Walton v. Commonwealth

Decision Date28 February 2020
Docket NumberNO. 2018-CA-000380-MR,2018-CA-000380-MR
CourtKentucky Court of Appeals




ACTION NO. 17-CR-00067-001



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ACREE, JUDGE: Darrelle Walton appeals the Madison Circuit Court's final judgment and sentence of imprisonment. Walton contends the circuit court abused its discretion by: (1) failing to exclude statements he made during the probable cause hearing after the district court allowed him to proceed pro se without conducting a Faretta1 hearing; (2) failing to grant a mistrial after the Commonwealth made a statement shifting the burden of proof to the defendant; and (3) allowing the Commonwealth to define reasonable doubt. We find no abuse of discretion and affirm.2


On December 8, 2016, a clerk at a Shell gas station in Berea, Kentucky called the police after seven cartons of cigarettes were stolen. The clerk described the suspects as two black males driving a Jeep Grand Cherokee with a license plate number having as a first digit the number 5. Officer Eric Davidson responded to the 911 call, arriving on scene within three to four minutes. He saw a vehicle near the Shell station matching the description given by the clerk. Officer Davidson pulled the vehicle over and initiated a stop.

Approaching the car, Officer Davidson activated his body cam. He asked the driver to put his hands on the steering wheel. The driver complied. According to Officer Davidson, there were three individuals in the car - the driver, a passenger in the front seat, and a juvenile in the backseat. Officer Davidson asked the driver his name. He responded by saying his name was "Ernest Powell" and gave the officer a Michigan driver's license showing that name. Officer Davidson then told the driver he was a suspect in a theft and to get out of the car. The driver refused. Officer Davidson opened the car door and a struggle ensued. To get away, the driver put the car in reverse and began backing up fast enough to cause the tires to squeal. The open car door hit Officer Davidson and knocked him back several feet. Once the officer was knocked away, the driver drove off and onto Interstate 75.

Returning to his vehicle, Officer Davidson, and another officer in a separate police cruiser, gave chase. During the chase, a carton of cigarettes was thrown from the suspect's vehicle. The chase began at the on-ramp at Exit 77 and continued to Exit 62 at an average speed of 115 mph. To evade the police, the driver turned off his headlights and exited the interstate by Exit 62 but turned back to re-enter the interstate heading north. The officers' pursuit continued, and they clocked the suspect's vehicle averaging 110 mph until it crashed.

The impact caused the passengers to be thrown from the car which caught fire. The next day, police learned the driver's true identity - he was Darrelle Walton. The district court held a preliminary hearing on December 21, 2016, to determine probable cause to send the case to the grand jury. Walton did not have counsel and asked to proceed pro se. The following exchange took place:

Court: Mr. Walton, you're here without counsel. [You] indicated you're still working on trying to hire counsel. Uh, you've also indicated to me that you do not wish to waive your time frame uh, to get counsel but you're wishing to invoke the rule and require your hearing be conducted today. Is that correct?
Walton: Yes, sir, it is.
Court: Even though with the understanding you're entitled to counsel. I highly recommend that you have an attorney because you're facing a Class B felony and you're seeking to waive that right and have a hearing today?
Walton: Yes, sir, I am.
Court: Based on that, we can proceed with the hearing today. Uh, Officer, if you would raise your right hand.

(Trial Record (T.R.) at 63). To this point, Walton sat patiently while the Commonwealth presented evidence.

After the Commonwealth finished questioning the officer, the district court asked Walton if he had any questions. Walton proceeded with his cross examination.

Court: Mr. Walton, this is your opportunity to ask any questions you may have. You have any questions for the officer?
Walton: Yes, sir.
Court: You may ask.
Walton: Okay. So, to begin, my name is Darrelle Walton. Okay, so you say, you say that pulled, you pulled us over because you seen [sic] that the vehicle matched the description. That's one, right?
Officer: That is correct.
Court: Mr. Walton, let me, I just want to stop you one second too before you continue. You haven't done anything yet, but I went over your rights with you this morning.
Walton: Yes, sir.
Court: You've got a right at the hearing today not to say anything that would incriminate yourself . . .
Walton: Correct.
Court: . . . or to make any statements they can use against you later.
Walton: Correct.
Court: Anything you say at this hearing today can be used against you down the road in the prosecution of this case. Do you understand that?
Walton: Yes, sir.
Court: So, you need to limit and, and watch what you're asking for your constitutional rights. You understand all that?
Walton: Yes, sir.
Court: Okay, just want to make sure you understand your rights. You may proceed.

(T.R. at 68-69).

Throughout Walton's cross examination of the officer, he consistently failed to ask appropriate questions; instead, he merely commented and made statements. The district judge sought to correct his course.

Court: Okay, hey, if you'll phrase it in the form of a question; I'm going to give him a little leeway unfortunately since he . . .
Com.: Yes, I'm . . .
Court: . . . doesn't have counsel, but if you've got a question, I'll again, I'll allow you to tell me what you want me to hear if you wish to speak, although I'll, I highly recommend for today's proceedings you don't say anything that can be used against you because today's proceeding is probable cause only.
Walton: Okay.
Court: Probable cause gets the matter sent down the street for a Grand Jury to hear and they would be the ones to determine whether to issue a felony indictment or not.
Walton: Correct. Correct.
Court: Today is just a probable cause finding.
Walton: Okay, I get it.
Court: So, it's a limited proceeding so that's one reason I'm trying to explain to you . . .
Walton: Okay.
Court: . . . even if I dismiss the case today, they've got the right to present it to the Grand Jury and have an indictment issued. So, today's proceeding is limited for its purpose and the statute they charged you with, you're since you're not an attorney, I want to make sure, or you're aware the murder statute in Kentucky also says, including, but not limited to, operation of a motor vehicle if you exercise extreme indifference to human life and wantonly engage conduct which causes a grave risk of death to another person. He charged you with attempted murder based on that statute that you operated a motor vehicle with extreme difference [sic] but he, so I just want to make sure, that's the purpose of the attempted murder is based on that section of the criminal statute.
Walton: Correct.
Court: Okay. You have other questions you'd like to ask?
Walton: Yes, sir.

(T.R. at 71-72).

Walton continued questioning but eventually asked to make a statement. The district court again informed Walton that anything he said could be used against him at trial. Nevertheless, Walton continued with his recollection of the event. (T.R. at 75-76).

A Grand Jury heard Walton's case and returned an indictment, after which his case was docketed in the circuit court for trial. In that court, the Commonwealth filed a motion in limine to play to the jury the statements Walton made at the probable cause hearing. By then, Walton had legal counsel who objected to the Commonwealth's motion.

Walton's counsel argued that the district court's failure to conduct a Faretta hearing prior to allowing Walton to proceed in his own defense violated his constitutional rights and, therefore, his statements were inadmissible. The Commonwealth argued that Walton previously had been Mirandized,3 which, coupled with the district court's reiteration of his Miranda rights, cured any error in failing to conduct a Faretta hearing.

After recognizing these were unique circumstances that posed a difficult legal question, the circuit court took the issue under advisement. Before trial, the court ruled that Walton had been sufficiently advised of his rights when he made his statement in open court, thereby rendering his statements admissible.

At trial, the Commonwealth played Walton's statement for the jury. After a two-day trial, the jury found Walton guilty of seven crimes: (1) reckless driving; (2) criminal facilitation to tampering with physical evidence; (3) two counts of second-degree wanton endangerment; (4) first-degree fleeing/evading police; (5) third-degree assault; (6) complicity to theft by unlawful taking under $500; and (7) felony offender in the second degree. The jury recommended a combined sentence of 15 years imprisonment. On January 25, 2018, the circuit court entered its final judgment, sentencing Walton according to the jury's recommendation. Further facts will be described in the context of specific arguments.


All of appellant's claims of error are scrutinized by the appellate court for abuse of discretion. Ward v. Commonwealth, 587 S.W.3d 312, 332 (Ky. 2019) ("The standard of review of an evidentiary ruling is abuse of discretion." (citation and internal quotation marks omitted)); Commonwealth v. Padgett, 563 S.W.3d 639, 645 (Ky. 2018) ("[T]he decision to grant a mistrial is within the trial court's discretion, and such a ruling will not be disturbed absent a showing of an abuse of that discretion." (citation and internal quotation marks omitted)); Winstead v. Commonwealth, 283 S.W.3d 678, 684 (Ky. 2009) ("We review...

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