Unequivocal Invocation Required: No Faretta Hearing, No Substitution of Appointed Counsel, and No Lesser-Included Instructions Without Supporting Evidence

Case: Brice Rhodes v. Commonwealth of Kentucky
Court: Supreme Court of Kentucky
Date: February 19, 2026 (Not To Be Published)

1. Introduction

This appeal followed a Jefferson Circuit Court jury trial in which Brice Rhodes was convicted of three counts of murder (Christopher Jones; brothers Maurice Gordon and Larry Ordway), tampering with physical evidence, and two counts of abuse of a corpse. The jury recommended life without parole on each murder count; the trial court imposed concurrent life-without-parole sentences.

Rhodes raised five preserved issues on direct appeal: (1) denial of conflict-free counsel/substitution of appointed counsel; (2) failure to hold a Faretta hearing for self-representation and alleged misadvice about representation options; (3) refusal to instruct on first-degree manslaughter and facilitation; (4) exclusion of mitigation evidence—specifically, a relative’s mental-health records; and (5) denial of a change of venue due to pretrial publicity.

2. Summary of the Opinion

Applying abuse-of-discretion review, the Court affirmed across the board. It held:

• No “actual conflict” arose from counsel’s prior representation of a victim’s uncle, and Rhodes could not “manufacture” good cause for substitution by refusing to cooperate.
• No Faretta hearing was required because Rhodes never unequivocally elected self-representation at trial and repeatedly indicated he wanted different counsel, not to proceed pro se.
• Lesser-included instructions for first-degree manslaughter and facilitation were unsupported by the evidence; the proof permitted only “murder or innocence” theories.
• The sister’s mental-health records were privileged under KRE 507, not within the asserted exception, and in any event would have been cumulative of mitigation already presented.
• Despite pretrial publicity, the long time lapse to trial and the absence of voir dire-based prejudice supported denial of venue change.

3. Analysis

3.1 Precedents Cited

A. Standard of Review / Trial Court Deference

• Roberson v. Commonwealth and Taylor v. Commonwealth: framed the principal abuse-of-discretion lens for the appellate review of the trial court’s decisions.
• Bailey v. Commonwealth (quoting Miller v. Eldridge): reinforced deference because the trial judge is “in the best position to evaluate the evidence.”
• Commonwealth v. English: supplied the formulation that reversal requires action that is arbitrary, unreasonable, unfair, or unsupported by sound legal principles.

B. Conflict-Free Counsel and Substitution of Appointed Counsel

• Strickland v. Washington: anchored the constitutional baseline for effective assistance; the Court used it as the umbrella principle, though the dispute centered on conflicts and substitution rather than classic performance/prejudice.
• Steward v. Commonwealth: offered the Kentucky template for successive representation creating conflict; the Court distinguished it because the prior client in this case was neither co-defendant nor witness.
• Commonwealth v. Tigue (quoting Smith v. Robbins): supplied the rule that prejudice may be presumed when counsel is burdened by an “actual conflict of interest,” underscoring why Rhodes needed to show an actual (not speculative) conflict.
• Henderson v. Commonwealth (1982): stated there is no right to a particular appointed attorney and substitution requires adequate reasons or clear abuse.
• Grady v. Commonwealth (quoting Deno v. Commonwealth): identified “good cause” categories—communication breakdown, conflict of interest, or prejudice to legitimate interests—used to structure the Court’s analysis.
• Henderson v. Commonwealth (2018) (quoting Stinnett v. Commonwealth): set the “bar is set high” principle; dissatisfaction is insufficient.
• Moss v. United States: provided the definition of successive representation as prior representation of a co-defendant or trial witness, which the Court used to reject Rhodes’s “victim’s uncle” theory.
• United States v. Vasquez: supported the proposition that a defendant cannot manufacture good cause for substitution through abusive, uncooperative behavior.

C. Self-Representation and When a Faretta Hearing Is Required

• Faretta v. California: supplied the core requirement that a waiver of counsel must be knowing and intelligent, with warnings about the dangers of self-representation.
• Commonwealth v. Terry: restated the Faretta warning requirement as Kentucky applies it.
• Swan v. Commonwealth: noted that once a defendant invokes the right to proceed pro se, the trial court is required to hold a Faretta hearing “if at all possible.”
• Commonwealth v. Martin: was the controlling “trigger” case—there is no duty to hold a Faretta hearing unless the defendant clearly indicates a desire to dispense with counsel; mere dissatisfaction, firing counsel, or filing pro se motions is not enough.
• Winstead v. Commonwealth: reinforced that pro se filings can fall short of an unequivocal self-representation request.

D. Lesser-Included Instructions (Manslaughter, Facilitation)

• Sasser v. Commonwealth: reaffirmed the duty to instruct on lesser-included offenses supported by the evidence.
• Oakes v. Commonwealth: allowed refusal of lesser-included instructions when the evidence supports only “guilty of the greater or innocent.”
• Allen v. Commonwealth (quoting Hudson v. Commonwealth): framed lesser-included offenses as a “defense against the higher charge.”
• Allen v. Commonwealth (quoting Osborne v. Commonwealth): supplied the rational-juror test—reasonable doubt on the greater, but belief beyond reasonable doubt on the lesser.
• Lackey v. Commonwealth (quoting Brown v. Commonwealth): reiterated the “rationally find not guilty of primary but guilty of lesser” standard.
• Baker v. Commonwealth (quoting Perdue v. Commonwealth, overruled on other grounds by Huddleston v. Commonwealth): defined facilitation as reflecting “wholly indifferent” mental state—central to rejecting facilitation where Rhodes was found to be the “mastermind.”
• Parker v. Commonwealth: supported inferring intent from conduct and consequences; used to reject manslaughter theory on the Jones killing.
• Murphy v. Commonwealth: supported the inference of intent from failure to render aid after inflicting injury.
• Welborn v. Commonwealth and Murtaugh v. Commonwealth: supported that concealment/flight can be circumstantial evidence of guilt and guilty mind.
• Dixon v. Commonwealth and Lawton v. Commonwealth: used to illustrate when facilitation is unwarranted and when the case posture is essentially “believe the accomplices and convict” or “disbelieve and acquit.”

E. Mitigation Evidence and Privileged Mental-Health Records

• Commonwealth v. Barroso: invoked by Rhodes for the proposition that some medical/mental-health records can be relevant; the Court did not treat it as authorizing compelled disclosure of a third party’s privileged records for mitigation here.
• Davis v. Coyle (quoting Skipper v. South Carolina): reaffirmed that a defendant must be permitted to present relevant mitigating evidence.
• Tennard v. Dretke: set the low relevance threshold for mitigation and the jury’s role in weighing it once relevant.
• Wong v. Belmontes and Nichols v. Heidle: supported the “cumulative mitigation” principle—additional evidence that is not meaningfully new is less likely to matter.

F. Change of Venue and Pretrial Publicity

• Dunn v. Commonwealth: provided the Kentucky test under due process and KRS 452.210—venue change required if the defendant cannot receive a fair trial in the county.
• Kordenbrock v. Commonwealth: clarified that it is not the amount of publicity but whether public opinion is so aroused as to preclude a fair trial.
• Skilling v. United States: cautioned against presuming prejudice from publicity and related events; requires focus on actual prejudice safeguards like voir dire.
• Wood v. Commonwealth: demonstrated Kentucky’s tolerance of extensive juror exposure to publicity where fairness can still be achieved.
• Hubers v. Commonwealth: used to gauge whether media sentiment is sufficiently “inflamed” to compel transfer.

3.2 Legal Reasoning

A. Substitution of Counsel: “Actual Conflict” and Self-Created Breakdown

The Court separated two ideas Rhodes urged the Court to merge: (i) a legal conflict of interest and (ii) a poor attorney-client relationship. On the legal-conflict point, the Court held that prior representation of a victim’s relative does not automatically amount to “successive representation” as contemplated by the cited doctrine (as framed by Moss v. United States). Because the uncle was neither a co-defendant nor a witness and there was no showing counsel’s loyalties were divided in a way that restricted advocacy, Rhodes failed to show an “actual conflict” sufficient to presume prejudice under Commonwealth v. Tigue.

On the “communication breakdown” point, the Court accepted the record that Rhodes repeatedly refused to work with counsel, but treated that refusal as insufficient “good cause” when it lacked legitimate grounding. Invoking United States v. Vasquez, the Court effectively treated Rhodes’s noncooperation as self-created and thus not a basis to force substitution—especially against the practical background that the DPA and the trial court had already struggled to staff competent capital-qualified counsel.

B. Faretta: No Hearing Without an Unequivocal Request to Proceed Pro Se

The Court’s analysis tracked Commonwealth v. Martin: a Faretta hearing is required only after the defendant clearly indicates an intention to dispense with counsel and represent himself. Rhodes’s record, though replete with pro se motions and threats to “fire” counsel, repeatedly reverted to demands for different counsel and explicit statements that he did not want to represent himself. That posture failed the “unequivocal invocation” threshold, making warnings under Faretta v. California unnecessary.

The Court also rejected the “false dichotomy” framing (appointed counsel vs. self-representation), reasoning that because Rhodes did not actually and consistently elect self-representation, the court’s failure to discuss hybrid/standby counsel did not constitute reversible misadvice on this record.

C. Instructions: No Manslaughter or Facilitation Where the Proof Shows Intent to Kill and Principal Liability

Applying the rational-juror framework described in Allen v. Commonwealth and Lackey v. Commonwealth, the Court found no evidentiary foundation for first-degree manslaughter (intent to cause serious physical injury but death results) or facilitation (knowing provision of means/opportunity while “wholly indifferent” to completion).

For the two teenagers’ killings, the Court emphasized Rhodes’s leadership: initiating, directing, stabbing first, and orchestrating concealment. That profile is incompatible with facilitation’s “wholly indifferent” concept (as discussed in Baker v. Commonwealth) and incompatible with a “serious injury only” mental state.

For Jones, the Court relied on circumstantial intent evidence under Parker v. Commonwealth and post-crime conduct under Welborn v. Commonwealth and Murtaugh v. Commonwealth, including leaving the victim, firing into a house immediately thereafter, and later killing perceived witnesses. These facts, in the Court’s view, permitted only murder-or-acquittal options, justifying refusal of lesser instructions under Oakes v. Commonwealth.

D. Mitigation vs. Privilege: Third-Party Mental-Health Records Under KRE 507

Rhodes sought in camera review and use of his sister’s mental-health records, citing KRE 507(c)(3). The Court’s core move was categorical: the privilege belongs to the patient (the sister), not Rhodes; the cited exception did not apply because she was not asserting her mental condition as an element of a claim or defense, nor was she deceased.

Even assuming disclosure, the Court concluded the records would have been cumulative because the penalty phase already included expert testimony about Rhodes’s adverse childhood experiences and familial mental illness, and the marginal scoring change (8 to 9 on an “ACES” framework) was deemed insignificant. The Court bolstered this with the cumulative-mitigation reasoning reflected in Wong v. Belmontes and Nichols v. Heidle.

E. Venue: Time Lapse and Lack of Voir Dire Showing Defeat Presumed Prejudice

The Court applied the established Kentucky approach: publicity volume is not dispositive (Kordenbrock v. Commonwealth), and presumptions of prejudice are disfavored (Skilling v. United States). The opinion’s key factual pivot was the passage of time—about seven years from crimes to voir dire and more than four years from venue-denial order to trial—combined with Rhodes’s failure to identify contemporaneous prejudicial publicity or voir dire responses demonstrating a biased jury pool. Under Dunn v. Commonwealth and the cited Kentucky cases, that record did not compel transfer.

3.3 Impact

Although unpublished, the decision is likely to be cited persuasively for several practical propositions in Kentucky trial courts:

• Substitution of appointed counsel: prior representation of a victim’s relative—without witness/co-defendant overlap and without demonstrable divided loyalty—will not, standing alone, establish an “actual conflict,” and a defendant’s refusal to cooperate will not create “good cause.”
• Faretta trigger discipline: trial courts may insist on a clear, unequivocal pro se election before conducting the full Faretta colloquy, notwithstanding pro se filings and complaints about counsel.
• Lesser-included rigor: where the evidentiary narrative supports only intentional killing and principal leadership, manslaughter and facilitation instructions can be refused as a matter of evidentiary insufficiency.
• Privilege in mitigation: defendants face steep hurdles when seeking third-party mental-health records for mitigation; privilege ownership and cumulative-value analyses can be decisive.
• Venue motions: a strong showing typically requires (a) proximity-in-time publicity and/or (b) voir dire indications of fixed bias; older publicity plus silent voir dire records will rarely suffice.

4. Complex Concepts Simplified

• “Actual conflict of interest”: not just a suspicion that counsel might be biased; it is a real, identifiable clash of loyalties that limits counsel’s performance.
• “Successive representation”: when defense counsel previously represented someone whose interests materially intersect the current case (typically a co-defendant or a witness), creating a risk counsel cannot fully attack or cross-examine the former client.
• “Faretta hearing”: a court’s on-the-record warning and inquiry to ensure a defendant knowingly and voluntarily waives counsel and understands the risks of self-representation.
• “Lesser-included offense instruction”: a jury option for a less serious crime than charged, but only if evidence allows a rational juror to acquit on the greater and convict on the lesser.
• “Facilitation”: helping another commit a crime while being “wholly indifferent” to whether it is completed—conceptually distinct from planning/leading a crime.
• KRE 507 privilege: the patient controls confidentiality of mental-health records; another person (even a close relative) generally cannot force disclosure simply because the records might be helpful.
• “Change of venue”: moving the trial to another county due to prejudice; publicity alone is insufficient unless it produces a demonstrably biased jury pool or community sentiment that blocks a fair trial.

5. Conclusion

The Court affirmed Rhodes’s convictions and sentence by applying established Kentucky and federal frameworks to a difficult, heavily litigated record: substitution of appointed counsel requires genuine “good cause” and cannot be manufactured; Faretta protections are triggered only by an unequivocal election to proceed pro se; lesser-included instructions require real evidentiary support; third-party mental-health privilege generally remains intact even in mitigation; and venue transfer requires a concrete showing of prejudice, not merely historical publicity.