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Court of Appeals of Kentucky.


NO. 2009-CA-001894-MR

Decided: March 11, 2011

BEFORE:  ACREE, LAMBERT, AND THOMPSON, JUDGES. BRIEFS FOR APPELLANT:  Robert C. Yang Assistant Public Advocate Frankfort, Kentucky BRIEF FOR APPELLEE:  Jack Conway Attorney General of Kentucky David B. Abner Assistant Attorney General Frankfort, Kentucky



John Sherrard has directly appealed from the judgment of the Jessamine Circuit Court convicting him of first-degree possession of a forged instrument, first-degree complicity to possession of a forged instrument, and being a second-degree persistent felony offender, for which he received an enhanced ten-year sentence on each conviction, to be served concurrently.   On appeal, Sherrard raises several issues related to his conviction under Count 1 of the indictment and also argues that the trial court erred in failing to order a competency evaluation.   Because the Commonwealth concedes, and we agree, that the trial court should have directed a verdict as to Count 1, we reverse Sherrard's conviction on that charge.   In all other respects, including the ruling on the competency evaluation, we affirm the conviction and sentence.

The facts underlying Sherrard's conviction are as follows:  On December 31, 2007, Sherrard and his girlfriend, Janice Manley, were arrested after Manley attempted to use forged currency to pay for her transactions first at a Wal-Mart and then at a Speedway store in Nicholasville, Kentucky.   At Wal-Mart, Manley gave the cashier two $20.00 bills to pay for a gift card.   Believing the bills were fake, the cashier gave the bills to a manager, who agreed that the bills were counterfeit.   When told the bills were counterfeit, Sherrard grabbed the two bills, and he and Manley ran from the store.   An employee took a description of the car as the two drove away and called the police.   Sherrard then drove Manley to Speedway.   He pumped gas outside while Manley went inside to pay for the gas and other items.   A store video shows Manley handing the two $20.00 bills to the cashier.   A police officer stopped Sherrard's car after they left Speedway.   Officers recovered two counterfeit $5.00 bills in Manley's possession, and the two fake $20.00 bills were retrieved from Speedway.

Sherrard and Manley were indicted by the Jessamine County grand jury.   Sherrard was charged with two counts of criminal possession of a forged instrument related to the $20.00 bills used at Wal-Mart (Count 1) and Speedway (Count 2).   Manley was also charged for her possession of the $20.00 bills as well as for the $5.00 bills.   Additionally, they were both charged as persistent felony offenders.   Manley entered a guilty plea to the four counts of criminal possession of a forged instrument and received a five-year sentence.   In exchange, she agreed to testify against Sherrard.

Sherrard was tried before a jury on August 12, 2009.   Prior to the beginning of the trial, the Commonwealth moved to amend the charges against him to include complicity to criminal possession of a forged instrument.   When the jury was instructed, however, Count 1 (the Wal-Mart charge) was for criminal possession of a forged instrument.   Only Count 2 (the Speedway charge) was for complicity to criminal possession of a forged instrument.   The jury returned a guilty verdict on both charges and following the penalty phase fixed his punishment at five years for each conviction.   Each five-year sentence was enhanced to ten years by the PFO II conviction.   The trial court accepted the jury's recommendation and sentenced Sherrard to two concurrent ten-year sentences of imprisonment.   This appeal followed.

On appeal, Sherrard raises five issues.   The first four address his conviction under Count 1, relating to the criminal possession of a forged instrument arising out of the Wal-Mart incident.   He asserts that the trial court erred in failing to grant a directed verdict on that charge.   He also presents three other arguments alleging that the jury instructions for the same charge were erroneous.   Finally, he contends that his rights were violated when the trial court denied his motion for a competency evaluation and hearing.

We shall first address Sherrard's arguments concerning the conviction arising out of the Wal-Mart incident.   His first argument is that the trial court should have granted his motion for a directed verdict on that charge because the Commonwealth failed to present evidence that he had the requisite intent to commit that crime.   The Commonwealth concedes that the trial court erred in failing to grant a directed verdict in Sherrard's favor on that count.

The Supreme Court of Kentucky succinctly set forth the directed verdict rule as well as an appellate court's standard of review in Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky.1991):

On motion for directed verdict, the trial court must draw all fair and reasonable inferences from the evidence in favor of the Commonwealth.   If the evidence is sufficient to induce a reasonable doubt that the defendant is guilty, a directed verdict should not be given.   For the purpose of ruling on the motion, the trial court must assume that the evidence for the Commonwealth is true, but reserving to the jury questions as to the credibility and weight to be given to such testimony.

On appellate review, the test of a directed verdict is, if under the evidence as a whole, it would be clearly unreasonable for a jury to find guilt, only then the defendant is entitled to a directed verdict of acquittal.

See also Wilburn v. Commonwealth, 312 S.W.3d 321 (Ky.2010).

Kentucky Revised Statutes (KRS) 516.050(1) provides that “[a] person is guilty of criminal possession of a forged instrument in the first degree when, with knowledge that it is forged and with intent to defraud, deceive or injure another, he utters or possesses any forged instrument of a kind specified in KRS 516.020.”  KRS 516.020(1)(a), in turn, defines the kind of instrument as “[p]art of an issue of money, stamps, securities or other valuable instruments issued by a government or governmental agency[.]”  Accordingly, in order to be found guilty of this crime for purposes of the Wal-Mart incident, the Commonwealth had to prove not only that Sherrard uttered or possessed the forged currency, but that he intended to defraud, deceive, or injure another, namely Wal-Mart, with the counterfeit bills.

We agree with Sherrard and the Commonwealth that the intent element is lacking in this case.   The evidence presented was that, after Manley attempted to use the counterfeit bills to purchase the gift card and the manager told them the bills were fake, Sherrard grabbed the bills from the manager and ran out of the store with Manley.   There is simply no evidence that Sherrard attempted to use the counterfeit bills at Wal-Mart once he had them in his possession, and it was clearly unreasonable for the jury to find him guilty on this charge.   Therefore, we agree that Sherrard's motion for a directed verdict under Court 1 of the indictment should have been granted.   Accordingly, his conviction under Count 1 must be reversed.

Sherrard's next three arguments address the jury instructions on Count 1. The Commonwealth did not address those arguments in light of its agreement that the trial court should have granted Sherrard's motion for a directed verdict on that charge.   For this reason, the Commonwealth stated that the three remaining arguments were rendered moot.   In his reply brief, Sherrard agreed that two of the issues he raised were indeed moot, but a third one, addressing the validity of Cooper's instruction, is not moot because it is an error certain to be repeated.

In general, Kentucky courts have recognized that “unless there is an actual case involving a present, ongoing controversy, the issues surrounding it become moot.”  Com., Dep't of Corrections v. Engle, 302 S.W.3d 60, 63 (Ky.2010).   “Our courts do not function to give advisory opinions, even on important public issues, unless there is an actual case in controversy.”  Philpot v. Patton, 837 S.W.2d 491, 493 (Ky.1992).   There has emerged, however, an exception to this rule “when a dispute is capable of repetition, yet evading review.”   Engle, 302 S.W.3d at 63.  Philpot went on to describe the exception and applied a two-prong test to determine whether the exception would apply in a particular case:

In Lexington Herald-Leader Co., Inc. v. Meigs, Ky., 660 S.W.2d 658 (1983), we addressed the merits of a controversy that was moot, under “the standard, ‘capable of repetition, yet evading review.’ ”  Id. at 661.   We did so because the case involved “important questions ․ related to public access, and more particularly news media access, to criminal trials,” more specifically, voir dire examination․  The decision whether to apply the exception to the mootness doctrine basically involves two questions:  whether (1) the “challenged action is too short in duration to be fully litigated prior to its cessation or expiration and [2] there is a reasonable expectation that the same complaining party would be subject to the same action again.”  In re Commerce Oil Co., 847 F.2d 291, 293 (6th Cir.1988).

Philpot, 837 S.W.2d at 493.

In the present case, Sherrard urges this Court to review whether the sample instruction in Cooper and Cetrulo, Kentucky Instructions to Juries, Criminal § 6.70, used by the trial court in this case, impermissibly expands the statutory language of KRS 516.050 by adding an additional element.   That element is the inclusion of language permitting a jury to find him guilty if he had “the intention of using or permitting them to be used to defraud, deceive or injury another person or persons.”  (Emphasis added.)   This language, he argues, is not an element of the statute, making the sample instruction erroneous.   Sherrard claims that because this error is certain to be repeated, the issue is not moot and should be reviewed in this appeal.

We disagree that this argument fits within the exception to the mootness doctrine.   While we agree that this issue is certainly capable of repetition, it will not evade future review.   The issue fits into neither of the two prongs described in Philpot, as it would be subject to direct appeal following a conviction on the allegedly erroneous instruction, and as Sherrard, the complaining witness, would not be subject to this action again under the circumstances of this case.   Accordingly, we hold that the exception to the mootness doctrine does not apply in this case.   In light of our reversal of his conviction on this charge, we decline Sherrard's request that we review this issue.

Finally, we shall address Sherrard's argument that he should have been afforded a competency evaluation and hearing.

Kentucky Rules of Criminal Procedure (RCr) 8.06 addresses a defendant's incapacity to stand trial:

If upon arraignment or during the proceedings there are reasonable grounds to believe that the defendant lacks the capacity to appreciate the nature and consequences of the proceedings against him or her, or to participate rationally in his or her defense, all proceedings shall be postponed until the issue of incapacity is determined as provided by KRS 504.100.

KRS 504.060 contains definitions for the chapter, and subsection (4) provides that “incompetency to stand trial” is:  “[A]s a result of mental condition, lack of capacity to appreciate the nature and consequences of the proceedings against one or to participate rationally in one's own defense [.]”  If a trial court reasonably believes that a defendant's competency it at issue, KRS 504.100 sets forth the procedure that must be followed.

(1) If upon arraignment, or during any stage of the proceedings, the court has reasonable grounds to believe the defendant is incompetent to stand trial, the court shall appoint at least one (1) psychologist or psychiatrist to examine, treat and report on the defendant's mental condition.

(2) The report of the psychologist or psychiatrist shall state whether or not he finds the defendant incompetent to stand trial.   If he finds the defendant is incompetent, the report shall state:

(a) Whether there is a substantial probability of his attaining competency in the foreseeable future;  and

(b) What type treatment and what type treatment facility the examiner recommends.

(3) After the filing of a report (or reports), the court shall hold a hearing to determine whether or not the defendant is competent to stand trial.

These statutes are mandatory.  Gabbard v. Commonwealth, 887 S.W.2d 547, 552 (Ky.1994);  see also Bishop v. Caudill, 118 S.W.3d 159, 161 (Ky.2003) ( “once facts known to the trial court are sufficient to place a defendant's competency in issue, an evaluation and evidentiary hearing are mandatory.”).

The law in Kentucky is clear that “[w]hether a defendant is competent to stand trial is a threshold question which must be answered before the defendant can be tried or sentenced.”  Gabbard, 887 S.W.2d at 551.   This inquiry is necessary because “[n]o defendant who is incompetent to stand trial shall be tried, convicted or sentenced so long as the incompetency continues.”  KRS 504.090.

The question before this Court is whether the trial court properly determined that there were no reasonable grounds to believe that Sherrard was incompetent.   We recognize that “[i]t is within the trial court's discretion to determine whether there are ‘reasonable grounds' to believe a defendant may be incompetent to stand trial.”  Bishop v. Caudill, 118 S.W.3d 159, 161 (Ky.2003) (citing Dye v. Commonwealth, 477 S.W.2d 805 (Ky.1972)).  “The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.”   Commonwealth v. English, 993 S.W.2d 941, 945 (Ky.1999).  “The standard of review in regard to holding a competency hearing is, ‘Whether a reasonable judge ․ should have experienced doubt with respect to competency to stand trial.’ ”  Gray v. Commonwealth, 233 S.W.3d 715, 718 (Ky.2007) (quoting Mills v. Commonwealth, 996 S.W.2d 473, 486 (Ky.1999)).

In Bishop v. Caudill, the Supreme Court of Kentucky presented a more in depth description of the inquiry addressing a defendant's competency to stand trial:

In Godinez v. Moran, 509 U.S. 389, 396, 113 S.Ct. 2680, 2685, 125 L.Ed.2d 321 (1993), the United States Supreme Court held that a defendant is competent if he can “consult with his lawyer with a reasonable degree of rational understanding” and has “a rational as well as factual understanding of the proceedings against him.”   The Court noted that a competent defendant can make a “reasoned choice” among the alternatives available to him when confronted with such crucial questions as whether he should testify, waive a jury trial, cross-examine witnesses, put on a defense, etc.  Id. at 397-98, 113 S.Ct. at 2686.   As further explained by Professors Fortune and Lawson in Kentucky Criminal Law, § 5-4(b) p. 210 (Lexis 1998):

The focus in these determinations is on the defendant's mental condition at the time of the proceeding (not at the time of the criminal act).   The following statement describes the nature of the inquiry:

‘Under this test, there are two distinct matters to be determined:

(1) whether the defendant is sufficiently coherent to provide his counsel with information necessary or relevant to constructing a defense;  and

(2) whether he is able to comprehend the significance of the trial and his relation to it.   The defendant must have an ‘ability to confer intelligently, to testify coherently, and to follow the evidence presented.’   It is necessary that the defendant have a rational as well as a factual understanding of the proceedings.'

Would defendant recognize false testimony by a witness and would he know to advise counsel of that fact?   Does he understand the roles of trial participants (i.e. that the prosecutor is his adversary, that the judge decides his fate, that his counsel acts in his best interest, etc.)?    Does he understand that convictions will result in sanctions?   The inquiry is a factual one that necessarily depends upon the peculiar facts and circumstances of the case. (quoting LaFave & Scott, Criminal Law, 333-34 (2d ed.1986)).

Bishop v. Caudill, 118 S.W.3d at 162-63.

Turning to the present case, Sherrard contends that he presented sufficient questions concerning his competency to stand trial so as to have been afforded an evaluation and hearing on that issue.   For this reason, he argues that the trial court abused its discretion for failing to order one.   Sherrard's attorney formally raised the issue of Sherrard's competency during a break in the trial, arguing that Sherrard was unable to effectively assist him and had been interfering with the case.   The trial court declined to order a competency evaluation and hearing, stating that Sherrard's memory was fine and that the case was not complicated.   Based upon its observations, the trial court concluded that Sherrard understood the consequences of the trial and was aware of what was going on.

In support of this argument that the trial court abused its discretion, Sherrard cites to numerous instances during the trial and conferences where he continued to speak to both his attorney and the judge, at times interrupting them.   His attorney had to quiet him several times, eventually requesting the trial court to admonish Sherrard from speaking to him during examination of witnesses as it was interfering with his train of thought.   Despite his apologies and promises to be quiet, Sherrard continued to speak to his attorney after being admonished by the trial court and directed to write down questions that he could discuss with his attorney at the end of his cross-examination.

In addition to talkativeness, Sherrard cites to his nervousness and stress about the trial, which he claimed permitted him only an hour of sleep the night before trial;  his history of substance abuse and erratic behavior;  the possibility that he may be presently under the influence of some substance;  and his father's statement that Sherrard was “not right in the head.”   Sherrard had also been hospitalized in the past for psychiatric disorders, which he did not inform his attorney of, but admitted that he had last seen a physician for these issues in 2007 or 2008.   He stated that he self-medicated with marijuana and Percocet, and that he had last taken a Percocet two days before the trial.   Finally, Sherrard points to an exchange where he disputed evidence in the case concerning how many forged bills Manley had in her possession.

Sherrard contends that his failure to apprise his attorney of his mental health issues and his continuing interruptions during trial suggest that he was unable to make reasoned choices.   The Commonwealth argues that Sherrard's claim is predicated on superficial grounds and that his loquaciousness, while an irritant, did not rise to the level necessary to grant him a competency hearing.

We agree with the Commonwealth that Sherrard's behavior did not rise to the level to provide the trial court with reasonable grounds to question his competency.   While his attorney might have been irritated by comments Sherrard made to him during the trial, it is clear that Sherrard was attempting to help his attorney with his defense.   He certainly demonstrated his ability to discuss his case and available defenses with his attorney and the trial judge.   Furthermore, his claimed mental problems had occurred well before the trial in this case, and Sherrard admitted he had not seen a physician for his alleged disorders since 2007 or 2008.   Based on these observations, we cannot hold that the trial court abused its discretion in denying Sherrard's request for a competency evaluation.

For the foregoing reasons, Sherrard's conviction under Count 1 is reversed.   Otherwise, the Jessamine Circuit Court's judgment of conviction under Count 2 and its ten-year sentence is affirmed.   This matter is remanded for dismissal of the charge under Count 1 of the indictment.