FROM JEFFERSON CIRCUIT COURT HONORABLE A.C. MCKAY CHAUVIN,
JUDGE ACTION NO. 15-CR-003365
FOR APPELLANT: Yvette DeLaGuardia Louisville, Kentucky
FOR APPELLEE: Andy Beshear Attorney General of Kentucky
Leilani K. M. Martin Assistant Attorney General Frankfort,
BEFORE: KRAMER, NICKELL AND L. THOMPSON, JUDGES.
Matthews challenges a complicity to first-degree
robbery 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 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.
and Ball were jointly indicted on charges of
complicity to commit both first-degree robbery and attempted
murder. 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.
filed several pro se motions, including one asking
to serve as hybrid counsel 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.
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.
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
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
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
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."
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.
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.
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).
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 9.16;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)).
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
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)).
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.
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.
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.
appeal, Matthews argues Ball's pretrial behavior put the
court on notice his service as hybrid counsel would be
problematic. We disagree.
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 ...