spontaneously, there is obviously no bar to the admission of the statements in trial and the trial court correctly denied the motion to suppress. Miranda, 384 U.S. at 478, 86 S.Ct. 1602. However, Smith contends that she made the statements in response to an officer’s comment to the effect that the children were present and could they be removed elsewhere. Even if we were to accept Smith’s version of events as true, we are persuaded that the officer’s comment cannot fairly be characterized as police interrogation, and thus the trial court correctly denied the motion to suppress.

Miranda requires the express declaration of a defendant’s rights prior to custodial interrogation. Otherwise suppression is the remedy. Miranda, 384 U.S. at 479, 86 S.Ct. 1602. As previously noted, interrogation has been defined to include “any words or actions on the part of police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect ... foeus[ing] primarily upon the perceptions of the suspect, rather than the intent of the police.” Innis, 446 U.S. at 301, 100 S.Ct. 1682; Wells, 892 S.W.2d at 302.

When Smith was brought into the living room her children were present and the record indicates that one of them was quite upset. The officer’s question to the effect of “was there anywhere else the children could be removed to” was not reasonably likely to elicit an incriminating response. The question regarded the children’s well-being, not Smith’s potential drug activities. It could not reasonably have been anticipated that the comment would elicit an incriminating response. As such, we are persuaded that the living room statements were not a product of custodial interrogation, and were properly admitted.

ARMON PERRY’S PRIOR DRUG CONVICTION

Smith’s final argument is that the trial court erred by precluding her from introducing evidence concerning three pri- or drug-related convictions against her husband, Armón Perry. Perry was incarcerated at the time of Smith’s arrest, but was qualified for work-release.

As previously noted, Smith’s trial defense was that when her husband came by her residence on April 24, 2008, while on work release from jail prior to the execution of the warrant, he, unbeknownst to her, slipped the crack cocaine into her pants pocket. While she knew Perry had placed something in her pocket, she assumed it was money. She argues that admission of his prior drug convictions would corroborate her claim that he had slipped the cocaine into her pocket without her knowledge.

KRE 404(b) provides as follows:

(b) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible:
(1) If offered for some other purpose, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident;

As is clear from the language of the rule, application of KRE 404(b) is not limited to criminal defendants. Robert G. Lawson, The Kentucky Evidence Law Handbook, § 2.25[2], at 125 (4th ed. Lexis-Nexis 2003). As this Court has previously stressed, KRE 404(b) is “exclusionary in nature,” and as such, “any exceptions to the general rule that evidence of prior bad acts is inadmissible should be ‘closely watched and strictly enforced because of [its] dangerous quality and prejudicial consequences.’ ” Clark v. Commonwealth, 223 S.W.3d 90, 96 (Ky.2007). (quoting O’Bryan v. Commonwealth, 634 S.W.2d 153, 156 (Ky.1982)). As recognized in Tamme v. Commonwealth, 973 S.W.2d 13, 29 (Ky.1998), the list of exceptions enumerated in the rule is illustrative, not exclusive.

Smith’s argument in support of admitting the evidence is stated in her brief as follows:

[E]vidence that Armón Perry had previously been convicted of trafficking in a controlled substance and possession of a controlled substance was relevant to show that he was involved in the drug trade, making it likely that he could obtain illegal drugs while out on work release and making it more probable than not that he put the cocaine into Cassandra’s pocket, without her knowledge, before returning to jail.

The relevance of Perry’s prior convictions is not readily apparent. The claim that Perry put the contraband in her pocket was not challenged. The question is whether she knew he had done so. We fail to see how his prior convictions would assist the jury in deciding whether she knew that the object he put in her pocket was crack cocaine. Notwithstanding our doubt about the relevance of Perry’s criminal record, we note that Smith’s argument does not specify an enumerated KRE 404(b)(1) exception supporting admissibility. Nor do we believe her argument states a viable non-enumerated exception. To the contrary, as framed, the argument suggests that the evidence would be introduced for the purpose of showing that Perry possessed the character of a drug-dealer with the corresponding propensity to engage in illegal drug-related conduct and, by obtaining the crack cocaine and placing it in Smith’s pants pocket, he acted in conformity therewith. However, that is exactly the type of evidence KRE 404(b) is intended to exclude.

In the clear absence of a viable KRE 404(b) exception, we are persuaded that the trial court properly excluded the evidence concerning Perry’s prior drug convictions.

CONCLUSION

For the foregoing reasons the conviction for first-degree possession of a controlled substance is reversed and remanded to the Jefferson Circuit Court for additional proceedings consistent with this decision. The opinion of the Court of Appeals is otherwise affirmed.

MINTON, C.J., ABRAMSON, NOBLE, SCHRODER, and SCOTT, JJ., concur.

CUNNINGHAM, J., not sitting.

      . Smith's statements at the scene of her arrest were not recorded. The quotes attributed to her are actually paraphrased reports of police witnesses, the accuracy of which is not disputed.

      . We caution that a detainee’s subjective belief that he is not free to leave is not, standing alone, dispositive of whether there is custody for Miranda purposes. A suspect detained in a stop pursuant to Teny v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) is seized and not free to leave, but nevertheless Miranda warnings are not required under such detentions. Berkemer v. McCarty, 468 U.S. 420, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984). Thus, custody for Miranda purposes necessarily exceeds the brief detention and less intrusive questioning anticipated under Teny, and identification of Miranda custody requires application of the additional factors as identified above to the totality of the circumstances.

      . We agree that handcuffing alone will not always transform a seizure pursuant to Terry v. Ohio into custody for Miranda purposes. See U.S. v. Foster, 376 F.3d 577, 588 (6th Cir.2004) ("[T]he use of handcuffs [does not] exceed the bounds of a Terry stop, so long as the circumstances warrant that precaution”). Terry, 392 U.S. at 24, 88 S.Ct. 1868 ("When an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others, it would appear to be clearly unreasonable to deny the officer the power to take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm.”) In dicta, Taylor, 182 S.W.3d 521, also endorsed this principle. While handcuffing will necessarily weigh strongly that there is custody for Miranda purposes, we are not willing to adopt a bright-line rule that it always is. Again, all relevant factors must be weighed, and then an ultimate determination made based upon the totality of circumstances.


author: /s/ John D. Minton Jr. Chief Justice

text:
    Thelma Spencer COMBS; Brandon Combs; and Paula Spencer Campbell, Appellants, v. KENTUCKY COURT OF APPEALS and Supreme Court of Kentucky, Appellees.
    No. 2009-SC-000486-OA.
    Supreme Court of Kentucky.
    March 18, 2010.
    As Corrected April 13, 2010.
   OPINION AND ORDER

Thelma Spencer Combs, Brandon Combs, and Paula Spencer Campbell have filed or attempted to file an Original Action in this Court, asking us to exercise our jurisdiction under Section 110(2)(a) of the Kentucky Constitution (Ky. Const.) to adjudge Kentucky Rules of Civil Procedure (CR) 76.16(1) & (4) and CR 76.26 unconstitutional and require that unless waived by the parties to the appeal, all cases before the Court of Appeals and Supreme Court of Kentucky must be orally argued before being submitted for decision. Although Ky. Const. § 110(2)(a) provides this Court with jurisdiction “to issue all writs necessary in aid of its appellate jurisdiction, or the complete determination of any cause, or as may be required to exercise control of the Court of Justice[,]” this Court has discretion to determine under what circumstances it will exercise its jurisdiction in control of the Court of Justice. In the present case, we decline to exercise our jurisdiction under Ky. Const. § 110(2)(a). There is no constitutional right to oral argument, and this Court will not exercise its jurisdiction to create a rule requiring oral argument.

Because the Combses and Campbell have failed to show that they are entitled to the relief they request, we dismiss their Original Action; and we deny as moot all pending motions.

MINTON, C.J.; ABRAMSON, CUNNINGHAM, SCHRODER, SCOTT, and VENTERS, JJ., sitting. All concur.

NOBLE, J., not sitting.

ENTERED: March 18, 2010.

/s/ John D. Minton Jr. Chief Justice

      . At best, it is somewhat unclear whether the filing of the purported Original Action is proper under our rules. See, e.g., CR 76.36. Whether or not the action was properly filed, however, the Combses and Campbell are clearly not entitled to the relief requested.

      . Ky. Const. § 110(2)(a) provides that: "The Supreme Court shall have appellate jurisdiction only, except it shall have the power to issue all writs necessary in aid of its appellate jurisdiction, or the complete determination of any cause, or as may be required to exercise control of the Court of Justice."

      . CR 76.16(1) provides that: "Oral arguments on the merits will be heard in all cases appealed from the circuit court unless the appellate court directs otherwise on its own motion or on motion of one or more of the parties to the appeal. CR 76.12(4) provides for the parties to include in their brief statements concerning the need for oral argument in the appeal. In any case where the court orders on its own motion that oral argument shall be dispensed with, any party shall have ten (10) days from the date of the order in which to object and ask for reconsideration. No opinion shall be rendered until the time has expired for making such objection and motion for reconsideration, or if such objection and motion is made, until it can be decided.”

      . CR 76.16(4) provides that: "A person who is not an attorney at law will be permitted to make an oral argument only with special leave of the court."

      . CR 76.26 provides that: "Appeals will be submitted for consideration on the merits by the appellate court when all briefs have been filed or when the time for such filing has expired, whichever is sooner. No paper filed or tendered after submission will be considered unless filed with leave of court.”

      . Abernathy v, Nicholson, 899 S.W.2d 85, 88 (Ky.1995).

      . The open courts provision of the Kentucky Constitution, Ky. Const. § 14, does not explicitly provide a right to oral argument before Kentucky's appellate courts. And Kentucky courts have never interpreted Ky. Const. § 14 as guaranteeing a right to oral argument before Kentucky appellate courts. Similarly, no other provision of the Kentucky Constitution or the United States Constitution provides a right to oral argument before Kentucky appellate courts.


author: COMBS, Chief Judge.

text:
    Raymond Keith CHAPPELL, Appellant, v. Brenda Marie CHAPPELL, Appellee.
    No. 2009-CA-000634-MR.
    Court of Appeals of Kentucky.
    April 16, 2010.

      David T. Sparks (argued), Bowling Green, KY, for appellant.
    J. Richard Downey (argued), Bowling Green, KY, for appellee.
    Before COMBS, Chief Judge; CLAYTON and STUMBO, Judges.
   OPINION

COMBS, Chief Judge.

Raymond Keith Chappell appeals from an order of the Allen Circuit Court, Family Division, concerning child custody, visitation issues, and distribution of marital property. After our review, we affirm.

Brenda and Keith married in Tennessee in 1994; three children were born of the marriage. They separated in January 2007. A temporary joint custody order was entered by the court, and Brenda was designated as the children’s primary residential custodian. The parties were divorced by court order on October 1, 2007.

Brief hearings were conducted in September, October, and November 2008. The court heard testimony relevant to a permanent custody decision. On January 20, 2009, the court issued its findings of fact, conclusions of law, and judgment awarding the parties joint custody of the children. Brenda was to remain the primary residential custodian. This appeal followed.

Keith contends that the trial court abused its discretion and deprived him of a fair hearing by declining to interview the children before reaching a determination with respect to their custody. We disagree.

Kentucky Revised Statute(s) (KRS) 403.290(1) provides that the court “may interview the child in chambers to ascertain the child’s wishes as to his custodian and as to visitation.” (Emphasis added.) If the court elects to conduct such an interview, a record of the interview must be made and filed. The decision of the court is discretionary since the statutory language is permissive rather than mandatory.

The separation and divorce were particularly acrimonious, and although the children were not of tender years, the trial court was seriously concerned about the potentially lasting effects resulting from an in-chambers interview. Although the children were available and could have been called to testify, both of the attorneys of record declined to summon them to the witness stand — presumably electing to spare them a possibly traumatic experience in eliciting testimony that had already been presented from other sources. After reviewing “an abundance of other evidence introduced about the children and their relationships,” the court made a carefully deliberated decision “not to further bring the children into the middle of this dispute.” Order of March 27, 2009.

After our review of the evidence presented and in light of the permissive rather than mandatory language of the statute, we conclude that the court did not abuse its discretion by determining not to conduct an in-chambers interview of these children.

Keith next contends that the trial court erred by failing to designate him as the primary residential custodian. He argues that even without direct input from the children with respect to their custody preferences, he “managed to present a winning case.” Brief at 15.

In custody matters, the court’s “[f]ind-ings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.” Kentucky Rule(s) of Civil Procedure 52.01. “A factual finding is not clearly erroneous if it is supported by substantial evidence.” Sherfey v. Sherfey, 74 S.W.3d 777, 782 (Ky.App.2002). “Substantial evidence” is “evidence of ... relevant consequence sufficient to inducé conviction in the minds of reasonable people.” Id. Broad discretion is vested in trial courts in matters concerning custody and visitation. See Futrell v. Futrell, 346 S.W.2d 39 (Ky.1961).

We have reviewed the entirety of the proceedings before the trial court. The court found that Keith’s witnesses were overly zealous in criticizing Brenda’s parenting skills and tended to exaggerate the conditions at her home. More significantly, the court found that Keith’s witnesses failed to present any reliable evidence to support his assertion that the children were endangered when left in Brenda’s care and control.

The court determined that throughout the parties’ marriage, Brenda had been primarily responsible for the day-to-day fearing of the children. It found that the parties had determined long before their separation that a private, parochial school was the best option for the children. After hearing from a school administrator, the court found that Victory Christian Academy was meeting the children’s academic and social needs.

The court also found that each parent maintained a suitable home for the children; that the children loved each other; and that they should reside together in a single household. The findings of fact included in the circuit court’s custody decision were supported by substantial evidence.

In light of these findings, we must determine whether the circuit court abused its discretion by concluding that it was in the best interest of the children for Brenda to be designated as the primary residential custodian. We are persuaded that the court did not abuse its considerable discretion.

The provisions of KRS 403.270(2) require a trial court to determine custody in accordance with the child’s best interest, giving equal consideration to each parent. The court must consider all relevant factors:

(a) The wishes of the child’s ... parents ... as to his custody;
(b) The wishes of the child as to his custodian;
(c) The interaction and interrelationship of the child with his parent or parents, his siblings, and any other person who may significantly affect the child’s best interests;
(d) The child’s adjustment to his home, school, and community; [and]
(e) The mental and physical health of all individuals involved[.]

KRS 403.270(2). The provisions of KRS 403.270(5) authorize the trial court to grant joint custody if and when that designation is in the child’s best interest.

The trial court carefully and directly considered each of these statutory elements. In particular, the court noted Brenda’s desire to have the children establish and maintain a close connection to their father. The court also noted Keith’s prior tendency to punish the children excessively and to speak to them harshly. However, the court was persuaded that Keith had made strides toward improving his interaction with them and, therefore, it decided not to restrict his right to visitation. Although Keith’s relationship with the eldest child, a daughter, had become increasingly strained during the course of the dissolution proceedings, the court nonetheless determined that it was in her best interest to build a relationship with her father. In this child’s case, the court ordered a mandatory visitation schedule. However, the court decided that it was in the best interests of the children to continue residing primarily with Brenda. Having determined that the court’s decision was not abuse of its discretion, we cannot disturb it on appeal.

Finally, Keith contends that the Allen Circuit Court erred in its distribution of marital property. We disagree.

The trial court concluded that the equity in the parties’ marital home would be divided evenly between them. Keith argued that the parties’ appraiser had inflated the value of their real property, but the court was convinced that the fair market value of the property on the date of dissolution was $74,000.00. The court valued the equity at $27,000.00 and ordered Keith to pay the sum of $13,500.00 to Brenda.

At trial, Keith indicated that the appraisal report was erroneous in several respects. He contended that the report was flawed because it characterized a shed on the property as a “barn”; included the value of a non-existent pond; and attributed value to their mobile home for a central heating and air-conditioning system. The trial court rejected Keith’s assertion that these alleged errors materially impacted the appraisal since the fair market value of the property was reached using a comparison approach and not a cost approach. We have reviewed the contents of the appraisal and the testimony, and we cannot conclude that the trial court erred in its distribution of the property.

We affirm the judgment of the Allen Circuit Court.

ALL CONCUR.