ANTHONY R. SAYLOR v. COMMONWEALTH OF KENTUCKY
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RENDERED: July 23, 1999; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-001606-MR
ANTHONY R. SAYLOR
APPELLANT
APPEAL FROM LAUREL CIRCUIT COURT
HONORABLE LEWIS HOPPER, JUDGE
ACTION NOS. 96-CR-00125 AND 98-CR-00088
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
EMBERTON, GUIDUGLI, AND SCHRODER, JUDGES.
SCHRODER, JUDGE:
This is an appeal from a judgment of the Laurel
Circuit Court convicting appellant of various offenses.
Appellant argues that he suffered substantial prejudice and was
denied his constitutional rights to a fair trial and due process
of law when the trial court overruled his motion for a
continuance.
Appellant further argues that the trial court
erred when it admitted appellant’s confession at trial without
holding a suppression hearing.
We disagree with appellant’s
arguments and affirm the decision of the trial court.
The facts are as follows:
On June 16, 1996, appellant,
Anthony Saylor, was observed by London police officer Derek House
driving a car with the headlights off.
Officer House followed
the car, and appellant turned the headlights on shortly
thereafter.
The officer observed the car weaving, and activated
his siren and attempted to pull the car over.
pull over, but continued to drive.
Appellant did not
Appellant turned into an open
field and began doing “donuts” with his car.
cruiser, followed appellant into the field.
The officer, in his
Appellant stopped
doing “donuts” and came to a stop facing the officer’s cruiser.
Appellant then hit the cruiser with his car.
The officer exited
the cruiser, and as he approached appellant’s car, appellant
moved the car, striking the officer, and breaking his ankle.
Appellant then drove away.
The injured officer got back in the
cruiser and pursued appellant as other police units arrived on
the scene.
A witness to the incident informed the police of
appellant’s whereabouts.
apprehended.
Appellant was then located and
At the police station, appellant was read and
invoked his Miranda rights.
Subsequently, appellant asked an
officer who it was he was supposed to have hit.
When told that
it was Officer House, appellant stated that if he had known it
was this officer, he wouldn’t have done it.
This statement was
admitted at trial over appellant’s objection.
Appellant was arrested on June 16, 1996.
The trial,
first set for November 20, 1996, was repeatedly delayed, due in
part to illness of appointed defense counsel.
The trial court
appointed new counsel for appellant on May 6, 1998 and set the
trial date for May 12, 1998.
On the morning of the trial, new
counsel moved for a continuance, which was denied by the trial
court.
Appellant was tried by jury on May 12, 1998 and convicted
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of one count of second-degree assault, one count of second-degree
wanton endangerment, one count of driving under the influence first offense, and one count of being a first-degree persistent
felony offender.
Appellant was sentenced to 14 years’
imprisonment.
Appellant’s first contention is that the trial court
erred in denying his motion for a continuance.
Appellant asserts
that his new counsel did not have sufficient time to prepare for
trial, causing appellant to suffer substantial prejudice and
denying him his right to a fair trial and due process of law.
Pursuant to RCr 9.04, a trial court, upon motion and
sufficient cause shown by either party, may grant a postponement
of the trial.
A motion for a continuance is directed to the
sound discretion of the trial court and the action of the court
will not be disturbed on appeal absent an abuse of that
discretion.
Eldred v Commonwealth, Ky., 906 S.W.2d 694 (1995),
cert. denied, 516 U.S. 1154, 116 S. Ct. 1034, 134 L. Ed. 2d 111
(1996); Snodgrass v. Commonwealth, Ky., 814 S.W.2d 579 (1991);
Rosenzweig v. Commonwealth, Ky. App., 705 S.W.2d 956 (1986).
The Kentucky Supreme Court has set forth the following
factors which a trial court should consider in exercising its
discretion to grant or deny a continuance:
1) length of delay;
2) previous continuances; 3) inconvenience to litigants,
witnesses, counsel, and the court; 4) whether the delay is
purposeful or is caused by the accused; 5) availability of other
competent counsel; 6) complexity of the case; and 6) whether
denying the continuance will lead to identifiable prejudice.
Snodgrass, 814 S.W.2d at 581.
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From our review of the record, we cannot say the trial
court abused its discretion in denying appellant’s motion for a
continuance.
Appellant was appointed new counsel at 9:00 a.m. on
May 6, 1998, six days before the trial date, May 12, 1998.
The
Kentucky Supreme Court has found less time to be adequate for
preparation for trial.
32 (1993).
Harris v. Commonwealth, Ky., 869 S.W.2d
In Harris, appellant was appointed new counsel five
days before trial.
New counsel immediately moved for a
continuance, and the trial court denied the motion, noting that
new counsel would have four days in which to confer with the
defendant and review the case, with benefit of materials
accumulated by withdrawing counsel.
Harris, 869 S.W.2d at 34.
On the day of the trial, the motion was renewed, and was again
denied.
Id.
The Court held that the trial court did not abuse
its discretion, as the defense did not demonstrate sufficient
cause to require a continuance.
Id.
As in Harris, appellant asserts no reasons for the
continuance other than a general statement that his counsel had
inadequate time to prepare.
In Harris, the Court found four days
adequate time for preparation.
Appellant’s counsel had six.
Appellant’s trial had been repeatedly delayed, and appellant did
not move for a continuance until the morning of the trial.
Appellant’s case was not particularly complex.
Appellant
provided no examples of identifiable prejudice, nor did he
specify how the continuance would have aided in the preparation
of his defense.
For the above reasons, we believe the trial
court did not abuse its discretion in denying appellant’s motion
for a continuance.
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Appellant’s second argument is that the trial court
erred when it overruled appellant’s objection to the introduction
of his confession at trial without holding a suppression hearing
on the issue.
At the police station, after having been read and
invoking his Miranda rights, appellant asked Officer Doug
Gregory, “Who was it I was supposed to have run over?”
After
being told it was Officer Derek House, appellant replied, “I know
Derek, when he worked at the jail and I was an inmate there.
like Derek.
I
If I’d knowed it was Derek I wouldn’t have done it.”
Appellant objected at trial when the prosecutor sought to
introduce these statements.
The trial court overruled the
objection and did not conduct a suppression hearing.
RCr 9.78 states:
If at any time before trial a defendant moves
to suppress, or during trial makes timely
objection to the admission of evidence
consisting of (a) a confession or other
incriminating statements alleged to have been
made by the defendant to police authorities
. . . the trial court shall conduct an
evidentiary hearing outside the presence of
the jury . . . .
RCr 9.78 required the trial court to conduct an
evidentiary hearing.
However, the Kentucky Supreme Court has
held the failure to hold an evidentiary hearing to be harmless
error where the facts clearly establish that the evidence was
admissible.
Moore v. Commonwealth, Ky., 634 S.W.2d 426, 433
(1982).
Appellant’s statement was admissible.
The facts show
that appellant initiated the discussion with the police and his
statements were voluntary.
Appellant offered no evidence to the
contrary other than the fact that he made the statements after
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invoking his rights.
The Kentucky Supreme Court has held that
volunteered statements of any kind are not barred by the Fifth
Amendment, and, thus, they are admissible.
Campbell v.
Commonwealth, Ky., 732 S.W.2d 878, 881 (1987); Miranda v. United
States, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Furthermore, the Court has stated when an accused initiates a
conversation with the police, nothing in the Fifth and Fourteenth
Amendments prohibits the police from listening to the voluntary
statement and later using it at trial.
Campbell, 732 S.W.2d at
881; Edwards v. Arizona, 451 U.S. 477, 101 S. Ct. 1880, 68 L. Ed.
2d 378 (1981).
The facts clearly establish that the statement made by
appellant was admissible at trial, and therefore its admission
over appellant’s objection resulted in no prejudice to
appellant’s rights.
Applying the Court’s holding in Moore, the
failure of the trial court to conduct a suppression hearing was,
therefore, harmless error.
Appellant’s final argument is that the cumulative
effect of the preceding alleged errors requires that the
conviction be set aside.
As we adjudge there were no errors by
the trial court, other than harmless error, this argument is
moot.
For the foregoing reasons, the judgment of the Laurel
Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Paul J. Neel, Jr.
Louisville, Kentucky
A. B. Chandler, III
Attorney General
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Courtney A. Jones
Assistant Attorney General
Frankfort, Kentucky
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