             IMPORTANT NOTICE
        NOT TO BE PUBLISHED OPINION

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                                            RENDERED: SEPTEMBER 22, 2016
                                                    NOT TO BE PUBLISHED

                oi5uprrntr &turf of 4 atfitthv
                              2015-SC-000511-MR


WALTER SCHMUCK                                                       APPELLANT


                    ON APPEAL FROM GRAYSON CIRCUIT COURT
V                     HONORABLE BRUCE T. BUTLER, JUDGE
                                NO. 14-CR-00113


COMMONWEALTH OF KENTUCKY                                              APPELLEE



                     MEMORANDUM OPINION OF THE COURT

                    REVERSING, VACATING AND REMANDING

      A Grayson Circuit Court jury convicted Appellant, Walter Schmuck, of

manufacturing methamphetamine, possession of synthetic drugs, and

possession of drug paraphernalia. The trial court imposed a sentence of twenty

years' imprisonment. Schmuck appeals to this Court as a matter of right,

pursuant to §110(2)(b) of the Constitution of this Commonwealth. On appeal,

Schmuck argues the trial court erred by: 1) denying his motion for a limited

waiver of counsel without conducting the hearing required by Faretta v.

California, 422 U.S. 806 (1975); 2) denying his motion to suppress evidence; 3)

admitting a photograph into evidence that showed him handcuffed; 4) allowing

evidence of a prior conviction during the penalty phase; and 5) denying his

motion for a mistrial.
                                I. BACKGROUND
       Leitchfield Police received complaints about high traffic volume and

unusual activity at David Hicks's home. A confidential informant told police

David Hicks sold hydrocodone and morphine pills from the home. The

informant also told police David Hicks used methamphetamine and David's

nephew, Rickey Hicks, made methamphetamine "inside of a shed outside of the

residence." Police accessed the pseudoephedrine log (required for all

pharmacies selling the drug, pursuant to KRS 218A.1446) and discovered the

names of five people who used David Hicks's address when purchasing over-

the-counter medication often used in manufacturing methamphetamine.

Schmuck's name did not appear in the pseudoephedrine log when police

queried David Hicks's address. Police then sought a search warrant. The

supporting affidavit—and the search warrant the court subsequently issued—

specifically named the five individuals who purchased pseudoephedrine using

David Hicks's address. Schmuck's name did not appear in the search warrant,

nor its supporting affidavit.

      Schmuck stated that he had been staying at David Hicks's home for six

to eight weeks when police executed the search warrant. When police arrived,

they found Schmuck on the carport of the home. In addition to searching the

individuals specifically named in the warrant, police searched Schmuck, his

pockets, the room in which he claimed to be staying, along with dresser

drawers and a zipped nylon bag found in that room. Police then arrested

Schmuck.


                                       2
       One month prior to trial, Schmuck filed a pro se motion seeking a limited

waiver of his right to counsel. In it, he asked the trial court to conduct a

Faretta hearing to determine whether he knowingly, intelligently, and

voluntarily sought the waiver. In the motion, he cited language indicating that

failure to conduct a Faretta hearing results in an automatic reversal of any

convictions. Furthermore, he asked for the hearing in order to specify the

scope of representation of his court-appointed counsel. Ultimately concluding

Schmuck was merely unhappy with his court appointed counsel, the trial court

summarily denied Schmuck's motion without conducting the Faretta hearing.

A jury subsequently convicted Schmuck of manufacturing methamphetamine,

possession of synthetic drugs, and possession of drug paraphernalia.


                                    II. ANALYSIS
   A. Faretta Hearing

      Schmuck first argues that the trial court committed structural error

requiring reversal by denying his timely and unequivocal motion for a limited

waiver of counsel without conducting a Faretta hearing. For the following

reasons, we agree.

      The United States Supreme Court set out the requirements for an

accused to represent himself at trial in Faretta, 422 U.S. at 835. "In order to

represent himself, the accused must 'knowingly and intelligently' forgo those

relinquished benefits . . . . Although a defendant need not himself have the

skill and experience of a lawyer in order competently and intelligently to choose

self-representation, he should be made aware of the dangers and

                                        3
disadvantages of self-representation, so that the record will establish that he

knows what he is doing and his choice is made with eyes open."      Id. (emphasis

added) (internal citations and quotation marks omitted).

        Section 11 of the Kentucky Constitution also addresses this issue,

stating: "[i]ri all criminal prosecutions the accused has the right to be heard by

himself and counsel . . . ." Our predecessor Court concluded this means "an

accused may make a limited waiver of counsel, specifying the extent of services

he desires, and he then is entitled to counsel whose duty will be confined to

rendering the specified kind of services (within, of course, the normal scope of

counsel services)." Wake v. Barker, 51.4 S.W.2d 692, 696 (Ky. 1974). "A trial

court error the end result of which is to deny a defendant the right to hybrid

representation amounts to structural error." Mitchell v. Commonwealth, 423

S.W.3d 152, 162 (Ky. 2014). Furthermore, "'structural defects in the

constitution of the trial mechanism' require automatic reversal."   Hill v.

Commonwealth, 125 S.W.3d 221, 229 (Ky. 2004) holding modified on other

grounds by Depp v. Commonwealth, 278 S.W.3d 615 (Ky. 2009) (citing Arizona

v. Fulminante, 499 U.S. 279, 280 (1991)).

      In order for a criminal defendant to make a full or limited waiver of the

right to counsel, we have said, "the request must be: (1) timely; (2) unequivocal;

and (3) knowing, intelligent, and voluntary." King v. Commonwealth, 374

S.W.3d 281, 290 (Ky. 2012). In short, a defendant must make a timely and

unequivocal request before the trial court can determine, in a Faretta hearing,

whether the waiver is knowing, intelligent, and voluntary. Id. at 291.

                                        4
       A request is timely if made prior to the beginning of meaningful trial

proceedings, e.g., before jury selection or before empaneling a jury.    Id.

 ("Although Appellant's request was made the day before trial . . . . we conclude

that Appellant's request was timely.") Here, Schmuck requested a limited

waiver of his right to counsel a full month prior to the start of trial. Therefore,

we hold that Schmuck's request was timely.

       Next, a defendant's request must be unequivocal, or "sufficiently clear

and unambiguous that no reasonable person can say that the request was not

made." Commonwealth v. Martin, 410 S.W.3d 119, 122 (Ky. 2013) (internal

citations and quotation marks omitted). In this case, Schmuck filed a hand-

written motion requesting to make a limited waiver of counsel, citing § 11 of

the Kentucky Constitution. Not only was the motion clear, it was specific.

Schmuck even went so far in his motion to request that the court conduct a

Faretta hearing in order to determine whether his request "is being made

knowingly, intelligently and voluntarily." When the trial court orally

questioned him, Schmuck never wavered in his request, and he never withdrew

his motion . Moreover, Schmuck correctly informed the trial court of the
           .




findings required in a Faretta hearing. In fact, Schmuck orally reiterated his

desire to act as co-counsel with his court-appointed attorney, saying that he

wanted the opportunity to cross-examine witnesses, if necessary, and to file

motions. Given these facts, we hold that Schmuck unequivocally requested a

limited waiver of his right to counsel.
        We have held that a timely and unequivocal request is a condition

 precedent to a Faretta hearing—not a requirement demanded at the hearing.

 King, 374 S.W.3d at 291. And that the reason a defendant desires to represent

 himself is not a material factor in deciding whether to conduct a Faretta

 hearing.' King, 374 S.W.3d at 292 ("Appellant's desire to represent himself

 may have been derived from frustration with appointed counsel, but that is

irrelevant . . . ."). Having held that Schmuck's request was both timely and

unequivocal, we now address the consequences of the trial court's failure to

conduct a Faretta hearing.

       When a defendant timely and unequivocally requests to make a full or

partial waiver of the right to counsel, the trial court must conduct a Faretta

hearing. King, 374 S.W.3d at 291 (internal brackets omitted) ("[Al request to

proceed pro se or with hybrid representation—in other words, to make either a

full or a limited waiver of his right to counsel—under our precedent, a Faretta

hearing is required.") This is because it is within the confines of the Faretta

hearing that the trial court addresses "whether waiving the right to counsel [is]

knowing, intelligent, and voluntary." Id. Therefore, if a trial court fails to

conduct a Faretta hearing after a timely       and   unequivocal request, the trial

court commits structural error that requires the reversal of any corresponding

convictions. See Mitchell, 423 S.W.3d at 162; Hill, 125 S.W.3d at 229.




       1 This stands true whether the defendant wishes to proceed pro se or with
hybrid counsel.

                                           6
        In the case at bar, just as in King, "the trial court asserted its opinion

that Appellant didn't really want to represent himself, but instead that he

wanted to be represented by someone other than appointed counsel." King,

374 S.W.3d at 294. Like the appellant in King, Schmuck's unhappiness with

his appointed counsel may well have formed the basis for his desire to act as

co-counsel. Also like the appellant in King, Schmuck never withdrew his

motion.

       Despite Schmuck's timely and unequivocal request for a limited waiver of

his right to counsel, the trial court summarily denied the motion without

conducting a Faretta hearing. The trial court erroneously stated that the

defense could have but one "driver in the car." Therefore, we hold the trial

court committed structural error by denying Schmuck's motion for a limited

waiver of his right to counsel without conducting a Faretta hearing. Mitchell,

423 S.W.3d at 162. Because structural error requires automatic reversal, Hill,

125 S.W.3d at 229, we reverse Schmuck's convictions; vacate the

corresponding sentences of imprisonment, and remand this matter to the trial

court for further proceedings consistent with this opinion.

       Having reversed and remanded on these grounds, we need only address

the remaining issues likely to recur on remand in order to give guidance to the

trial court.

   B. Suppression Motion

      Schmuck next argues the trial court erred by failing to suppress the

evidence against him. Schmuck asserts suppression was necessary because
police violated his right to be free from an unreasonable search and seizure

 pursuant to the Fourth Amendment of the United States Constitution. The text

 of the Fourth Amendment reads:

       The right of the people to be secure in their persons, houses,
       papers, and effects, against unreasonable searches and seizures,
       shall not be violated, and no Warrants shall issue, but upon
       probable cause, supported by Oath or affirmation, and particularly
       describing the place to be searched, and the persons or things to
       be seized.

       On remand, the trial court must conduct a three-step analysis in

determining whether to suppress the evidence found on Schmuck's person, in

the dresser drawers, and in the nylon bag. The trial court must determine: 1)

whether Schmuck had a reasonable expectation a of privacy; 2) whether the

scope of the warrant particularly covered Schmuck's person, his room, and his

effects; and 3) whether the supporting affidavit contained sufficient probable

cause, particularized as to Schmuck, for a valid search warrant to issue.

      The Commonwealth erroneously argues that Schmuck lacks standing to

assert an expectation of privacy. Nearly forty years ago, the Supreme Court of

the United States rejected using the standing doctrine to analyze whether a

defendant had a legitimate expectation of privacy.   Minnesota v. Carter, 525

U.S. 83, 87 (1998) ("The Minnesota courts analyzed whether respondents had a

legitimate expectation of privacy under the rubric of 'standing' doctrine, an

analysis that this Court expressly rejected 20 years ago in Rakas Iv. Illinois],

439 U.S. [128,] 139-140 [(1978)].") The Supreme Court said that defining

Fourth Amendment rights fell more within the purview of substantive Fourth

Amendment law than under that of standing. Carter, 525 U.S. at 88.
                                         8
Furthermore, the Court reiterated its holding that in order to claim the

protections of the Fourth Amendment, a defendant must demonstrate a

reasonable expectation of privacy. Id. The United States Supreme Court held,

the "capacity to claim the protection of the Fourth Amendment depends not

upon a property right in the invaded place but upon whether the person who

claims the protection of the Amendment has a legitimate expectation of privacy

in the invaded place." Rakas, 439 U.S. at 143. When ascertaining the scope of

the Fourth Amendment's protection, "arcane distinctions developed in property

and tort law between guests, licensees, invitees, and the like, ought not to

control." Id. Moreover, the extent "to which the Fourth Amendment protects

people may depend upon where those people are. We have held that capacity

to claim the protection of the Fourth Amendment depends . . . upon whether

the person who claims the protection of the Amendment has a legitimate

expectation of privacy in the invaded place." 2 Carter, 525 U.S. at 88 (internal

citations and quotation marks omitted.)

       The first part of the analysis requires the trial court to determine whether

Schmuck had a,reasonable expectation of privacy in the invaded place. The

United States Supreme Court recognizes that "a person can have a legally

sufficient interest in a place other than his own home so that the Fourth




        2 We recognize that while, "property rights are not the sole measure of Fourth
Amendment violations, [one's reasonable expectation of privacy] . . . [does] not snuff
out the previously recognized protection for property." United States v. Jones, 132 S.
Ct. 945, 951 (2012) (internal brackets, citations, and quotation marks omitted).



                                           9
Amendment protects him from unreasonable governmental intrusion into that

 place." Rakas, 439 U.S. at 142. In fact, "an overnight guest in a home may

 claim the protection of the Fourth Amendment, but one who is merely present

with the consent of the householder may not." Carter, 525 U.S. at 90. In

determining that the individuals complaining of the search fit into the latter

category, the Court looked to "the purely commercial nature of the transaction

 .. , the relatively short period of time on the premises, and the lack of any

previous connection between respondents and the householder. . . ."          Carter,

525 U.S. at 91. Without the expectation of privacy of an overnight guest, the

Court held that the search in question did not violate the Fourth Amendment.

With these guidelines in mind, on remand, the trial court must determine

whether Schmuck possessed a reasonable expectation of privacy as an

overnight guest, or whether he was merely on the premises with the permission

of the householder.

       Next, if the trial court determines that Schmuck had a reasonable

expectation of privacy as an overnight guest, the court must then determine

whether the scope 3 of the search warrant extends particularly to cover



       3 Two opinions of our predecessor Court may prove useful in determining the
validity of the scope of the search warrant. In Nestor v. Commonwealth, the Court
said:
       The mere fact that his premises were under the same roof and in the
       same building as other premises under the control of [the property
      owner] did not bring them within the terms of the warrant, and, there
      being no description of any character of appellant's premises or person,
      the officers were not authorized under the circumstances to enter or
      search his premises." 202 Ky. 748, 261 S.W. 270, 270-71 (1924).
Further, in Williams v. Commonwealth, our predecessor Court stated:

                                          10
 Schmuck's person, his room, and his effects—specifically, the nylon bag police

 opened and searched. The court must consider whether the nylon bag is

 Schmuck's personal effect to the extent contemplated in the Fourth

 Amendment. In so doing, the trial court should consider the Supreme Court's

 analysis in Ybarra v. Illinois, in which the Court stated, "[a]lthough the search

 warrant, issued upon probable cause, gave the officers authority to search the

 premises and to search [the individual named in the warrant], it gave them no

 authority whatever to invade the constitutional protections possessed

 individually by the tavern's customers." 444 U.S. 85, 92 (1979). The Ybarra

 Court also acknowledged that "general" or "open-ended warrants" are

 constitutionally prohibited. 4 Id. at 109, n.4.

       Finally, if the trial court determines that the nylon bag, Schmuck's room,

or Schmuck's person fall within the scope of the search warrant, the final step


       [Wie are presented with the question of whether the search warrant in
       this case is a defective 'blanket' warrant because of its failure to contain
       a reasonably specific description of the objective of search. The law
       applicable to this case appears to be properly summarized . . . where it is
       said: Where a warrant describes premises in which different persons
       occupy different parts, and fails to name the accused or occupant or to
       designate a certain part of the premises, it is defective as a blanket
       search warrant. 261 S.W.2d 416, 417 (Ky. 1953).


       4   However, the Court went on to say:
       It follows that a warrant to search a place cannot normally be construed
       to authorize a search of each individual in that place. The warrant for
       the Aurora Tap Tavern provided no basis for departing from this general
       rule. Consequently, we need not consider situations where the warrant
       itself authorizes the search of unnamed persons in a place and is
       supported by probable cause to believe that persons who will be in the
       place at the time of the search will be in possession of illegal drugs.
Id.

                                            11
 requires the trial court to determine whether the affidavit contained sufficient

 probable cause, particularized as to Schmuck, for a valid search warrant to

 issue. In Ybarra, "the police possessed a warrant based on probable cause to

 search the tavern in which Ybarra happened to be at the time the warrant was

executed." Id. at 91. In that case, the Supreme Court said, "a person's mere

propinquity to others independently suspected of criminal activity does not,

without more, give rise to probable cause to search that person. Where the

standard is probable cause, a search or seizure of a person must be supported

by probable cause particularized with respect to that person."      Id. (internal

citations omitted). The Court went on to say, "[tjhis requirement cannot be

undercut or avoided by simply pointing to the fact that coincidentally there

exists probable cause to search or seize another or to search the premises

where the person may happen to be." Id. Unless the trial court determines

that the supporting affidavit contains sufficient probable cause, particularized

as to Schmuck, for a valid search warrant to issue, the trial court must

suppress the evidence of which Schmuck complains.

   C. Introduction of Judgment from Prior Conviction in Penalty Phase

       Schmuck also contends the trial court erred during the penalty phase of

trial by allowing the Commonwealth to introduce a judgment from an Indiana

court relating to a previous conviction for child molestation. Schmuck did not

object to the court entering the judgment as evidence for the jury's

consideration. On appeal; however, he contends the judgment contained

prejudicial information, specifically "aggravating factors" the trial court


                                         12
considered when imposing judgment. Among the aggravating factors the

Indiana court listed was the fact that Schmuck committed that offense while on

probation and had a history of criminal behavior. The Commonwealth

introduced and the trial court admitted evidence this Court specifically rejected

in Mullikan v. Commonwealth.     In that decision, we said:

       [Vi]e hold today that the evidence of prior convictions is limited to
       conveying to the jury the elements of the crimes previously
       committed. We suggest this be done either by a reading of the
      instruction of such crime from an acceptable form book or directly
      from the Kentucky Revised Statute itself. Said recitation for the
      jury's benefit, we feel, is best left to the judge. The description of
      the elements of the prior offense may need to be customized to fit
      the particulars of the crime, i.e., the burglary was of a building as
      opposed to a dwelling. The trial court should avoid identifiers,
      such as naming of victims, which might trigger memories of jurors
      who may—especially in rural areas—have prior knowledge about
      the crimes.

      Mullikan v. Commonwealth, 341 S.W.3d 99, 109 (Ky. 2011)

As we stated definitively in Mullikan and reiterated in Webb v. Commonwealth,

when introducing evidence of prior convictions during the penalty phase, "the

first and preferred method . . . is for the judge to recite the elements of the

prior crimes to the jury." 387 S.W.3d 319, 330 (Ky. 2012). Trial courts risk

reversal by deviating from these admonitions. Thus, on remand, the trial court

should follow our precedent.

   D. Photograph
      Finally, Schmuck contends the trial court erred by allowing the

admission of a photograph showing him handcuffed outside David Hicks's

residence. We agree with Schmuck that a generally accepted principle of

Kentucky law forbids the jury from seeing the defendant handcuffed. RCr.

                                        13
8.28(5). We see no meaningful difference between showing a photo of the

defendant in handcuffs and the defendant appearing handcuffed at trial.

Nonetheless, in limited circumstances, we have held that a photograph

showing the defendant in handcuffs was not reversible error.      Estep v.

Commonwealth, 663 S.W.2d 213, 216 (Ky. 1983). However, determining an

alleged error does not result in reversible error differs significantly from

whether the trial court in fact erred. On remand, we strongly caution the trial

court against admitting photographs showing Schmuck handcuffed without

utilizing the KRE 403 balancing test.


                                  III. CONCLUSION

      For the foregoing reasons, we reverse Schmuck's convictions, vacate his

corresponding sentences, and remand this matter to the Grayson Circuit Court

for further proceedings consistent with this opinion.

      All sitting. Hughes, Noble, Venters, and Wright, JJ., concur. Minton,

C.J., Cunningham, and Keller, JJ., concur in result only.




                                        14
COUNSEL FOR APPELLANT:

Molly Mattingly, Assistant Public Advocate


COUNSEL FOR APPELLEE:

Andy Beshear, Attorney General of Kentucky
Courtney J. Hightower, Assistant Attorney General
