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Hilton v. Commonwealth

Supreme Court of Kentucky

February 15, 2018



          COUNSEL FOR APPELLANT: Roy Alyette Durham, II Assistant Public Advocate

          COUNSEL FOR APPELLEE: Andy Beshear Attorney General of Kentucky Thomas Allen Van De Rostyne Assistant Attorney General



         Michael Todd Hilton appeals as a matter of right from a judgment of the Hardin Circuit Court sentencing him to life imprisonment for murder, first-degree assault, second-degree assault, operating a motor vehicle under influence of alcohol which impairs driving ability, and for being a first-degree persistent felony offender. Hilton alleges that the trial court erred by: 1) failing to grant a change of venue; 2) declining to suppress a witness's statement; 3) refusing to grant a continuance; 4) failing to remove jurors for cause; 5) denying his request for a mistrial; and 6) by permitting the Commonwealth to inquire of witnesses during the penalty phase what sentence they believed appropriate for Hilton's crimes. For the following reasons, we affirm the judgment and sentence.


         During the evening of June 22, 2014, Jason Hall was driving down Deckard School Road in Hardin County, Kentucky. After reaching the intersection of Deckard School Road and Patriot Parkway, Hall observed an overturned burning truck. As Hall drove towards the burning wreck he observed a cooler and beer cans in the road. After Hall exited his vehicle, he was approached by Michael Todd Hilton who told Hall that he was unable to find his brother, Kyle Hilton.[1] Hall informed Hilton that he would be with him momentarily, after he called 911 to request emergency assistance. Hilton tried to persuade Hall not to call 911, but Hall refused and contacted the authorities.

         Faith Terry and Jason Combs also arrived on the scene of the collision. Terry observed a truck flipped upside down and a mangled orange Mustang. Hearing coughing from the Mustang, Terry and Combs attempted to aid the injured driver, Brianna Taylor, but were unable to assist Taylor's passenger, Mickayla Harig, who was pinned down by wreckage from the collision. Subsequently, Terry and Combs overheard Hilton yelling for help for his brother Kyle, who was also injured in the accident. While attending to Kyle, Hilton admitted to not stopping at the intersection's stop sign and that he had been drinking. Terry also observed beer cans strewn amongst the wreckage.

         After the arrival of emergency personnel, Hilton and his brother were transported to the University of Louisville Hospital for medical treatment. Prior to his transport to the hospital, Hilton admitted to emergency personnel that he and Kyle had been drinking heavily. At the hospital, physicians examined and treated Hilton for minor injuries. Kyle was admitted at the hospital and received treatment for five days prior to being discharged.

         Due to Taylor and Harig being trapped in their damaged vehicle, they were transported to the University of Louisville Hospital after Kyle and Hilton. Both women were treated for severe injuries. Among other injuries, Harig suffered a traumatic brain injury and was hospitalized for approximately 22 days prior to being discharged. As for Taylor, her extensive injuries induced cardiac arrest. While doctors were initially able to restart Taylor's heart, blood loss from organ damage caused her heart to arrest a second time, and they were not able to revive her.

         Responding to the scene of the crime, Officer Thomas Cornett of the Hardin County Sheriffs Office observed beer cans and a cooler near Hilton's damaged vehicle. Officer Cornett suspected that Hilton might have been operating his vehicle while under the influence of alcohol and thus contacted the hospital to have Hilton's blood collected for future laboratory examination. Lab results later established that Hilton's blood alcohol level at the time of the collection was approximately 2.33g/ 100ml; more than twice the legal limit to operate a motor vehicle.

         In July 2014, the Hardin County grand jury indicted Hilton for murder; first-degree assault (two counts); operating a motor vehicle under the influence of intoxicants, first offense in a five-year period, aggravated; and for being a first-degree persistent felony offender. After a trial in June 2015, Hilton was convicted of murder, first-degree assault, second-degree assault, and operating a motor vehicle under influence of alcohol which impairs driving ability. Following the penalty phase of his trial, the jury found Hilton to be a first-degree persistent felony offender and recommended concurrent sentences of life imprisonment for murder, thirty-five years' imprisonment for first-degree assault, ten years' imprisonment for second-degree assault, and thirty days' imprisonment for operating a motor vehicle under influence of alcohol which impairs driving ability. The trial court sentenced Hilton to life imprisonment in conformance with the jury's recommendation.


         I. The Trial Court Did Not Abuse Its Discretion in Denying Hilton's Motion For Change of Venue.

         Hilton contends that the trial court erred by not granting his motion for a change of venue.[2] Prior to trial, Hilton made a motion for change of venue, contending that extensive media coverage and widespread local knowledge of his actions prevented him from having a fair trial in Hardin County. Hilton requested that the trial be conducted in another county or alternatively that jurors be summoned from other counties or that a survey be sent out to determine community opinion.[3]

          Subsequently, the trial court conducted two evidentiary hearings to consider Hilton's motion. In support of his motion, Hilton submitted two affidavits and multiple exhibits demonstrating the pretrial attention surrounding the death of Brianna Taylor. Hilton's exhibits included photographs of a roadside memorial to Taylor, Louisville area news reports about Taylor's death, and a copy of a Facebook page memorializing her and her brother, Brice Taylor.[4] In opposition to Hilton's motion, the Commonwealth submitted four counter-affidavits. Additionally, the Commonwealth submitted the 2010 Census figures for Hardin County, the daytime population of Fort Knox, and the daily circulation of the Elizabethtown News-Enterprise.[5]

         After considering the evidence presented by both parties, the trial court denied Hilton's motion in a detailed order, subject to reconsideration if Hilton renewed the motion during voir dire. The trial court concluded that the pretrial media coverage of this case was not reasonably likely to prevent a fair trial in Hardin County. Additionally, the trial court enumerated seven reasons why a change of venue was unnecessary: 1) Hardin County, with a population of approximately 105, 000 residents, is relatively large and has numerous cities and school districts; 2) Hardin County is a transient community, where a substantial number of citizens do not have pre-existing ties or relationships with the residents of the county; 3) the nearby presence of the Louisville media market diminishes the impact that a single tragic case has on the public consciousness of potential jurors in the county; 4) the internet coverage of the case is not necessarily relevant because it cannot be quantified to determine the impact within Hardin County; 5) roadside memorials, such as the one to Taylor, are common occurrences in Kentucky and the memorial does not name Hilton nor is its lettering readable to passing motorists; 6) the jury pool from which Hilton's petit jury would be formed was instructed during jury orientation not to watch, listen, or read any media or internet accounts of any criminal cases occurring in Hardin County during their term of service; and 7) the Hardin Circuit Court had been able to seat a fair and impartial jury in similar cases of media exposure without resorting to extraordinary measures such as change of venue or summoning jurors from adjacent counties.

         "Under the Due Process Clause of the Fourteenth Amendment to the United States Constitution, a change of venue must be granted when 'it appears that the defendant cannot have a fair trial in the county wherein the prosecution is pending." Sluss v. Commonwealth, 450 S.W.3d 279, 285 (Ky. 2014) (quoting Brewster v. Commonwealth, 568 S.W.2d 232, 235 (Ky. 1978)). Additionally, Kentucky Revised Statute (KRS) 452.210 provides that the defendant is entitled to a change of venue if the presiding judge is satisfied that the defendant cannot receive a fair trial in the county where the prosecution is pending. "It is not the amount of publicity which determines that venue should be changed; it is whether public opinion is so aroused as to preclude a fair trial." Foster v. Commonwealth, 827 S.W.2d 670, -675 (Ky. 1991) (quoting Kordenbrock v. Commonwealth, 700 S.W.2d 384, 387 (Ky. 1985)). In considering a motion for change of venue, the trial court is vested with "wide discretion, " and its decision will not be overturned absent an abuse of discretion. Wood v. Commonwealth, 178 S.W.3d 500, 513 (Ky. 2005) (citing Hurley v. Commonwealth, 451 S.W.2d 838 (Ky. 1970)). "The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky. 2000) (citing Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999)).

         Hilton's contention that the trial court erred in denying his motion for change of venue is without merit. Speaking in sweeping terms, Hilton claims that "any indicia of impartiality on the part of the jurors must be disregarded. It is hard to fathom an atmosphere more inflammatory than a community trying a man charged with murder of a young girl who dies based upon a DUI accident." While the facts of this case are clearly tragic, vehicular homicides involving drivers under the influence are, sadly, not uncommon and the publicity complained of by Hilton was not so prolific or prejudicial as to rise to a presumption of prejudice. Rather, after considering the totality of circumstances, we cannot conclude that the trial setting was inherently prejudicial.

          Nor has Hilton established a reasonable likelihood that pretrial publicity actually prejudiced the jury pool. Hilton contends that he was "undeniably prevented a fair trial, " because of the thirty-six jurors initially called for service, thirty-two responded that they heard some media coverage of the case. This is insufficient as "the mere fact that jurors may have heard, talked, or read about a case is not sufficient to sustain a motion for change of venue, absent a showing that there is a reasonable likelihood that the accounts or descriptions of the investigation and judicial proceedings have prejudiced the defendant." Brewster v. Commonwealth, 568 S.W.2d 232, 235 (Ky. 1978); see also Irvin v. Dowd, 366 U.S. 717, 722-23, 81 S.Ct. 1639 (1961) (It is not required that "jurors be totally ignorant of the facts and issues involved" or that they cannot have "some impression or opinion as to the merits of the case[, ]" so long as they can set aside that "impression or opinion and render a verdict based on the evidence presented in court."). In the case at bar, the trial court carefully examined the potential jurors as to their knowledge of the case due to pretrial media coverage. To ensure Hilton's right to a fair jury, the trial court removed those jurors who had formed an opinion based on media coverage. On the record before us, we conclude that the trial court did not abuse its discretion in denying Hilton's motion for change of venue.

         II. The Trial Court Did Not Abuse Its Discretion in Denying Hilton's Motion to Exclude a Statement He Made to Jason Hall.

         Hilton argues that the trial court erred by permitting the Commonwealth to present the testimony of Jason Hall concerning a statement Hilton made to him the night of the collision.[6] Hilton claimed that the admission of this incriminating statement was a violation of Kentucky Rule of Criminal Procedure (RCr) 7.24 and the trial court's discovery order. Further, Hilton contends that the introduction of this statement precluded him from properly preparing and presenting a defense and denied him his right to a fair trial.

         On June 1, 2015, while preparing for trial, the Commonwealth reviewed 911 call sheets, which listed the telephone numbers of individuals who had called for emergency services the night of the collision. The Commonwealth contacted Hall who revealed (for the first time) that he had been present at the scene of the vehicle collision and that Hilton had told him not to call 911. After receiving this information, the Commonwealth alerted the court and defense counsel the following day by submitting a summary of Hilton's statement to Hall as a supplemental discovery response.

         Hilton moved to exclude Hall's statement, arguing that the Commonwealth had violated RCr 7.24 by failing to discover and turn over the statement until one week before the trial. He requested that the statement be excluded or, alternatively, that the trial court continue the case to allow time to "properly investigate and consider" the statement and Hall.

         After a hearing, the trial court denied Hilton's motion to exclude the statement. The trial court explained that the Commonwealth had an obligation under RCr 7.24(1) to timely disclose any self-incriminating statements made by Hilton in advance of the trial. Further, according to the trial court's pretrial discovery order, the Commonwealth was obligated to disclose oral incriminating statements made by Hilton and known by the Commonwealth or its agents within thirty days of arraignment.

         The trial court determined that the Commonwealth did not know of the existence of the statement until June 1, 2015. Further, the trial court concluded that the Commonwealth did not act in bad faith in disclosure of the statement; nor was there any suggestion by Hilton that the Commonwealth had done so. Additionally, the trial court noted that the statement was not in the possession of an agency over which the Commonwealth's Attorney exercises control. The 911 call sheets were records maintained by the Hardin County 911, which is owned and operated by the Hardin County government, not a law enforcement agency. As the trial court explained, any 911 calls regarding the vehicle collision were a matter of public record and available to all parties.

         Also, the trial court concluded that the Commonwealth's disclosure of Hall's intended testimony did not constitute a "surprise attack" on Hilton's trial strategy. Notably, Hilton declined the trial court's offer of an in-camera hearing, outside the presence of the Commonwealth's Attorney, to discuss his trial strategy and how Hall's testimony would undermine it. Additionally, after considering this Court's recent opinion in Trigg v. Commonwealth, 460 S.W.3d 322 (Ky. 2015), the trial court concluded that Hilton had "not demonstrated that either cross examination of Jason Hall or pre-trial inquiry of other witnesses will be rendered ineffective by the introduction of the statement at trial."

         RCr 7.24 states in pertinent part that "[u]pon written request by the defense, the attorney for the Commonwealth shall disclose the substance, including time, date, and place, of any oral incriminating statement known by the attorney for the Commonwealth to have been made by a defendant to any witness." The Commonwealth is obligated to disclose incriminating statements of the defendant under RCr 7.24, "not only to inform the defendant that he has made these statements, as he should be clearly aware, but rather to inform the defendant (and to make sure his counsel knows) that the Commonwealth is aware that he has made these statements." Chestnut v. Commonwealth, 250 S.W.3d 288, 297 (Ky. 2008) (emphasis in original). "We review a trial judge's decision concerning discovery issues under an abuse of discretion standard." Brown v. Commonwealth, 416 S.W.3d 302, 308 (Ky. 2013) [citing Beaty v. Commonwealth, 125 S.W.3d 196, 202 (Ky. 2003)).

         Contrary to Hilton's assertions, it is clear that the Commonwealth did not violate RCr 7.24 or the trial court's discovery orders. It is uncontradicted that the Commonwealth did not know that Hilton had made an incriminating statement to Hall until June 1, 2015. Hall, a private citizen, was not an agent of the Commonwealth and his knowledge of Hilton's incriminating statement cannot be imputed to the Commonwealth. Once the Commonwealth learned of Hilton's statement to Hall it was immediately disclosed. Notably, through examination of the available 911 records, Hilton's counsel had the same opportunity as the Commonwealth to investigate Hall and his encounter with Hilton that night. Further, Hilton failed to identify to the trial court how he was supposedly prejudiced by Hall's testimony, even when offered an opportunity to present his argument in camera to avoid revealing trial strategy. Accordingly, we cannot disagree with the trial court's well-reasoned denial of Hilton's motion to exclude his statement to Hall.

         III. The Trial Court Did Not Abuse Its Discretion in Denying Hilton's Motions for a Continuance.

         Hilton contends that the trial court erred by failing to grant his multiple requests to postpone the trial.[7] Hilton's trial was initially scheduled to begin on March 9, 2015. However, on January 28, 2015, Hilton requested that his trial be continued. The trial court acquiesced and rescheduled Hilton's trial for June 8, 2015.[8] Additionally, the trial court set a backup trial date of August 10, 2015.

         Later, on May 15, 2015, the Commonwealth supplemented its original discovery disclosure by providing Hilton with the medical records for Kyle and Harig. These records formed the basis of Hilton's second motion to continue. Hilton acknowledged that there had been no fault on the part of the Commonwealth in turning over the medical records but, rather, delay by the hospital in providing the records to the Commonwealth. Once the Commonwealth received the medical records, it immediately mailed them to Hilton. Hilton maintained that there was insufficient time prior to trial to review the medical records.

         The trial court responded to this argument by explaining that it was clear from the discovery that the Commonwealth had previously tendered in the form of an investigative report and emergency services records that Harig and Kyle had sustained injuries and that they had been treated at the University of Louisville Hospital. The trial court noted that Hilton could have subpoenaed the medical records rather than waiting for the Commonwealth to obtain them and turn them over in discovery. While the trial court understood Hilton's concerns, it concluded that the existence of the records was not a surprise and that two weeks would be sufficient time to review them. Additionally, the trial court explained that the alternate trial date of August 10, 2015, might not be available as a capital murder case was scheduled to be tried on that date.

         Despite denying Hilton's motion, the trial court noted that if there was information in the records, discovered during Hilton's review that did constitute a surprise, the court would be willing to entertain a renewed motion for a continuance. Also, the trial court informed Hilton during an ex parte proceeding conducted after the hearing that funding could be obtained to hire an expert to help review the medical records. To expedite that process the trial court permitted Hilton to hire an expert immediately, rather than wait for the issuance of a written order allocating funding for this purpose.

          A week later, as part of an alternative presented in Hilton's motion for change of venue, he orally requested to continue the trial so that, a survey could be conducted to determine community opinion regarding his case. This request was denied. Additionally, three days before trial, Hilton requested that the trial court exclude the "don't call 911" statement he made to Hall or, alternatively, that the court grant him a continuance to investigate the statement and Hall. The trial court denied this final motion for a continuance.

         Under RCr 9.04 the trial court, "upon motion and sufficient cause shown by either party, may grant a postponement of the hearing or trial." The trial court is vested with broad discretion in granting or refusing a continuance. Dishman v. Commonwealth,906 S.W.2d 335, 339 (Ky. 1995) (citing Pelfrey v. Commonwealth,842 S.W.2d 524 (Ky. 1993)); see also Morris v. Slappy,461 U.S. 1, 11-12, 103 S.Ct. 1610, 1616 (1983) ("[B]road discretion must be granted trial courts on matters of continuances; only an unreasoning and arbitrary Insistence upon expeditiousness in the face of a justifiable request for ...

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