Grady v. Commonwealth Of Ky.

• Decision Date: 18 November 2010
• Docket Number: No. 2009-SC-000205-MR.,2009-SC-000205-MR.
• Citation: 325 S.W.3d 333
• Parties: Cedric GRADY, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

325 S.W.3d 333

Cedric GRADY, Appellant,

v.COMMONWEALTH of Kentucky, Appellee.

No. 2009-SC-000205-MR.

Supreme Court of Kentucky.

Nov. 18, 2010.

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Samuel N. Potter, Department of Public Advocacy, Assistant Public Advocate, Frankfort, KY, Counsel for Appellant.

Jack Conway, Attorney General of Kentucky, Christian Kenneth Ray Miller, Assistant Attorney General, Office of the Attorney General, Office of Criminal Appeals, Frankfort, KY, Counsel for Appellee.

Opinion of the Court by Justice SCOTT.

Cedric Grady, Appellant, was convicted in Jefferson Circuit Court on two counts of first-degree robbery, one count of second-degree assault, one count of theft by unlawful taking over three hundred dollars, one count of second-degree burglary, two counts of first-degree wanton endangerment, one count of first-degree fleeing or evading the police, one count of first-degree unlawful imprisonment, and found to be a first-degree persistent felony offender. He was sentenced to seventy years' imprisonment and now appeals his conviction as a matter of right. Ky. Const. § 110(2)(b). For reasons explained below we reverse his conviction and remand for a new trial.

I. Background

Around 6:00 a.m. on October 22, 2006, Paul Criswell was retrieving his car from the parking lot of the hotel where he was staying, preparing to leave Louisville, Kentucky. As he backed out of his parking spot, a man wearing panty hose over his face and brandishing a handgun approached his driver's side window. When the man demanded Criswell's money and vehicle, Criswell gave him the cash he had, but refused to turn over the vehicle, revealing to the perpetrator that he had a badge. ¹ The perpetrator then fired the handgun, but the gun seemingly malfunctioned. Criswell, being six feet, five inches in height and around three hundred pounds, attacked the would-be robber, testifying that he tackled him like an “NFL special teams player.” Understandably, fisticuffs ensued.

Criswell asserts that, during the scuffle, he was able to tear the stocking from the robber's face, and get a good look at him. Once the fight subsided, Criswell called 911, at which time he realized that he had been shot in the chest.

Detective Kenneth Brown of the Louisville Metro Police Department responded to Criswell's call. After arriving at the scene, he obtained a description from Criswell, who described his attacker as an African-American male, approximately five feet, seven inches tall and weighing approximately one hundred seventy pounds. While Criswell testified that he told Detective Brown that he could see his attacker's face and that he tore the stocking from his head, Detective Brown could not recollect Criswell's statement to that effect. Brown was unable to apprehend the described suspect.

Two days later, on October 24, around 6:00 p.m., April Stivers was sitting outside the Check-Into-Cash store, located on the same street as Criswell's hotel. Stivers, an employee at Check-Into-Cash, was taking a smoke break when she noticed a man dressed in dark clothing exit a white Chevrolet Trailblazer that had been parked near Check-Into-Cash “all day.” She testified that she specifically remembered the vehicle, finding it noticeable because it did not have a license plate. Stivers testified that the man that approached her, postured as if he was reaching for something concealed on his person, and threatened to shoot her if she said anything.

After threatening her, the man proceeded into the Check-Into-Cash store. Other witnesses testified that he entered the store masked, clothed in a hooded sweatshirt with dark pants, and that he was slumped over with a visible gun in his right hand. He pointed the weapon at the cashier, demanded money, and exited the store fleeing in the white Trailblazer. The manager then called 911.

Sergeant Steve Smith responded to the 911 call and began to search the area for the assailant. He located a white Trailblazer parked in a lot a half mile away from Check-Into-Cash. Since the vehicle matched the description, he decided to examine its license plate to see if there were any signs that it had been recently removed. Noticing smudges around the plate, Smith waited for the vehicle's driver. Thereafter, Appellant exited a nearby office and got into the suspect vehicle.

Smith called for back up and followed the Trailblazer. When Officer White arrived on the scene, he activated his lights and siren, and a high-speed car chase ensued. The driver managed to evade the police, but wrecked in a nearby parking lot, fleeing the vehicle before the officers arrived. Upon discovering the wrecked Trailblazer, the officers began to search for its occupants.

During their search, the officers spoke with several witnesses, including Carlos Sanchez, Carlos Mojika, and Randy Rapp, all tenants of the apartment complex near the wreck. While the officers were unable to communicate with Sanchez and Mojika, as the two did not speak English, they were able to communicate with Rapp. These three witnesses did not testify at trial.

Shortly after police arrived, Rapp had run out of his apartment excitedly wielding a butcher knife. After officers instructed him to drop the weapon, Rapp advised the officers that a man had come into his apartment, stated that the police were looking for him, and that he needed a place to hide. The officers then entered Rapp's apartment, but did not find the suspect. The officers then went around the building and found Appellant lying in a fetal position behind an air conditioning unit below the open rear window of Rapp's apartment. The officers then arrested Appellant.

Vickie Wheeler, the landlord of the apartments, witnessed the incident and came to speak with her tenants about the situation. Rapp told Wheeler that an African-American male had broken through the front door of his apartment in an attempt to hide from police. Rapp further told Wheeler that the man would not let him leave until Rapp threatened the intruder with a knife. Wheeler also spoke to Sanchez who informed her that someone had tried to break down his doorframe, but was unable to get inside his apartment.

Thereafter, Appellant was transported to the Louisville Metro Police Department where Detective Dwane Colebank questioned him. Colebank testified at both the suppression hearing, and at trial, that he informed Appellant of his Miranda rights and that Appellant provided an oral waiver, but refused to sign a written waiver or to allow any type of video recordation. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). He also stated that Appellant confessed to robbing the store, but denied having a handgun. Additionally, he said Appellant stated that the Trailblazer belonged to his wife, Alicia Woolridge, and that he had taken it without her permission.

Appellant denies waiving his Miranda rights, asserts that he specifically requested an attorney and that he told Colebank that he did not want to answer any questions. He also asserts that he did not confess to robbing the store and that Colebank's testimony was wholly false.

Appellant was indicted in 2007 and 2008 for fifteen counts of various crimes. A trial was held in November 2008, and Appellant was convicted and sentenced as mentioned above.

This appeal followed and Appellant now asks this Court to address the following alleged errors: (1) whether the trial court erred by not holding a Faretta hearing when Appellant invoked his right to self-representation; (2) whether the trial court erred by not granting Appellant's request for a new lawyer; (3) whether the trial court erred by not allowing Appellant to testify during a suppression hearing addressing his alleged confession and whether there was error in failing to sustain Appellant's motion to suppress; (4) whether the trial court erred in allowing Criswell to make an in-court identification during the trial; (5) whether the trial court erred by admitting the hearsay statements of Sanchez and Rapp via Wheeler and whether palpable error resulted from the admission of hearsay statements made by Sanchez and Rapp via Officers White and Miller; (6) whether the trial court erred by denying Appellant's motion for a directed verdict for insufficiency of the evidence; (7) whether the trial court erred in requiring him to wear a StunTech React Belt during the trial; and (8) whether cumulative error created a trial so fundamentally unfair as to require reversal.

II. ANALYSIS

A. Faretta

We first address Appellant's assertion that the trial court committed reversible error by not ensuring that he knowingly, intelligently, and voluntarily waived his right to counsel as required by a plethora of jurisprudence. See Iowa v. Tovar, 541 U.S. 77, 124 S.Ct. 1379, 158 L.Ed.2d 209 (2004); McKaskle v. Wiggins, 465 U.S. 168, 177 n. 8, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984); Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); Depp v. Commonwealth, 278 S.W.3d 615 (Ky.2009); Commonwealth v. Terry, 295 S.W.3d 819 (Ky.2009). In support of his position, Appellant asserts that a Faretta hearing was not conducted and that in the absence of a finding that Appellant proceeded pro se with “eyes open,” the conviction should not stand. Tovar, 541 U.S. at 88, 124 S.Ct. 1379 ( citing Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 63 S.Ct. 236, 87 L.Ed. 268 (1942)).

In response, the Commonwealth argues that Appellant is highly experienced with the criminal justice system and that his competency evaluations at the KCPC demonstrate his proficient level of knowledge with regard to the judicial processes of this Commonwealth and the federal system alike. The Commonwealth buttresses its argument by citing specific legal performances of Appellant such as filing a writ of habeas corpus, instituting a federal lawsuit against his appointed couns...