Davis v. Commonwealth
| Decision Date | 20 November 2015 |
| Docket Number | NO. 2013-CA-000918-MR,2013-CA-000918-MR |
| Parties | TERRANCE K. DAVIS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE |
| Court | Kentucky Court of Appeals |
NOT TO BE PUBLISHED
APPEAL FROM CAMPBELL CIRCUIT COURT
Davis's conviction stems from his role in a May 2010 armed robbery in Newport, Kentucky. Davis's victims, three roommates from Cincinnati, left a restaurant at Newport on the Levee around 1:00 a.m. As the roommates approached their truck parked in the lot at the restaurant, one of them noticed three people sitting in a nearby purple car. When the roommates got in their truck to leave, two men exited the purple car and approached them. One man stood on each side of the truck. The man who stood on the driver's side brandished a pistol and demanded the roommates surrender their cell phones and wallets. The roommates complied, and the men fled in the purple car.
One of the roommates managed to conceal his cell phone. As the robbers drove away, the roommate called 911 and provided dispatchers with the make, model, and license plate number of the purple car.
Shortly after receiving the 911 call, police stopped a purple car matching the roommates' description in Cincinnati. Consistent with the roommates' report of the crime, the purple car contained three people - Davis, who was the driver, and two passengers. A search of the vehicle revealed handguns in the glove compartment. When police brought the roommates across the Ohio River to the car they had stopped, all three roommates recognized and identified Davis as the man who brandished the firearm and who demanded their belongings.
Davis was arrested in Cincinnati and incarcerated at Southeastern Correctional Institution in Lancaster, Ohio. On July 22, 2010, a Campbell County,Kentucky, grand jury indicted Davis on charges of First-Degree Robbery. Kentucky prosecutors lodged a detainer1 with Ohio authorities on July 29, 2010.
Davis was presented with a packet of forms designed to assure compliance with the Interstate Agreement on Detainers (IAD) to which both Kentucky and Ohio are parties. Form I notified him of charges pending in Kentucky. Form II, once completed by Davis and delivered to the proper authorities, would serve as his request to dispose of the Kentucky indictment. Form III was to be completed by the warden to certify Davis's inmate status.
Although Davis signed and delivered these forms to Ohio correctional officers on October 6, 2010, he never authorized prison officials to deduct the sum from his prison account necessary to pay the statutorily required postage for certified mail, return-receipt requested, to transmit the forms to the proper Kentucky authorities. KRS2 440.450 Art. III (2). Consequently, these forms were never mailed and were never received by the prosecutor or the court.
Eventually, Davis served his time in Ohio. In May 2012, he was brought to Campbell County where his prosecution proceeded. Prior to trial, Davis moved to dismiss his charges, citing a violation of the IAD. The Campbell Circuit Court denied his motion, and Davis faced a jury trial on February 18, 2013.
During trial, Davis moved for a mistrial. As grounds, Davis pointed to the testimony of Officer Scott Mittermeier. Officer Mittermeier testified that Davis admitted to possessing the guns found in the car. This statement was provided to defense counsel prior to trial. However, Officer Mittermeier also testified that Davis confessed to being the only one of the three alleged robbers ever to have touched the guns. This statement was not provided to the defense before trial. After hearing argument, the circuit court denied Davis's motion for a mistrial. Instead, the court admonished the jury to disregard all testimony as to Davis's second statement that no one else touched the guns.
At the close of proof, Davis requested a jury instruction for the lesser-included offense of criminal facilitation to commit robbery. The circuit court evaluated the evidence, determined a lesser-included instruction was not warranted, and declined to instruct the jury on the lesser-included offense.
The jury convicted Davis of First-Degree Robbery and he was sentenced to imprisonment for ten years. At sentencing, the circuit court ordered Davis to pay a fee of $125 to partially defray the cost of his public defender.
Davis now appeals.
Davis presents several arguments on appeal. First, he argues that the circuit court should have dismissed the case because of the government's violation of the IAD. Second, Davis claims a Brady3 violation should have required the court todeclare a mistrial. Third, he argues that the trial court erred by failing to instruct the jury on the lesser-included offense of criminal facilitation. Fourth, Davis urges reversal of the trial court's order that he pay any fee to compensate counsel appointed to defend him. Of these four arguments, we find merit only in the last. We will address each in the order Davis presents them and will state the standard of review in the context of each analysis.
Dismissal of the indictment for noncompliance with the IAD is unwarranted
Claims of noncompliance with the IAD are reviewed by construing its language as codified at KRS 440.450. Such construction presents a legal question subject to de novo review, and we need not defer to the circuit court. Ragland v. DiGiuro, 352 S.W.3d 908, 912 (Ky. App. 2010).
More significantly, especially in understanding Kentucky's jurisprudence in this area of the law, the IAD is a federal law subject to federal construction with the United States Supreme Court having the final word. Cuyler v. Adams, 449 U.S. 433, 442, 101 S.Ct. 703, 708-09, 66 L.Ed.2d 641 (1981); Bryant v. Commonwealth, 199 S.W.3d 169, 173 n.2 (Ky. 2006). Furthermore, "[i]t is beyond cavil that '[w]hen [the United States Supreme Court] applies a rule of federal law to the parties before it, that rule is the controlling interpretation of federal law[,]' [and a]s the issues presented on appeal involve the interpretation of the IAD, which is a matter of federal law, we are bound under the pre-emption doctrine (United States Constitution Article VI) to follow the rule set forth in Fex[v. Michigan, 507 U.S. 43, 113 S.Ct. 1035, 122 L.Ed.2d 406 (1993)]." Wright v. Commonwealth, 953 S.W.2d 611, 615 (Ky. App. 1997).
By this standard, and contrary to Davis's assertion, neither federal law nor Kentucky precedent required the circuit court to dismiss his charges based on his claim of his substantial compliance with the IAD.
The IAD is a compact entered into by forty-eight states, including Kentucky and Ohio, the United States and the District of Columbia to establish procedures for resolution of one jurisdiction's outstanding charges against a prisoner of another. See New York v. Hill, 528 U.S. 110, 111, 120 S.Ct. 659, 662, 145 L.Ed.2d 560 (2000). The provision of the IAD at issue here is the section requiring that Davis:
be brought to trial within one hundred eighty (180) days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer's jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment . . . .
KRS 440.450 Art. III (1). If the requirements of this paragraph are not satisfied, "the appropriate court of the jurisdiction where the indictment . . . has been pending shall enter an order dismissing the same with prejudice, and any detainer based thereon shall cease to be of any force or effect." KRS 440.450 Art. V (3).
Before proceeding with analysis of Davis's arguments, however, we wish to reiterate one crucial fact - neither the appropriate Kentucky prosecuting officialnor the appropriate Kentucky court ever received Forms I, II, or III as required by the IAD.
Notwithstanding this fact, Davis presents several ways to view his case so as to conclude that Article III (1) of the IAD was violated by the government and, therefore, that his indictment should have been dismissed with prejudice. We consider each of them below, but find merit in none.
Davis's first argument is straightforward. He says that when he placed his request for disposition of his Kentucky indictment in the hands of Ohio correctional authorities on October 6, 2010, he "caused to be delivered [his] written notice" that started the 180-day limitations period. He was not brought to trial within 180 days of that date. Therefore, he argues that the IAD compels that the Kentucky indictment against him "shall not be of any further force or effect, and the court shall enter an order dismissing the same with prejudice." KRS 440.450 Art. III (4). We disagree.
While Davis acknowledges that federal law controls here, he never cites the controlling federal precedent - Fex v. Michigan. In Fex, the Supreme Court of the United States focused very narrowly on this very question. The Court's sole task was determining:
the meaning of the phrase, in Article III(a) [KRS 440.450 Art. III (1)], "within one hundred and eighty days after he shall have caused to be delivered." The issue, specifically, is whether, within the factual context before us, that phrase refers to (1) the time at which petitioner transmitted his notice and request . . . to the . . . correctional authorities [in the state holding the prisoner];or rather (2) the time at which the . . . prosecutor and court [in the state seeking to prosecute the prisoner]...
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