Released for Publication March 13, 2014.
[Copyrighted Material Omitted]
ON APPEAL FROM JEFFERSON CIRCUIT COURT. HONORABLE FREDERIC J. COWAN, JUDGE. NOS. 11-CR-000005 & 12-CR-002075.
COUNSEL FOR APPELLANT: Katie L. Benward, Assistant Public Advocate.
COUNSEL FOR APPELLEE: Jack Conway, Attorney General; William Bryan Jones, Assistant Attorney General.
A Jefferson Circuit Court Jury found Appellant, Dwayne Mitchell, guilty of two counts of first-degree robbery, two counts of first-degree burglary, two counts of first-degree unlawful imprisonment, one count of receiving stolen property, and being a second-degree persistent felony offender (PFO). As a result, Appellant was sentenced to thirty years' imprisonment. He now appeals as a matter of right, Ky. Const. § 110(2)(b), asserting that (1) the trial court erred by failing to dismiss his indictment, (2) the trial court violated his right to hybrid representation, (3) the trial court erred by allowing the prosecution to introduce misleading photographs, (4) the trial court erred by denying his motions for directed verdict on both counts of first-degree robbery, (5) the trial court's jury instructions omitted an essential element of first-degree robbery, (6) the trial court erred by denying his motion for directed verdict on both counts of unlawful imprisonment, (7) the trial court failed to inquire into standby counsel's admission that he discussed the case in front of a juror, and (8) he was improperly indicted as a PFO. For the following reasons, we reverse Appellant's convictions and remand the case to the trial court for further proceedings in accordance with this Opinion.
In September 2010, as Robert Hughes unlocked the door to his apartment in Old Louisville, a man approached him with a knife, ordering him into the apartment. The intruder bound Hughes's hands and feet, scoured the apartment for valuables, and left with several items of electronic equipment.
Lynessa Staples was at work when her apartment in Louisville's east end was burglarized less than a month later. She reported several items stolen, including stereo equipment. The police later recovered Staples's property and returned it to her.
In October 2010, Michael Gibson was cooking breakfast in his Old Louisville apartment when a man entered and claimed he was looking for Gibson's roommate. Gibson informed the man that his roommate was not home, but he let the man in to use the restroom. Once the man returned to the kitchen, Gibson offered him breakfast. The man declined and pulled a knife on Gibson. The interloper bound Gibson and ransacked his apartment, taking several valuable items. The intruder also stole Gibson's Chevy pickup truck.
Two days later, Officers Nick Masterson and William Hirtzel were on patrol in Louisville's east end when they noticed a pickup truck carelessly parked at an odd angle outside of an apartment building. Officer Masterson then saw a man carrying an item to the truck from the apartment complex. Believing that he had seen the same man in the area a week earlier around the time another apartment was burglarized, Officer Masterson instructed Officer Hirtzell to apprehend the man. Seeing Officer Hirtzell approaching, the man dropped what he was carrying and fled toward the complex.
The suspect ran into Stephanie White's apartment. Officer Hirtzell found White standing outside and received permission to search her apartment. The officers discovered Appellant hiding in White's bathroom. They also found a distinctive sweater behind White's couch and a knife behind her bedroom dresser. White testified that she did not see Appellant throw the sweater and that the knife police found was not
hers. The truck at the scene was identified as stolen and belonging to Michael Gibson.
Following his arrest, Appellant was indicted by a Jefferson County Grand Jury for first-degree robbery, first-degree burglary, and first-degree unlawful imprisonment for the offenses against Robert Hughes. He was also indicted for first-degree robbery, first-degree burglary, first-degree unlawful imprisonment, and receiving stolen property for the offenses against Michael Gibson. Appellant also received indictments for first-degree burglary relating to his intrusion into White's apartment and second-degree burglary based on the stereo equipment stolen from Staples's apartment. Finally, Appellant was indicted as a second-degree PFO.
The case proceeded to a jury trial, and the jury returned a verdict finding Appellant guilty of all counts except the burglary charges relating to Staples and White, for which he was acquitted. After the Commonwealth presented evidence establishing Appellant's prior convictions, the jury also found Appellant to be a second-degree PFO and recommended a total sentence of thirty years' imprisonment. At final sentencing, the trial court adopted the jury's recommendation. This appeal followed.
A. Grand Jury Procedure
Appellant first argues that his indictment should have been dismissed because the Commonwealth failed to follow certain grand jury procedures. Specifically, Appellant alleges that the grand jury breached its duty to inquire into Appellant's offenses after he had been held to answer, failed to make a written report declining to indict or referring to the next grand jury, and failed to indict him within sixty days of the date he was held to answer.
RCr 6.12 provides that an indictment is not invalid because of a defect, unless that defect tends " to prejudice the substantial rights of the defendant on the merits." In other words, an indictment may be dismissed if there is " flagrant abuse of the grand jury process that resulted in both actual prejudice and deprived the grand jury of autonomous and unbiased judgment." Caldwell v. Commonwealth, No. 2008-SC-000411-MR, 2010 WL 2025124, at *3 (Ky. May 20, 2010) (quoting Commonwealth v. Baker, 11 S.W.3d 585, 588 (Ky. App. 2000)). We review a trial court's decision concerning the dismissal of an indictment for an abuse of discretion. Id. The test for abuse of discretion " is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Anderson v. Commonwealth, 231 S.W.3d 117, 119 (Ky. 2007) (citing Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky. 2000).
Appellant's case was originally scheduled to go before the grand jury on December 20, 2010. However, the grand jury adjourned that day without considering Appellant's offenses. According to the Commonwealth, the grand jury left without reaching Appellant's case because the court did not want to keep jurors late during the holiday season. A second grand jury was later convened and it returned an indictment against Appellant on January 4, 2011.
Appellant claims that his indictment should have been dismissed because the first grand jury's failure to inquire into his offenses was a violation of RCr 5.02's requirement that the grand jury inquire into every offense for which a person has been
held to answer. Appellant further asserts that, pursuant to RCr 5.22, the first grand jury was required to produce a written report either declining to indict him or referring his case to the next grand jury in order to confine Appellant beyond sixty days and that it failed to do so.
The Commonwealth admits that the first grand jury adjourned without inquiring into Appellant's offenses and does not dispute that Appellant was held for over sixty days despite the fact that the grand jury never issued a written report. However, the Commonwealth asserts that none of the procedural defects alleged by Appellant require dismissal of the indictment. For the reasons that follow, we agree with the ...