Shields v. Commonwealth
| Decision Date | 24 February 2022 |
| Docket Number | 2020-SC-0060-MR |
| Citation | 647 S.W.3d 144 |
| Parties | Gregory SHIELDS, Sr., Appellant v. COMMONWEALTH of Kentucky, Appellee |
| Court | Supreme Court of Kentucky |
COUNSEL FOR APPELLANT: Aaron Reed Baker, Assistant Public Advocate.
COUNSEL FOR APPELLEE: Daniel J. Cameron, Attorney General of Kentucky, Laurel Rachel Lewis, Assistant Attorney General.
The sole question presented on this appeal is whether testimony taken at a preliminary hearing may be used as evidence at trial when the witness is unavailable due to her death. We conclude that the trial court did not abuse its discretion by denying Appellant Gregory Shields, Sr.’s motion to exclude the deceased eyewitness's preliminary hearing testimony. Under the facts of this case, Shields's Sixth Amendment right to confront the witness was not violated because he had an adequate opportunity to cross-examine the witness at the hearing and in fact did so, asking several questions without any limitation by the presiding judge.
Shields lived with and cared for his uncle and aunt, Samuel and Maude Murrell. In early February 2017, the Bowling Green Police Department responded to Shields's call that his uncle had been murdered. Upon their arrival, officers observed that Samuel had cuts to his chest, neck, arms and wrist. Shields gave inconsistent stories of what had occurred. Mrs. Murrell initially gave police an account involving an intruder, but then informed the police that Shields was responsible for Samuel's death. Shields was arrested and charged with murder and tampering with physical evidence. The arrest citation states in part:
Dispatch received a 911 call from Gregory Shields stating there had been a murder at 1313 S. Lee Drive. Officers responded to the scene and located the victim, Samuel Murrell, deceased on the floor of his bedroom. Samuel's wife, Maude Murrell, was also present in the house. Maude first advised detectives an unknown person came in and assaulted her husband. She later stated Shields came into their bedroom and pulled the blanket off of her and her husband. She advised Shields started yelling and cussing at Samuel, then struck him twice in the head and neck area with his fist. She stated Shields then left the room, and returned with a knife. She advised he started "slashing" at Samuel, cutting Samuel in several areas. The location of the knife is currently unknown.
Shields was arraigned in district court the next day and appointed an attorney. At the preliminary hearing held a week later, both eighty-two-year old Mrs. Murrell and Detective Wartak testified. Mrs. Murrell described an infuriated Shields coming into the bedroom, pulling the covers off the bed, and yelling and complaining about the car he had bought from Samuel. Shields left the room, and returned with knives, one brown-handled and another black-handled. Shields cursed at Samuel, called him names and accused Samuel of killing Shields's mother (Samuel's sister) who had died long ago, and criticized Shields's maternal grandmother (Samuel's mother) for treating Shields's mother poorly. Shields first cut Samuel on the arm, and when Samuel and Mrs. Murrell told him to stop, Shields repeated, "I don't care." Shields next cut Samuel on his wrist, and then his chest. At one point, Mrs. Murrell told Shields she was going to call 911, but did not when Shields threatened to slit Samuel's throat if she made the call. He put the knife up against Samuel's throat to support his threat.
At that point, Mrs. Murrell went to the garage to smoke and Shields subsequently came out to smoke. As she reentered the house, Samuel was calling for her, wanting the bloody bed sheets changed. With Shields's assistance, Samuel stood up using his walker, but fell shortly afterward, landing facedown and hitting his head. Shields helped Samuel off the floor, but as Samuel moved his walker to exit the room, he fell backwards onto the floor. Shields bandaged the knife wounds and also checked Samuel's pulse multiple times, stating initially that Samuel had a strong pulse. Within a few minutes, however, Shields announced that Samuel "was gone" and told Mrs. Murrell to call 911, but she insisted Shields make the call. Mrs. Murrell testified that at Shields's request, she did not tell the police the truth, but told a story about an unknown person attacking Samuel, Shields then apprehending the intruder, followed by the intruder escaping. Upon further questioning by the police at the scene, Mrs. Murrell told them that it was in fact Shields who had hurt Samuel. The knives Shields used were later found by family members helping Mrs. Murrell replace the stained mattress and do the laundry. The knives were turned over to the police.
At the preliminary hearing Detective Wartak testified that although Mrs. Murrell initially told the story about the intruder, she followed that with a statement which mirrored her preliminary hearing testimony. Detective Wartak also explained that although the police went through piles of clothing within the home and garage, they did not find the knives during their search.
Defense counsel questioned Mrs. Murrell about the length of time she had known Shields, how long he had lived with them, and if the behavior she described was out of character for Shields. Mrs. Murrell stated that Shields did whatever she and Samuel needed and explained that he cooked, cleaned, washed clothes, took them to appointments and the grocery store, and paid the bills. Mrs. Murrell agreed that Shields's behavior was out of character, that Shields was mad and although he never said why, she assumed that it was because of car problems, given that was what he was talking about immediately before the incident. Defense counsel elicited from Detective Wartak that Shields told Officer Purvis, who recorded Shields's witness account, that "You're confusing me."
Based upon the testimony, the district court found probable cause and referred the case to the grand jury. Shields was indicted for murder, tampering with physical evidence, and being a persistent felony offender (PFO).1
Mrs. Murrell died in June 2018, sixteen months after the preliminary hearing. In anticipation that the Commonwealth would seek to use Mrs. Murrell's preliminary hearing testimony at trial, defense counsel moved to exclude her recorded testimony. Because no dispute existed as to Mrs. Murrell's unavailability, Shields's only issue was whether he had an adequate prior opportunity to cross-examine her as a witness. Shields argued that a preliminary hearing does not provide an adequate opportunity, or as he states—a "meaningful opportunity"—for a defendant to cross-examine a witness for trial purposes and admitting the testimony into evidence at trial would therefore violate Shields's right to confrontation.
At the hearing on Shields's motion, defense counsel offered multiple reasons why she did not have a meaningful opportunity to cross-examine Mrs. Murrell for trial purposes. She pointed out the purpose of a preliminary hearing is to determine probable cause and not the cross-examination of witnesses in place of that expected, by right and usual circumstances, to occur at trial. Defense counsel noted the local practice or usual expectations for a probable cause hearing, explaining that she could not recall a witness other than a law enforcement officer testifying at a preliminary hearing during her eight years of practice. Defense counsel further explained that with the questioning of preliminary hearing witnesses usually limited in scope, with no pre-hearing notice that Mrs. Murrell would be called as a witness in addition to the usual law enforcement witness(es), with only the arrest citation being provided in discovery at that time and with her own investigation limited to the week before the preliminary hearing, she was not prepared for questioning in the manner she would be for a murder trial. She noted that rather than having questions for a thorough cross-examination of the only witness to the alleged attack, she asked questions prepared during the hearing, and did not spend much time cross-examining Mrs. Murrell, an elderly, hearing-impaired, grieving widow. Defense counsel also identified other questions she likely would have asked, especially if other discovery, such as the medical examiner's report, had been received before the preliminary hearing.
The Commonwealth responded that defense counsel was afforded a full and fair opportunity to cross-examine Mrs. Murrell during the preliminary hearing, that she did cross-examine her without limitation, and that admission of Mrs. Murrell's sworn and recorded testimony into evidence at trial would not violate Shields's Sixth Amendment right. The Commonwealth further argued that notice that Mrs. Murrell would be called as a witness was not required, and that it was not a surprise to Shields that Mrs. Murrell was the sole witness to the event. Also, Shields knew Mrs. Murrell's advanced age, and those circumstances should have been considered in defense counsel's preparation for the hearing. Significantly, as the Commonwealth pointed out, defense counsel did not make an objection, a request for a continuance or a request for additional information during the preliminary hearing.
In response to the trial court's questions at the hearing on the motion, the Commonwealth explained it met with Mrs. Murrell the day before the preliminary hearing and called her as a witness both to preserve the sole eyewitness's testimony for trial as a precautionary measure (while articulate and not exhibiting dementia, she was elderly) and to establish probable cause, although the detective's testimony alone was sufficient for that purpose. With the case still being in the investigative stage mere days after the murder, the Commonwealth had prepared and provided only the citation in discovery.
Focusing on whether defense counsel had the opportunity...
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