Taylor v. Commonwealth, 2018-SC-000605-MR

• Decision Date: 20 August 2020
• Docket Number: 2018-SC-000613-MR,2018-SC-000605-MR
• Citation: 611 S.W.3d 730
• Parties: Ricardo D. TAYLOR, Appellant v. COMMONWEALTH of Kentucky, Appellee Conrai Andre Kaballah, Jr., Appellant v. Commonwealth of Kentucky, Appellee
• Court: United States State Supreme Court — District of Kentucky

611 S.W.3d 730

Ricardo D. TAYLOR, Appellant

v.COMMONWEALTH of Kentucky, Appellee

Conrai Andre Kaballah, Jr., Appellant

v.Commonwealth of Kentucky, Appellee

2018-SC-000605-MR

2018-SC-000613-MR

Supreme Court of Kentucky.

AUGUST 20, 2020

Rehearing Denied December 17, 2020

COUNSEL FOR APPELLANT, RICARDO D. TAYLOR: Julia Karol Pearson, Assistant Public Advocate, Department of Public Advocacy.

COUNSEL FOR APPELLANT, CONRAI ANDRE KABALLAH, JR.: Jared Travis Bewley, Steven Nathan Goens, Assistant Public Advocates, Department of Public Advocacy.

COUNSEL FOR APPELLEE: Daniel Jay Cameron, Attorney General of Kentucky, Mark Daniel Barry, Assistant Attorney General.

OPINION OF THE COURT BY JUSTICE VANMETER

A jury convicted Conrai Kaballah of Criminal Attempt – Murder, First-Degree Assault, and of being a Persistent Felony Offender in the Second Degree ("PFO2"). Kaballah's co-defendant, Ricardo Taylor, was convicted of Criminal Attempt – Murder, First-Degree Assault, First-Degree Sodomy, Tampering with Physical Evidence, and of being a Persistent Felony Offender in the First Degree ("PFO1"). Both defendants were sentenced to life imprisonment. Kaballah and Taylor appeal as a matter of right¹ and allege several claims of error: (1) the trial court abused its discretion by not granting a continuance upon the release of the identity of the Commonwealth's key witness the week prior to trial; (2) the trial court abused its discretion when it deferred disclosure of the Commonwealth's key witness; (3) the Commonwealth committed a Brady² violation by deferring disclosure of the key witness's identity and reduction in sentence during trial; (4) the trial court violated the defendants’ Sixth Amendment right to compulsory process by allowing attorneys for the seven other co-defendants to announce their clients’ intention to invoke their Fifth Amendment right to avoid self-incrimination; (5) the trial court erred by allowing both defendants to be convicted of both First-Degree Assault and Criminal Attempt – Murder, both based on the same act; (6) the trial court erred by failing to conduct a Hall³ analysis of the photographs taken of the victim's injuries; (7) reversible error occurred when both defendants were not Mirandized⁴ prior to being interrogated shortly after the assault occurred; (8) the trial court erred by allowing a transcript—commissioned by the Commonwealth—of a phone call Taylor made from jail to be shown during closing arguments; and (9) cumulative error demands reversal. After an extensive review of the record and applicable law, we find that both defendants should have been Mirandized prior to being interrogated and the transcript of Taylor's phone call should not have been shown to the jury during closing arguments. However, due to the overwhelming evidence against the defendants, and the inconsequential nature of the evidence produced from these errors, both errors were harmless as a matter of law. Thus, we affirm the judgment and sentence of the trial court.

I. Factual and Procedural Background.

Taylor and Kabballah were housed in the same dormitory as Cedric Weaver at the Louisville Metro Detention Center. On November 13, 2014, Weaver asked Taylor and another inmate if they could move their chess game, so he could watch the television. When they refused, Weaver picked up all their chess pieces. That night, a group of inmates in Weaver's dorm room dragged him out his bed and violently assaulted him for an extended period of time. At some point, Taylor anally sodomized Weaver with the handle of a toilet brush found in the dorm room. The Special Operations and Response Team ("SORT") eventually broke up the situation by shooting percussion rounds into the dorm and physically restraining those involved.

Louisville Metro Department of Corrections Sergeant Melinda Zapata was the first to see Weaver after he was assaulted. She testified that he was sitting on his bunk, bleeding from his head which was "as big as a basketball," and that "his ear was hanging off his head." Weaver suffered a traumatic brain injury

. He had to undergo months of physical therapy, speech therapy, and occupational therapy. It took seven months of physical therapy before Weaver learned to walk again.⁵

Ten defendants were indicted for the incident; nine defendants remained the week before trial. Just prior to trial, seven of these defendants pled guilty to various charges arising out of the assault. This left Taylor and Kaballah as the only remaining defendants at trial. Both men were convicted of multiple counts and sentenced to an enhanced term of life in prison. This appeal followed. Any further pertinent facts will be discussed as they arise below.

II. Analysis.

The first two issues below are based on the Commonwealth's use of Luke Payne as a key witness in the trial of Taylor and Kaballah. On October 31, 2016, the trial court deferred disclosure of Payne's identity until forty-eight hours prior to his testimony to protect his safety while incarcerated. On December 4, 2017, the trial court set the trial date to June 26, 2018. Prior to trial, Payne received eight years to serve after pleading guilty to second-degree robbery. A persistent felony offender charge was dismissed. The Commonwealth, per the trial court's orders, disclosed Payne's identity to the defense on June 22, 2018, three days before the start of the trial. During the final pre-trial conference on June 25, 2018, the Commonwealth informed the trial court that it had revealed Payne's identity to Taylor and Kaballah. Moody, then a co-defendant, played a video recording of Payne's guilty plea that he obtained from the clerk's office. Moody moved to dismiss the indictment after alleging that the Commonwealth did not disclose that Payne received a favorable plea arrangement in exchange for testifying at the trial. Taylor and Kaballah joined the motion. The next day the motion was renewed and subsequently denied by the trial court. Moody then moved for a continuance to investigate Payne and the alleged deal made with the Commonwealth, which Taylor and Kaballah joined. The trial court denied the motion for a continuance. Taylor and Kaballah appeal this denial.

A. The Trial Court Did Not Abuse its Discretion in Denying Defendants’ Motion to Continue.

All parties agree the issues are preserved for review. Taylor and Kaballah joined the motion for a continuance that was denied by the trial court. Motions for a continuance are governed by RCr ⁶ 9.04 which permits a trial court to grant a continuance "upon motion and sufficient cause shown by either party." The trial court has wide discretion when deciding whether to grant a motion for a continuance. Hilton v. Commonwealth , 539 S.W.3d 1, 10–11 (Ky. 2018). The question of whether a motion for a continuance should be granted is determined by the "unique facts and circumstances" of the case. Id. at 11. This Court will determine the trial court abused its discretion if its decision was "arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Id. at 7.

In exercising its discretion, the trial court must take into account certain factors. Snodgrass v. Commonwealth , 814 S.W.2d 579, 581 (Ky. 1991), overruled on other grounds by Lawson v. Commonwealth , 53 S.W.3d 534 (Ky. 2001). The trial court must consider the: 1) length of delay; 2) number of previous continuances; 3) inconveniences to parties, witnesses, counsel, and the court; 4) complexity of the case; 5) availability of other competent counsel; 6) whether the movant sought delay for his own sake or caused the need for it and; 7) whether a denial of the continuance would lead to identifiable prejudice. Id. An analysis of the Snodgrass factors shows the trial court did not abuse its discretion when it denied the motion for a continuance.

Looking at the relevant Snodgrass factors for this case, Taylor and Kaballah simply requested a "reasonable amount of time" for the continuance rather than a concrete length of time. Thus, the length of the delay requested is not enough to support that the trial court abused its discretion. Additionally, while there had been no previous continuances in this case, the inconvenience to litigants, counsel, and the court was great. The trial court noted during trial that the logistics were "a daunting task for everybody." There were nine defendants remaining at the time of this motion, some of whom were incarcerated in a corrections facility while others were on home incarceration, and some were in Louisville Metro Corrections while others were in state facilities. The trial's size made transportation, logistics, and scheduling difficult. The trial court is entitled to consider the consequences of granting a continuance for such a logistically complex trial and could have reasonably found that the complexity of the case outweighed the need for additional investigation into Payne. A continuance would have exacerbated these inconveniences to the litigants, counsel, and the court.

Ultimately, Taylor and Kaballah fail to show any identifiable prejudice. This Court has emphasized that identifiable prejudice is "especially important." Bartley v. Commonwealth , 400 S.W.3d 714, 733 (Ky. 2013). A defendant must "state with particularity how his or her case will suffer if the motion to postpone is denied." Id. (citing Hudson v. Commonwealth , 202 S.W.3d 17, 23 (Ky. 2006) ); see also Turner v. Commonwealth , 544 S.W.3d 610, 620 (Ky. 2018) (holding that while denial of a continuance prevented further investigation into a defense, moving counsel failed to identify any additional action she could have taken if given additional time). In Morgan v. Commonwealth , the first six factors weighed in favor of granting a continuance, but there was no identifiable prejudice when the testimony of a witness changed the morning of trial, because counsel could still cross-examine and impeach the witness while he testified. 421 S.W.3d 388, 393 (Ky. 2014).

Here, while Taylor and...