Ball v. Commonwealth
| Decision Date | 26 September 2019 |
| Docket Number | 2018-SC-000244-MR |
| Parties | ANTHONY BALL APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE |
| Court | United States State Supreme Court — District of Kentucky |
IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION.
NOT TO BE PUBLISHED
ON APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE A.C. MCKAY CHAUVIN, JUDGE
MEMORANDUM OPINION OF THE COURTA Jefferson County jury found Anthony Wade Ball guilty of one count of attempted murder, one count of first-degree robbery, and one count of possession of a handgun by a convicted felon. He was sentenced to twenty (20) years on the attempted murder charge; twenty (20) years on the first-degree robbery charge; and ten (10) years on the charge of possession of a handgun by a convicted felon. The court ordered the sentences to run consecutively, and they were enhanced under the persistent felony offender statute, Kentucky Revised Statute ("KRS") 532.080, to life imprisonment. This appeal followed asa matter of right. Having reviewed the arguments of the parties, we affirm the judgment of the Jefferson Circuit Court.
On October 30, 2015, Anthony Ball and Mack Matthews, both armed, robbed the 7th Street Food Mart in Louisville, Kentucky. During the robbery, Matthews approached the store owner at the checkout counter while Ball approached David Bryant, who was sweeping near the back of the store. Ball confronted Bryant, informed him that the store was being robbed, and pointed his gun at him. At this point, Bryant turned around. Ball then shot Bryant in the back of the neck. Soon after, Ball and Matthews ran from the store, having been unsuccessful in their attempts to get behind the bulletproof glass at the front counter. Surveillance video showed two men getting into a pickup truck and leaving the scene. After the pair left, the store owner called 911. Bryant survived, with significant injuries to his jaw.
On December 2, 2015, the Louisville Metro Police Department ("LMPD") issued a media release with a photo of the pickup truck taken from surveillance footage. After the media release, LMPD received a tip involving a stolen vehicle report for a truck matching that description. That truck belonged to Ball, who had reported it stolen. LMPD then began surveillance, which lead to the arrest of Ball and Matthews on December 15, 2015. That same day, Ball was interviewed by LMPD detectives after signing a waiver of his rights.
Ultimately, both Ball and Matthews were indicted for attempted murder and first-degree robbery. Ball was also indicted for possession of a handgun by a convicted felon. After a joint trial, the jury found Matthews guilty of first-degree robbery and not guilty of attempted murder. The jury found Ball guilty on all counts, and, as a persistent felony offender, his sentence was enhanced to life imprisonment. This appeal followed.
Ball argues that the trial court erred when it (1) denied his motion to suppress his statements to police officers; (2) denied his motion for new counsel; (3) denied his motion to sever the attempted murder charge from the remaining charges; (4) allowed both Ball and Matthews to be tried in the same trial; (5) denied Ball's motion for recusal of the trial court judge; and (6) failed to give a renunciation instruction to the jury. We address each of these arguments in turn.
When reviewing the denial of a motion to suppress, "we defer to the trial court's factual findings if they are supported by substantial evidence and only review such findings for clear error." Bond v. Commonwealth, 453 S.W.3d 729, 732 (Ky. 2015) (citing Rule of Criminal Procedure ("RCr") 9.781; Commonwealth v. Neal, 84 S.W.3d 920, 923 (Ky. App. 2002)). For example, "[w]hen the trial court is faced with conflicting testimony regarding the voluntariness of a confession, its determination, including its evaluation of credibility, ifsupported by substantial evidence, is conclusive." Henson v. Commonwealth, 20 S.W.3d 466, 469 (Ky. 1999). We then review the trial court's application of the law to the facts de novo. Id. (citing Roberson v. Commonwealth, 185 S.W.3d 634, 637 (Ky. 2006)).
Specifically, in this case, we must determine whether Ball made a knowing, intelligent, and voluntary waiver of his constitutional rights, or whether, as he argues, his confession resulted from coercive police activity. In determining whether a confession was coerced, the reviewing court must consider "(1) whether the police activity was 'objectively coercive'; (2) whether the coercion overbore the will of the defendant; and (3) whether the defendant showed that the coercive police activity was the 'crucial motivating factor' behind the defendant's confession." Bailey v. Commonwealth, 194 S.W.3d 296, 300 (Ky. 2006) (quoting Henson v. Commonwealth, 20 S.W.3d 466, 469 (Ky. 1999)). The Court must consider "the totality of the circumstances surrounding the making of the confession" when evaluating these factors. Id. (quoting Mills v. Commonwealth, 996 S.W.2d 473, 481 (Ky. 1999), overruled on other grounds by Padgett v. Commonwealth, 312 S.W.3d 336 (Ky. 2010)).
In the present case, Ball, through counsel, filed a motion to suppress the statements he made to police after his arrest on December 15, 2015. In the motion, Ball alleged that his Miranda2 waiver and the confession that followed were made under duress and as a result of coercion from law enforcementofficers. More specifically, Ball alleged that the officers "primed" him prior to his interrogation and impliedly threatened harm to Ball and his family.
The trial court denied Ball's motion. The court found Ball's testimony3 "to be self-serving and wholly unsupported by the evidence." It also found "Ball's testimony as to the facts to be the product of contrivance, dishonesty, and objectively unreasonable misapprehension all in a misinformed and misguided effort to create issues of law which could lead to the suppression of his statement." Simply put, the trial court found Ball's testimony to be incredible. It also found that "[t]he tone, tenor, and content of his extended and extensive statement to the police belie[d] his assertion of coercion." Furthermore, the court found no connection between the officer's alleged threat and the statements made by Ball. Accordingly, the trial court denied the motion to suppress, holding that the police conduct was lawful and not coercive and that Ball's statements were therefore voluntary.
On appeal, Ball first points out that he was not immediately Mirandized upon arrest. However, the law does not require that a suspect be Mirandized prior to or immediately after arrest; it only requires that the suspect be Mirandized prior to a custodial interrogation. At Ball's suppression hearing, hetestified that he was Mirandized before being transported to LMPD4 and was re-read those rights after he arrived at LMPD. He does not argue to this Court that a custodial interrogation took place prior to either Miranda warning being given. Furthermore, the Commonwealth did not seek to introduce at trial any statements made prior to the formal interrogation at LMPD. Nevertheless, Ball argues that, prior to being formally interrogated at the police department, the detectives "primed" him for interrogation by threatening the safety of his parents.
Ball discussed this allegedly coercive conversation at his suppression hearing. He testified that Detective Smith Mirandized him at some point after his arrest but prior to being transported to LMPD offices. According to Ball's testimony, he verbally acknowledged his Miranda rights and said that he wanted a lawyer and wished to remain silent, at which point Detective Smith stated his belief that Ball had hidden evidence at his parents' home in Palmyra, Indiana and SWAT might have to execute a search warrant there.5 Ball testified that Detective Smith told him that the SWAT team responsible for executing that warrant would be "going in blind" and did not know how many guns or people were on the property, so "if anything bad happened," it would be Ball's fault. He also testified that Detective Smith asked Ball if his father owned any weapons. According to Ball, he responded that his dad had twoguns, probably for hunting varmints, and Detective Smith asked whether there would be a shootout with Ball's father. Ball claimed that he took these statements as a threat and felt compelled to sign a written waiver of his rights once he arrived at LMPD.
Detective Smith, on the other hand, testified that he could not recall the exact conversation that took place at the arrest site, but he believed it would typically consist of small talk, "general conversation," or answering Ball's questions. During the interrogation, he also referred to a pre-interrogation "general conversation" and specifically mentioned talking to Ball about finding his dog, which ran off when the police arrived. Ball disputes this by pointing to a single line from the audio recording of his interrogation, in which a detective commented that they were discussing confessions prior to the interrogation. The detective stated, "I told you before we sat down, when we sat down here, we told you and you asked and we were talking about confessions, right,...
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