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Matthews v. Commonwealth

Court of Appeals of Kentucky

August 23, 2019

MACK MATTHEWS APPELLANT
v.
COMMONWEALTH OF KENTUCKY APPELLEE

          APPEAL FROM JEFFERSON CIRCUIT COURT HONORABLE A.C. MCKAY CHAUVIN, JUDGE ACTION NO. 15-CR-003365

          BRIEFS FOR APPELLANT: Yvette DeLaGuardia Louisville, Kentucky

          BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Leilani K. M. Martin Assistant Attorney General Frankfort, Kentucky

          BEFORE: KRAMER, NICKELL AND L. THOMPSON, JUDGES.

          OPINION

          NICKELL, JUDGE

         Mack Matthews challenges a complicity to first-degree robbery[1] conviction for which the Jefferson Circuit Court imposed the jury's recommended sentence of twelve years. Matthews claims the trial court twice abused its discretion. First by denying his pretrial request to be tried separately from co-defendant Anthony Ball[2] and then by denying a requested mistrial after Ball suggested police violated the law prompting another jury admonition from the bench. Having reviewed the record, briefs and law, we affirm.

         FACTS

         Matthews and Ball[3] were jointly indicted on charges of complicity to commit both first-degree robbery and attempted murder.[4] In statements given to police on arrest, both men confessed to holding up the Seventh Street Food Mart in Louisville, Kentucky. Each man implicated himself and his co-defendant. In a nearly seven-hour police interview Ball admitted being the triggerman and shooting store employee David Bryant in the neck to "eliminate the threat." Matthews' own words, along with in-store video and footage from neighborhood cameras, placed Matthews inside the store as an active armed participant.

         Ball filed several pro se motions, including one asking to serve as hybrid counsel[5] while being represented by appointed counsel. When the motion was heard, the trial court spoke candidly to Ball telling him acting as hybrid counsel is "rarely" a good idea and his attorney was in the best position to evaluate his options and potential outcomes. The court told Ball his motions were "nonsense" and "borderline frivolous," his theories were "wrong," there was no reason for him to be dissatisfied with counsel, and while Ball's concerns were "perfectly legitimate" they were not "based in fact." Finding Ball's request to be knowingly, voluntarily and intelligently made, the court granted the motion allowing Ball to serve as hybrid counsel and set ground rules for the representation to which Ball responded, "I'm definitely gonna try not to be difficult." At trial, Ball personally cross-examined most Commonwealth witnesses and gave his own closing argument.

         During multiple pretrial conferences Ball never misbehaved. He did not use foul language or exhibit bad conduct. Being unfamiliar with court rules and practices he carefully observed the attorneys in the room. He modeled their actions but did not always grasp the nuances of their actions.

         Both defendants moved pretrial for separate trials arguing the co-defendant's statement-both of which the Commonwealth planned to offer into evidence-could not be sufficiently redacted. Each man argued if the co-defendant did not testify he would be denied his Sixth Amendment right to confront his accuser. Matthews renewed his motion to sever trial during multiple pretrial conferences and throughout the four-day trial. Matthews also moved to exclude his own redacted statement as well as that of Ball. Each motion was denied. Following redaction of each man's statement, the two were tried together.

         A jury acquitted Matthews of complicity to commit attempted murder and first-degree assault but convicted him of being complicit in the first-degree robbery. The jury recommended Matthews serve the near-minimum penalty of twelve years which the court imposed.

         In contrast, Ball was convicted of three substantive counts and being a first-degree persistent felony offender (PFO I). He received twenty years for first-degree robbery enhanced to fifty years; twenty years for attempted first-degree murder enhanced to life; and, ten years for being a convicted felon in possession of a handgun enhanced to twenty years. Enhancement resulted from Ball's PFO I status. All terms were run consecutively for a total of life plus seventy years.

         Matthews offered no proof at trial; Ball offered a single witness. Matthews moved for a directed verdict at the close of the Commonwealth's proof and renewed the motion at the close of all proof. Matthews sought a mistrial based on trial court admonitions counsel alleges "bolster[ed] the testimony of [police] officers."

         Prior to sentencing, Matthews timely moved for acquittal or a new trial. Neither was granted. We consider whether the trial court abused its discretion by denying Matthews' requests for a separate trial and a mistrial.

         ANALYSIS

         Matthews' first claim of error combines two arguments, only one of which is preserved. Pretrial and throughout trial he argued he should be tried separately from Ball. That claim is properly before us.

         As part of this same error, he claims reversal is mandated by Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968) (introduction of non-testifying co-defendant's statement at joint trial denies defendant right of confrontation). While Ball cross-examined Detective Chris Middleton, Ball read aloud a line from his own police interview which had been redacted. While no contemporaneous objection was made at trial, Matthews requested palpable error review in his reply brief which is sufficient to trigger our consideration. Commonwealth v. Jones, 283 S.W.3d 665, 670 (Ky. 2009).

         In advance of trial, Matthews repeatedly sought to be tried alone. However, "[a] criminal defendant is not entitled to severance unless there is a positive showing prior to trial that joinder would be unduly prejudicial." Humphrey v. Commonwealth, 836 S.W.2d 865, 868 (Ky. 1992) (citing RCr[6] 9.16;[7]Commonwealth v. Rogers, 698 S.W.2d 839 (Ky. 1985)). A trial judge has considerable discretion in weighing a motion to sever. Wilson v. Commonwealth, 695 S.W.2d 854 (Ky. 1985); Rachel v. Commonwealth, 523 S.W.2d 395 (Ky. 1975). We will reverse only if we find an abuse of discretion. Ratliff v. Commonwealth, 194 S.W.3d 258, 264 (Ky. 2006). The test is "whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999) (citing 5 Am.Jur.2d Appellate Review § 695 (1995); cf. Kuprion v. Fitzgerald, 888 S.W.2d 679, 684 (Ky. 1994)).

         RCr 6.20 allows joinder of two or more defendants for trial when each is "alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses." Matthews and Ball were both accused of complicity to commit first-degree robbery and attempted murder at the Seventh Street Food Mart. Ratliff, 194 S.W.3d at 264, holds a joint trial is appropriate when co-defendants are alleged to have been involved in the same illegal activity. Joinder was appropriate under RCr 6.20, but that rule does not operate in a vacuum.

         RCr 6.20 must be read in tandem with RCr 8.31 which requires separate trials when "it appears that a defendant or the Commonwealth is or will be prejudiced" by joinder. A defendant seeking severance must demonstrate "joinder would be so prejudicial as to be unfair or unnecessarily or unreasonably hurtful." Elam v. Commonwealth, 500 S.W.3d 818, 822 (Ky. 2016) (citing Ratliff, 194 S.W.3d at 264)).

         Matthews' and Ball's role in the hold-up was captured on both in-store and neighborhood video. Both men confessed their involvement to police- each implicating himself and his co-defendant. Their participation was beyond doubt.

         Citing Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), and Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006), Matthews argued Ball's statement could not be adequately redacted to eliminate prejudice to Matthews and if Ball did not testify, Matthews could not cross-examine his accuser. As an alternative to separate trials, Matthews asked for exclusion of Ball's statement. The Commonwealth opposed severance and exclusion, arguing references to Matthews could be adequately removed from Ball's statement and vice versa. Once redaction was completed in open court, the motion to sever was denied.

         Other than unsatisfactory redaction of Ball's statement-and the potential denial of cross-examination-Matthews offered no support for his pretrial motion to sever. Because the statements of both men were redacted, and the morning the jury was selected Ball floated the idea of testifying in a limited capacity, Matthews did not satisfy Elam, 500 S.W.3d at 822. Separate trials were not mandated.

         On appeal, Matthews argues Ball's pretrial behavior put the court on notice his service as hybrid counsel would be problematic. We disagree.

         First, Ball asked to serve as hybrid counsel. That was an option he voluntarily, intelligently and knowingly chose to exercise and the trial court granted. Nunn ...


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