Brucker v. Commonwealth
| Decision Date | 25 September 2020 |
| Docket Number | NO. 2019-CA-0864-MR,NO. 2019-CA-1403-MR,2019-CA-0864-MR,2019-CA-1403-MR |
| Parties | DALE BRUCKER APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE |
| Court | Kentucky Court of Appeals |
NOT TO BE PUBLISHED
APPEAL FROM TAYLOR CIRCUIT COURT
On January 23, 2013, Brucker was indicted on charges of murder and being a persistent felony offender in the first degree. Pursuant to an agreementwith the Commonwealth, he entered an Alford1 plea of guilty to amended charges of manslaughter in the second degree and being a persistent felony offender in the second degree. On July 24, 2018, the trial court imposed an alternative sentence of twelve years, probated for five years, with the requirement that he serve seven months and twenty-one days in jail prior to being released on probation. He was remanded into custody immediately following the sentencing hearing and was incarcerated at the Taylor County Detention Center. A written judgment reflecting the sentence imposed by the trial court was entered on August 31, 2018.
On July 31, 2018, seven days after the entry of his guilty plea, Brucker was involved in a riot at the detention center. He was convicted by a jury of inciting a riot, complicity to commit first-degree criminal mischief (wanton), and being a persistent felony offender in the second degree. A final judgment and sentence was entered on May 7, 2019. He received a sentence of five years to be run consecutively with the earlier sentence in the manslaughter case.
The Commonwealth had previously moved to revoke Brucker's probation in the manslaughter case on the grounds he had been charged with a new felony offense in the riot case. Brucker argued he did not have adequate noticethat the commission of a new felony would be a violation of the conditions of his probation and the new charge could not serve as the basis for a revocation of probation. Following a hearing, the trial court entered an order on August 16, 2019, revoking probation in the manslaughter case, citing Brucker's conviction for the offenses connected with the prison riot as the grounds.
Brucker brings these appeals from the final judgment entered following his jury trial and from the order revoking his probation. Additional facts will be set forth below as necessary.
At the time Brucker was sent to the Taylor County Detention Center to serve his alternative sentence in the manslaughter case, the center had recently implemented new safety measures intended to reduce assaults and drug trafficking among the inmates. These measures included leaving the lights on permanently in the cells, rather than switching them off at night, and applying tint to the cell windows, which allowed the guards to see into the cells but prevented the inmates from looking out.
The detention center is laid out with aisles branching from a central command post where the guards monitor the surveillance cameras in the cells. Brucker was housed in a cell which had beds for 28 inmates but on the day of the riot housed 35 inmates. According to the testimony of Derek Taylor, one ofBrucker's cellmates, the lights being left on 24 hours per day interfered with the inmates' ability to monitor the passage of time and keep to a routine. On the night before the riot, a guard came through the cell at around 10:00 p.m. and switched off the lights at the request of the inmates. The next evening, however, the lights were not switched off. Taylor said the inmates could not sleep and were feeling rowdy in the overcrowded cell. Brucker used his blanket to make a curtain around his bunk, but the cell remained noisy because the lights were on. Brucker woke up at about 12:30 a.m. and asked why the lights were still on. He became agitated and upset because he could not sleep.
Captain Adam Burress testified that the surveillance video of the cell showed the inmates were either sleeping or socializing peacefully in the time leading up to the riot. The video showed Brucker get out of bed at 12:30 a.m. and rouse the others by pacing and ranting. Brucker used a broom and his shirt to flag the surveillance camera to get the attention of the guard in the control room to turn off the lights. He shouted and cursed at the guards to turn off the lights. The guard responded over the loudspeaker but could not be heard over the noise in the cell. According to Deputy Matthew Freer, who was in the control room, Brucker was the main person deputies were communicating with when the riot started. Deputy Ashley Dobson testified that she was in the control room and saw Brucker wave the broom at the camera and demand that the lights be turned off. She heardBrucker say: "If the lights don't go off, there's going to be hell to pay." Deputy Tyler Harrod testified that only after Brucker waved the broom at the camera a second time did the other inmates become irate and aggressive. Sergeant James Gaddis testified that he watched Brucker pacing the cell and getting all the other inmates "stirred up."
Brucker joined a group of inmates trying to cover the surveillance cameras using wet toilet paper. According to Brucker, he thought the other inmates were trying to get the officers to respond as no one had come to the cell when they used the broom. The wet toilet paper fell off the camera at first, but the men eventually succeeded in covering the camera. The inmates, including Brucker, began beating on the tables and windows. According to Brucker, he felt the situation had gone too far when an inmate cracked a window using a sock full of dominoes. He and Derek Taylor testified that they sat on a bunk together and did not participate in any of the subsequent damage or destruction of property. Brucker also denied encouraging anyone else to do so.
The inmates pulled up a bunk bed that was bolted to the floor and rammed the cell door with it, breaking the doorframe. The Jailer, Jack Marcum, was notified and arrived at the detention center with officers from the sheriff's office and the state police. They tried to use pepper spray through the opening in the cell door but the bunk bed blocked it. Eventually about 25 officers entered thecell and handcuffed the inmates, who were subsequently transferred to other facilities.
The cell was badly damaged. All the windows were shattered, the microwave and television were destroyed, sheets and books were torn apart, and the door to the cell was nonoperational with the door frame pushed out and the concrete surrounding the door cracked. Part of the floor was missing where the bunk bed had been pulled loose from where it was bolted.
Brucker was ultimately convicted by a jury of one count of inciting a riot and one count of complicity to commit criminal mischief, under a wanton theory. He was acquitted of charges of attempted escape and tampering with physical evidence.
Brucker argues he was entitled to a directed verdict on the charge of inciting a riot because the Commonwealth failed to prove every element of the offense beyond a reasonable doubt. "On appellate review, the test of a directed verdict is, if under the evidence as a whole, it would be clearly unreasonable for a jury to find guilt, only then the defendant is entitled to a directed verdict of acquittal." Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991).
The pertinent statute provides that "[a] person is guilty of inciting to riot when he incites or urges five (5) or more persons to create or engage in a riot." Kentucky Revised Statutes (KRS) 525.040(1). "Riot" is defined as "a publicdisturbance involving an assemblage of five (5) or more persons which by tumultuous and violent conduct creates grave danger of damage or injury to property or persons or substantially obstructs law enforcement or other government function." KRS 525.010(5). The Commentary to KRS 525.040 states that "[t]he intent of the provision is to protect freedom of speech on the one hand and the public's right to peace and tranquility on the other." In the context of a prison setting, an inmate's freedom of speech rights must be balanced against "legitimate penological interests." Turner v. Safley, 482 U.S. 78, 89, 107 S. Ct. 2254, 2261, 96 L. Ed. 2d 64 (1987).
Brucker acknowledges that he yelled at the guards to turn off the lights, that he used curse words, and banged on the tables and windows. He also admits he waved a broom at the surveillance camera but points out that the Commonwealth acknowledged this was a common practice for getting the guards' attention. He questions the credibility of Deputy Dobson's testimony that he said there would be hell to pay if the lights were not turned off because she failed to include this crucial statement in her report of the riot. He contends that the mere fact the other...
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