CEDRIC GRADY V. COMMONWEALTH OF KENTUCKY
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RENDERED : NOVEMBER 18, 2010
TO BE PUBLISHED
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2009-SC-000205-MR
CEDRIC GRADY
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APPELLANT
ON APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE MARTIN F. MCDONALD, JUDGE
NOS. 07-CR-000227; 07-CR-001561 ; 08-CR-008056
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION OF THE COURT BY JUSTICE SCOTT
REVERSING
Cedric Grady, Appellant, was convicted in Jefferson Circuit Court on two
counts of first-degree robbery, one count of second-degree assault, one count of
theft by unlawful taking over three hundred dollars, one count of seconddegree burglary, two counts of first-degree wanton endangerment, one count of
first-degree fleeing or evading the police, one count of first-degree unlawful
imprisonment, and found to be a first-degree persistent felony offender. He
was sentenced to seventy years' imprisonment and now appeals his conviction
as a matter of right . Ky. Const . ยง 110(2)(b) . For reasons explained below we
reverse his conviction and remand for a new trial .
I. Background
Around 6:00 a.m . on October 22, 2006, Paul Criswell was retrieving his
car from the parking lot of the hotel where he was staying, preparing to leave
Louisville, Kentucky . As he backed out of his parking spot, a man wearing
panty hose over his face and brandishing a handgun approached his driver's
side window. When the man demanded Criswell's money and vehicle, Criswell
gave him the cash he had, but refused to turn over the vehicle, revealing to the
perpetrator that he had a badge.' The perpetrator then fired the handgun, but
the gun seemingly malfunctioned. Criswell,, being six feet, five inches in height
and around three hundred pounds, attacked the would-be robber, testifying
that he tackled him like an "NFL special teams player." Understandably,
fisticuffs ensued.
Criswell asserts that, during the scuffle, he was able to tear the stocking
from the robber's face, and get a good look at him. Once the fight subsided,
Criswell called 911, at which time he realized that he had been shot in the
chest.
Detective Kenneth Brown of the Louisville Metro Police Department
responded to Criswell's call. After arriving at the scene, he obtained a
description from Criswell, who described his attacker as an African-American
male, approximately five feet, seven inches tall and weighing approximately one
hundred seventy pounds . While Criswell testified that he told Detective Brown
that he could see his attacker's face and that he tore the stocking from his
I
Criswell is a retired Captain from the Virginia Beach Fire Department .
head, Detective Brown could not recollect Criswell's statement to that effect.
Brown was unable to apprehend the described suspect.
Two days later, on October 24, around 6 :00 p.m., April Stivers was
sitting outside the Check-Into-Cash store, located on the same street as
Criswell's hotel . Stivers, an employee at Check-Into-Cash, was taking a smoke
break when she noticed a man dressed in dark clothing exit a white Chevrolet
Trailblazer that had been parked near Check-Into-Cash "all day." She testified
that she specifically remembered the vehicle, finding it noticeable because it
did not have a license plate . Stivers testified that the man that approached
her, postured as if he was reaching for something concealed on his person, and
threatened to shoot her if she said anything.
After threatening her, the man proceeded into the Check-Into-Cash store.
Other witnesses testified that he entered the store masked, clothed in a hooded
sweatshirt with dark pants, and that he was slumped over with a visible gun in
his right hand .
He pointed the weapon at the cashier, demanded money, and
exited the store fleeing in the white Trailblazer. The manager then called 911 .
Sergeant Steve Smith responded to the 911 call and began to search the
area for the assailant. He located a white Trailblazer parked in a lot a half mile
away from Check-Into-Cash. Since the vehicle matched the description, he
decided to examine its license plate to see if there were any signs that it had
been recently removed . Noticing smudges around the plate, Smith waited for
the vehicle's driver . Thereafter, Appellant exited a nearby office and got into
the suspect vehicle .
Smith called for back up and followed the Trailblazer. When Officer
White arrived on the scene, he activated his lights and siren, and a high-speed
car chase ensued. The driver managed to evade the police, but wrecked in a
nearby parking lot, fleeing the vehicle before the officers arrived. Upon
discovering the wrecked Trailblazer, the officers began to search for its
occupants.
During their search, the officers spoke with several witnesses, including
Carlos Sanchez, Carlos Mojika, and Randy Rapp, all tenants of the apartment
complex near the wreck. While the officers were unable to communicate with
Sanchez and Mojika, as the two did not speak English, they were able to
communicate with Rapp . These three witnesses did not testify at trial .
Shortly after police arrived, Rapp had run out of his apartment excitedly
wielding a butcher knife . After officers instructed him to drop the weapon,
Rapp advised the officers that a man had come into his apartment, stated that
the police were looking for him, and that he needed a place to hide. The
officers then entered Rapp's apartment, but did not find the suspect. The
officers then went around the building and found Appellant lying in a fetal
position behind an air conditioning unit below the open rear window of Rapp's
apartment . The officers then arrested Appellant.
Vickie Wheeler, the landlord of the apartments, witnessed the incident
and came to speak with her tenants about the situation. Rapp told Wheeler
that an African-American male had broken through the front door of his
apartment in an attempt to hide from police. Rapp further told Wheeler that
the man would not let him leave until Rapp threatened the intruder with a
knife. Wheeler also spoke to Sanchez who informed her that someone had
tried to break down his doorframe, but was unable to get inside his apartment .
Thereafter, Appellant was transported to the Louisville Metro Police
Department where Detective Dwane Colebank questioned him. Colebank
testified at both the suppression hearing, and at trial, that he informed
Appellant of his Miranda rights and that Appellant provided an oral waiver, but
refused to sign a written waiver or to allow any type of video recordation. See
Miranda v. Arizona, 384 U.S . 436 (1966) . He also stated that Appellant
confessed to robbing the store, but denied having a handgun. Additionally, he
said Appellant stated that the Trailblazer belonged to his wife, Alicia Woolridge,
and that he had taken it without .her permission.
Appellant denies waiving his Miranda rights, asserts that he specifically
requested an attorney and that he told Colebank that he did not want to
answer any questions . He also asserts that he did not confess to robbing the
store and that Colebank's testimony was wholly false .
Appellant was indicted in 2007 and 2008 for fifteen counts of various
crimes. A trial was held in November 2008, and Appellant was convicted and
sentenced as mentioned above .
This appeal followed and Appellant now asks this Court to address the
following alleged errors: (1) whether the trial court erred by not holding a
Faretta hearing when Appellant invoked his right to self-representation ; (2)
whether the trial court erred by not granting Appellant's request for a new
lawyer; (3) whether the trial court erred by not allowing Appellant to testify
during a suppression hearing addressing his alleged confession and whether
there was error in failing to sustain Appellant's motion to suppress ; (4) whether
the trial court erred in allowing Criswell to make an in-court identification
during the trial; (5) whether the trial court erred by admitting the hearsay
statements of Sanchez and Rapp via Wheeler and whether palpable error
resulted from the admission of hearsay statements made by Sanchez and Rapp
via Officers White and Miller; (6) whether the trial court erred by denying
Appellant's motion for a directed verdict for insufficiency of the evidence ; (7)
whether the trial court erred in requiring him to wear a StunTech React Belt
during the trial; and (8) whether cumulative error created a trial so
fundamentally unfair as to require reversal.
II. ANALYSIS
A. Faretta
We first address Appellant's assertion that the trial court committed
reversible error by not ensuring that he knowingly, intelligently, and voluntarily
waived his right to counsel as required by a plethora of jurisprudence . See
Iowa v. Tovar, 541 U .S. 77 (2004) ; McKaskie v. Wiggins, 465 U.S . 168, 177 n.8
(1984) ; Faretta v. California, 422 U .S. 806 (1975) ; Depp v. Commonwealth, 278
S .W.3d 615 (Ky. 2009); Commonwealth v. Terry, 295 S.W.3d 819 (Ky. 2009) . In
support of his position, Appellant asserts that a Faretta hearing was not
conducted and that in the absence of a finding that Appellant proceeded pro se
with "eyes open," the conviction should not stand. Tovar, 541 U .S . at 88 (citing
Adams v. United States ex rel. McCann, 317 U.S . 269, 279 (1942) .
In response, the Commonwealth argues that Appellant is highly
experienced with the criminal justice system and that his competency
evaluations at the KCPC demonstrate his proficient level of knowledge with
regard to the judicial processes of this Commonwealth and the federal system
alike . The Commonwealth buttresses its argument by citing specific legal
performances of Appellant such as filing a writ of habeas corpus, instituting a
federal lawsuit against his appointed counsel and the Jefferson County Public
Defender's Office, and arguing preservation issues before the Jefferson Circuit
Court. The Commonwealth also relies on Appellant's prior convictions and
individual experiences in the criminal justice system.
In the alternative, the Commonwealth asserts that the trial court held a
hearing to determine, among other things, whether Appellant could represent
himself, and thus argues that a Faretta hearing was completed. Yet in that
same vein, the Commonwealth acknowledges that none of the questions
recommended by this Court in Terry, 295 S .W.3d at 824, were asked of
Appellant. Instead, relying on our holding in Depp, 278 S .W.3d at 620, the
Commonwealth concludes that, in light of Appellant's legal abilities and the
totality of the circumstances, the trial court implicitly found that Appellant had
knowingly, intelligently, and voluntarily waived his right to counsel at a Faretta
hearing. We cannot agree and, therefore, reverse.
The Sixth Amendment of the United States Constitution and Section
Eleven of the Kentucky Constitution provide a defendant with the right to
counsel. However, this Court and our federal counterpart have recognized that
neither constitution prohibits the defendant from waiving this right. See Tovar,
541 U .S . 77; Faretta, 422 U .S . 806; Depp, 278 S .W.3d 615; Terry, 295 S.W .3d
819 . However, when a defendant exercises his right to waive the assistance of
counsel, Faretta advisory obligations are triggered and a trial court must
ensure that the defendant makes his waiver knowingly, intelligently, and
voluntarily. Depp, 278 S .W.3d at 617 (citing Hill v. Commonwealth, 125 S .W.3d
221 (Ky. 2004)). The Faretta advisory obligations are likewise activated when a
defendant invokes his right to hybrid counsel. Wake v. Barker, 514 S .W.2d
692, 697 (Ky. 1974) . In circumstances involving sole or hybrid pro se
representation, the right to be warned of the general dangers that one will face
when choosing to proceed pro se is a separate and independent right that
accompanies the right to represent oneself in front of his jury in any manner.
See Depp, 278 S .W.3d at 618 (where we recognized "that [the right to selfrepresentation is] accompanied by the right to be informed by the trial court of
the dangers inherent in doing so.") ; See also Wake, 514 S.W .2d 697 (where we
recognized a defendant's right to limited assistance of counsel per Section
Eleven of the Kentucky Constitution) . Thus, a trial court may honor a
defendant's right to self-representation, but may then violate the defendant's
right to be informed of the general dangers by failing to take the requisite steps
mandated by Tovar, Faretta, and Depp.
The actions required of a trial court addressing a defendant's waiver of
counsel, however, are not rigidly defined . In fact, as a result of the United
States Supreme Court's holding in Tovar, 541 U .S . at 90, this Court abandoned
the brightline approach we embraced in Hill, reasoning that its strict
requirements were antithetical to judicial economy and common sense. Depp,
278 S.W .3d at 618-19 . Indeed, we supplanted Hill's inflexible requirements
with a pragmatic approach whereby we simply question on appeal, in light of
the entire record and on a case-by-case basis, whether the defendant's waiver
of counsel was done knowingly, intelligently, and voluntarily. Terry, 295
S.W.3d at 820 . Notwithstanding our abrogation of Hill's rigid approach, we
have maintained and recognized that there are certain minimal determinations
required of a court that faces an invocation of Faretta. See Depp, 278 S .W.3d
at 619 (where we acknowledged that the United States Supreme Court requires
constitutional minimums for determining whether a waiver is knowing and
intelligent) .
In particular, we noted in Terry that the trial court must ensure that the
defendant is proceeding with "eyes open," and to do so "he must be warned
specifically of the hazards ahead" and of the possible consequences of a
decision to forgo the aid of counsel. See Terry, 295 S .W.3d at 822 (quoting
Tovar, 541 U.S . at 88) (emphasis added) . Implicit in this determination of
whether a defendant is proceeding with eyes open is the requirement that the
court hold a Faretta hearing, as such a determination can rarely be made in
passing or without consideration of case-specific factors such as the
defendant's education, experiences, sophistication, the complex or easily
grasped nature of the charge, and the stage of the proceeding. Depp, 278
S .W.3d at 617 (quoting Tovar, 541 U.S. at 88) . To do less will result in
structural error and will merit appellate correction. See Hill, 125 S.W .3d at
229 (citing Faretta, supra). See also McKaskie v. Wiggins, 465 U .S . 168, 177 n .8
(1984) . More importantly, a finding that the defendant is proceeding with eyes
open cannot be made without sufficiently advising him of the dangerous
grounds he asks to tread. Only when the defendant has been warned may a
court determine that he proceeds with knowledge, intelligence, and of his own
volition . But, again, we reiterate that a Faretta hearing, while required when a
defendant invokes his Faretta rights, does not mandate that a court follow a
script or employ magic words, but it does necessitate a finding that the
defendant is proceeding with "eyes open"--that he gets a general warning of the
dangers.
In this instance, the Commonwealth's argument that the defendant
waived his right to counsel with eyes open is unpersuasive. In Depp, we
discarded the rigid, scripted approach that required a trial court to make a
formal finding of knowledge, intelligence, and volition in so many words, and,
instead, found that where a trial court warns a defendant of the dangers he
faces and makes a simple determination that a defendant can represent
himself, the decision will stand where the record supports that finding.
However, our decision was based on a record different from that presented,
here. The record in Depp, in fact, included a Faretta hearing where that
appellant was specifically warned of the dangers of self-representation . 278
S.W .3d at 618. We do not have that here .'
Here the record reveals that the trial court failed to warn Appellant of the
general dangers in proceeding pro se or in a hybrid fashion. Appellant indeed
proceeded in a hybrid fashion with no substantive warnings given at all, only
colloquialisms that we find completely insufficient to satisfy the minimal
requirement that a defendant be warned of the dangers he faces by invoking
his Faretta rights.2 The court's advice to Appellant that it was "game day" and
that he should "get [his] cleats on, [his] jersey on, and get on the field" are
inadequate to satisfy Faretta . More is required.
The court did at one point inform Appellant that "this is a big thing for
you," but did not make the statement in an attempt to warn him of what he
was facing, but only to warn him of the procedure he would be required to use
at trial and in the context of advising him not to allude to the jury that he was
presently incarcerated. In any event, should that statement be construed as a
warning regarding the dangers Appellant was facing by proceeding pro se, we
conclude that it was not enough. Thus, because Appellant received no general
warnings with. regard to the dangers of proceeding pro se, we cannot agree that
he proceeded with eyes open, with knowledge, intelligence and of his own
volition .
Adequate warnings must be given and we thus hold that a trial court
cannot implicitly conclude that a defendant is aware of the dangers in
proceeding pro se or with hybrid counsel without specifically complying with
the described minimal requirements found in Hill and Tovar. We therefore
reverse Appellant's conviction and remand this matter to the trial court for
further proceedings consistent with this opinion.
Although not before this Court on appeal, we pause to note that the trial court
violated Appellant's right to represent himself pro se - without hybrid
representation - when it unequivocally stated "I'm not gonna let you represent
yourself." VR No. 6:11/05/08 . In the event the issue is again presented on re-trial.,
the trial court is admonished to consider its decision to allow Appellant to proceed
alone, if that is truly his request, in light of our jurisprudence on the subject.
2
Having found cause for reversal, we will consider such other issues as
may call for dismissal or are capable of repetition on remand .
B. Replacement of Counsel
We next turn to Appellant's assertion that the trial court erred when it
refused to disqualify and remove the public defender assigned to his case. We
address this issue because it may resurface on remand .
Appellant argues that the trial court committed reversible error by not
appointing new counsel when so asked by Appellant. He urges that as a result
of a complete breakdown of communication between himself and his appointed
counsel ; he deserved a new lawyer . In support of his appeal, Appellant first
directs our attention to a dispute that was addressed by the trial court during a
pre-trial conference on May 24, 2007 . That dispute concerned whether
Appellant would undergo a criminal responsibility evaluation-an argument
that Appellant claims was the seminal event leading to a complete breakdown
of communication between himself and his appointed counsel. He further
argues that the relationship continued to erode during the suppression hearing
of April 10, 2008, where he insisted that he be allowed to testify and was
allegedly not allowed.
Appellant also directs us to the complaints he made during a pretrial
conference on May 28, 2008, where he alleged that his attorney was not
providing him access to certain discovery items and where he complained to
the judge that the two were not "agreeing on things." In addition to these
specific instances, Appellant posits that by filing a bar complaint and by filing a
civil suit against his appointed counsel in the United States District Court for
the Western District of Kentucky, a conflict between himself and his public
defender resulted, giving rise to good cause for substitution .
The Commonwealth responds by asserting that the trial court sufficiently
handled the dispute concerning the criminal responsibility evaluation by
admonishing Appellant to discuss the situation with his attorney. And because
the criminal responsibility evaluation was subsequently conducted following
Appellant's complaints, the Commonwealth concludes that the trial court
properly resolved the dispute between the appointed counsel and Appellant and
therefore no good cause to replace the public defender was merited.
With regard to the alleged breakdown that occurred when Appellant
complained that his appointed counsel refused to permit him access to certain
discovery, the Commonwealth again argues that the court below sufficiently
addressed the issue as evidenced by the trial court's resolution, which
ultimately garnered Appellant's access to the requested materials . Again,
because Appellant was eventually granted his request, the Commonwealth
argues that no good cause for substitution existed and replacement of counsel
was not required.
However, the Commonwealth fails to respond to Appellant's assertions
that removal of his appointed counsel was merited, in part, because Appellant
was refused the opportunity to testify at a suppression hearing. Nor does the
Commonwealth respond to the potential conflict presented by Appellant's filing
of the bar complaint and the federal civil suit against his public defender.
These questions must be addressed.
We begin our analysis with the axiom that "[a]n indigent defendant is not
entitled to the appointment of a particular attorney, and a defendant who has
been appointed counsel is not entitled to have that counsel substituted unless
adequate reasons are given." Deno v. Commonwealth, 177 S .W.3d 753, 759 (Ky.
2005) . Where an indigent defendant seeks to displace his appointed counsel,
he carries the burden to demonstrate to the court that there exists "good
cause, such as a conflict of interest, a complete breakdown of communication
or an irreconcilable conflict ." Shegog v. Commonwealth, 142 S.W .3d 101, 105
(Ky . 2004) . We further described good cause as: "(1) a complete breakdown of
communications between counsel and defendant; (2) a conflict of interest; and
(3) where the legitimate interests of the defendant are being prejudiced ." Deno,
177 S.W.3d at 759 (citing Baker v. Commonwealth, 574 S.W.2d 325, 326-27 ,
(Ky. App. 1978)) . And while we recognize that a bar complaint and a lawsuit
filed by an indigent defendant may give rise to good cause for replacement of
appointed counsel, we have never held that either of these filings warrants an
automatic substitution of an assigned public defender and we decline to do so
today. See Shegog, 142 S.W.3d at 105-06.
Here, with respect to the disputes regarding the criminal responsibility
evaluation, and the request to view specific evidence, we find that neither
incident gives rise to good cause so as to merit the displacement of appointed
counsel . In each instance the dispute between the public defender and
Appellant was resolved and Appellant was successful in his requests for a
criminal competency evaluation and a viewing of the discovery. In essence,
Appellant communicated his displeasure to his appointed lawyer and thereafter
his counsel, with the assistance of the court, acquiesced . There was no
breakdown in communication and no conflict arose from this dispute. And
because Appellant was successful in accessing the information he requested,
we cannot say that his interests were prejudiced . These instances do not give
rise to a situation that merits replacement of appointed counsel.
However, the allegation that appointed counsel prevented Appellant from
testifying at the suppression hearing gives this Court reason to pause. To
refuse Appellant's right to provide evidence in the form of his testimony at the
suppression hearing was error as we discuss below. Yet, after a review of the
record, we believe that appointed counsel was not at fault. In fact, a review of
the suppression hearing clearly demonstrates that appointed counsel
unequivocally announced to the court that Appellant wanted to testify and that
he was therefore calling him to the stand.
Again, as with the above disputes, appointed counsel in this case
disagreed with Appellant when he decided to testify at the suppression hearing
dated April 10, 2008, but eventually acquiesced to Appellant's request.
Nevertheless, the record reveals that Appellant did not testify and indeed was
prevented from doing so . Notably, however, the barrier preventing Appellant
from testifying was not erected by his appointed lawyer, but was the result of
the trial court's decision . Thus, we cannot say that this error created a
breakdown in communication between Appellant and his attorney in this case.
Neither did it create a conflict of interest.
Being prevented from testifying at the suppression hearing may,
conversely, have prejudiced Appellant's legitimate interest in putting forward
evidence to rebut that presented by the Commonwealth . But we cannot fault
appointed counsel as it was the court that refused to allow Appellant's
testimony after the public defender expressly called Appellant to the stand .
Thus, because it was not appointed counsel that refused Appellant his right to
testify, no substitution of counsel was merited. That however is not to say that
error did not occur when Appellant was prevented from taking the witness box
-- merely, that Appellant's counsel did not create it.
On remand, if Appellant insists upon testifying against advice of counsel,
he may enhance or damage his case to the extent of his capabilities .
Finally, Appellant argues that by filing a bar complaint and by instituting
a federal lawsuit against his appointed attorney and the Louisville - Jefferson
County Public Defender Corporation, a conflict was created and, therefore,
good cause was demonstrated meriting a substitution of counsel. We disagree.
At first blush, we note that when a defendant files a bar complaint or a
civil lawsuit against his attorney, there would seem to be an automatic conflict
created . But we are guided in the opposite direction by the policy
considerations addressed in Shegog. 142 S .W.3d 101 . There, we reasoned
that if we styled bar complaints as automatic conflicts, "trial delays due to
counsel substitutions would be endless ." Id. at 106 . We find the same policy
considerations appropriate where a defendant files a civil lawsuit against his
appointed counsel, particularly where that lawsuit has been dismissed for
failure to state a complaint upon which relief can be granted, as was the suit in
this case . Indeed, at least one federal appellate court has likewise refused to
find a conflict under nearly identical circumstances . See Foote v. Del Papa,
492 F.3d 1026, 1030 (9th Cir. 2007) (where the Ninth Circuit, considering a
defendant's federal habeas petition, approved the Nevada Supreme Court's
finding that no conflict of interest arises from a dismissed federal lawsuit) . Any
contrary holding would give indigent defendants the ability to frivolously fire
their appointed counsel simply by filing a civil lawsuit. As a result, a defendant
could potentially force a trial court to grant countless motions to continue . We
decline to arm defendants with the ability to create such per se conflicts . We
are ever aware of defendants who seek to sabotage the trial process and we
continue to be diligent in refusing to equip them with procedural avenues to
evade the criminal justice system. To do otherwise would usurp our holding
that defendants are not entitled to replace their counsel without good cause
and would not serve the judicial economy of the courts of this Commonwealth .
Deno, 177 S.W.3d at 759 .
We do, on the other hand, take this opportunity to note that where a trial
court is faced with a legitimate bar complaint or a lawsuit that gives rise to
meritorious allegations, a conflict of interest may indeed exist. We repeat that
the existence of a conflict is to be determined on a case-by-case basis, and that
no lawsuit or bar complaint automatically gives rise to a conflict.
Notwithstanding our holding in this case, we note that trial courts should give
such assertions as those presented today consideration when deciding the
existence of a conflict of interest that might give rise to good cause for
substitution of counsel. And so long as the trial court allows the defendant to
state on the record the reasons why he seeks substitution of counsel, the trial
court may exercise discretion to determine how extensive the hearing needs to
be in light of the factual circumstances of each individual case.
Considering our discussion above, we find no error in the trial court's
conclusion that no conflict resulted from Appellant's filing of a civil lawsuit and
a bar complaint against his appointed lawyer . The record reveals that the trial
court held a confidential hearing to entertain Appellant's assertion that a
conflict existed . The court provided the requisite opportunity for Appellant to
make his case for replacement of counsel on the record . In that hearing it was
realized by the court and appointed counsel that the civil lawsuit was
dismissed for failure to state a complaint upon which relief could be granted .
Grady v. Jefferson County Pub. Defender's Office, No . 3 :08CV-P92-S, 2008 WL
3884319, at * 2 (W .D. Ky. Aug. 19, 2008) . And while Appellant alleges that the
dismissal was appealed to the United States Court of Appeals for the Sixth
Circuit, he provided no information regarding the disposition of that appeal nor
of the petition filed in that court.
. Likewise, Appellant provided no information regarding the bar complaint
filed. We are therefore unable, from the record, to determine whether the bar
complaint filed by Appellant in this case gives rise to good cause meriting
substitution of counsel. Appellant bears the burden to show such cause and
he did not do so at the trial level and does not do so now . United States v.
Calabro, 467 F.2d 973, 986 (2d Cir.1972), cert. denied, 410 U.S. 926 (1973) .
See also United States v. Welty, 674 F.2d 185, 188 (3d Cir. 1982) ; Maynard v.
Meachum, 545 F.2d 273, 278 (1st Cir.1976) ; United States v. Young, 482 F.2d
993, 995 (5th Cir.1973) .
C. Suppression Hearing
As mentioned above, it was error for the trial court to prevent Appellant
from testifying at his suppression hearing in April 2008. This assignment of
error is the third issue raised by Appellant, and because it may re-appear on
remand, we find it necessary to correct.
On February 27, 2008, Appellant moved the trial court to suppress his
alleged confession, averring that it was not voluntarily made and procured in
violation of Miranda v. Arizona, 384 U.S . 436. At the hearing, held
approximately six weeks later, the Commonwealth put forth evidence from
Detective Colebank . Colebank testified that Appellant confessed to some of the
crimes giving rise to this case . Subsequently, at the suppression hearing,
Appellant made an unequivocal request to testify, doing so against the explicit
advice of the court and of his counsel . However, he was prevented from taking
the stand after the following exchange transpired:
Public Defender: Judge, from my conversation that we had
off the record I believe it is Grady's decision to testify, you
know I am not allowed to stand in anybody's way because
what we have in the Constitution, I am reluctant to call him,
but we will call him for the limited purpose of this hearing.
Court: Now-limited purpose of this hearing, he will be
subject to cross-examination by the prosecutor.
Public Defender : I understand that.
Court : That info could be used.
Public Defender: I informed him of that judge.
Court: In this proceeding and in this trial could it not?
Public Defender : Yes, sir.
Court: So, it is a very serious thing you are doing here . I
want to admonish you not to do this, you are making a
record that could be used against you at your trial - do you
understand?
Appellant: I understand completely You Honor - again, every
time I try to talk, every time I try to get my issue out - and
this is my situation we are dealing with nobody else's. . .
Court: You are being recorded right now .
Appellant: And I understand that sir, I understand that - but
for the appellate situation that could be coming up behind
this, I would like to get something on the record personally
that I have to say, it is difficult to sit here, knowing that this
gentleman is telling some things that are not true. It is
difficult for me sit here as a condemned person and listen to
someone tell a lie on me basically .
Public Defender : And I have tried to explain to Grady that
you know when this thing eventually goes to trial, go ahead
and testify, but I am scared that at this point and juncture
we're at, I don't want to really give away what he is going to
say and a chunk of what he's going to say today would
probably come up at trial.
Appellant: Basically, all I am saying is this, Chuck, is that
the Detective said I made a statement to him that I didn't
make, period.
Court: Now, if you want to, think about the dynamics of
what you're doing here . If you want to testify at this point,
I'd have to swear you in, you'd be under oath, and you might
see this, for example if you decide to testify at trial yourself
to explain your side of the story, you might see something
come up on this tape again in the way of cross examination
trying to impeach you for what you said under oath here if it
is inconsistent. And there may be some other things that
you have to worry about. But you have a lawyer here whose
counseled you against doing this . I think what you ought to
do is talk to your lawyer about this and listen to what he's
advising you to do. Because you might be playing into a bad
strategy here . You understand?3
Appellant: I understand what you're saying completely, Your
Honor. That's all I want to ,get on the record is that the man
said I made a statement that I didn't make . Like you said . . .
Court: If you want to contest this at trial, you know, if you
want to testify at trial, that's something that you'll have to,
you have a constitutional right to testify at trial, and if you
want to explain that at trial, you're more than welcome to .
But that's, that's a decision that you're going to have to
make before the jury .
Even though this issue is not presented on appeal, we find it pertinent to point out
that Appellant may testify in his own behalf at a suppression hearing without
waiving the privilege against self-incrimination . Simmons v. United States, 390 U.S.
377 (1968) . Furthermore, testimony at a suppression hearing may be confined on
cross-examination to the scope of the direct examination . Shull v. Commonwealth,
475 S.W.2d 469 (Ky. 1971) . And while his testimony may be used later for
impeachment purposes, it may not otherwise be used against him unless he fails to
object. Adams v. Commonwealth, No . 2009-SC-000296-MR, 2010 WL 2025104 (Ky.
May 20, 2010) ; Commonwealth v. Bertram, 596 S.W.2d 379 (Ky. App. 1980) .
3
Appellant: I also have a right to Miranda, and I observed my
Miranda rights and I didn't make a statement. I asked for an
attorney and Detective Colebank kept me in his division . . .
Court: Okay, now, look, I'm not going to let you give
statements without being under oath. So I think as far as
hearing any further from you on this issue, uh, we're going
to close the hearing. I wanna hear any legal arguments why
this statement should be suppressed .
As the record reveals, Appellant made an unequivocal request to testify,
evidenced by his attorney's announcement that he was calling him to the
stand. Furthermore, he twice made statements that he wanted to get certain
information on the record and the trial court warned him that he would not be
allowed to make any further statements without being under oath, but then
denied him the chance . The error occurred when the trial court stated, "I think
as far as hearing any further from you on this issue, uh, we're going to close
the hearing." The judge closed the hearing, but apparently did so solely to
Appellant. The court continued to consider the suppression motion in other
respects by soliciting oral argument, subsequently stating, "I wanna hear any
legal arguments why the statement should be suppressed ." At that point,
defense counsel noted that without calling Appellant to the stand, he had
nothing to counter the testimony presented by the Commonwealth . Yet
defense counsel insisted it was the right decision not to put Appellant in the
witness box. The court ultimately denied the motion to suppress the
confession, finding the detective's testimony sufficient to support the waiver of
Miranda and the voluntariness of the statements made. As a result, the
confession was used at Appellant's trial .
Pursuant to RCr 9 .78, a trial court must conduct an evidentiary hearing
when a defendant files a motion to suppress a confession . At these hearings,
the Commonwealth will bear the burden of demonstrating by a preponderance
of the evidence supporting the voluntariness of the defendant's confession or
incriminating statement, and the defendant is all the while entitled to
introduce evidence to counter that offered by the Commonwealth . Lewis v.
Commonwealth, 42 S.W. 3d 605, 610 (Ky. 2001) (citing Lego v. Twomey, 404
U.S . 477, 489 (1972) ; Tabor v. Commonwealth, 613 S.W.2d 133, 135 (Ky.
1981)) ; Commonwealth v. Jones, 217 S .W.3d 190, 193 (Ky. 2006) ; See Mills v .
Commonwealth, 996 S .W.2d 473, 482 (Ky. 1999) (citations omitted) (noting that
uncontradicted testimony by witnesses for the Commonwealth satisfied a
burden of proof higher than preponderance of the evidence to show waiver) .
Ultimately, the court must enter into the record findings resolving the essential
issues of fact. Jones, 217 S .W.3d at 193.
But, where error regarding these types of hearings is alleged on appeal,
specifically where an evidentiary hearing is denied in some manner, we have
held that reversal or remand is not automatically required. Lewis, 42 S .W.3d
at 611 (citing Procunier v . Atchley, 400 U .S . 446, 451 (1971)) . In Lewis v.
Commonwealth, we were persuaded by federal jurisprudence that required an
appellant to show more than shortcomings in the procedures applied when he
is denied an evidentiary hearing addressing the voluntariness of an alleged
confession and adopted that approach . 42 S .W.3d at 611 . Indeed, after Lewis,
we have required an appellant to show "that his version of events, if true,
would require the conclusion that his confession was involuntary", i .e .,
indicating the involuntariness of his confession . Id. (quoting Procunier, 400
U .S . at 451) . Importantly, however, courts employing the Procunier standard of
appellate review have also stated that the facts asserted in these instances
must be more than "conclusory and wholly devoid of specifics ." Hoskins v.
Vasquez, 883 F.2d 1024, 1024 (9th Cir. 1989) (citing Boehme v. Maxwell, 423
F.2d 1056, 1058 (9th Cir. 1970) ; Bashor v. Risley, 730 F.2d 1228, 1233 (9th
Cir. 1984) .
Yet our holding in Lewis, where we relied upon Procunier, addressed an
evidentiary hearing concerning the voluntariness of a confession and not a
situation regarding a Miranda violation . And, although argued in
conglomeration by Appellant and rebutted in like manner by the
Commonwealth, a Miranda violation issue and a voluntariness of confession
issue are separate and distinct . In fact, we noted in Mills, that "[t]he question
of whether a defendant has voluntarily waived his Miranda rights is analyzed
somewhat differently than the question of whether the underlying confession is
voluntary." 996 S.W.2d at 481 .
The federal courts have likewise recognized this distinction and have held
that the admission of a confession not obtained in violation of Miranda may
still be inadmissible on grounds of involuntariness . United States v. Murphy,
763 F .2d 202, 205 (6th Cir . 1985) (citations omitted) . Thus, the question is
presented whether our holding in Lewis controls a suppression hearing that
concerns whether a confession was procured in violation of Miranda.
We find no reason that the appellate standard should differ, and thus
hold that an appellant will be entitled to reversal or remand only after he is,
first, denied an opportunity to put forward evidence at a hearing addressing a
Miranda violation and, second, where he alleges facts
on appeal, that if believed
to be true, would merit a finding that his confession was obtained in violation
of Miranda. We note that even though a court analyzes a Miranda violation
differently than it would a claim of involuntariness, both require the court to
make findings of fact from evidence presented at an evidentiary hearing. Thus,
we conclude that while the analysis used to determine a Miranda violation and
a voluntariness issue differs, the procedure employed to make those
determinations is the same, and we further hold that the appellate standard
should likewise be similar .
Since Appellant was denied his right to testify at the April suppression
hearing, we must now consider what he proffers that his testimony would have
been to determine whether he is entitled to a new hearing on remand . We find
that given the proffered testimony in this case, Appellant is so entitled .
1 . Voluntariness
Appellant asserts in his brief that had he been allowed, he would have
testified that: (1) the officer lied when he impugned certain statements onto
Appellant; (2) that he did not waive his Miranda rights; (3) that he specifically
invoked his right to an attorney; (4) that he was kept at the robbery office for
eight hours; and (5) that he told Colebank that he did not want to answer any
questions. Treating these statements as true, as we must on appeal, we now
question whether the trial court, had it believed the statements, would have
concluded that the confession was involuntary.
When determining whether a confession is involuntary, a court must
consider the totality of the circumstances and mull over case specific factors.
Among specific factors considered by other courts, we find several particularly
pertinent to this case including: the length of the interrogation, whether the
defendant has been advised of his Miranda rights, whether the defendant has
waived his Miranda rights, and whether he has invoked Miranda rights. See
Clark v. Murphy, 331 F.3d 1062, 1073 (9th Cir. 2003) (defendant's confession
voluntary though he had been held and intermittently questioned in small
room for eight hours), cert. denied, 540'U .S. 968 (2003) ; Mincey v. Arizona, 437
U .S. 385, 396-402 (1978) (where suspect interrogated for four hours in
intensive care unit, had tubes in his throat and nose, was heavily medicated,
had been shot, and had not been afforded counsel despite explicit request for
counsel, statements deemed involuntary) ; Jenner v. Smith, 982 F.2d 329, 334
(8th Cir. 1993 ) (six or seven hour questioning not coercive), cert. denied, 510
U .S. 822 (1993) ; United States v. Lehman, 468 F.2d 93, 101 (7th Cir. 1972)
("vigorous" eight hour questioning with few breaks did not render confession
involuntary), cert. denied, 409 U.S. 967 (1972) ; Darwin v. Connecticut, 391 U.S .
346, 349 (1968) (per curiam) (confession obtained during 48-hour interrogation
of defendant who had been denied right to counsel deemed involuntary) ;
Greenwald v. Wisconsin, 390 U .S . 519, 519-21 (1968) (per curiam) (confession
obtained from defendant with ninth grade education, who was questioned
without Miranda warnings for over eighteen hours and was prevented from
eating, sleeping, and taking his medication, deemed involuntary) ; Clewis v.
Texas, 386 U.S. 707, 709-10 (1967) (confession resulting from nine-day
interrogation with inadequate food and sleep deemed involuntary) ; Davis v.
North Carolina, 384 U.S . 737, 746-47 (1966) (confession resulting from
questioning once or twice a day for approximately 45 minutes to an hour on
each occasion, over 16-day period with inadequate food deemed voluntary) .
But when considering the voluntariness of a confession a court must
consider an issue more fundamental than the facts surrounding the manner in
which the confession is procured; the judge must first determine whether that
confession was made at all . It goes without saying that a non-existent
confession cannot be used against a defendant at trial. Therefore, before a
court can determine that a defendant voluntarily confessed, it must first
believe that the defendant confessed in the first place. To do this, the court
must hear the defendant's evidence. Only then may the court determine
whether the defendant's confession was voluntary.
Here, Appellant asserts that he was held for eight hours at the robbery
office, that he never waived his Miranda rights, that he invoked his right to an
attorney, that he told Colebank he did not want to answer any questions, and
that Colebank's testimony was wholly false. We find these assertions, if they
were believed, sufficient to merit suppression . If the trial court had believed
these statements, it would have had to conclude that Appellant did not confess
and thus would have never reached the question of voluntariness. Of course,
the truthfulness of Appellant's statements are findings solely determined by the
trial courts-not this Court. RCr 9 .78 . Therefore, Appellant is entitled to a
new consideration of this issue on remand.
2. Miranda
Our analysis of the alleged Miranda violation is similar to the
voluntariness analysis in that we consider the testimony proffered by Appellant
to determine whether he is entitled to a new suppression hearing. Where
Appellant's proffered testimony, accepting it as true as we must on appellate
review (since it was not received), would lead to the conclusion that his
confession was procured in a manner violative of Miranda, he is entitled to a
new hearing on remand. 384 U .S. 436.
Thus, we again turn to the statements Appellant asserts he would have
testified to, had he been given the opportunity. Again, Appellant asserts that
he would have sworn under oath that he was held for eight hours at the police
station, that he never waived his Miranda rights, that he invoked his right to an
attorney, and that the Detective's testimony was wholly false .
If the trial court believed that Appellant invoked his right to an attorney,
that he never waived any of his Miranda rights, that told Colebank that he did
not want to answer any questions, and that Colebank's testimony was wholly
false, then suppression of the alleged confession would be mandatory. In fact,
we conclude, as we did with our voluntary analysis above, that had the judge
believed Appellant, he would have had to conclude that Appellant never
confessed in the first place and thus, the confession could not be used against
him at trial. In the alternative, assuming the confession did occur, Appellant's
other proffered testimony would have required suppression, if the trial court
had believed it as true . Specifically, because Appellant asserts that he invoked
his right to an attorney, and because he asserts that he never waived any of his
Miranda rights, the trial court, if it believed these statements as true, would
have had to suppress the confession because it would have had to conclude
that the confession was secured in violation of Miranda.
Thus, because Appellant's proffered testimony, if believed true, would
force the conclusion that it was either non-existent or procured in violation of
Miranda, he
is entitled to a new suppression hearing on remand .
We take this opportunity to highlight the fact that we are not passing on
whether suppression of the confession was merited in this case . In fact, the
trial court may not have believed any of Appellant's assertions . However,
Appellant was entitled to make those assertions at the suppression hearing
and our precedent requires us, on appellate review, to consider the proffered
testimony as true since it was never allowed. Thus, while we instruct the trial
court to allow Appellant to put forward his testimony on remand (if he still
desires to testify), we do not pass on the weight or credibility of that testimony;
those determinations are for the trial court.
3. Correctness of the Suppression Ruling
Because Appellant is entitled to a new suppression hearing concerning
the voluntariness and Miranda issues, we find Appellant's assertion that the
confession should have been suppressed because the Commonwealth did not
carry its burden at the suppression hearing moot. .We therefore will not
consider the merits of this argument .
D. The In-Court Identification
We now address Appellant's claim that reversible error occurred when
the trial court allowed Criswell to make an in-court identification of Appellant
after Criswell allegedly viewed pre-trial line-up materials that the
Commonwealth subsequently lost. Appellant asserts that facts surrounding
this case lead to the conclusion that the in-court identification lacks sufficient
reliability so as to be admissible .
The Commonwealth believes no error occurred and asks this Court to
find that even though the Commonwealth lost the pre-trial line-up materials
used in this case, those materials were not unduly suggestive, and thus no
taint occurred. The Commonwealth further asserts that even if the pre-trial
materials were unduly suggestive, the facts surrounding the identification
support a finding that the in-court identification retained independent
reliability and thus the in-court identification was admissible regardless of the
suggestive nature of the (lost) pre-trial materials.
Suggestive identifications deprive defendants of due process because
they increase the likelihood of misidentification. Neil v. Biggers, 409 U .S . 188,
198 (1972) . And ultimately, the admissibility of identification testimony spins
on its reliability. Manson v. Braithwaite, 432 U.S. 98, 114 (1977) . A
conundrum presents itself, however, when a defendant asserts that an out-ofcourt identification is made under unduly suggestive circumstances, and the
materials used in that identification are lost. Such a circumstance, as we have
here, makes the question of whether the unduly suggestive identification has
tainted a subsequent in-court identification particularly difficult to resolve .
The United States Supreme Court has warned that an identification that
is the fruit of an unduly suggestive pre-trial identification deprives a defendant
of the right of cross-examination, which is an essential safeguard to his right to
confront witnesses against him. United States v. Wade, 388 U.S. 218 (1967) .
However, the Wade Court noted that a tainted identification may be overcome,
recognizing the test it outlined in Wong Sun v. United States, 371 U.S . 471, 488
(1963) . In Wong Sun, the Court stated that after the illegality of the initial
identification is established, the question then turns on "the evidence to which
instant objection is made has been come at by exploitation of that illegality or
instead by means sufficiently distinguishable to be purged of the primary
taint." Id. We have adopted this approach, and have explained that where it is
shown that an identification has an independent basis of support, separate
from the prior, tainted, out-of-court identification, it will be admissible
regardless of the inappropriateness of the prior, first identification . Francis v.
Commonwealth, 468 S.W .2d 287 (Ky. 1971) .
Thus, when a defendant alleges that an in-court identification has been
tainted by a pre-trial identification, a court must answer two questions : (1)
was the first, pre-trial identification unduly suggestive ; (2) if the pre-trial
identification was unduly suggestive, does there exist an independent basis to
support the reliability of the in-court identification so that the unduly
suggestiveness of the pre-trial identification becomes moot . Savage v.
Commonwealth, 920 S .W.2d 512, 513 (Ky. 1995) .
It goes without saying that when a trial court determines that the initial
pre-trial line up is not unduly suggestive, the court need not move to the
second testwhere there is no prior taint, the in-court identification is reliable
absent other issues . But when a court does determine that the pre-trial
materials are unduly suggestive, it must then turn to the second prong of
Savage, and determine whether there is an independent basis of support. To
determine whether an independent basis of support exists, a court should
consider the factors outlined in Neil, 409 U .S. at 198, which we adopted in
Savage, 900 S.W .2d at 513 . Those factors include : (1) witness's opportunity to
view; (2) witness's degree of attention; (3) accuracy of prior descriptions; (4)
level of certainty at confrontation ; and (5) the time between the crime and the
confrontation. Id at 14 . We have also allowed the admission of other evidence
that tends to corroborate the witness's identification . See St. Clair v.
Commonwealth, 140 S .W.3d 510, 551 (Ky. 2004) . With these guiding
principles in mind, we turn to the case at bar .
The Commonwealth asserts that this case is controlled by our decision in
Shegog v. Commonwealth. 142 S .W.3d 101 (Ky. 2004) . In Shegog, we found no
error when the trial court permitted a witness to make an in-court
identification after that witness previously made an identification based on
line-up materials that were subsequently lost. Id. at 10 . Indeed, at first blush,
that case would seem to be on all fours with this appeal. However, a closer
review of Shegog reveals that the facts involved therein are quite
distinguishable from those here. There, the parties put forward evidence
regarding the lost line-up materials. Id. at 106. The officer who accumulated
the photographs for the line-up and the identifying witness both testified as to
the make-up of the line-up materials. Id. Moreover, the appellant in that case
put forward assertions regarding the photo he thought was used in the line-up,
namely one that had his name, height, weight and social security number . Id.
Furthermore, in Shegog, we found that the trial court made an appropriate
determination of independent reliability (the second prong of Savage) to allow
the in-court identification regardless of the possibility that the pre-trial lineup
materials were unduly suggestive . Id. at 106-07 . This case is different.
Here, the officer who allegedly put forward the line-up materials does not
remember Criswell making the pre-trial identification . In fact, the only
evidence presented to this Court regarding what materials were used in the
out-of-court line-up is in the form of testimony from Criswell himself.
Moreover, here, it is unclear whether the trial court ruled on the suggestive
nature of the lost line-up materials and thus it is unclear as to whether he
reached the second prong of the Savage analysis (the determination of
independent basis of reliability.) . Consequently, in this case, the precedential
value of Shegog is limited.
In any event, we find it necessary to address our decision in Shegog,
particularly the extent to which it may be read'to require a defendant to prove
the suggestive nature. of -pre-trial lineup materials that are lost by the
Commonwealth before they can be scrutinized by the defendant. We note that
when a defendant sserts that a pre-trial line up has tainted a subsequent
identification he carries the burden to show the unduly suggestiveness of the
first pre-trial line up materials . Consequently, because we have laden the
defendant with this burden, we find it unjust to say in the same breath that he
must prove unduly suggestiveness when he does not have access to the line-up
materials . To hold otherwise would be adverse to justice and a defendant's
ability to confront and question evidence that might have poisoned a
subsequent identification would be severely curtailed. Accordingly, we hold
that a rebuttable presumption is necessary: one that assumes that when
materials used for a pre-trial lineup are lost before the defendant has an
opportunity to scrutinize their content, those materials will be presumed to be
unduly suggestive . We find support from other state and federal courts
addressing this issue . See United States v. Sanchez, 603 F.2d 381 (2d Cir.
1979) ; State v. Bauer, 368 N.W .2d 59, 65-66 (Wis . Ct. App. 1985), rev'd on
other grounds by State v. Bauer, 377 N .W .2d 175 (Wis . 1985) .
However, as noted by the United States Supreme Court in Neil, 409 U.S .
199, and in our decision in Savage, 142 S.W.3d at 513, simply because pretrial lineup materials are unduly suggestive does not mean that a subsequent
in-court identification may never be made. In fact, under the second prong of
Savage, the unduly suggestive nature of the pre-trial lineup becomes totally
irrelevant if a court determines that there is an independent basis of reliability
for the in-court identification ; that determination being made after
considering: (1) a witness's opportunity to view; (2) a witness's degree of
attention; (3) the accuracy of prior descriptions; (4) the level of certainty at
confrontation; (5) the time between the crime and the confrontation ; and (6)
other evidence that tends to corroborate the in court identification . Thus, we
4 We note that there exist other, similar remedies where the Commonwealth loses
evidence . See Sanborn v. Commonwealth, 754 S.W.2d 534 (Ky. 1988) (abrogated on
other grounds) ; Estep v. Commonwealth, 64 S.W.3d 805, 809-10 (Ky. 2002);
Johnson v. Commonwealth, 892 S.W.2d 558, 563-64 (Ky . 1994) .
hold that even where the pre-trial line up materials are lost and our new
presumption arises, a court may allow an in-court identification if there is an
independent basis to support the reliability of the in-court identification after
considering the factors enumerated in the second prong of our Savage
analysis.
Given this presumption and the fact that it is unclear whether the trial
court reached the question of independent basis of reliability, we remand this
issue to the trial court for further consideration consistent with this opinion.
However, we find it necessary to reiterate that simply because lost line-up
materials merit a rebuttable presumption that they are unduly suggestive does
not necessitate a finding that the factors in the second prong of the Savage
analysis, which provide an independent basis for the identification, have not
been satisfied in this case . This is a matter for the trial court in the first
instance.
E. Hears p
Appellant also asks this Court to find error in the trial court admission
of certain hearsay testimony, urging a viola Lion of the Confrontation Clause as
addressed in Crawford v. Washington, 541
.S. 36 (2004) and Davis v.
Washington, 547 U.S . 813 (2006) . Specifically, Appellant argues that the trial
court committed reversible error by admitti l g the statements of Vickie Wheeler,
the landlord, who testified that her tenants 'told her that someone tried to
break into their apartments and that Rapp said the intruder would not let him
leave . Appellant objected at trial, properly preserving this issue for appeal.
Appellant also urges, however, that the trial court committed error by allowing
the testimony of Officers White and Miller regarding statements made by
Sanchez and Rapp even though he failed to preserve these issues for appellate
review . Therefore, Appellant asks this Court to exercise its authority under
RCr 10 .26 and find that the admission of the two officers' hearsay statements
tantamount to palpable error.
The Commonwealth responds by noting that the statements were
properly admitted and that the Confrontation Clause was not violated because
all the statements admitted were non-testimonial . In the alternative, the
Commonwealth asserts that no palpable error resulted and that if any error
exists at all, it is harmless .
To review an error under the palpable error standard, we must find that
a manifest injustice has resulted from an error not properly preserved for
appeal. RCr 10 .26. We also require a demonstration that a different outcome
would have resulted at trial or evidence of an error so fundamental as to
threaten a defendant's entitlement to due process of law. Martin v.
Commonwealth, 207 S .W.3d 1, 3 (Ky. 2006). The burden to demonstrate
palpable error is high, as a defendant must show that the error involved
prejudice more egregious than that occurring in reversible error. Brewer v.
Commonwealth, 206 S .W .3d 343, 350 (Ky. 2006) . Indeed we must make an
ultimate finding that the error was shocking or jurisprudentially intolerant .
Martin, 207 S.W .3d at 4 . Thus, applying these rules, we question whether a
manifest justice has occurred and conclude that it has not.
Because we reverse the conviction for reasons stated above, no manifest
injustice has occurred to Appellant, and therefore a palpable error review is not
merited . Accordingly, because Appellant did not preserve the correctness of
the trial court's decision to admit Officer White's and Officer Miller's testimony,
and because we find no manifest injustice, we decline to review that decision .
Conversely, Appellant did object to the hearsay put forward by Wheeler
and properly appeals its admission. And because this issue may recur on
remand, we find it necessary to address it.
Appellant argues that by allowing Wheeler to testify to statements made
by Sanchez and Rapp, the court ran awry of the Confrontation Clause of the
Sixth Amendment of the United States Constitution . Relying on Crawford and
Davis, Appellant urges us to find the statements testimonial and thus
inadmissible under any hearsay exception . In support of his claim that the
hearsay was indeed testimonial, Appellant argues that an objective observer
would not conclude that there was an ongoing emergency at the time the
statements were made by Rapp and Sanchez to their landlord, Wheeler and
thus, under Crawford and Davis, the statements must have been testimonial.
Crawford, 541 U.S . at 51-52 ; Davis, 547 U .S . at 822 . Ultimately, Appellant
asserts that he was denied the opportunity to cross-examine either Rapp or
Sanchez, and was therefore denied his right to confront witnesses who
effectively testified against him via Wheeler's testimony.
The Commonwealth responds by stressing the fact that these hearsay
statements were made to a landlord, and not a state actor or member of law
enforcement. Relying on our opinion in Hartsfteld v. Commonwealth, where we
flatly stated that "[t]he excited utterances at issue, made to lay witnesses, do
not fit within the Crawford and Davis formulation of testimonial statements,"
the Commonwealth asks us to find no error and hold these statements as nontestimonial. Hartsfield v. Commonwealth, 277 S.W .3d 239, 245 (Ky. 2009) . We
agree with the Commonwealth that these statements were non-testimonial, but
for different reasons .
In Crawford, the Confrontation Clause of the United States Constitution
was read to preclude statements of a witness unavailable to testify at trial if the
witness's out-of-court statements were testimonial, unless the accused had a
previous opportunity to cross-examine the witness . 541 U.S. 36 . After
Crawford, a court had to determine whether any hearsay statements used
against an accused were testimonial, without the benefit of the Supreme
Court's elaboration on the definition of testimonial.
In Davis, the Supreme Court provided further guidance on the definition
of "testimonial," and held that:
Statements are nontestimonial when made in the . course of police
interrogation under circumstances objectively indicating that the
primary purpose of the interrogation is to enable police assistance
to meet an ongoing emergency. They are testimonial when the
circumstances objectively indicate that there is no such ongoing
emergency, and that the primary purpose of the interrogation is to
establish or prove past events potentially relevant to later criminal
prosecution .
547 U .S. at 822 . The high Court went on to cite factors for a court to consider
when determining whether a statement is testimonial, namely: (1) whether the
events spoken about were actually happening, or were past events ; (2) the
presence of an ongoing emergency; (3) whether what was asked and answered
was for the purpose of resolving the situation, rather than simply learning what
had happened in the past; and (4) the level of formality in the interview. Id. at
827 . The Court also noted that a court examining the hearsay statements
should consider the "primary purpose of the interrogation" and question
"whether it is to establish or prove past events potentially relevant to later
criminal prosecutions."
Davis, 547 U .S . at 822 .
Citing the first footnote in Davis, this Court has opined in dicta that
"neither Crawford nor Davis limited testimonial statements to those obtained
by law enforcement or their agents ." Rankins v. Commonwealth, 237 S.W .3d
128, 131 (Ky. 2007) (citing Davis, 547 U .S . 822, n.1) . However, a perusal of
Davis reveals that the Supreme Court deliberately refused to answer the
question of whether statements obtained by laypersons could be testimonial.
In fact, the next footnote reads verbatim:
If 911 operators are not themselves law enforcement officers,
they may at least be agents of law enforcement when they
conduct interrogations of 911 callers. For purposes of this
opinion (and without deciding the point), we consider their
acts to be acts of the police . As in Crawford v. Washington,
541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004),
therefore, our holding today makes it unnecessary to
consider whether and when statements made to someone
other than law enforcement personnel are "testimonial ."
Davis, 547 U.S. 822, n.2 . Thus, the question of whether Crawford and Davis
apply to laypersons remains unanswered by the United States Supreme Court.
However, that question was squarely presented and seemingly decided by
our decision in Hartsfizeld. Indeed, in Hartsfield, we found that the hearsay
statements at issue "made to lay witnesses, do not fit within the Crawford and
Davis formulation of testimonial statements," but we went on to apply the four
factors outlined in Davis. Hartsfield, 277 S.W .3d at 245.
In Hartsfield, a rape victim made statements to a passerby immediately
after she suffered the crime . Id. at 242 . She then went to her daughter's
house and made more statements regarding the crime . Id. Applying the above
mentioned factors, we found both statements, made to the passerby and to the
daughter, admissible because, "[t]hese statements in the case at hand were
spontaneous and unprompted by questioning. These statements were not
testimonial because they were not formal, not delivered to law enforcement or
its equivalent, and were in the nature of seeking help for an emergency (even
though it was not ongoing) ." Id. at 245.
We believe Hartsfield is controlling in this case, and again find that the
statements considered here are non-testimonial given the surrounding
circumstances .
Here, Wheeler testified that she spoke with her tenants to check for "any
damage" and to see if her tenants "were okay." Importantly, like Hartsfield, the
statements were made within minutes (approximately three or four minutes)
after the event transpired . Wheeler stated that at the time she spoke with
Rapp and that he was a "nervous wreck" and that Sanchez was so distraught
that he was speaking in both English and Spanish. These statements were
informal as they were not obtained by a trained interrogator and neither were
they taken under interrogative circumstance.
Like Hartsfield, these statements were not made to law enforcement or
their equivalents. They were informal and were not obtained under
interrogative circumstances . Furthermore, we conclude that the emergency
was not ongoing, Appellant had been arrested at the time the statements were
made. However,,even though the emergency was not ongoing (and neither was
an emergency ongoing in Hartsfield) we conclude that the statements were
solicited by Wheeler out of concern for her property and her tenants wellbeing
rather than from a desire to retrieve testimony that may be used against
Appellant at trial . As a result, we cannot say that an objective observer would
consider the primary purpose of the solicitation was for the purposes of a
future prosecution . Davis, 547 U .S. at 822 (where the Court examined the
"primary purpose" of the questioner) .
Thus, as in Hartsfield, we find that the statements made to a layperson
in this case, do not fit within the ambit of Crawford and Davis. 5
5 We note that the Commonwealth zealously attempts to justify the hearsay
exception used to admit the landlord's statements at trial. However, Appellant only
appeals whether the statements were testimonial and controlled by Crawford and
Davis and does not argue that any hearsay exception was undeserved . Therefore,
we find that the issue of whether a hearsay exception merited the admission of
F. Sufficiency of Evidence
Appellant also argues that no competent evidennc6 was put forward to
justify a finding of guilt on the second-degree burglary charge and on the count
of unlawful imprisonment. Relying on the premise that the above mentioned
hearsay testimony should have been excluded, Appellant asserts that the
Commonwealth has failed to meet its burden .
The Commonwealth rebuffs this argument and asserts that the hearsay
evidence was non-testimonial . In the alternative, the Commonwealth posits
that other evidence exists to support a guilty verdict. The Commonwealth is
correct.
When a trial court is moved to enter a directed verdict, it must draw all
fair and reasonable inferences from the evidence in favor of the
Commonwealth . Commonwealth v. Benham, 816 S .W.2d 187, 187 (Ky. 1991) .
Where the evidence is sufficient to induce a reasonable juror to believe beyond
a reasonable doubt that the defendant is guilty, a directed verdict should be
refused. Id. On appeal, a court should consider the evidence as a whole, and
question whether it was clearly unreasonable for a jury to find
Furthermore, an appellate court should consider "the same evidence
these statements not properly before us and thus, we do not address the
correctness of this argument.
6 Reversal and remand is already commanded in this case, and Appellant is entitled
to a new trial. However, because Appellant asks us to find that there exists
insufficient evidence to convict him on the burglary and unlawful imprisonment
charges, a finding that would bar a re-trial on these issues, we find it imperative to
consider these issues.
considered by the trial court, rightfully or wrongfully ." Burton v.
Commonwealth, 300 S .W.3d 126, 144 (Ky. 2009) . We now look at the evidence
supplied to the trial court to determine whether it was sufficient to survive a
directed verdict.
Appellant's argument that without the admission of the hearsay
statements no competent evidence was presented to support a finding of guilt,
is effectively eviscerated by our conclusion that no error has been
demonstrated regarding the hearsay statements admitted by the trial court.
However, even if we considered those hearsay statements inadmissible, we are
bound to consider them when weighing whether there was sufficient evidence
to survive a motion for directed verdict because the statements were admitted
as competent evidence by the trial court and introduced to the jury as evidence
of guilt. Id. Applying this rule, we find the hearsay statements enough to
defeat a directed verdict as they directly implicate Appellant. Thus, we
consider Appellant's argument unpersuasive . A directed verdict was not
merited in this case.
G. StunTech React Belt System
Appellant also seeks reversal of the trial court's decision requiring
Appellant to conduct his entire trial while wearing a StunTech React Belt
System, a security restraint that he alleges was identifiable to the jury .
Appellant concludes that because the jury was able to see the restraint, he lost
his presumption of innocence, and thus his right to a fair trial.
The Commonwealth counters that the brace was not apparent to the jury
and that if it was, the jury would merely have concluded that it was a medical
brace, or would have not known what it was . They argue in the alternative,
that it was harmless error to require Appellant to wear the device .
We begin by noting that we are provided with no findings from the trial
court on whether the restraint was visible to the jury. We therefore are unable
to make a determination as to the correctness of the court's order. In any
event, we instruct the trial court on remand, should the issue resurface, to
determine the visibility of the device and the likelihood that it will be apparent
to the jury. In the event the court finds the device will be apparent, the court
should determine on the record the reasons supporting the use of the restraint.
We find support for our reasoning in the language of RCr 8 .28(5), which
controls the use of shackles and restraints. It reads:
During his or her appearance in court before a jury the
defendant shall not be required to wear the distinctive
clothing of a prisoner. Except for good cause shown the
judge shall not permit the defendant to be seen by the jury
in shackles or other devices for physical restraint.
RCr 8.28(5) . Here, as is obvious, RCr 8 .28(5) concerns not whether a restraint
or shackles may be used, but only their visibility . Only where good cause is
shown may the court permit the defendant to be seen by the jury in shackles
or other devices found necessary for physical restraint. Thus, we conclude that
RCr 8 .28(5) is not implicated where the jury cannot see the restraining device .
Indeed where a restraint cannot be seen (or otherwise detected by the jury), the
trial court may use the restraint at its discretion provided there is good reason
for doing so. But as stated above, we do not have
a finding regarding the
visibility of the restraint and therefore remand for further consideration of that
issue also .
H. Cumulative Error
Appellant's final argument posits the existence of cumulative error.
Because we reverse on other grounds, we need not address this argument .
III. Conclusion
For the foregoing reasons, Appellant's conviction is reversed and this
case is remanded to the trial court for further proceedings consistent with this
opinion.
All sitting. Minton, C .J . ; Abramson, Cunningham, and Noble, JJ .,
concur . Schroder, J., concurs in part and dissents in part by separate opinion
in which Venters, J ., joins .
SCHRODER, J ., CONCURRING IN PART AND DISSENTING IN PART: I
concur in part and dissent in part because I disagree with the legal analysis
regarding the hearsay statements repeated by the landlady, Vickie Wheeler.
The majority concludes that the statements made by Rapp and Sanchez
to Wheeler were non-testimonial under Crawford v. Washington, 541 U.S. 36
(2004), because they were "informal," "not made to law enforcement or their
equivalents," and "not obtained under interrogative circumstances ." I disagree
with the majority's test. Neither Crawford, nor Davis v. Washington, 547 U .S .
813 (2006), limited testimonial statements to those obtained by law
enforcement or their agents. Nor is "formality" or an "interrogation" required
for a statement to be testimonial. "The Framers were no more willing to exempt
from cross-examination volunteered testimony or answers to open-ended
questions than they were to exempt answers to detailed interrogation." Davis,
547 U.S. at 822, n.1 . "[I]t is in the final analysis the declarant's statements . . .
that the Confrontation Clause requires us to evaluate." Id. (Emphasis added.)
The statements to Wheeler by the victim/witness Rapp recounted past
criminal events . Pursuant to Davis, I believe the statements are testimonial.
The in-court use of the statements was to establish the truth of the matter
therein (that Rapp's home was broken into and that the intruder would not let
him leave) . Accordingly, I believe the use of the statements as proof of burglary
and unlawful imprisonment implicates the Confrontation Clause .?
Although the alleged hearsay error as to the police officers was
unpreserved, to avoid error on retrial, I believe it behooves the Court to address
the statements made by Rapp to the police officers (that a man had come into
his apartment, stated the police were looking for him, and that he needed a
place to hide) . It appears that under Davis, these statements would be
considered non-testimonial, as they were made in the context of an ongoing
emergency, with the police in hot pursuit of Appellant at the time . The issue
7 A similar analysis would apply to the statements made by Sanchez to Wheeler,
however, because the count involving Sanchez was subsequently dismissed, the
Sanchez hearsay issue appears to be moot.
then would become, whether the statements are admissible under any hearsay
exception. Craw,ford, 541 U.S. at 68 .
Venters, J ., joins.
COUNSEL FOR APPELLANT:
Samuel N . Potter
Department of Public Advocacy
Assistant Public Advocate
100 Fair Oaks Lane, Ste . 302
Frankfort, KY 40601
COUNSEL FOR APPELLEE:
Jack Conway
Attorney General of Kentucky
Christian Kenneth Ray Miller.
Assistant Attorney General
Office of the Attorney General
Office of Criminal Appeals
1024 Capital Center Drive, Ste. 200
Frankfort, KY 40601
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