AARON EADS v. COMMONWEALTH OF KENTUCKY
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RENDERED:
SEPTEMBER 23, 2005; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-001157-MR
AARON EADS
v.
APPELLANT
APPEAL FROM LAUREL CIRCUIT COURT
HONORABLE RODERICK MESSER, JUDGE
ACTION NO. 03-CR-00046
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
COMBS, CHIEF JUDGE; JOHNSON AND McANULTY, JUDGES.
COMBS, CHIEF JUDGE:
Aaron Eads appeals from the judgment of the
Laurel Circuit Court convicting him of third-degree burglary,
second-degree arson, and theft by unlawful taking of property
valued at less than $300.
Eads argues:
(1) that he was denied
due process of law by the trial court’s interlocutory order
granting an ex parte motion of the Commonwealth for a
continuance of the trial, (2) that his state and federal
constitutional rights to a speedy trial were violated, (3) that
he was entitled to a directed verdict of acquittal on all
charges, and (4) that the trial court erred in excluding the
testimony of his expert witness.
Finding no reversible error,
we affirm.
In the early morning hours of December 7, 2002, Eads
was pulled from a burning building by a neighbor, Derek
Dickenson.
The building, a bait shop near Eads’s home, was
closed for the season.
After pulling Eads from the shop,
Dickenson said that Eads acted as though he intended to strike
him.
Purportedly acting in his own defense, Dickenson hit Eads
in the head, knocking him to the ground.
Dickenson then
returned to the building to smother the fire.
When police officers arrived, they discovered candy
bars and cigars in Eads’s pockets –- the same brands as those
sold in the shop.
medical attention.
Eads was incoherent and in obvious need of
The officers arranged for him to be
transported to a hospital where he was treated for smoke
inhalation, a closed head injury, a fractured skull, and severe
burns to his lungs and upper airways.
Eads was arrested upon being discharged from the
hospital.
Because the Commonwealth failed to secure an
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indictment against him within sixty days as required by RCr 1
5.22(2), he was released from custody on February 25, 2003.
Eads was arrested again on March 21, 2003, after the Laurel
County Grand Jury returned an indictment charging him with the
crimes of burglary in the first degree, arson in the second
degree, and a misdemeanor theft charge.
As he was unable to pay
the bond, which was initially set at $15,000, he remained
incarcerated until his trial in April, 2004.
At Eads’s arraignment, the court set the matter for a
pre-trial conference on April 18, 2003.
At that conference, his
attorney requested another pre-trial conference, which was set
for May 16, 2003.
On May 16, 2003, yet another pre-trial
conference was scheduled for June 20, 2003.
At the June pre-
trial conference, Eads requested a reduction in his bond.
request was denied.
The
The court set the matter for trial to
commence on October 14, 2003.
The trial was continued in October at the
Commonwealth’s request.
In asking for the continuance, the
prosecutor cited the need to give priority to another case
simultaneously scheduled for trial and noted that one of the
Commonwealth’s witnesses in Eads’s case was on vacation.
court re-scheduled the trial for December 4, 2003.
motion to reduce bond was made and denied.
1
Kentucky Rules of Criminal Procedure.
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The
Again, a
On December 3, 2003, the prosecutor moved, ex parte,
for a continuance of the trial because he was unable to locate
his key witnesses.
He told the judge that he had the agreement
of Eads’s attorney for the continuance.
The motion was granted.
Upon learning of the continuance, Eads’s counsel
attempted to contact Judge Messer to voice her objection.
Due
to an illness in his family, the judge had gone home early and
was unavailable.
Eads’s counsel then filed a written motion
seeking a dismissal of the charges against Eads.
She denied
that she had agreed to a continuance and asserted for the first
time that Eads’s right to a speedy trial was being violated.
Following a brief hearing on the morning of December
4, 2003, the trial court explained that it had granted the ex
parte motion the previous day based on the Commonwealth’s
assurance that Eads’s counsel had agreed to the continuance.
The judge also explained that due to his child’s illness, he was
not certain whether he would be able to try the case as
scheduled.
The court passed the merits of the motion to dismiss
to a later date in order to give the Commonwealth an opportunity
to respond.
However, the court reduced Eads’s bond to $5,000
full cash.
On December 19, 2003, the trial court denied the
motion to dismiss the criminal charges and set a new trial date
of February 10, 2004.
The judge was emphatic that the case
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either would be tried that day or dismissed.
Nevertheless, the
trial was again continued due to a trial in progress.
Eads was
finally tried on April 6, 2004 -– one year and four months after
his original arrest and a little more than a year after his
indictment and re-arrest.
At trial, Eads testified that on the evening of the
fire at the bait shop, he and two other friends had consumed a
fifth of bourbon spiked with Xanax and had started to drink
another bottle.
After that point, he told the jury that he had
absolutely no memory of any of the events that occurred on the
evening of the fire.
hospital.
He had no recall until he woke up in the
In addition to his intoxication defense, Eads
speculated that he might have been carried into the building by
someone else who wanted him to be blamed for the fire.
The jury found Eads guilty of an amended charge of
burglary in the third degree, arson in the second degree, and
theft.
It recommended a sentence of one year for the burglary,
ten years for the arson (these sentences to run consecutively),
and twelve months for the misdemeanor theft crime.
On May 25,
2004, Eads was sentenced to serve eleven years in prison.
This
appeal followed.
Eads first argues that he is entitled to a reversal of
his convictions based on the trial court’s continuance of the
trial set for December 4, 2003.
Because the motion was heard
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without notice to Eads or to his counsel and without his
presence or that of his counsel, Eads argues that both his right
to due process and his right to counsel were violated.
Citing
Arizona v. Fulminante, 499 U.S. 279, 309, 111 S.Ct. 1246, 113
L.Ed.2d 302 (1991), and Chapman v. California, 386 U.S. 18, 23
at n.5, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), he contends that
the error constitutes a “structural defect”; that is, an error
which defies harmless error analysis.
We agree that Eads had a right to receive notice of
the Commonwealth’s intention to move for a continuance and to
have his counsel present to object to the motion.
Fundamental
dictates of due process required that he should have had “the
opportunity to be heard ‘at a meaningful time and in a
meaningful manner.’”
Mathews v. Eldridge, 424 U.S. 319, 333-34,
96 S.Ct. 893, 47 L.Ed.2d 18 (1976) (quoting Armstrong v. Manzo,
380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62 (1965).
In this instance, a “meaningful time” would have been a time
prior to the trial court’s ruling on the motion rather than
after the trial had been postponed.
It was error for the trial
court to entertain the ex parte motion on the very eve of trial
and to grant the Commonwealth’s request for a continuance based
on the prosecutor’s uncorroborated representation that Eads had
no objection to the motion.
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Nevertheless, we disagree with Eads’s argument that a
“structural error” was involved.
Although the ruling was made
without notice to Eads and without affording him the right to be
heard, we are persuaded that harmless error analysis should be
applied.
The Supreme Court has defined a “structural error” as
one that results in prejudice per se and precludes application
of the harmless error rule.
criminal process.”
A structural error “transcends the
Fulminante, 499 U.S. at 311.
Such an error
“affect[s] the framework within which the trial proceeds, rather
than simply an error in the trial process itself.”
Id. at 310.
It essentially taints the entire atmosphere in which a trial
takes place.
Examples of structural error include withholding the
right of counsel at trial (Gideon v. Wainwright, 372 U.S. 335,
342-43, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963)) and failing to
insure that a waiver of counsel was knowingly and intelligently
made (Hill v. Commonwealth, 125 S.W.3d 221 (Ky. 2004)).
In the
case before us, the error in hearing and granting the ex parte
motion for a continuance affected only a single aspect of the
criminal proceeding and did not remotely taint or prejudice the
proceeding as a whole.
It had no impact on the jury’s ultimate
finding of guilt.
Having reviewed the record and the court’s explanation
for permitting a second delay of the proceedings, we agree with
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the Commonwealth that the error was harmless.
A ruling on a
motion for a continuance is one which is afforded considerable
discretion.
RCr 9.04.
Furnish v. Commonwealth, 95 S.W.3d 34 (Ky. 2002);
At the time of the ruling, Eads had not asserted his
right to a speedy trial.
Because of the Commonwealth’s reasons
for seeking a continuance as well as the judge’s own personal
problem possibly preventing him from conducting the trial as
scheduled, it is unlikely that the court would have been ruled
differently even if Eads’s counsel had been notified of the
hearing and had had the opportunity to object.
Thus, we
conclude that Eads is not entitled to a reversal of his
conviction based on the continuance of the trial date of
December 4, 2003.
Eads next argues that his right to a speedy trial was
violated by the sixteen-month delay between his arrest and
trial.
The time that transpired between his arrest and his
trial exceeded one year.
Therefore, it was “presumptively
prejudicial” for purposes of triggering the four-part balancing
analysis set forth in Barker v. Wingo, 407 U.S. 514, 92 S.Ct.
2182, 33 L.Ed.2d 101 (1972).
See, Bratcher v. Commonwealth, 151
S.W.3d 332, 344 (Ky. 2004) (eighteen-month delay between
indictment and trial presumptively prejudicial); Dunaway v.
Commonwealth, 60 S.W.3d 563, 569 (Ky. 2001) (thirteen-and-onehalf month delay presumptively prejudicial).
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Accordingly, we
shall analyze Eads’s claim based on the following four factors:
“(1) the length of the delay, (2) the reasons for the delay, (3)
[Eads’s] assertion of his right to a speedy trial, and (4)
prejudice to [him].”
Bratcher, 151 S.W.3d at 344.
All four
factors must be considered, and no single factor may be treated
as “ultimately determinative by itself.”
Gabow v. Commonwealth,
34 S.W.3d 63, 70 (Ky. 2000).
As noted above, since the length of the delay was more
than a year, it was presumptively prejudicial under the first
factor.
However, the delay was slightly more than sixteen
months after the initial arrest relating to the arson and
burglary at the bait shop.
The second factor, the reason for
the delay, must be evaluated in conjunction with the length of
time involved; the reason for the delay was primarily due to the
success of the Commonwealth in obtaining continuances of two
previously established trial dates.
Part of the delay was also
caused by Eads’s failure to ask for a trial date prior to June
2003 -– six months after his initial arrest.
An additional part
of the delay was attributable to the court’s schedule and an ongoing trial in February.
While responsibility for the delay is
attributable in some measure to both parties, the greater weight
of the responsibility rests on the Commonwealth.
one and two tilt slightly in favor of Eads.
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Thus, factors
However, factors three and four do not work in Eads’s
favor.
Eads did not assert his right to a speedy trial until he
filed his motion to dismiss on December 3, 2004 –- after the
trial had been scheduled twice and had been continued nearly a
year after his arrest.
Eads contends that his motions for a
bond reduction in June 2003 and in October 2003 should be
construed as constituting notice to the court that he was
asserting his rights to a speedy trial.
However, bond reduction
motions are not deemed to be the equivalent of a motion for a
speedy trial.
See, Tamme v. Commonwealth, 973 S.W.2d 13, 22
(Ky. 1998).
While failure to assert the right to a speedy trial
does not wholly preclude a claim of constitutional deprivation,
such a failure “will make it difficult for a defendant to prove
that he was denied a speedy trial.”
Barker, 407 U.S. at 532.
When the trial court continued the trial in February 2004, Eads
did not renew his motion to dismiss -- nor did he mention any
deprivation of his right to a speedy trial.
Under the fourth factor of prejudice, Eads has failed
to demonstrate any prejudice to his defense that was actually
caused by the delay.
He has alleged that an unnamed defense
witness moved out of the state and could not be located at the
time of trial.
This putative prejudice was mentioned for the
first time in Eads’s appellate brief.
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There is no supporting
evidence in the record revealing the identity of this witness or
summarizing the substance of what his testimony would have been.
It is wholly unclear what impact this witness might have had on
the defense if the case had been tried sooner.
After
considering all four factors, we conclude on balance that Eads’s
right to a speedy trial was not violated and that the trial
court did not err in denying his motion to dismiss the charges
pending against him.
Next, Eads argues that the trial court erred in
denying his motions for a directed verdict of acquittal on all
of the charges.
To prove Eads guilty of arson, the
Commonwealth had to prove, beyond a
reasonable doubt, that he started a fire in
the bait shop with the intent to destroy or
damage it. KRS 2 513.030. The Commonwealth
presented no evidence that Eads started the
fire, only that he was present in the
building in an incapacitated state. That
the appellant was passed out on a couch,
with a fractured skull, is not evidence that
he committed arson. No witness testified to
seeing Appellant start the fire.
The Commonwealth could not explain
Appellant’s injuries. Appellant was on a
ventilator and comatose after the fire, due
to the head injury. Under the evidence
presented, it was clearly unreasonable for
the jury to find that Appellant could have
formed the requisite intent to start a fire.
A directed verdict of acquittal should have
been granted. [Citations omitted.]
Reversal is required and the charge should
be dismissed. (Appellant’s brief at p. 20.)
2
Kentucky Revised Statutes.
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Eads also argues that there was no evidence to establish that he
was in the bait shop without permission of the owner, thus
invalidating his conviction for burglary.
In general terms, he
argues that Dickenson had a grudge against him and that his
testimony was not credible.
The standard which we apply in assessing whether a
defendant is entitled to a directed verdict is well settled.
On motion for directed verdict, the
trial court must draw all fair and
reasonable inferences from the evidence in
favor of the Commonwealth. If the evidence
is sufficient to induce a reasonable juror
to believe beyond a reasonable doubt that
the defendant is guilty, a directed verdict
should not be given. For the purpose of
ruling on the motion, the trial court must
assume that the evidence for the
Commonwealth is true, but reserving to the
jury questions as to the credibility and
weight to be given such testimony.
On appellate review, the test of a
directed verdict is, if under the evidence
as a whole, it would be clearly unreasonable
for a jury to find guilt, only then the
defendant is entitled to a directed verdict
of acquittal.
Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991).
The evidence at trial established that Eads was alone
and had passed out when he was discovered by Dickenson in the
burning bait shop.
window.
He had entered the building through a back
He possessed merchandise from the shop in his pockets
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even though the shop had been closed for business for the
season.
The evidence also established that several small fires
had been started in the building when cans of fuel (the type
normally used by campers) were punctured and their contents were
ignited.
Eads’s clothing reeked of the accelerant.
The
emergency room doctor who treated Eads testified that the
injuries to his lungs and airways were consistent with his great
proximity to the origin of the fires.
The doctor also explained
that Eads’s fractured skull could have resulted from a fall
caused by being close to an exploding can containing the
accelerant.
In light of this evidence, we cannot conclude that
the trial court erred in denying Eads’s motions for a directed
verdict.
Finally, Eads argues that the court erred in excluding
the testimony of Mike Parks, a certified arson investigator.
Parks had conducted and videotaped an experiment which
demonstrated that if the fuel cans had been shot with a shotgun,
they would have been destroyed.
Eads sought to present this
evidence in order to negate the Commonwealth’s theory that the
holes in the fuel cans were caused by a gun.
Because no gun was
found in the bait shop or on Eads’s person, he argues that
Parks’s testimony would have discredited the Commonwealth’s
hypothesis as to the crime.
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The trial court refused to allow the testimony of
Parks or his videotape to be introduced into evidence.
The
court expressed concern about the relevance of the evidence, but
it also based its ruling excluding the evidence on the fact that
the tape had not been furnished to the Commonwealth until the
day before trial.
We agree with the Commonwealth that no error occurred.
While the Commonwealth initially theorized that the fuel cans
had been punctured with a firearm (hence, the indictment for
first-degree burglary, which was amended before trial to thirddegree burglary), it made no attempt at trial to expand upon
this point and to establish how the fuel cans had been
punctured.
It did not introduce any evidence linking Eads to
any type of firearm.
Eads’s attorney elicited testimony from
the Commonwealth’s witnesses that no operable gun was located at
the scene or on Eads himself.
We agree with the Commonwealth’s observation that
Parks’s experiment would not have assisted the jury in its
determination of whether Eads was responsible for puncturing the
cans that started the fire at the bait shop.
See, KRE 3 401.
The
evidence had no bearing on either of Eads’s defenses; i.e., that
he was too intoxicated to form specific intent or that he was
framed by someone else.
3
We find no abuse of discretion by the
Kentucky Rules of Evidence.
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trial court in excluding evidence of the experiment conducted by
the arson expert.
The judgment of the Laurel Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Shannon Dupree
Frankfort, KY
Gregory D. Stumbo
Attorney General of Kentucky
Samuel J. Floyd, Jr.
Assistant Attorney General
Frankfort, KY
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