Hargroves v. Commonwealth, 012121 KYSC, 2019-SC-0181-MR

Docket Nº:2019-SC-0181-MR
Opinion Judge:NICKELL, JUSTICE
Party Name:TIMOTHY HARGROVES, JR. APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
Attorney:COUNSEL FOR APPELLANT: Brandon Neil Jewell Assistant Public Advocate COUNSEL FOR APPELLEE: Daniel J. Cameron Attorney General of Kentucky Micah Brandon Roberts Assistant Attorney General
Case Date:January 21, 2021
Court:Supreme Court of Kentucky

TIMOTHY HARGROVES, JR. APPELLANT

v.

COMMONWEALTH OF KENTUCKY APPELLEE

No. 2019-SC-0181-MR

Supreme Court of Kentucky

January 21, 2021

ON APPEAL FROM HARDIN CIRCUIT COURT HONORABLE KEN M. HOWARD, JUDGE NO. 17-CR-00982

COUNSEL FOR APPELLANT: Brandon Neil Jewell Assistant Public Advocate

COUNSEL FOR APPELLEE: Daniel J. Cameron Attorney General of Kentucky Micah Brandon Roberts Assistant Attorney General

OPINION

NICKELL, JUSTICE

Timothy Hargroves, Jr., appeals as a matter of right from a Hardin Circuit Court judgment convicting him of murder in the death of neighbor Bernard Williams; first-degree assault in the shooting of Millareisha Dixon, the mother of his two-year-old daughter, 1 with whom he argued a day earlier upon seeing her and their child with another man; and first-degree wanton endangerment of their child who was sitting beside Dixon when Hargroves shot Dixon in the chest. Jurors also found Hargroves guilty of possessing marijuana. Consistent with the jury's recommendation, he was sentenced to a combined term of forty-five years' imprisonment. On appeal, he alleges he was wrongly denied instructions on extreme emotional disturbance (EED) and voluntary intoxication; the lead detective impermissibly told jurors Hargroves was guilty and doubted he acted in self-defense; the prosecutor improperly reenacted a version of the shooting; and, while Hargroves was advised of his rights2 before being interviewed at the Radcliff Police Department, he should have received a second warning before talking to another officer while being transported to the Hardin County Detention Center. Following review of the record, briefs and law, we affirm the trial court.

FACTS

Hargroves and Dixon had a rocky relationship. Though unmarried, they had a child in common and the trio lived together in a second-floor apartment in Radcliff, Kentucky. Dixon, a former soldier, had custody of the child. In closing argument, the Commonwealth theorized the shooting resulted from Hargroves' attempt to eliminate Dixon to gain custody of their child.

On the night of November 1, 2017, Hargroves came home to find Dixon and their child in the company of a man who jumped out a window. Hargroves said he was upset-not because Dixon was with another man-but because his child was with them. That night, Hargroves and Dixon established they were not a couple, Dixon was not "his," and Dixon could do as she pleased.

The next morning, Hargroves and two friends bought a bottle of Smirnoff Vodka and began drinking. The remainder of the bottle was given to a fourth person. The amount of liquor Hargroves consumed was never quantified.

Just before 8:00 p.m., dressed in multiple layers of clothing with a full outer layer of field camouflage, and armed with a .38 special revolver containing six bullets, Hargroves went to Williams' first-floor apartment. Williams was a career Army veteran described as a "gentle giant." According to Hargroves, he and Dixon would often "chill" with Williams in his apartment- which was directly below theirs-where Williams shared his "wisdom." Williams and Dixon were not romantically involved. Also, Hargroves was not jealous of the older Williams whom he considered a "friend" and "homey."

Hargroves knocked loudly on Williams' door-loud enough to awaken an upstairs neighbor who was napping. Receiving no response, Hargroves knocked again, louder this time, again rousing the upstairs neighbor. When Williams opened his apartment door, Dixon and their child were sitting on the couch. Hargroves quickly fired six shots through the open door, striking Williams four times-once in the spine-and striking Dixon once in the chest. The child was unharmed. Hargroves fled on foot.

Radcliff Police Officer Brad Hunt arrived on scene two minutes after hearing the call of "shots fired." With his bodycam recording, he found Williams on the floor just inside the apartment door struggling to breathe; a child was sitting on the couch. Officer Hunt rendered first aid to Williams who managed to give his name and say Tim Hargroves, his upstairs neighbor, had shot him. Williams was taken to University Hospital where he was pronounced dead of multiple gunshot wounds after six minutes of treatment.

As Officer Jason Vance arrived on scene, Dixon approached him in the parking lot with a bleeding chest wound. She was transported to the hospital where she would remain five days after trauma surgeon Dr. Keith Miller inserted a chest tube. He diagnosed Dixon as having a collapsed lung, pulmonary contusion of the lung, clavicle and rib fractures, bleeding from the lung itself, and air around the heart. Dr. Miller testified blood around Dixon's heart could have been fatal without treatment.

Based on Williams' identification of Hargroves as the shooter, officers quickly focused on him. Hargroves had telephoned his father, also a friend of Williams, asking him to collect his child from Williams' apartment and care for her. Hargroves' father complied and while on scene gave officers his son's cell number. Det. Michael Berry used the number to "ping" Hargroves' phone repeatedly and relay his movement to searchers.

Following Det. Berry's coordinates, Officer Shawn Frakes heard rustling in a wooded area. He illuminated the zone with a light on his rifle, and spotted Hargroves about 750 feet behind the apartment complex. Hargroves obeyed Officer Frakes' commands and emerged from the woods where Officer Wyatt Rossell handcuffed him.

When apprehended around 11:00 p.m., Hargroves was unarmed, but possessed three baggies of marijuana, $470 in cash, and debit cards. His cellphone was found nearby. Officer Rossell noted Hargroves smelled of alcohol but followed all police commands in surrendering.

Hargroves did not assist officers in finding the revolver he normally wore in a holster concealed under his clothing. After daylight, the gun was recovered under leaf matter within 60 feet of Williams' apartment. Ballistics linked the revolver to the shooting. Hargroves was taken to the Radcliff Police Department where he submitted to a gunshot residue test which also connected him to the shooting. After receiving a Miranda warning, he agreed to talk but feigned foggy memory and revealed nothing about the shooting. When Det. Berry asked whether he shot in self-defense, Hargroves did not respond.

While he shared no details of the actual shooting, Hargroves recalled events preceding the shooting with clarity. He said he spent the day drinking with two friends, Sam and Powell; he played the video game Call of Duty; he played with Spanish kids in the neighborhood; and, he learned some Spanish from Ruth. During the interview, Hargroves reached for the holster buried under his clothing and realized it was empty.

Questioning continued until about 1:17 a.m. when Hargroves moved from the interview room to the adjacent squad room. Around 1:53 a.m., sitting on a bench, with his hands cuffed behind his back and wearing a white police-issued jumpsuit, Hargroves spontaneously said he now recalled the shooting. Officer Daniel Padilla activated his bodycam and recorded the conversation.

Hargroves asked the whereabouts of his "chain." He said upon seeing a chain (necklace) being collected from him and taken into evidence, he suddenly remembered walking inside Williams' apartment-as he had done numerous times-and Williams choking him so violently he was lifted off the ground to the point he "almost" could not breathe. Hargroves went on to say one of three chains he was wearing around his neck was broken by Williams' force, and he shot Williams because Williams choked him. When asked who he was trying to shoot-because both Williams and Dixon were struck-Hargroves said, "I think I was trying to shoot him." As he continued talking, Hargroves said, "Jesus saved her (Dixon) last night, cause I was supposed to be gone last night. I swear, I was supposed to be gone last night." Hargroves denied arguing or quarreling with Williams prior to the shooting which according to the upstairs neighbor quickly followed the second round of door knocks he had heard.

A chain with a medallion and intact clasp was collected from Hargroves' pocket and taken into evidence along with five rings and a bracelet. A second chain, with a broken clasp, was found on the ground outside Williams' apartment, eight to ten feet from the threshold.

Just after 2:00 a.m., Officer Rossell drove Hargroves approximately thirty minutes to the Hardin County Detention Center. During the drive, Hargroves again said, "I shot Mr. Bernard (Williams) because he choked me. He choked me and he grabbed me by the neck and lifted me up in the air. Hey, I'm pretty sure. I'll probably get attempted murder and have to do time for that." Hargroves also said Dixon had a controlling personality, had threatened to kill his entire family, and would not allow him to smoke marijuana or spice. Despite criticizing Dixon, Hargroves never said he shot out of revenge or anger toward her for being with another man. Instead, he attributed the shooting entirely to Williams choking him, lifting him off the ground, and breaking his chain, after which he said he was sorry and had gone "too far."

During the ride to the jail, Hargroves evinced concern that no one had looked at or photographed his neck to preserve evidence of the alleged choking because it "might help my case." Upon arrival at the jail, both Officer Rossell and a nurse inspected Hargroves' neck for injuries but found no sign of choking or other fresh injury. Additional facts will be developed as warranted.

ANALYSIS

I. Denial of Requested Jury Instructions

Hargroves claims the trial court erred in denying instructions on EED and voluntary intoxication, both of which he requested...

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