RENDERED: AUGUST 20, 2020 TO BE PUBLISHED
Supreme Court of Kentucky 2018-SC-000605-MR
RICARDO D. TAYLOR APPELLANT
ON APPEAL FROM JEFFERSON CIRCUIT COURT V. HONORABLE BARRY WILLETT, JUDGE NO. 16-CR-000480
COMMONWEALTH OF KENTUCKY APPELLEE
AND
2018-SC-000613-MR
CONRAI ANDRE KABALLAH, JR. APPELLANT
ON APPEAL FROM JEFFERSON CIRCUIT COURT V. HONORABLE BARRY WILLETT, JUDGE NO. 16-CR-000480
OPINION OF THE COURT BY JUSTICE VANMETER
AFFIRMING
A jury convicted Conrai Kaballah of Criminal Attempt – Murder, First-
Degree Assault, and of being a Persistent Felony Offender in the Second Degree
1 (“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
1 Ky. Const. §110(2)(b). 2 Brady v. Maryland, 373 U.S. 83 (1963). 3 Hall v. Commonwealth, 468 S.W.3d 814 (Ky. 2015). 4 Miranda v. Arizona, 384 U.S. 436 (1966). 2 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
3 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
5 Additionally, Weaver suffered severe injuries to his ear, his eyes, and his nose. 4 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 RCr6 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
6 Kentucky Rules of Criminal Procedure. 5 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 6 “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 Kaballah argued they could not perform an
adequate investigation of Payne, they were still able to cross-examine him
extensively and attack his credibility in front of the jury. The defendants’ briefs
both emphasize the amount of discovery material given to them three days
before trial began; however, they did not mention this when they moved for a
continuance. While post-trial review may show that more time could have
helped the defendants, the identifiable prejudice and specific actions they
would have taken were not fully presented to the trial court.
Additionally, the defendants argued they needed a continuance to
investigate a conspiracy between the Commonwealth and Payne regarding his
sentence reduction. The trial court believed the Commonwealth’s assertion
that no arrangement was made between itself and Payne, and the defendants
have presented no evidence on appeal furthering this conspiracy theory. This
Court has repeatedly emphasized the trial court’s broad discretion in
continuance matters. See McCoy v. Commonwealth, 553 S.W.3d 816, 821 (Ky. 7 2018) (denial proper even when late discovery was received six days before
trial); Turner, 544 S.W.3d at 620 (denial proper though case was complex and
only thirty days requested because trial had been delayed for five years); Hilton,
539 S.W.3d at 11 (denial proper because delay would have caused
inconvenience for trial court and witnesses, and court was not sure if date
could be moved); Hudson, 202 S.W.3d at 23 (denial proper in a case that was
not complex where moving counsel needed to investigate a defense further);
Gosser v. Commonwealth, 31 S.W.3d 897, 905 (Ky. 2000) (where case had been
previously continued twice, denial proper even though Commonwealth failed to
provide a witness’s grand jury testimony until four days before trial).
When this Court has decided that a trial court improperly denied a
motion for continuance, the trial court has clearly abused its discretion in not
considering the circumstances of the case. See, e.g., Herp v. Commonwealth,
491 S.W.3d 507, 512 (Ky. 2016) (trial court abused its discretion in denying
motion when counsel was not given time to mount a defense after an amended
indictment); Darcy v. Commonwealth, 441 S.W.3d 77, 82–83 (Ky. 2014) (trial
court abused its discretion in denying motion when it only considered the
defendant’s statutory right to a speedy trial and did not consider Snodgrass
factors). The trial in this case presented complex logistical arrangements due
to the number of defendants. During the pretrial hearing, Taylor and Kaballah
failed to identify specific actions they would have taken if the motion was
granted. Therefore, the trial court did not abuse its discretion.
B. The Trial Court Properly Delayed Disclosure of a Key Witness’s Identity.
All parties agree this issue is preserved for review. Deferred or delayed
disclosure is permitted by the trial court under RCr 7.24(8) which states: 8 On a sufficient showing the court may at any time order that the discovery or inspection be denied, restricted or deferred, or make such other order as is appropriate. On motion, the court may permit the Commonwealth to make such showing, in whole or part, in the form of a written statement to be inspected by the court privately; and if the court thereupon grants relief following such private inspection the entire text of the Commonwealth’s statement shall be sealed and preserved in the records of the court to be made available to the appellate court in the event of an appeal by the defendant.
On October 31, 2016, the Commonwealth moved for deferred or delayed
disclosure of Payne’s identity as a witness due to concerns about his safety in
prison before he testified. In accordance with RCr 7.24(8), the Commonwealth
provided the trial court with a written statement. Trial courts have wide
discretion in interpreting this rule and determining whether delayed disclosure
is warranted. See Commonwealth v. Nichols, 280 S.W.3d 39, 43 (Ky. 2009)
(“[B]road discretion in discovery matters has long been afforded [to] trial courts
in both civil and criminal cases[]”). After review of the facts and relevant case
law, we hold that the trial court did not abuse its discretion in deferring
disclosure of Payne’s identity.
In Burks v. Commonwealth, the trial court refused to compel the
Commonwealth to reveal the identity of its key witness. Our predecessor court
found that the trial court abused its discretion in never requiring the
Commonwealth to produce the material witness’s identity. 471 S.W.2d 298,
301 (Ky. 1971). In State v. McKelton, the Ohio Supreme Court rejected an
argument that deferred disclosure of a witness’s identity until before trial
violated the defendant’s constitutional right to due process and effective
assistance of counsel. 70 N.E.3d 508, 539 (Ohio 2016). The court emphasized
the trial court’s broad discretion to postpone disclosure of the identity of a
9 witness in order to protect his/her safety. Id.; see also People v. Rose, 794
N.E.2d 1004, 1007 (Ill. App. Ct. 2003) (noting that disclosure of a witness will
generally give way to a defendant’s right to prepare his defense unless the
witness’s safety is at stake); Butler v. State, 372 N.E.2d 190, 193 (Ind. Ct. App.
1978) (holding that to establish a sufficient interest in nondisclosure the state
must demonstrate the witness would be subjected to harassment or physical
danger).
In Hawkins v. Commonwealth, 536 S.W.3d 697, 704 (Ky. 2017), we
declined to extend Burks on grounds that the trial court did not abuse its
discretion by denying defendant’s ability to call a confidential informant, as the
confidential informant was not a witness to the crime charged, and thus was
not a material witness. Similarly, the present case can be distinguished from
Burks. Unlike Burks, Payne’s identity was not concealed indefinitely. His
identity simply was not disclosed until just prior to trial in order to protect his
safety.7 The deferred disclosure allowed Payne to remain safe for as long as
possible. The defense was still able to extensively cross-examine Payne at trial
and was given three days beforehand to investigate.
Additionally, this Court’s decision comports with our sister courts, all of
whom underscored the importance of considering the witness’s safety when
deferring disclosure of an identity. Ohio maintained the trial court’s broad
discretion and Indiana placed the burden on the state to demonstrate deferred
disclosure is warranted. Here, the Commonwealth met its burden by
7 The necessity of this protection was only further proven during trial, as Taylor
made several threatening phone calls during trial regarding Payne’s testimony. 10 convincing the trial court that deferred disclosure was needed in order to
protect Payne in prison. Payne was the Commonwealth’s key witness in a
multiple defendant trial, all of whom were incarcerated in some way with their
freedom already severely restricted. As the Commonwealth noted, the
defendants had less to lose in committing another assault on Payne since they
were incarcerated, which could have derailed the trial. The trial court has
broad discretion in deferred disclosures and insufficient evidence exists to
determine it abused its discretion. Payne’s safety was of paramount interest to
the Commonwealth. The trial court properly exercised its discretion in
weighing that interest against Taylor’s and Kaballah’s need for further
investigation before they cross-examined him.
C. Payne’s Further Sentence Reduction During Trial and Weaver’s Federal Case Evidence Were Not Brady Violations.
Defendants received information prior to trial of Payne’s guilty plea which
included an eight-year prison sentence. After Payne’s testimony and prior to
the end of trial—but after proof had closed—the Commonwealth informed the
trial court and defendants that Payne’s sentence had been further reduced by
three years by a court in another division allegedly based on threatening phone
calls made by Taylor after Payne had testified.
In Brady v. Maryland, the United States Supreme Court opined that “the
suppression by the prosecution of evidence favorable to an accused upon
request violates due process where the evidence is material either to guilt or to
punishment, irrespective of the good faith or bad faith of the prosecution.” 373
U.S. 83, 87 (1963). First, we note that “Brady only applies to ‘the discovery,
after trial, of information which had been known to the prosecution but
11 unknown to the defense.’” Bowling v. Commonwealth, 80 S.W.3d 405, 410 (Ky.
2002) (quoting United States v. Agurs, 427 U.S. 97, 103 (1976)). The
Commonwealth turned over evidence of Payne’s sentence reduction—which had
occurred only two days prior—during trial. Payne’s sentence reduction was not
a Brady violation as its existence was known prior to end of trial. Further,
Brady turns on fair disclosure and does not create the right to discovery in a
criminal trial. Bowling, 80 S.W.3d at 410. Additionally, the defense was aware
of Weaver’s federal case prior to trial and any public information regarding the
case could have been obtained by the defense. As no specific allegation of
exculpatory evidence being withheld until after trial has been raised, no Brady
violation has occurred.8
D. No Sixth Amendment Violation Occurred.
Prior to trial, defendants’ attorneys informed the attorneys for the other
seven co-defendants that they intended to call their clients as witnesses during
trial. All seven attorneys responded that their clients were going to invoke their
Fifth Amendment rights against self-incrimination. Defendants’ attorneys
objected, arguing that each co-defendant needed to be questioned, outside the
presence of the jury, in order to determine whether they were going to invoke
the privilege, instead of allowing their attorneys to invoke the privilege for
them.
Our precedent acknowledges that “neither the prosecution nor the
defense may call a witness knowing that the witness will assert his Fifth
8The record also does not contain any evidence of an agreement between Payne and the Commonwealth. The additional sentence reduction was authorized by a different court division in Jefferson County and was allowed due to alleged threats made towards Payne after he testified in this case. 12 Amendment privilege against self-incrimination, and we have applied this
black-letter law in cases where a witness invokes the privilege in order to avoid
answering any substantive questions.” Combs v. Commonwealth, 74 S.W.3d
738, 742 (Ky. 2002) (citation omitted). No case law exists suggesting that an
attorney cannot invoke his client’s Fifth Amendment right against answering
any questions. See McLemore v. Commonwealth, 590 S.W.3d 229, 239–40 (Ky.
2019) (trial court did not err in allowing attorney to invoke privilege against
answering any questions for their client when questions would involve a crime
the witness was potentially involved in). The present facts paint an even
clearer picture of the necessity to avoid calling the other seven witnesses.
These individuals were not just witnesses to a crime or potentially involved in a
crime with the defendants; they were all co-defendants with Kaballah and
Taylor just hours before this hearing took place. No doubt exists that any
testimony they gave would be substantive and potentially incriminate each
defendant. Thus, the trial court did not err in allowing their attorneys to
invoke their Fifth Amendment privilege against self-incrimination without
calling each co-defendant to the stand.
E. Defendants’ Multiple Convictions for the Same Act Were Erroneous, but the Trial Court’s Remedy was Sufficient to Protect Both Defendants’ Rights.
At the close of trial, the jury was instructed on both attempted murder
and first-degree assault. Both defendants were convicted of both crimes.
Defendants moved to vacate the first-degree assault conviction pursuant to
KRS 505.020 and also moved for a mistrial. The trial court instructed the jury
that it could only sentence the defendants on the attempted murder charge but
denied the mistrial motion. 13 In Kiper v. Commonwealth, this Court held that a conviction on
attempted murder and first-degree assault for the same act violates a
defendant’s statutory double jeopardy rights under KRS 505.020(1)(b). 399
S.W.3d 736, 746 (Ky. 2012).
[T]o convict a defendant of attempted murder, the jury must find that he specifically intended during the attack to kill the victim. See KRS 507.020, 506.010. On the other hand, and quite inconsistently, for the jury to convict the same defendant of first- degree assault for engaging in the same course of conduct, it must determine that his specific intent was not to kill, but merely to cause serious physical injury to the victim. See KRS 508.010. Therefore, as may easily be seen in the circumstances of this case, to convict Appellant for both attempted murder and first-degree assault, the jury had to conclude that Appellant intended to kill Burton and, at the same instant, intended not to kill him but only to injure him. These inconsistent and mutually exclusive findings of fact regarding Appellant’s mens rea at the moment he fired the shots at Burton lead precisely to the result that KRS 505.020(1)(b) prohibits. It follows, therefore, that the judgment convicting Appellant for both attempted murder and first-degree assault is a violation of our statutory restraint on double jeopardy.
Id. at 744.
The remedy for this type of statutory double jeopardy violation is to
vacate the lesser conviction, and only allow sentencing on the greater
conviction. Id. at 746. While the trial court did not explicitly vacate the
conviction at trial, it did not allow the defendants to be sentenced for first-
degree assault, and the final judgment does not list a first-degree assault
conviction. Thus, the trial court’s actions at trial and its final judgment show
that the first-degree assault charge was effectively vacated. Thus, any error
from the statutory double jeopardy violation was cured below.
F. The Photographs of Weaver’s Injuries Were Properly Admitted.
Prior to trial, multiple defendants objected to the photographs of
Weaver’s injuries being introduced at trial. The objections centered on the 14 cumulative nature of the photographs. After reviewing the set of photographs,
the trial court summarily overruled the objections and allowed introduction of
all 25 photographs showing various angles of Weaver’s extensive injuries.
Defendants argue that the trial court did not conduct the proper Hall analysis
when determining the admissibility of the photographs. 468 S.W.3d 814, 824–
26 (Ky. 2015).
In Hall, we held that a trial court must evaluate “visual media showing
gruesome or repulsive depictions of victims . . . [by] conduct[ing] the Rule 403
balancing test to determine the admissibility of the proffered evidence.” Id. at
823. This includes “weigh[ing] the probative value of the gruesome photo in
question against the harmful effects that might flow from its admission to
determine whether the photo should be excluded notwithstanding the general
rule.” Id. The argument from trial counsel below focused on the cumulative
nature of the 25 injury photographs, not on their gruesome nature, as most
photographs showed only severe bruising and were not extensively gruesome
on their own. However, cumulative presentation of injury photographs can be
unduly prejudicial and KRE9 403 “explicitly incorporates this concept by noting
that a trial court is to consider ‘needless presentation of cumulative evidence’
in deciding whether to admit evidence.” Id. at 824 (quoting KRE 403). Twenty-
five photographs of a victim’s injuries may be unduly prejudicial, depending on
the facts of the case.
Here, Weaver suffered a litany of injuries, the compounding of which
added to the Commonwealth’s theory of attempted murder. The examining
9 Kentucky Rules of Evidence. 15 surgeon, Dr. Smock, testified that Weaver suffered a traumatic brain injury,
tears in his rectum, tears in his lower colon, a swollen ear, several pattern
injuries, swelling of the left eye, a broken tooth, bruising on both sides of his
neck, chest abrasions, abrasions on his buttocks, injuries on his back,
contusions on his arms and shoulders, and abrasions on his arms, fingers,
knees, and lower legs. The Commonwealth had no reasonable alternative to
show that an attack using almost exclusively hands and feet rose to the level of
attempted murder. Thus, the trial court did not err in allowing each
photograph.
G. Defendants Should Have Been Mirandized, but Any Error was Harmless Beyond a Reasonable Doubt.
Immediately following the attack, prison officials entered the dorm and
found Weaver injured. SORT threw percussion grenades and verbally ordered
the inmates to get on the floor. Officials handcuffed Taylor and Kaballah and
took them to a separate room that was set up like a typical office for an
interview by two Public Integrity Unit Officers. Neither defendant was
Mirandized before the interview. The door was closed, and neither was told
they were free to leave. Taylor admitted that he was not “roughed up” or
physically coerced, but that he was only cooperating in order to “eat chow.”
The officers asked Taylor repeatedly whether he was giving the statement of his
own free will, and he repeatedly answered no.
Miranda warnings are required as procedural safeguards before the start
of custodial interrogation to dispel the inherent compulsion of these settings
and ensure that the defendant is aware of and able to assert his/her Fifth
Amendment right against self-incrimination. Miranda, 384 U.S. at 458.
16 Miranda warnings are required when a person is interrogated and in custody.
Id. at 460. If a defendant is interrogated while in prison, a separate set of
factors is used to determine whether he was in custody for purposes of
Miranda. Howes v. Fields, 565 U.S. 499, 508 (2012). A defendant in physical
custody in a prison, without more, does not necessarily mean that he/she is in
custody for the purposes of Miranda. Id. at 512. Taylor and Kaballah pass this
first prong because they were physically in custody in prison, so their freedom
of movement was restrained.
The “something more” required to move from physically in custody under
a term of imprisonment, to in custody for purposes of Miranda, has not been
explicitly defined by the Court, but the next step is to determine “whether the
relevant environment presents the same inherently coercive pressures as the
type of station-house questioning at issue in Miranda.” Id. at 509. A court
must consider the objective totality of the circumstances. Stansbury v.
California, 511 U.S. 318, 323 (1994). This includes 1) the location of
questioning; 2) the duration of the questioning; 3) statements made during the
interview; 4) whether physical restraints were used; and 5) whether the
defendant was released at the end of questioning. 565 U.S. at 511.
In Howes, the defendant, Fields, was interrogated in prison without
Miranda warnings about a crime unrelated to his incarceration. Id. at 503. He
was taken from his cell to a private room, was unrestrained, and questioned for
five to seven hours, with the door open during part of the interrogation. Id. He
was repeatedly told throughout the interrogation that he was free to leave and
return to his cell. Id. Fields was not in custody for Miranda purposes, so
warnings were not required. Id. at 514. Although the questioning of Fields 17 lasted five to seven hours, was conducted without Fields’ consent, and with the
presence of armed guards, this was outweighed by the fact that he was told
repeatedly he could leave whenever he wanted, he was not physically
restrained, or threatened, and the door remained open in a well-lit and normal-
sized room. Id. at 515.
Here, with respect to the location of questioning, Taylor and Kaballah
were interrogated in separate rooms away from other inmates. An isolated
interrogation like this does not necessarily add to the coerciveness of an
interview for Miranda purposes, but rather is often used as a safety measure
for prisoners. People v. Cortez, 832 N.W.2d 1, 9 (Mich. Ct. App. 2013). A door
remaining open in an isolated interrogation room can support a conclusion
that a defendant was not in custody. Howes, 565 U.S. at 515. Thus, a closed
door supports Defendants’ argument that they were in custody.
The length of questioning initially appears to imply that neither
defendant was in custody; however, one factor is not dispositive in a totality of
circumstances analysis. Although Kaballah’s interrogation was significantly
shorter than in Howes (one hour and nine minutes as compared to five to
seven hours) it could still be more coercive. Id. A lengthy interrogation is but
one factor that adds to coerciveness. Kaballah was only interrogated for a little
over an hour, however, he was isolated in an attorney booth for six and a half
hours prior. Additionally, although Taylor’s interview was also relatively short
in length (though the exact time is not mentioned), Taylor was denied food
during the interrogation. Further, Taylor did not give consent or willingly
participate. On the contrary, he explicitly stated that he was being coerced.
18 The presence of other coercive factors likely outweighs the shorter length of
interrogation.
Regarding the nature of Taylor’s and Kaballah’s statements made during
the interrogation, Miranda warnings are given to protect the Fifth Amendment
privilege against self-incrimination. Taylor’s and Kaballah’s statements were
not full confessions but were used in the Commonwealth’s case-in-chief which
supports the conclusion that the defendants were in custody.
The physical restraint factor also supports the conclusion that Taylor
and Kaballah were in custody. Both defendants were restrained in handcuffs
during the entire interrogation. The use of physical restraints only adds to the
coercive nature of an interrogation. The use of restraints is not a neutral
action in a custody analysis, but rather explicitly demonstrates that someone is
being controlled. Restraints not only limit one’s physical freedom of movement
but create a more coercive environment—the main concern that Miranda
warnings aim to remedy. Miranda, 384 U.S. at 467. Although not dispositive,
this factor weighs in favor of the conclusion that the defendants were in
custody.
Taylor and Kaballah were released back to their cells immediately after
questioning which we have previously held supports a lack of custody. See
Smith v. Commonwealth, 520 S.W.3d 340, 348 (Ky. 2017) (noting that a return
to a cell after an interrogation in prison is conceptually indistinguishable from
an un-jailed suspect going home after an interrogation). However, in the
present case, this factor likely cuts the other way. Both defendants were
interrogated by Public Integrity officials who are a part of the Louisville Metro
Police Department (“LMPD”). These are not the prison guards that the 19 defendants see every day and may be comfortable with, but rather strangers
who were brought in immediately following a crime, searching for the
perpetrator. As Howes mentioned, the same level of shock does not exist when
one is taken from a cell to an interrogation room in prison as when someone is
pulled from their house into a police station. 565 U.S. at 511. However, an
additional shock exists when outside officers are brought in. Rather than
being questioned about an incident in the distant past by someone familiar and
then released back to their cells, both defendants here were interrogated by
LMPD officials about a just-committed crime. They likely showed urgency and
commitment to find the perpetrator. Taylor and Kaballah were released back to
their cells; however, the present facts are distinguishable from a typical release
due to the pressure and urgency of being interrogated by LMPD officials
following a serious crime.
Taylor and Kaballah’s situation can be further distinguished from Howes
and Cortez in significant ways. Although Howes provided factors to determine
if someone is in custody for purposes of Miranda, the Court’s determination
that Fields was not in custody turned on additional analysis. The Court in
Howes emphasized that the most important factor that led to its decision that
Fields was not in custody was because Fields was told multiple times he was
free to leave, contrary to our present facts. 565 U.S. at 515. Additionally,
Fields was never placed in restraints while being interrogated, while both
defendants here were handcuffed throughout the interrogation. Fields was not
subject to physical force, while both defendants here had previously been
ordered to lay down after a close-range blast of a percussion grenade in an
20 enclosed room. This likely adds to the overall coercive atmosphere
surrounding an interrogation that the Miranda court was concerned with.
In Cortez, the court emphasized that the defendant was not made to be
uncomfortable; however, Taylor was denied food until the end of the interview,
creating pressure to comply. 832 N.W.2d at 11. Cortez also highlighted that
the defendant spoke freely and openly, whereas Taylor expressed multiple
times that he was being coerced and did not want to speak. Id. Although the
length of the questioning of Kaballah (and presumably Taylor) was significantly
shorter than in Howes, and although both defendants were released back to
their cells after the interrogation, neither of these facts are dispositive in a
totality of circumstances analysis. The lack of evidence regarding their ability
to terminate questioning and leave further supports that the defendants were
in custody for Miranda purposes.
The Commonwealth has the burden to establish that no custodial
interrogation took place, or that the defendant knowingly and voluntarily
waived his rights. The record does not clearly establish this. The central
purpose of Miranda warnings is to dispel coercion in a custodial interrogation
by ensuring that individuals know what rights they can assert. 384 U.S. at
458. Although the interrogation here was relatively short, and the defendants
were released back to their cells at the end of the interrogation, when viewing
the circumstances in their totality, the atmosphere was coercive in nature, and
the defendants should have been Mirandized prior to interrogation due to the
use of force, physical restraints, the interrogation occurring directly after a
crime and a raid by the SORT team, and that neither were told they were free
to leave. 21 Nonetheless, any error was harmless. Our harmless error standard of
review for a constitutional issue is “whether the errors were harmless beyond a
reasonable doubt.” Nunn v. Commonwealth, 461 S.W.3d 741, 750 (Ky. 2015).
Although an error occurred in failing to suppress Taylor’s and Kaballah’s
statements due to the lack of Miranda warnings, the evidence used at trial from
the interviews’ recordings did not carry weight as to their guilt or innocence
and was not a focal point of trial.10 Therefore, any error was harmless.
H. The Showing of a Commonwealth-Produced Transcript of Taylor’s Phone Call During Closing Argument was Harmless Error.
During closing argument, the Commonwealth played a few of Taylor’s jail
house phone calls made after the attack on Weaver. The Commonwealth
apparently—although the record is not clear—placed a transcript of a portion of
these calls on the overhead projector while they were being played. Taylor’s
counsel objected to this transcript being used, as the phone call was hard to
understand, and the transcript was not reproduced by a certified court
reporter, but by someone from the Commonwealth’s office. On appeal, only
Taylor raises this argument. Accordingly, our review will only analyze the
potential prejudice to his defense and not to defendant Kaballah’s.
In Sanborn v. Commonwealth, we held that the trial court committed
reversible error when it allowed the prosecutor to show the jury his notes and
written version of a transcript of the defendant’s taped statement, over the
objection of defense counsel. 754 S.W.2d 534, 539 (Ky. 1988) receded from on
10 The statements introduced at trial constituted general denials and other non-
incriminating information. 22 different grounds by Hudson v. Commonwealth, 202 S.W.3d 17 (Ky. 2006). The
prosecutor had previously destroyed the tapes and instead presented to the
jury his personal notes and interpretation of what was said. Id. This Court
held that while the trial court had discretion to exclude the entire tape due to it
being inaudible, it did not have the discretion to allow the jury to see the
prosecutor’s version of portions that are difficult to understand. Id. at 540.
Rather, the jury should be able to decide for itself its interpretation of a
recording. Id. The admission of the prosecutor’s transcript constituted an
abuse of discretion and warranted a reversal of the appellant’s conviction. Id.
Here, the Commonwealth presented its own version of the contents of
Taylor’s phone call, rather than a version created by a certified court reporter
or with consultation from the defense. In its brief, the Commonwealth argues
this can be distinguished because the jury was able to listen to the call
alongside the transcript, whereas in Sanborn the tape had been destroyed so
the transcript was the only evidence available. But this argument misreads
Sanborn. Although this Court expressed deep disappointment that the
prosecutor destroyed the tapes, we did not hold that reversible error rested on
the destruction of the tapes. A Brady violation occurred when the prosecutor
destroyed evidence, but this is not a necessary pre-condition of disallowing the
prosecutor’s version of a tape or phone call to be shown to the jury. Rather, we
held that destroying the tape was misconduct on behalf of the prosecutor and
allowing the prosecutor’s version of a transcript was an additional abuse of
discretion. Id. Here, the jury was able to view the Commonwealth’s transcript
while listening to the original recorded phone-call, which constitutes error.
This tainted the jury’s ability to determine what Taylor discussed during the 23 phone call, as the Commonwealth’s interpretation was placed directly before
the jury and the phone call was difficult to understand. This gave the
Commonwealth an unfair advantage in swaying the jury in favor of one
interpretation, whether or not the original recording had been destroyed.
The Commonwealth also argued that showing the transcript to the jury is
akin to writing on a white board while the call is played. The Commonwealth
admits, however, that the transcript is “their interpretation of the evidence.”
Transcribing words on a white board to highlight or emphasize their
importance is distinguishable from showing an interpretation of what was said
during a portion of the call that was difficult to understand. This goes beyond
“highlighting” important words, and instead leads the jury to a specific
interpretation as decided by the Commonwealth. In Kentucky, an attorney is
not allowed to present a self-transcribed summary of what he thinks is being
said on a phone call or recording. This misleads the jury to hear the specific
interpretation of one party. The trial court, therefore, erred in allowing the
Commonwealth to present this transcript to the jury while it listened to Taylor’s
phone call.
Nonetheless, the trial court’s error was harmless.
The test for harmlessness [of a non-constitutional error] is whether the error substantially swayed the verdict. The inquiry is not simply whether there was enough [evidence] to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand.
Allen v. Commonwealth, 395 S.W.3d 451, 467 (Ky. 2013) (citations omitted).
The Commonwealth’s summary was shown while Taylor’s own statements were
being played. The phone calls only served to supplement evidence already
24 presented to the jury, and thus, the introduction of the transcript summary did
not have a substantial influence on the verdict. Lastly, Taylor and Kaballah
claim cumulative error. As only two errors occurred, however, neither of which
had a substantial influence on the verdict, no cumulative error occurred.
III. Conclusion.
Both defendants should have been Mirandized prior to interrogation and
the trial court should not have allowed a Commonwealth-drafted transcript to
be shown during closing arguments. Nonetheless, as each error was
harmless, we affirm each defendant’s convictions and sentence.
All sitting. All concur.
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