IMPORTANT NOTICE

NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED “NOT TO BE PUBLISHED.” 

PURSUANT TO THE RULES OF CIVIL PROCEDURE 

PROMULGATED BY THE SUPREME COURT, RAP 40(D), THIS 

OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE 

CITED OR USED AS BINDING PRECEDENT IN ANY OTHER 

CASE IN ANY COURT OF THIS STATE; HOWEVER, 

UNPUBLISHED KENTUCKY APPELLATE DECISIONS, 

RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR 

CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED 

OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE 

BEFORE THE COURT. OPINIONS CITED FOR 

CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN 

UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A 

COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG 

WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO 

THE ACTION. 
 RENDERED: MARCH 14, 2024 

NOT TO BE PUBLISHED 

Supreme Court of Kentucky

2023-SC-0045-MR

DAVID LYNN MORGAN APPELLANT 

V. 

ON APPEAL FROM LOGAN CIRCUIT COURT

HONORABLE JOE W. HENDRICKS, JR., JUDGE 

NO. 22-CR-00141

COMMONWEALTH OF KENTUCKY APPELLEE 

MEMORANDUM OPINION OF THE COURT 

AFFIRMING 

 David Lynn Morgan was convicted in Logan Circuit Court following a jury 

trial of bail jumping and being a persistent felony offender in the first degree 

(PFO I). The jury recommended an enhanced sentence of twenty years’ 

imprisonment, and the trial court sentenced him accordingly. He now appeals 

as a matter of right1 raising three allegations of error. Following a careful 

review, we affirm. 

 On March 24, 2022, Morgan entered guilty pleas to numerous criminal 

charges from three separate indictments in Logan Circuit Court. Morgan and 

his counsel signed an agreed order as part of the plea process which allowed 

Morgan to be released from custody on a $5,000 bond contingent on his 

1 KY. CONST. § 110(2)(b). 
2

reporting back to the Logan County Jail on April 1, 2022. Morgan did not 

return to the jail as required.

In the early morning hours of April 8, 2022, Logan County Sheriff’s 

Deputy Jason Brent received information Morgan was at his ex-wife’s home

and made his way to that location to serve an arrest warrant. Upon arriving at 

the location, Deputy Brent parked across the street in a church parking lot and 

observed Morgan outside the residence holding what appeared to be a rifle.2 

Deputy Brent contacted his superiors to inform them he had located Morgan 

and that Morgan appeared to be armed. The Kentucky State Police were called 

for assistance. Multiple officers arrived on scene and spent several hours 

attempting to persuade Morgan to surrender to no avail. After a special 

response team was called in from Lexington, Morgan surrendered without 

incident. He was subsequently indicted for bail jumping and being a PFO I.

A jury trial was convened on August 22, 2022. After jurors were selected 

but before the presentation of evidence commenced, the trial court conducted a 

lengthy conference with the Commonwealth, Morgan, and his defense counsel. 

Morgan indicated he had not returned to jail as ordered because he learned 

that his attorney, Stuart Wheeler, had been suspended from the practice of law

on the same day he had entered his guilty plea in the three pending criminal 

cases. Morgan insisted the trial court and Commonwealth had allowed 

Wheeler to represent him though both were aware of the suspension. He was 

2 It was later determined the weapon was actually an air rifle.
3

not dissuaded from this belief despite being told multiple times by the trial 

court and Commonwealth that the suspension order was issued while court 

was being held on March 24, 2022, which meant there was no way anyone 

would have been on notice of it until afterwards. The trial court informed 

Morgan he had twice contacted the Clerk of the Supreme Court of Kentucky to 

express his concern over Wheeler’s handling of multiple cases on the date of 

his suspension, and the Commonwealth indicated it would not have agreed to 

amending Morgan’s bond nor allowed him to enter a guilty plea had he been 

aware of Wheeler’s impending suspension. The trial court also noted Wheeler’s 

suspension was immaterial to the bail jumping charge as the real issue was 

whether Morgan was subject to a valid court order to return to jail on a date 

certain and had failed to do so.

Morgan remained defiant and insisted he could not receive a fair trial 

with a presiding judge and prosecutor who were aware of Wheeler’s suspension 

yet still allowed him to act as Morgan’s attorney. He contended it was the fault 

of the trial court and prosecutor that he was “sitting in this position.” Morgan 

continued to complain for over twenty minutes, insisting he would not be in 

this situation had the judge not allowed Wheeler to represent him. The trial 

court repeatedly reminded Morgan that a new judge would have no impact on 

the true issue which was whether Morgan had returned to jail as ordered. 

Ultimately, the matter proceeded to trial and the jury found Morgan guilty, 

sentencing him to five years for bail jumping, enhanced to twenty years by 

virtue of his being a PFO I. This appeal followed.
4

Morgan first asserts testimony by Chief Deputy Gary Martin of the Logan 

County Detention Center referring to Morgan’s “rap sheet” was more prejudicial 

than probative and requires reversal. Morgan concedes this alleged error is not 

preserved for appellate review, but requests palpable error review pursuant to 

RCr3 10.26. “Under this rule, an error is reversible only if a manifest injustice 

has resulted from the error. That means that if, upon consideration of the 

whole case, a substantial possibility does not exist that the result would have 

been different, the error will be deemed nonprejudicial.” Martin v. 

Commonwealth, 207 S.W.3d 1, 3 (Ky. 2006) (quoting Graves v. Commonwealth, 

17 S.W.3d 858, 864 (Ky. 2000)). A palpable error is “easily perceptible, plain, 

obvious and readily noticeable.” Brewer v. Commonwealth, 206 S.W.3d 343, 

349 (Ky. 2006) (quoting Burns v. Level, 957 S.W.2d 218, 222 (Ky. 1997)).

Relevant evidence is defined in KRE4 401 as “evidence having any 

tendency to make the existence of any fact that is of consequence to the 

determination of the action more probable or less probable than it would be 

without the evidence.” Relevant evidence is admissible unless excluded by the 

Constitution, statutes, evidentiary rules, or other rules promulgated by this 

Court. KRE 402. “Although relevant, evidence may be excluded if its probative 

value is substantially outweighed by the danger of undue prejudice, confusion 

of the issues, or misleading the jury, or by considerations of undue delay, or 

needless presentation of cumulative evidence.” KRE 403.

3 Kentucky Rules of Criminal Procedure.

4 Kentucky Rules of Evidence.
5

On examination by the Commonwealth, Chief Deputy Martin was asked 

to refer to a document which was identified as Morgan’s rap sheet. Chief 

Deputy Martin testified such documents contain booking and release 

information for a particular person as well as all charges pending against that 

individual.5 He was then directed to the second page of the document which 

contained information regarding the indictment numbers to which Morgan had 

entered guilty pleas on March 24, 2022. He testified the rap sheet indicated 

Morgan was released from custody on those charges on March 24, 2022, and 

his next booking date into the Logan County Detention Center relative to those 

charges was April 8, 2022. The Commonwealth then clarified Morgan was not 

booked in on April 1, 2022, as required by the agreed order.

Morgan now contends it was unnecessary to reference his rap sheet to 

prove whether he had abided by the terms of his bond as the Commonwealth 

could simply have inquired of Chief Deputy Martin whether Morgan turned 

himself in on April 1, 2022, as ordered. He avers explaining the nature of a rap 

sheet was irrelevant and unnecessary. Further, Morgan argues allowing the 

jury to know his rap sheet was multiple pages long and showed multiple 

criminal cases was unduly prejudicial. He also claims introduction of this 

5 In discussions with the trial court outside the presence of the jury, the parties 

agreed it would be inappropriate for jurors to see Morgan’s rap sheet because it

contained information about unrelated criminal charges and prior convictions. 

Although the rap sheet was introduced by the Commonwealth as an exhibit, the 

document was neither published nor provided to the jury to use during their 

deliberations.
6

evidence violated the prohibition of KRE 404(b) relative to improper character 

evidence. We disagree.

The Commonwealth was required to prove Morgan did not abide by his 

bond conditions when he failed to return to jail as ordered on April 1, 2022. To 

do so, it utilized the records of the Logan County Detention Center which 

showed he had not complied. The jury was not informed of any criminal 

charges or movements in or out of the jail relative to any charges other than 

the three felonies to which Morgan had entered guilty pleas and agreed to bond 

conditions. The jury was already aware Morgan’s alleged violation of the bond 

conditions served as the basis for the bail jumping charge. The evidence 

contained in the rap sheet simply laid the foundation for Chief Deputy Martin’s 

testimony regarding noncompliance and was plainly relevant as to an essential 

element of the crime for which Morgan stood accused. Thus, we discern no 

undue prejudice arising from Chief Deputy Martin’s testimony relative to 

information contained in the rap sheet and hold there was no palpable error.

Second, Morgan asserts Deputy Brent was permitted to give unduly 

prejudicial testimony during his direct examination. Again, Morgan concedes 

this error is unpreserved and requests palpable error review.

Deputy Brent testified he did not initially make contact with Morgan after 

seeing him with what appeared to be a rifle and instead waited for backup to 

arrive. When asked why officers did not move in immediately, Deputy Brent 

indicated officer safety was a key concern as Morgan had
7

nothing to lose. You know, he had the warrants. He knew he had 

a long time on the shelf. So, there’s no point in rushing in and, 

you know, create a situation that didn’t have to be created.

No objection was lodged, but the trial court immediately sua sponte called a 

bench conference and instructed Deputy Brent to not refer to any plea deals or 

“sentences hanging over his head.” The trial court then admonished the jury to 

disregard the offending testimony, stating:

Um, for members of the jury, any testimony regarding potential 

penalties that Mr. Morgan would’ve faced at the time are irrelevant. 

And I’m instructing you to disregard the testimony.

No request for further relief was made.

Morgan now argues Deputy Brent’s statements were suggestive of his 

being a dangerous individual who could potentially resort to violence or 

extreme measures. He asserts the resulting prejudice could not be overcome or 

cured by the trial court’s admonition. We disagree.

“A jury is presumed to follow an admonition to disregard evidence and 

the admonition thus cures any error.” Johnson v. Commonwealth, 105 S.W.3d 

430, 441 (Ky. 2003) (citing Mills v. Commonwealth, 996 S.W.2d 473, 485 (Ky. 

1999)). Admonitions will be presumed to be ineffective under only two 

circumstances. First, “when there is an overwhelming probability that the jury 

will be unable to follow the court’s admonition and there is a strong likelihood 

that the effect of the inadmissible evidence would be devastating to the 

defendant[.]” Id. Or second, “when the question was asked without a factual 

basis and was ‘inflammatory’ or ‘highly prejudicial.’” Id. (citing Derossett v. 
8

Commonwealth, 867 S.W.2d 195, 198 (Ky. 1993); Bowler v. Commonwealth, 

558 S.W.2d 169, 171 (Ky. 1977)).

Contrary to Morgan’s unsupported assertions, nothing in the record 

reveals any reason—much less an overwhelming probability—the jury would be 

unable to follow the trial court’s admonition. Further, Deputy Brent’s brief 

statements cannot reasonably be said to have been “devastating” to Morgan. 

The jury was aware Morgan had entered guilty pleas in the three underlying 

felony cases, he had been released from custody following those pleas and 

agreement to the bond conditions, and he had failed to comply with the 

requirement of returning to jail at the appointed time. Thus, it would come as 

no surprise to the jury that Morgan was potentially facing additional jail time 

due to his guilty pleas to the three felonies. Finally, Deputy Brent’s testimony 

was based on the factual record and his fleeting testimony cannot be 

characterized as inflammatory or highly prejudicial. Morgan has simply failed 

to present a sufficient basis to rebut the presumption that the trial court’s 

admonition cured any potential error. Thus, we conclude there was no error, 

much less palpable error.

Finally, Morgan contends the trial court erred in failing to hold a Faretta6

hearing after he requested to proceed pro se. Citing King v. Commonwealth, 

374 S.W.3d 281, 295 (Ky. 2012), he asserts the failure constituted a structural 

6 Faretta v. California, 422 U.S. 806 (1975).
9

error mandating reversal. Our review of the record reveals no error, structural 

or otherwise.

“The Sixth Amendment to the United States Constitution and Section 

Eleven of the Kentucky Constitution guarantee criminal defendants the right to 

counsel as well as the converse right to self-representation.” Id. at 290 (citing 

Faretta, 422 U.S. at 817). See also Crawford v. Commonwealth, 824 S.W.2d 

847, 849 (Ky. 1992) (“A defendant has an absolute right to waive counsel and 

to represent himself . . . .”) However, “courts indulge ‘every reasonable 

presumption against a waiver of counsel.’” Winstead v. Commonwealth, 283 

S.W.3d 678, 683 (Ky. 2009) (quoting Buhl v. Cooksey, 233 F.3d 783, 790 (3d 

Cir. 2000)). To overcome the presumption against waiver, “[a] request to 

proceed pro se or with counsel in a limited fashion must be timely and 

unequivocal.” Deno v. Commonwealth, 177 S.W.3d 753, 757-58 (Ky. 2005) 

(citing Moore v. Commonwealth, 634 S.W.2d 426, 430 (Ky. 1982)). “It is not 

enough to express dissatisfaction with counsel or to request different counsel; 

the defendant, rather, must unequivocally ask to proceed pro se.” Winstead, 

283 S.W.3d at 683 (citing Deno, 177 S.W.3d at 758). “[O]nce a defendant 

invokes his right to proceed pro se, in whole or part, the trial court is required 

to hold the Faretta hearing and allow the defendant to exercise the right, if at 

all possible.” Swan v. Commonwealth, 384 S.W.3d 77, 93 (Ky. 2012) (citing Hill

v. Commonwealth, 125 S.W.3d 221, 228 (Ky. 2004)). Here, because Morgan’s 

alleged request was both untimely and equivocal, no Faretta hearing was 

required.
10

On the morning of trial, after the jury had been selected, Morgan asked 

to speak with the trial court. Reiterating his concerns about Wheeler’s 

representation and believing the trial court and prosecutor was biased, Morgan 

inartfully requested a change of venue. During the ensuing conversation, 

Morgan expressed his desire to speak with another attorney before moving 

forward. After explaining the trial was going forward that day, the judge told 

Morgan he should not try to represent himself. In response, Morgan asked 

that the trial be put off and continued to assert reasons the trial court was 

biased and should be removed.

To be timely, a request to proceed pro se must be made before 

meaningful trial proceedings have begun. Id. (citing United States v. Bishop, 

291 F.3d 1100, 1114 (9th Cir. 2002)). “A request is timely if made before the 

jury is selected or before the jury is empaneled.” Id. (quoting Bishop, 291 F.3d 

at 1114). “The trial court may, of course, grant an untimely request but that is 

a decision lying within its sound discretion.” Soto v. Commonwealth, 139 

S.W.3d 827, 857 (Ky. 2004) (citing Robards v. Rees, 789 F.2d 379, 384 (6th

Cir. 1984). It is undisputed jury selection had been completed prior to Morgan 

asking to speak with the trial court to voice his concerns. Clearly, meaningful 

trial proceedings had begun, rendering any request untimely. Swan, 384 

S.W.3d at 93.

More importantly, however, Morgan did not make an unequivocal request 

to represent himself in whole or part sufficient to require a Faretta hearing. 

The concerns Morgan raised centered on his dissatisfaction with the trial 
11

court’s allowance of Wheeler’s representation of him when guilty pleas were 

accepted regarding the underlying three charges and his belief the trial court 

was biased and would not be fair relative to the bail jumping charge. He 

expressed no dissatisfaction with his then-present counsel, articulated no 

desire to represent himself, and asked only for the opportunity to speak with 

another lawyer. His overarching aspiration was to have the trial presided over 

by a different judge. It was the trial court who broached the subject of Morgan 

representing himself and Morgan’s response was only to ask for clarification of 

what the court was telling him.

“The defendant . . . must clearly indicate that he desires to dispense with 

counsel’s services in whole or in part and to substitute himself for counsel.

After all, where the defendant does not to any extent seek to waive counsel, 

there can be no need to warn him against the perils of waiver.” Commonwealth 

v. Martin, 410 S.W.3d 119, 123 (Ky. 2013) (citing United States v. Leggett, 81 

F.3d 220 (D.C. Cir. 1996); Matthews v. Commonwealth, 168 S.W.3d 14 (Ky. 

2005)). Even under the broadest possible view of the proceedings, Morgan at 

best asked for different representation. He was concerned only with receiving a 

fair trial which he did not believe could occur based on his perception of bias 

by the trial court. At no point did he convey any want to dispense with counsel 

and proceed pro se. His current assertions to the contrary are unsupported by 

the record. There was no structural error as Morgan was not entitled to a 

Faretta hearing.

For the foregoing reasons, the Logan Circuit Court is affirmed. 
12

All sitting. VanMeter, C.J.; Bisig, Conley, Keller, Lambert, and Nickell, 

JJ., concur. Thompson, J., concurs in result only.

COUNSEL FOR APPELLANT:

Erin Hoffman Yang

Assistant Public Advocate

COUNSEL FOR APPELLEE:

Russell M. Coleman

Attorney General of Kentucky

Jenny L. Sanders

Assistant Attorney General