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RENDERED: AUGUST 24, 2017
NOT TO BE PUBLISHED

Snpreme Tnurt of Bentuckg

2016-sc-000205-MR

MICHAEL VAUGHAN APPELLANT

ON APPEAL FROM KENTON CIRCUIT COURT
V. _ HONORABLE KATHY LAPE, JUDGE
" NO.14-CR-00204

COMMONWEALTH OF KENTUCKY APPELLEE

MEMORANDUM OPINION OF THE COURT
M§

Michael Vaughan directly appeals from his conditional guilty plea,
_ raising a Sixth Amendment claim for'the violation of his right to a speedy trial.
This case arose from an armed stand~off that occurred When officers of the
Covington Police Department attempted to serve a warrant on Vaughan at _his
home. 'After almost two years of proceedings, Vaughan pled guilty to reduced
charges of six counts of Wanton endangerment in the first degree, and Was
sentenced to twenty years’ imprisonment pursuant to his guilty plea._ Vaughan
reserved the right to appeal concerning whether his right to a speedy trial was
violated. He now brings that direct appeal, claiming his speedy trial right was
violated by a 26-month delay between his arraignment and his guilty plea. We n

conclude that this claim of error does not require reversai, and therefore afiirr'n.

I. szocEnURAL AND FACTUA`L BAcKGRoUND.

On December 21, 2013, officers from the Covington Police Department
attempted to serve a warrant on Vaughan, but Vaughan barricaded himself in‘
his home with his children, engaging the officers in 'an armed stand-off.
Vaughan fired several shots at the police officers, and struck a police armored
vehicle as Well as one of the shields of an officer.

Later in the evening, a district judge issued another arrest warrant for
Vaughan related to the stand-off. The officers were eventually able to disarm
and arrest Vaughan on December 26, 2013. Vaughan had been shot in the
stand-off, and was admitted to the hospital until December 30, 20 13. After his
discharge from the hospital,. he was first taken to the Hamilton lJetention

- Center, and then transferred to the.-Kenton County Detention Center on
January 2, 2014. Vaughan’s first preliminary hearing was held on January 18,
2014. He was indicted by grand jury on February 27, 20151, and arraigned on
March 10, 2014. f - .

At arraignment, the. trial court offered to set the first pretrial conference
for April 21, 2014, but Vaughan’s initial private defense counsel asked for more
time due to the “volurninous” discovery; at defense counsel’s request, the trial
court set the first pretrial conference for May 6, 2014. At that conference, the
parties discussed discovery issues, and defense counsel requested another

-. pretrial conference to be set six weeks from then. On June 16, 2014, at the

second pretrial conference, defense counsel discussed setting'a trial date; the

trial court noted that this case was complex with voluminous discovery due to

2

the nature and length of the police stand-off. Defense counsel also notified the
court he- intended to pursue a mental incapacity for criminal responsibility
defense, and would thus need a mental health evaluation of Vaughan.
Accordingly, the trial court set the next pretrial conference for a month later.

On July 14, 2014, at the third pretrial conference, defense counsel
requested a trial date, despite the fact that he had not yet filed a notice of
intent to pursue a mental incapacity defense under RCr1 8.07; as a result, the
Commonwealth could not yet file its motion to also have Vaughan evaluated.-
The trial court concluded that it would be pointless to set a trial date because
these reciprocal mental health exams would likely take a few months to
` complete. The trial court set the next pretrial conference for August 5, 2014.
l-Iowever, defense counsel filed the notice of mental health evaluation only the
day prior to the pretrial conference;- at the pretrial conference, the
Commonwealth indicated it could have a response ready in two weeks.

On August 18; 2014, the parties appeared again before the trial court.
The trial court acknowledged Vaughan had sent an'ex parte letter on August
~ 14? 2014 asserting his right to a speedy trial and firing his defense counsel.
After some discussion, Vaughan indicated that he would keep his current
defense counsel, and he withdrew his letter discharging his initial counsel. The

court further noted that the 'Commonwealth had filed for its own mental health

 

1 Kentucky Rules of Criminal Procedure.

?’

examination with the Kentucky Correctional Psychiatric Center (“KCPC”), and
set another pretrial conference.

On September 29, 2014, Vaughan appeared with new attorneys.
Vaughan’s new defense counsel notified the trial court that his initial counsel
had failed to turn over,any of the trial documents to current defense counsel.
The court acknowledged that it had received several pro se motions from
Vaughan asserting his right to a speedy trial, but noted that the delay had
been due to Vaughan’s initial counsel’s inaction and changing defense counsel.

Vaughan’s new counsel asked that the court set another pretrial conference
before Setting a trial date, and the court obliged.

On November 10, 2014, defense counsel informed the court that initial
counsel had still not turned over the-trial documents and discovery and filed a
motion to compel, which the cour_t granted. Defense counsel then asked to set
a trial date, and the trial court set aside two weeks for the trial, beginning
March lO, 2015. n

The parties met for the next pretrial conference on Februaiy 3, 2015,
with a new judge presiding. Defense counsel informed the court that initial
counsel had finally turned over his files to the new counsel, but in a large tub
with items missing. Defense counsel then filed a motion to compel duplicative
discovery by the Commonwealth since they had been unable to compel a
complete discovery from initial counsel.' Af`ter some deliberation, the trial court
reluctantly granted the motion-to compel the Commonwealth to recreate the

discovery file since Vaughan had no other avenue to guarantee complete

4

discovery. Defense counsel also filed a motion to compel a court-ordered
v mental health evaluation with KCPC, but the trial _court noted KCPC has a
backlog of cases and would-process Vaughan as soon as possible. The
Commonwealth notified the court it recently had been made aware of new
evidence, and indicated that it would turn over to the defense upon receipt.
Def'ense counsel also noted that more time would be needed to properly
determine the salience of several interviews recorded during the_ investigation._

At the next hearing, on February 24, 20115, defense counsel argued that
the Commonwealth had recently provided the defense with a discovery disc
containing a prohibitively large number of files. The Commonwealth responded
that this disc had been generated by the Bureau of Alcohol, Tobacco, and
Firearms (“ATF”) as a__result of a search warrant, and the Commonwealth gave
the defense a copy as soon as the Commonwealth received it. The
Commonwealth also brought to the court’s attention that it had not yet
received discovery regarding Vaughan’s‘ mental health evaluation. The trial
court stated several times that it did not want to reschedule or delay this trial
date, however, it agreed to use the original trial date as an additional pretrial
hearing date. n

On Marchl 10, 2015, exactly a year from the original arraignment,
defense counsel informed the court that Vaughan was in the midst of a hunger
strike due to his perception that the Commonwealth had been delaying
discovery in violation of his speedy trial rights. The Commonwealth took issue

with this assertion and argued that current counsel had never filed a motion

5

for a speedy trial. The trial court noted that the Commonwealth had not been
the party requesting continuances, but rather Vaughan’s prior counsel had
been responsible for the majority of the delay, and that the current delay was
not the fault of any current parties. Further, the court noted that an additional
mental health evaluation would need ton be completed since Vaughan had
begun his hunger strike. The trial court continued the trial date to June 23, _
2015.'

On April 7,7 2015, the parties met again to discuss allegations that
Vaughan was using his prison laptop to harass a witness. The court granted a l
protective order and no contact order, Set a hearing date in May regarding
witness intimidation, and removed Vaughan’s laptop from his possession in
jail.

_ On April 16, 2015, defense counsel filed a motion to dismiss all charges
against Vaughan for the denial of his speedy trial rights due to “the
Commonwealth withholding pertinent information in violation of the Court’s
March 1 1, 20 14 Discovery Order' and Def`endant’s Due Process rights.” Defense
counsel alleged the Commonwealth had asked for a continuance on March lO-,
2015, and that the defense had been ready to move forward with trial until
being “inundated with thousands of documents mere days before trial.” The
Commonwealth filed a motion in opposition_. The trial court addressed the '
motion to dismiss on June 3, 2015. Defense counsel argued that the
Commonwealth had turned over approximately 92,000 text and picture files

from ATF’s arson investigation, which had been created by ATF in September

6 .

2014, and 23,000 files from a witness’s phone pertaining to the witness
retaliation issue. The trial court noted that the delay between creation of these
files, and ATF turning them over seemed excessive, but that the j
Commonwealth was not at fault since neither the court nor the Commonwealth
had control over the processes of a federal agencyi Further, the court found
that Vaughan’s voluntary hunger strike necessitated an additional psychiatric
evaluation with KCPC. After recognizing that the upcoming trial would need to
be continued again, the trial court noted on the record that it wanted Vaughan
to have every due process right available to him, but that Vaughan’s voluntary
actions necessitated further delay out of the court’s control. Both parties
agreed to keep the previous trial date as a status conference

At the June 22, 2015 Status hearing, the tr_iai court noted vaughan had
not yet been evaluated by KCPC, and set a new status hearing for August 24,
2015, pending the evaluation. Vaughan’s competency hearing was held on
that date, and he was found competent to stand trial. During the same
hearing, defense counsel raised that Vaughan had filed, pro se, to have himself
declared indigent, and asked that the court pass the motion to the next hearing
since she would need time to investigate Vaughan’s assets.

At the September 14, 2015 hearing, the court set the case for trial a third
time, scheduled for February 23, 2016. All parties were booked until February.
The court also set October 15, 20 15 for Vaughan’s indigency hearing, noting

that Vaughan had,not yet filed all of the proper paperwork.

On February'15, 2016, Vaughan pled guilty to six counts of wanton

endangerment in_ the first degree, with the plea conditional on the speedy trial
jissue. The Commonwealth recommended a total of twenty years, and the

defense presented evidence and argued for a lower. sentence at a mitigation

hearing on Marc_h 16, 2016. Thereafter, the trial court sentenced to Vaughan
` to twenty years. He now appeals as a matter _of right regarding _the speedy trial
issue.

II. ANALYSIS.

Since Vaughan was detained pre-trial, his speedy trial demand is to be
treated as “an assertion of the right to a speedy trial guaranteed by the Sixth
Amendment of the United States Constitution and Section 11 of the
Constitution of Kentucky.” Gabow v. Commonwealth 34 S.W.3d 63, 69 (Ky.
2000), overruled on other grounds by Cr_awford v. Washington, 541 U.S. 36, 60-
' 61, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).

A four-factor balancing test (hereinafter “the- Barker inquiry”) is
considered in determining whether the Constitutional right to a speedy trial v

, has been violated: “(1) The length of delay; (2) the reason for delay; (3) the

defendant's assertion of his right to a speedy tiial; and (4) prejudice to the

defendant.” Gdbow, 34 S.W.3d at 70, citing Barker v. Wingo, 407 U.S. 514, 92 `_ t

- S.Ct. 2182, 33 L.Ed.2d 101 (-1972). “No single one'of these factors is_-ultimately

determinative by itself.” Gabow, 34 S.W.3d at 70'. ‘

{1) Length of Delay.

The “length of the delay[] is the time between the earlier of the arrest or
the indictment and the time the trial begins.” Dunaway v. Commonwealth 60
S.W.3d 563, 569 (Ky. 2001), citing Dil_lz'ngham v. United Stcites, 423 U.S. 64, 96
S.Ct. 303, 46 L.Ed.2d-205 (1975). “'l`he inquiry lfirst must be triggered by a 1
presumptively prejudicial delay. There is no bright line rule for determining
what length of delay suffices to trigger the inquiry, but actual prejudice need
not be proven to establish a presumptively prejudicial delay.” Gabow, 34
S:W.Sd at 70. ‘Furthermore, “the delay that can be tolerated for an ordinary
' street crime is Considerably less than for a serious, Complex conspiracy
charge.” Dunaway, 60 S.W.3d at 569 (internal quotations omitted).

In this case, the time between Vaughan’s arrest for multiple counts of a
complex crime in December 2013 and his guilty plea in February 20 16 was 26
months. As noted by the Commonwealth, this Court has previously found that
a delay of 18 months in a complex murder case gave rise to presumptive ~
prejudice and triggered review. Bratcher v. Commonwealth, 15 1 S.W.3d 332-,
344 (l{y. 2004). As such, a 26-month delay between arrest and guilty plea in
this complex case involving an armed stand-off with police is a presumptively
prejudicial delay triggered further inquiry into the reason for the delay and
whether any prejudice resulted. We note however, as this Court has stated
before, that “this finding that the-length of delay was_presurnptively prejudicial
does not preempt application of the fourth factor: Presumptive prejudice does , '

not necessarily indicate a statistical probability of prejudice; it simply marks

the point at which courts deem the delay unreasonable enough to trigger the
Barker enquiry.” Id. (internal quotations omitted).
(2) Reason- for the Delay.

The second prong weighs the reasons for delay, which fall into three
general categories: “(l) a deliberate attempt to delay the trial in order to
hamper the defense; [2) a more neutral reason such as negligence or
overcrowded courts; and (3) a valid reason, such as a missing witness. . . .
[D]if`ferent reasons should be allocated different weights.” Dunaway, 60 S.W.3d
_ at 570.

A more neutral reason such as negligence or
overcrowded courts should be weighted less heavily
but nevertheless should be considered since the
ultimate responsibility for such circumstances must
rest with the government rather than With' the
defendant Finally, a valid reason,.such as_ a missing
witness, should serve to justify appropriate-delay
Barker, 407 U.S. at 531, 92 S. Ct. at 2192.

In this case, the first trial was set exactly one year from the arraignment,
on March 10, 2015. Any delay from January 2014 until March 2015 is
attributable to Vaughan’s initial counsel: first, due to a failure to file formal
notice of the defense’s intent _to pursue a mental health defense, and then, after
Vaughan fired him, in the delay tendering trial documents to new counsel. The
trial court repeatedly urged defense counsel to find a way to be ready by the

March 2016 trial date because it did not want to forfeit the previously

scheduled two-week block. Although unfortunate for Vaughan, his initial

lO

private counsel was nearly solely responsible for this 13-month delay, and thus
this period of delay weighs against Vaughan,

Vaughan contends that the Commonwealth caused the delay of the June
2015 trial date by turning over the voluminous ATF and other electronic files-so
close to the trial date. However, despite the considerable delay between the
beginning of the ATF investigation and turning over the files, the
Commonwealth was not responsible for ATF’s delay in processing the electronic
data. The record reflects that the trial court noted on the record that the
Commonwealth was not responsible since neither the Commonwealth, nor the
trial court, had jurisdiction over this federal agency. When the trial court
decided to keep the June 2015 trial date, but use that time as a status
conference, defense counsel acquiesced. Further, Vaughan began his
voluntary hunger strike during this time, which necessitated additional
psychological evaluation that delayed the trial date. Additionally, during this
delay, a collateral issue arose-with Vaughan’s alleged witness retaliation that
created additional discovery and necessitated a separate hearing, Therefore,
this delay is attributable either to Vaughan or a neutral, valid reason.

The final trial date was set for February 2016. The delay preceding this
trial date is due to the time required by KCPC to generate its psychological
evaluation, time required to properly certify Vaughan as now indigent and to
appoint his current counsel as pro bono, as well as the court’s crowded docket.
These delays are attributable to Vaughan for the hunger strike, and neutral,

valid reasons.

11

As this Court has stated, “lt]he purpose of our analysis is to establish
‘whether the government or the criminal defendant is more to blaine for [the]
delay.”’ Stacy v. Commonwealth:; 396 S.W.3d 787, 796 (Ky. 2013), quoting
Dopgett v. United States, 505 U.S. 647, 651,, 112 S. Ct. 2686, 2690, 120 L. Ed.
2d 520 (1992). The record is clear that the delays in- this case are either
attributable to Vaughan or for neutral, valid reasons.

(3) Defendant's Ass`ertion of his Right.

Vaughan first asserted his right to a speedy trial in his pro se, ex parte
communication With the trial court in Afugust 2014. That letter addressed both
his speedy trial right and his desire to fire his first counsel; he later withdrew
his request to fire his attorney, but he did no.t address his speedy trial
assertion. Vaughan made two other clear demands for a speedy trial through
his second defense counsel before the final trial date was set; however, his
counsel also acquiesced to several continuances, or asked for the delay.
Although Vaughan undeniably asserted his right to a speedy trial, both orally
and in written motions,.we cannot say that Vaughan vigorously asserted his
right. See Stacy, 396 S.W.3d at 798 (“[W]e cannot say that this factor weighs
_ in Appellant's favor.”) l n
(4) Prajadica to the nefendant.

- Finally, “we must analyze any alleged prejudice by considering the
interests _that the right to a speedy trial is designed _to protect: (1) to' prevent

oppressive pretrial incarceration; (2) to minimize the anxiety and concern of the

12

accused; (3) to limit the possibility that the defense will be impaired.”
Goncalves v. Commonwealth 404 S.W.3d 180, 202 [Ky. 2013).
In this case, Vaughan asserts that his pretrial incarceration was
oppressive, and that as a result, he lost employment, income, custody of and
jability to see his children, continuance of his higher education, and his home.
lie also argues that this pretrial incarceration “extended and escalated” his
anxiety and hindered his ability to defend his case,
a.v Oppressive Pretn'al Incarceration
Lengthy pretrial incarceration clearly has society disadvantages, and
“[t]he time spent in jail awaiting trial has a detrimental impact on the
individual. It often means loss of a job; it disrupts family life; and it enforces
idleness. . . . The time spent in jail is simply dead time.” Barker, 407 U.S. at
532-33, 92 S. Ct. at 2193.

' Vaughan was incarcerated throughout the entire pretrial period,
however, he was granted a bond of $250,000, which it appears he was unable
to post. Although Vaughan may have been prejudiced by the fact that he was
incarcerated during the delay, he has not identified any actual prejudice in
preparing his defense that would render this incarceration oppressive. See
Barker, 407 U.S. at 532-33, 92 S.Ct. at 2192-93.

b. Anxiety and Concem of the Accused
“[G]eneral complaints about anxiety or concern are' insufficient to state a
cognizable claim. Thus, we require an affirmative showing of unusual anxiety

which extends beyond that which is'inevitable in a criminal case.” Stacy, 396

13

S.W.3d at 799 _(internal citations and quotations omitted); see also Dunaway, _
60 S.W.3d at 572. -

Vaughan seems to argue that his hunger strike was a manifestation of
the stress and anxiety of his pretrial incarceration However, the-record
reflects that Vaughan voluntarily undertook this hunger strike as a means of
‘ protest against the trial delays - which actually served to delay his trial even
longer - not because his anxiety made him lose his appetite. Vaughan has
made no showing that he suffered the requisite unusual anxiety as a result of
the charges pending against him.

c. Impainnent of Defense'

Of these factors,- this is the most serious. Dunaway, 60 S.W.3d at 572.
As this Court has repeatedly held, speculative, generic, or conclusory claims
about the possibility of an impaired defense are not sufficient to show .
prejudice. Miller v. Commonwealth 283 S.W.3d 690, 702-03 (Ky.. 2009); Stacy,
396 S.W.3d at 799. a d l

Vaughan asserts he was impaired in assisting in his defense, first by the_
removal of his laptop, and then, by the “massive” discovery tendered before his _
second-trial date. Although his counsel stated that Vaughan had been very
helpful in document review and preparing his defense, the record clearly shows
that any hindrance Vaughan faced by the removal of his laptop- was a result of
his own misconduct in harassing a witness If this inability.to access his
laptop while incarcerated was burdensome, Vaughan is at fault. Next,

Vaughan asserts that the large amount of discovery tendered in February 2015

1~4

impaired his defense, but Vaughan has not identified exactly how this
electronic discovery resulted in prejudice, especially when he was responsible
for the hunger strike that was the reason for delay cited by the trial court.

Also, as discussed above, the Commonwealth turned over that discovery almost
contemporaneously with receiving it, and the trial court found no misconduct
occurred o_n the part of the Commonwealth. Because Vaughan has failed to
show how his defense was impaired as a result of the delay, beyond his vague
claims, this interest has not been abridged.

In sum, Vaughan has failed to make an affirmative showing that his
incarceration was oppressive, that he suffered unusual anxiety as a result of
the delay, or that he suffered actual prejudice to the preparation of his defense,
Accordingly, we find that Vaughan suffered no prejudice arising from his
pretrial incarceration that would have violated his speedy trial right.

III. CONCLUSION.

We conclude Vaughan has not been deprived of his speedy trial rights.
Although the delay in this case gives rise to presumptive prejudice, either
Vaughan was largely responsible for the delays, or the reasons were neutral
and valid. Vaughan’s assertion of his right to a speedy trial did not outweigh '
that he either caused or acquiesced to all delays of his trial dates. Last,
Vaughan suffered no actual prejudice as a result of the delay.

Accordirigly, Vaughan has failed to show that his speedy trial rights were

' . violated by the delay between his demand for a speedy trial and his guilty plea.

15

We find no reversible error, and therefore the K_enton Circuit Court’s judgment
, w _ .

' of conviction and sentence is affir_nied.
All sitting. All concur.

COUNSEL FOR APPELLANT:
Robert Chung-Hua Yang
lAssistant Public Advocate

4 Frankfort, Kentucky
COUNSEL FOR APPELLEE:

Andy'Beshear
Attorney _General of Kentucky

Micah Brandon Roberts

Assistant Attorney General '
Frankfort, Kentucky '

16

