EDRIC CALDWELL V. COMMONWEALTH OF KENTUCKY
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RENDERED : MAY 20, 2010
NOT TO BE PUBLISHED
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2008-SC-000411-MR
EDRIC CALDWELL
V.
ON APPEAL FROM FULTON CIRCUIT COURT
HONORABLE TIMOTHY C. STARK, SPECIAL JUDGE
NO . 2006-CR-00053
COMMONEALTH OF KENTUCKY
APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Edric Caldwell appeals as a matter of right from a May 14, 2008
judgment of the Fulton Circuit Court convicting him of first-degree robbery,
first-degree assault, and of being a persistent felony offender (PFO) in the first
degree. Caldwell was sentenced, in accord with the jury's recommendation, to
fifteen years for the robbery conviction and fifteen years for the assault
conviction, to run consecutively, and enhanced by the PFO adjudication to a
total of thirty-five years imprisonment . Caldwell's convictions stem from an
attack upon and robbery of Coy Robinson just outside of Robinson's home .
The ensuing investigation led police to suspect Caldwell, who was ultimately
charged and convicted in connection with these events . Appealing his
convictions, Caldwell raises two claims of error: 1) that the trial court erred by
refusing to dismiss the indictment and 2) that his right to a speedy trial was
denied . We reject both contentions and, accordingly, affirm Caldwell's
convictions.
RELEVANT FACTS
Around midnight on August 19, 2006, Coy Robinson was attacked upon
arriving at his home in Hickman, Kentucky . Robinson owned a liquor store
and had just left the store, bringing with him a paper sack containing six "bank
bags ." Robinson was walking toward the door of his home, bag in hand, when
he was robbed and brutally beaten . One of the attackers absconded with one
of the bank bags, which contained customers' checks . Robinson could not
describe his attacker, but thought that there were two people present during
the attack . Officer Ray Smith of the Hickman Police Department responded to
the scene and called an ambulance to transport Robinson to the hospital.
Officer Smith investigated the area and found a magazine clip for a .357
Springfield magnum lying on the ground .
Subsequently, Caldwell apparently communicated with Dwayne Winfield
and offered to sell Winfield two guns, including a .357 Springfield magnum for
which he had lost the magazine clip. After this communication, Winfield made
contact with Officer Chris Cummings of the Union City (Tennessee) Police
Department. Officer Cummings knew Winfield from prior associations
stemming from Winfield's own encounters with law enforcement officers .
Officer Cummings listened in on a subsequent telephone conversation between
Winfield and Caldwell. According to Officer Cummings, Caldwell offered to sell
two handguns, one of which was a .357 Springfield magnum without the clip.
Officer Cummings then reported these events to the police chief of Hickman,
Caldwell's city of residence . Police Chief Tony Grogan informed Officer
Cummings that Caldwell was a possible suspect in another matter and that a
.357 magazine clip had been dropped at the scene in that case .
Officer Cummings proceeded to have Winfield set up a gun buy that was
to take place outside of Wal-Mart in Union City . Officer Cummings parked and
waited for Caldwell to enter Tennessee on Highway 5 at which point Caldwell
and his female passenger were pulled over and Caldwell was arrested . A prior
records check had revealed that Caldwell's license was suspended . Incident to
his arrest for driving on a suspended license, a search of Caldwell's vehicle led
to discovery of a .38 caliber pistol. Prior to towing the vehicle, an inventory
search was executed . A .357 Springfield magnum without a magazine clip was
discovered inside a box in the trunk of the vehicle .
Consequently, Caldwell was indicted by a Fulton County Grand Jury for
first-degree robbery, first-degree assault, possession of a handgun by a
convicted felon, and being a first-degree PFO . The handgun possession charge
was severed; the trial on the remaining charges is the subject of this appeal .
Caldwell seeks relief in this Court based upon the trial court's failure to
dismiss the indictment and based upon an alleged violation of his right to a
speedy trial .
ANALYSIS
I. The Trial Court Did Not Abuse Its Discretion By Refusing to Dismiss
the Indictment .
Caldwell contends that the trial court committed reversible error by
refusing to dismiss the indictment . This argument was properly preserved
through Caldwell's timely motion to dismiss the indictment . The basis for
Caldwell's motion was that Police Chief Grogan gave false testimony before the
grand jury and that such testimony grossly misled the grand jury. Specifically,
before the grand jury, Police Chief Grogan testified that Caldwell had admitted
in a taped interview to possessing the two guns while in Hickman, Kentucky,
and to transporting the guns to Tennessee for the purpose of selling them. In
fact, although Caldwell had admitted ownership of the .38 caliber pistol, he
had denied having any knowledge of the .357 Springfield . Furthermore,
Caldwell had not stated in the interview that he was taking the guns to
Tennessee in order to sell them. Caldwell contends that, absent these false
statements, the grand jury would likely not have indicted him, primarily due to
a lack of evidence to support the allegation that Caldwell possessed the guns
while in Kentucky .
Conversely, the Commonwealth urges that there was sufficient evidence
to support the indictment despite the factual inaccuracies, which consisted
primarily of Police Chief's Grogan's attributing statements made by other
witnesses to Caldwell. The Commonwealth contends that Chief Grogan merely
erred in identifying the source of his information, but the majority of the
information itself was accurate. For example, Chief Grogan had learned from
Winfield, the confidential informant, that Caldwell was coming to Tennessee to
sell the guns . Further, when pulled over in Tennessee, Caldwell's female
passenger stated that the two had driven from Kentucky to Tennessee without
stopping. Therefore, although Caldwell denied any knowledge of the .357
Springfield, others witnesses' statements created inferences to the contrary.
Ultimately, the trial court agreed with the Commonwealth that Chief Grogan's
erroneous testimony did not warrant dismissal of the indictment .
A trial court's decision concerning the dismissal of an indictment is
reviewed for an abuse of discretion . Commonwealth v. Baker, 11 S .W .3d 585
(Ky. App. 2000) . Thus, we must determine whether the trial court's decision
was arbitrary, unreasonable, or unsupported by sound legal principles .
Commonwealth v. English, 993 S .W.2d 941 (Ky.,1999) . Moreover, we
emphasize that a trial court must acknowledge that a strong presumption of
regularity attaches to grand jury proceedings. Baker, 11 S.W .3d 585.
Although Kentucky decisional law in this area is sparse, in
Commonwealth v. Baker, supra, our Court of Appeals confirmed a trial court's
supervisory power to dismiss an indictment for prosecutorial misconduct .
There, a mother was charged with abusing her two children. Although the
facts were that she hit the children with a wooden stick, the prosecutor elicited
false testimony from a grand jury witness to the effect that the mother had
struck the children with an aluminum bat. The trial court found that the
prosecutor had intentionally elicited the false testimony for the purpose of
elevating the degree of the assault charged and, accordingly, the trial court
dismissed the indictment.
In affirming the trial court's decision, the Court of Appeals explained that
to obtain relief, "a defendant must demonstrate a flagrant abuse of the grand
jury process that resulted in both actual prejudice and deprived the grand jury
of autonomous and unbiased judgment." Baker, 11 S .W.3d at 588 (citing Bank
of Nova Scotia v. United States, 487 U .S . 250, (1988)) . Expounding upon these
requirements, the Court of Appeals quoted United States v. Roth, 777 F.2d
1200 (7th Cir. 1985), as follows :
The first requirement, that the government know
the evidence was perjured, is intended to preserve the
principle that an indictment cannot be challenged on
the basis of the insufficiency of the evidence on which
the grand jury acted. . . . What makes the
government's knowing use of perjured testimony
different is that it involves an element of deceit, which
converts the issue from the adequacy of the
indictment's evidentiary basis to fraudulent
manipulation of the grand jury that subverts its
independence . The second requirement in the cases,
that the indictment would not have been issued except
for the perjured testimony, confines judicial
intervention to cases of prejudicial misconduct, that is,
to cases where the misconduct made a difference to
the defendant.
Baker, 11 S .W .3d at 588-89 (quoting Roth, 777 F .2d at 1204) .
Applying these principles to the case at hand, we must agree with the
Commonwealth that Caldwell has failed to show the flagrant abuse of the
grand jury process or the consequent prejudice necessary to warrant relief.
Certainly, Chief Grogan's statements improperly transformed statements of
others or inferences created thereby into admissions made by Caldwell .
However, two critical elements differentiate this case from Baker. In Baker, the
trial court found the prosecutor's actions in eliciting the false grand jury
testimony to be knowing or intentional and the trial court also deemed the false
testimony to be material to the charge because it supported an indictment for a
higher degree of assault than was supported by the true state of the evidence .
Thus, the Court of Appeals held that the trial court did not abuse its discretion
in dismissing the indictment, although the Court of Appeals did reverse the
trial court's determination that the dismissal should be with prejudice. Here,
the trial court determined that Chief Grogan's statements did not rise to the
level of flagrant misconduct, nor prejudice Caldwell so as to require dismissal
of the indictment. Given these findings and the distinctions between this case
and Baker, we cannot say that the trial court abused its discretion in refusing
to dismiss the indictment .
II. Caldwell Was Not Denied His Right to a Speedy Trial.
Caldwell contends that he was denied his right to a speedy trial . This
issue was preserved by Caldwell's oral request at arraignment and subsequent
written motions for a speedy trial. Caldwell was arraigned on September 28,
2006, was tried on the severed possession of a handgun by a convicted felon
(PHCF) charge about sixteen months later, I and was tried on the remaining
charges about nineteen months after the arraignment on April 16, 2008 .
In assessing whether a defendant's speedy trial right was violated, we are
guided by the four factors enumerated by the United States Supreme Court in
Barker v. Wingo, 407 U.S . 514 (1972) ; namely, (1) the length of the delay, (2)
This trial ended in a mistrial and the PHCF charge was dismissed following
Caldwell's conviction on the other charges .
the reason for the delay, (3) the defendant's assertion of his right to a speedy
trial, and (4) prejudice to the defendant. No single factor is dispositive . Id.
As to the first factor, there is a point at which the length of the delay
becomes presumptively prejudicial. This Court has held delays of shorter
duration than the one presented here to be presumptively prejudicial. See,
e.g., Bratcher v. Commonwealth, 151 S .W.3d 332, 344 (Ky. 2004) (eighteen-
month delay presumptively prejudicial) ; Dunaway v. Commonwealth, 60 S.W.3d
563, 569 (Ky . 2001) (thirteen and one-half month delay found to be
presumptively prejudicial) . Accordingly, we deem the nineteen-month delay to
be presumptively prejudicial. The first consideration, then, weighs in
Caldwell's favor .
A detailed chronology of events is necessary for proper evaluation of the
second and third considerations . As stated, Caldwell was arraigned on
September 28, 2006, and orally asserted his right to a speedy trial. A
subsequent written motion was made and a pretrial hearing was conducted
about a month later. During the hearing, it was determined that a special
judge would be necessary because the regular judge had previously served as
the prosecutor in this case. Trial was set for March 5, 2007 . A special judge
was appointed, who moved the trial date up a few days to February 27, 2007 .
On Caldwell's motion, the PHCF charge was severed . On February 9, 2007, the
prosecution was granted a continuance because testing would not be complete
on the weapon by the trial date. In May 2007, the trial court set a trial date of
October 24-25, 2007 on the PHCF charge . In July 2007, Caldwell, pro se,
moved to dismiss the indictment for lack of a speedy trial and, alternatively,
sought bond modification . Both motions were denied . In mid-October 2007,
the prosecution was granted a continuance based on scheduling conflicts of
two law enforcement witnesses in Tennessee . Trial of the PHCF charge was set
for February 12, 2008 . Immediately prior to trial, Caldwell sought dismissal on
speedy trial grounds. The motion was denied and the PHCF trial commenced
on February 12, 2008, but ended in a mistrial . Thereafter, the trial court
granted Caldwell's motion to reduce his bond and trial on the remaining
charges was scheduled for April 16, 2008 . Prior to trial, Caldwell again sought
dismissal based on speedy trial grounds. The motion was denied and the trial
commenced on April 16, 2008.
Although the Commonwealth requested two continuances, valid reasons
were presented for the requests: 1) lab testing on the weapon was not complete
and 2) scheduling conflicts of a material witness . The remainder of the delay,
the trial court found, was caused by a change in prosecutors, a change in
public defenders, and a change in judges. Given these circumstances, a
nineteen-month delay was not unreasonable nor was the delay entirely
attributable to the Commonwealth's two requested continuances . Thus, while
Caldwell's repeated invocations of his speedy trial rights weigh in his favor, the
reason for the delay was principally neutral .
As to the fourth consideration, Caldwell contends that he was prejudiced
by the delay because his first public defender went into private practice during
the delay and he had to start over with a second public defender. Although
Caldwell asserts that these events caused him considerable anxiety, he does
not identify any specific hindrances relative to his case caused by the change in
public defenders or the delay in general. As noted by this Court in Bratcher,
151 S .W.3d at 345, "[c]onclusory claims about the trauma of incarceration,
without proof of such trauma, and the possibility of an impaired defense are
not sufficient to show prejudice ." As such, even though a nineteen-month
delay is troublesome given the relative simplicity of this particular case,
Caldwell has failed to demonstrate any actual prejudice. In light of the
reasonable, neutral reasons for much of the delay and the absence of actual
prejudice, Caldwell has not established a speedy trial violation .
CONCLUSION
Although Caldwell proved that erroneous testimony was provided to the
grand jury, that testimony did not constitute a flagrant abuse of the process
that fatally tainted the proceedings. Moreover, the error did not permit the
charge of an offense or degree of offense greater than that which was otherwise
appropriate. Accordingly, Caldwell's attempt to show an abuse of trial court
discretion in refusing to dismiss the indictment falls short. Caldwell's speedy
trial claim must also fail when each of the four Barker factors is carefully
considered.
Accordingly, the May 14, 2008 judgment of the Fulton Circuit Court is
affirmed.
All sitting. All concur.
COUNSEL FOR APPELLANT:
Shelly R. Fears
Assistant Public Advocate
Department of Public Advocacy
100 Fair Oaks Lane, Suite 302
Frankfort, Kentucky 40601-1133
COUNSEL FOR APPELLEE:
Jack Conway
Attorney General
Todd Dryden Ferguson
Assistant Attorney General
Office of Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, Kentucky 40601-8204
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