Goncalves v. Commonwealth

• Citation: 404 S.W.3d 180
• Decision Date: 29 August 2013
• Docket Number: No. 2010–SC–000142–MR.,2010–SC–000142–MR.
• Parties: Joseph S. GONCALVES, Appellant v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court (Kentucky)

404 S.W.3d 180

Joseph S. GONCALVES, Appellant

v.COMMONWEALTH of Kentucky, Appellee.

No. 2010–SC–000142–MR.

Supreme Court of Kentucky.

Feb. 21, 2013.

As Corrected March 14, 2013.

Rehearing Denied Aug. 29, 2013.

Susan Jackson Balliet, Assistant Public Advocate, Department of Public Advocacy, Frankfort, KY, for Appellant.

Joseph S. Goncalves, Jr., LaGrange, KY, Appellant.

Jack Conway, Attorney General of Kentucky, Jeanne Deborah Anderson, Assistant Attorney General, Office of the Attorney General, Office of Criminal Appeals, Frankfort, KY, Counsel for Appellee.

Opinion of the Court by Justice ABRAMSON.

Joseph Goncalves appeals as a matter of right from a Judgment of the Nelson Circuit Court convicting him of robbery in the first degree. Ky. Const. § 110(2)(b). Finding Goncalves to be a Persistent Felony Offender in the first degree (“PFO 1”) the jury enhanced his sentence from twenty to thirty-five years imprisonment, and the trial court sentenced him accordingly. Goncalves raises thirteen issues on appeal: (1) the trial court erred when it denied his suppression motion relating to evidence seized from his apartment; (2) the tendered complicity instructions violated his due process rights; (3) the Commonwealth improperly shifted the burden of proof during its closing argument; (4) the Commonwealth allowed exculpatory evidence to be destroyed in violation of Brady v. U.S.; (5) the trial court erred when it refused to allow him to examine the prosecutor regarding alleged prosecutorial misconduct; (6) the pretrial delay violated his rights to a speedy trial; (7) his constitutional rights to confrontation were violated when the trial court refused to allow him to play video-recorded testimony to the jury to impeach two witnesses; (8) as a pro se litigant, his due process rights were violated when he was granted insufficient access to legal materials; (9) his due process rights were violated when he received inadequate access to a law library; (10) the trial court erred when it denied his motion for a directed verdict based on the unreliability of the Commonwealth's witnesses; (11) his constitutional rights were violated when he failed to receive a sufficient trial record to prepare for this appeal; (12) the fifty-page limit on appellate briefs imposed by this Court violated his constitutional rights; and (13) the trial court erroneously ordered the payment of public defender fees and court costs. For the reasons set forth herein, we reverse and remand the portion of the judgment imposing the public defender fees and court costs, and affirm the Nelson Circuit Court in all other respects.

RELEVANT FACTS

On February 4, 2008, the Boston Beverage Depot in Nelson County, Kentucky, was robbed by three individuals wearing ski masks. The robbers threatened store clerk Louis Hall with a gun and forced him to open the store's safe. Hall complied and was knocked to the ground while the intruders emptied the safe. Nelson County Sheriff Office's Detective Ed Mattingly was assigned as lead investigator to the case. When Detective Mattingly arrived at the Boston Beverage Depot on the morning of the robbery, he interviewed Hall and manager Todd Buster. Buster arranged for Bardstown Alarm technician Mike Van Dyke to transfer the store's surveillance camera footage from the computer hard-drive to a CD. Mattingly, Buster, and Van Dyke viewed the footage and observed three individuals enter the store and leave with approximately $3,000 in cash from the store's safe.

The following day in neighboring Hardin County, law enforcement officers assigned to the Greater Hardin County Drug Task Force (“task force”) stopped a vehicle belonging to Gerald Jones of Leitchfield, Kentucky, on the suspicion that it was being used to transport individuals to purchase items to manufacture methamphetamine. Present in the vehicle were Jones, Brittany Bratcher, and Travis Basham. During the course of the stop, the officers learned that there was an un-served warrant for Jones's arrest for an alleged probation violation. Jones consented to a search of the vehicle, where officers discovered bottles of liquor and other items related to the Boston Beverage robbery in the trunk of the vehicle. After he was taken into custody, Jones was advised of his rights and consented to answering questions regarding the robbery. He admitted to committing the robbery with Jenny Giguere and Joseph Goncalves of Leitchfield, Kentucky. Jones stated that Goncalves provided the weapons used in the robbery, including a .22 caliber long-barreled pistol and a second handgun. The officers contacted Detective Mattingly and relayed this information. That same day, Mattingly obtained a warrant for Goncalves's arrest.

Goncalves was arrested on February 5, 2008, at his Leitchfield apartment. While executing the arrest warrant, police officers observed a .22 caliber long-barreled pistol and a marijuana pipe in plain view on the kitchen table. They also found a second individual, David Willoughby, in the apartment with Goncalves. Willoughby told the officers that earlier that day, he and Goncalves had driven around Grayson County in search of Jones, whom Goncalves suspected of stealing drugs and guns from him. Willoughby also stated that Goncalves had armed himself with a .22 caliber pistol while he searched for Jones.

The officers provided this information to task force Detective Sergeant Todd Cave, who had been in contact with Detective Mattingly throughout the investigation. Based on that information, as well as the information that the members of the task force learned from Jones, Detective Sergeant Cave prepared and executed an affidavit for a search warrant of Goncalves's residence. Once the search warrant was signed by a Grayson District Court judge, Detective Sergeant Cave and other officers searched the apartment, where they seized a .22 caliber long-barreled pistol, a marijuana pipe, nine rounds of ammunition, a set of electronic scales, two ski masks, duct tape, binoculars, a blue duffle bag containing various knives, and other items.

Goncalves was indicted by a Nelson County Grand jury, and his trial began on March 23, 2009. A mistrial was declared when the jury was unable to reach a unanimous verdict. A second trial began on July 22, 2009, and a mistrial was declared in that trial when the jury again deadlocked. His third trial began on February 8, 2010. The trial court heard testimony from Jones and Giguere, who both identified Goncalves as one of the perpetrators. Jones also testified that it was Goncalves who provided the weapons and knocked Hall to the ground. Willoughby testified that Jones admitted to committing the robbery with Giguere and Goncalves, and showed him items in the trunk of Jones's car which were taken from the store. Goncalves was ultimately convicted of first-degree robbery and PFO 1.

ANALYSIS

Before we commence with our analysis of the issues, we must first address the manner in which the appellant has referenced the record in his brief. To support many of his claims, Goncalves frequently references testimony and evidence presented in the first and second trials. Our appellate jurisdiction is limited to final orders and judgments, and therefore we decline to address any alleged errors or events arising from non-final orders from Goncalves's first or second trial. SeeKentucky Civil Rule (“CR”) 54.01; Wilson v. Russell, 162 S.W.3d 911 (Ky.2005). As stated in CR 76.12(4)(c)(v) an appellate brief must present an argument with “supportive references to the record.” References to the first and second trials in this matter fail to conform to the CR 76.12 standard, and therefore we will not address those arguments. See Beshear v. Haydon Bridge Company, Inc., 304 S.W.3d 682 (Ky.2010). See also Harris v. Commonwealth, 384 S.W.3d 117, 130 (Ky.2012) (mistrial following hung jury is a “non-event” per Yeager v. U.S., 557 U.S. 110, 129 S.Ct. 2360, 174 L.Ed.2d 78 (2009)). Unless otherwise specified, all references to a “trial” in this opinion refer to the third trial, held on February 8–12, 2010.

I. The Trial Court Properly Denied Goncalves's Motion to Suppress Evidence Seized From His Apartment.

Goncalves claims that the trial court erred when it did not suppress the evidence seized from his apartment after his arrest. Goncalves contends that there was no arrest warrant in existence at the time of his arrest, and therefore the officers were illegally present in his residence when they observed incriminating items in plain view. He also claims that the subsequent search warrant for his apartment was invalid because it was based on unreliable information.

Goncalves moved to suppress all evidence seized from his apartment on the grounds that his arrest was executed without a warrant. A suppression hearing was conducted prior to the first trial, where the trial court heard testimony from Detective Sergeant Todd Cave, Nelson County Sheriff Mike Newton, and Detective Mattingly. At the conclusion of the hearing, the trial court found that Detective Mattingly obtained a warrant for Goncalves's arrest prior to officers entering Goncalves's apartment. The trial court further concluded that the Grayson District Court judge had sufficient grounds under the “totality of the circumstances” test established in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) to believe that probable cause existed for the subsequent issuance of a search warrant for Goncalves's residence. Prior to the beginning of his third trial, Goncalves asked the court to reconsider its decision on the motion to suppress in light of new evidence obtained over the course of the two earlier trials. The trial court allowed him to provide a timeline of testimony and evidence to supplement his original motion to suppress. However, the trial court did not alter its original ruling and the evidence was admitted.

This Court reviews a trial court's decision on a motion to suppress by...