RENDERED: AUGUST 5, 2022; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2021-CA-0957-MR
ROBERT CALDWELL APPELLANT
APPEAL FROM PIKE CIRCUIT COURT v. HONORABLE EDDY COLEMAN, JUDGE ACTION NO. 19-CR-00473
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: JONES, MAZE, AND MCNEILL, JUDGES.
MAZE, JUDGE: Robert Caldwell (Caldwell) appeals as a matter of right his
convictions for first-degree bail jumping and being a second-degree persistent
felony offender on the grounds that: 1) he was prejudiced by the jury’s knowledge
that he had been transported to the courtroom late for trial; 2) the trial court erred
in allowing testimony regarding his outstanding bench warrant; and 3) his constitutional rights were violated when potential jurors saw him in restraints. As
this Court finds no abuse of discretion, we affirm.
Caldwell was arrested on July 19, 2018, in relation to Indictment No.
18-CR-00148-002. He was arraigned upon felony charges therein on August 1,
2018, and bond was set at $10,000/10%, with the condition that he have no further
violations of the law, including failures to appear. His initial pre-trial conference
was scheduled for November 2, 2018.
Subsequently, on October 12, 2018, he was arrested on other charges.
On October 15, 2018, based on those new charges, the Commonwealth moved to
revoke his bond in Indictment No. 18-CR-00148-002. Thereafter, on October 24,
2018, a bench warrant was issued. He failed to appear for the November 2, 2018,
pre-trial conference.
On October 9, 2019, Caldwell was indicted for first-degree bail
jumping and being a persistent felony offender in Indictment No. 19-CR-00473.
That case was ultimately tried on June 7, 2021, resulting in the convictions from
which Caldwell now appeals.
Prior to trial, the Commonwealth filed a motion in limine, seeking to
introduce the bail order, motion to revoke with citation, and bench warrant arising
out of Indictment No. 18-CR-00148-002. Caldwell stipulated to 1) having a felony
-2- charge in that case which was still pending; 2) that he was granted bond on August
1, 2018, as to that case; and 3) that he failed to appear on November 2, 2018.
In its initial ruling on the Commonwealth’s motion in limine, the trial
court found that the bail order (as redacted) was admissible, but that the motion to
revoke, bench warrant, and citation were not, because they were not “inextricably
intertwined” or necessary to show “motive as distinct from intent.” However, in its
order of October 20, 2020, the trial court reconsidered its ruling on the grounds
that it was “overbroad.” Instead, the court directed that “[w]hile the document
shall not be admitted into evidence oral testimony about the motion, the date it was
filed and the date it was assigned for hearing may be admitted pursuant to KRE [1]
404(b). An admonition shall be given to the jury to consider that evidence only as
to motive or intent of the Defendant and for no other purpose.”
On June 7, 2021, at 9:22 a.m., the case was called for trial. At that
time, both sides announced ready. Caldwell was present, in street clothing, seated
at counsel table. At a bench conference, his trial counsel advised the court that
Caldwell had arrived after the potential jurors, and he expressed concern that
arriving late for a bail jumping case might result in prejudice. Jury selection
proceeded and Caldwell was convicted on the charged offenses.
1 Kentucky Rules of Evidence.
-3- On June 14, 2021, Caldwell’s trial counsel filed his motion for
judgment notwithstanding the verdict and for a new trial. In support of that
motion, he argued that the testimony regarding the bench warrant resulted in
prejudice, as did Caldwell’s late arrival to court. He also advised the court, for the
first time, that the potential jurors saw Caldwell in restraints. After the matter was
briefed and heard, the trial court denied the motions and sentenced Caldwell to
serve ten years.
I. LATENESS FOR TRIAL
The video record of the trial proceeding commences at 9:22 a.m. At
that time, Caldwell’s trial counsel indicated that his client was not present when
the potential jurors came into the courtroom. Caldwell was “three or four” minutes
late and the representatives of the sheriff’s office brought him in through the
“front.” He sought to preserve the issue of Caldwell’s untimely arrival for the
record. As stated in Perkins v. Commonwealth, 237 S.W.3d 215, 223 (Ky. App.
2007), “a failure to press a trial court for a ruling or an admonition on an objection
or on a motion for relief operates as a waiver of that issue for purposes of appellate
review.” Since trial counsel failed to move for an admonition or other relief as it
pertains to Caldwell’s time of arrival, we find that the issue has been waived and
cannot form the basis for reversal.
-4- II. ADMISSIBILITY OF KRE 404(b) EVIDENCE
The appellate standard of review of an evidentiary ruling is one of
abuse of discretion. The test for such abuse is “whether the trial judge’s decision
was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.”
Anderson v. Commonwealth, 231 S.W.3d 117, 119 (Ky. 2007).
KRE 404(b) provides that:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible:
1. If offered for some other purpose, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident; or
2. If so inextricably intertwined with other evidence essential to the case that separation of the two (2) could not be accomplished without serious adverse effect on the offering party.
As noted by the Court in Anderson, the purpose of this rule is to
prevent the admission of evidence which merely shows that a criminal defendant
has a “propensity to commit a certain type of crime.” 231 S.W.3d at 121. As such,
“the burden lies with the prosecution to provide an alternate base for admission of
the evidence apart from its propensity relevance.” Id. at 120.
In this case, the Commonwealth provided that “alternate base” by
consistently arguing that the bail order entered in Case No. 18-CR-00148-002 was
-5- properly admissible pursuant to KRE 404(b)(1). In its motion in limine of October
6, 2020, the Commonwealth asserted that the order demonstrated Caldwell’s
knowledge that attendance was a condition of bail as well as the fact that he had a
motive for his failure to appear, since he clearly was made aware that he was not to
have any further violations of the law. In its order of October 15, 2020, the court
cited its verbal comment on the record that the bail order would be admitted. The
Commonwealth agreed to redact the amount of bail and the name of the victim.
However, the court excluded the motion to revoke, citation, and warrant, on the
grounds that they were not “inextricably intertwined” nor were they necessary to
show “motive as distinct from intent.” Thereafter, on October 20, 2020, the court
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RENDERED: AUGUST 5, 2022; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2021-CA-0957-MR
ROBERT CALDWELL APPELLANT
APPEAL FROM PIKE CIRCUIT COURT v. HONORABLE EDDY COLEMAN, JUDGE ACTION NO. 19-CR-00473
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: JONES, MAZE, AND MCNEILL, JUDGES.
MAZE, JUDGE: Robert Caldwell (Caldwell) appeals as a matter of right his
convictions for first-degree bail jumping and being a second-degree persistent
felony offender on the grounds that: 1) he was prejudiced by the jury’s knowledge
that he had been transported to the courtroom late for trial; 2) the trial court erred
in allowing testimony regarding his outstanding bench warrant; and 3) his constitutional rights were violated when potential jurors saw him in restraints. As
this Court finds no abuse of discretion, we affirm.
Caldwell was arrested on July 19, 2018, in relation to Indictment No.
18-CR-00148-002. He was arraigned upon felony charges therein on August 1,
2018, and bond was set at $10,000/10%, with the condition that he have no further
violations of the law, including failures to appear. His initial pre-trial conference
was scheduled for November 2, 2018.
Subsequently, on October 12, 2018, he was arrested on other charges.
On October 15, 2018, based on those new charges, the Commonwealth moved to
revoke his bond in Indictment No. 18-CR-00148-002. Thereafter, on October 24,
2018, a bench warrant was issued. He failed to appear for the November 2, 2018,
pre-trial conference.
On October 9, 2019, Caldwell was indicted for first-degree bail
jumping and being a persistent felony offender in Indictment No. 19-CR-00473.
That case was ultimately tried on June 7, 2021, resulting in the convictions from
which Caldwell now appeals.
Prior to trial, the Commonwealth filed a motion in limine, seeking to
introduce the bail order, motion to revoke with citation, and bench warrant arising
out of Indictment No. 18-CR-00148-002. Caldwell stipulated to 1) having a felony
-2- charge in that case which was still pending; 2) that he was granted bond on August
1, 2018, as to that case; and 3) that he failed to appear on November 2, 2018.
In its initial ruling on the Commonwealth’s motion in limine, the trial
court found that the bail order (as redacted) was admissible, but that the motion to
revoke, bench warrant, and citation were not, because they were not “inextricably
intertwined” or necessary to show “motive as distinct from intent.” However, in its
order of October 20, 2020, the trial court reconsidered its ruling on the grounds
that it was “overbroad.” Instead, the court directed that “[w]hile the document
shall not be admitted into evidence oral testimony about the motion, the date it was
filed and the date it was assigned for hearing may be admitted pursuant to KRE [1]
404(b). An admonition shall be given to the jury to consider that evidence only as
to motive or intent of the Defendant and for no other purpose.”
On June 7, 2021, at 9:22 a.m., the case was called for trial. At that
time, both sides announced ready. Caldwell was present, in street clothing, seated
at counsel table. At a bench conference, his trial counsel advised the court that
Caldwell had arrived after the potential jurors, and he expressed concern that
arriving late for a bail jumping case might result in prejudice. Jury selection
proceeded and Caldwell was convicted on the charged offenses.
1 Kentucky Rules of Evidence.
-3- On June 14, 2021, Caldwell’s trial counsel filed his motion for
judgment notwithstanding the verdict and for a new trial. In support of that
motion, he argued that the testimony regarding the bench warrant resulted in
prejudice, as did Caldwell’s late arrival to court. He also advised the court, for the
first time, that the potential jurors saw Caldwell in restraints. After the matter was
briefed and heard, the trial court denied the motions and sentenced Caldwell to
serve ten years.
I. LATENESS FOR TRIAL
The video record of the trial proceeding commences at 9:22 a.m. At
that time, Caldwell’s trial counsel indicated that his client was not present when
the potential jurors came into the courtroom. Caldwell was “three or four” minutes
late and the representatives of the sheriff’s office brought him in through the
“front.” He sought to preserve the issue of Caldwell’s untimely arrival for the
record. As stated in Perkins v. Commonwealth, 237 S.W.3d 215, 223 (Ky. App.
2007), “a failure to press a trial court for a ruling or an admonition on an objection
or on a motion for relief operates as a waiver of that issue for purposes of appellate
review.” Since trial counsel failed to move for an admonition or other relief as it
pertains to Caldwell’s time of arrival, we find that the issue has been waived and
cannot form the basis for reversal.
-4- II. ADMISSIBILITY OF KRE 404(b) EVIDENCE
The appellate standard of review of an evidentiary ruling is one of
abuse of discretion. The test for such abuse is “whether the trial judge’s decision
was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.”
Anderson v. Commonwealth, 231 S.W.3d 117, 119 (Ky. 2007).
KRE 404(b) provides that:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible:
1. If offered for some other purpose, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident; or
2. If so inextricably intertwined with other evidence essential to the case that separation of the two (2) could not be accomplished without serious adverse effect on the offering party.
As noted by the Court in Anderson, the purpose of this rule is to
prevent the admission of evidence which merely shows that a criminal defendant
has a “propensity to commit a certain type of crime.” 231 S.W.3d at 121. As such,
“the burden lies with the prosecution to provide an alternate base for admission of
the evidence apart from its propensity relevance.” Id. at 120.
In this case, the Commonwealth provided that “alternate base” by
consistently arguing that the bail order entered in Case No. 18-CR-00148-002 was
-5- properly admissible pursuant to KRE 404(b)(1). In its motion in limine of October
6, 2020, the Commonwealth asserted that the order demonstrated Caldwell’s
knowledge that attendance was a condition of bail as well as the fact that he had a
motive for his failure to appear, since he clearly was made aware that he was not to
have any further violations of the law. In its order of October 15, 2020, the court
cited its verbal comment on the record that the bail order would be admitted. The
Commonwealth agreed to redact the amount of bail and the name of the victim.
However, the court excluded the motion to revoke, citation, and warrant, on the
grounds that they were not “inextricably intertwined” nor were they necessary to
show “motive as distinct from intent.” Thereafter, on October 20, 2020, the court
sua sponte reconsidered its order to the extent that it found that the motion to
revoke, citation, and bench warrant were not admissible. Instead, the court held
that testimony about the documents would be allowed “but not the documents
themselves.” The court also stated that the jury would be admonished to “consider
[the] evidence only as to motive or intent of the Defendant and for no other
purpose.”
On May 26, 2021, the Commonwealth renewed its motion in limine,
arguing that:
It was the pending Warrant and the threat of incarceration or other consequences, which would truly motivate the Defendant to intentionally fail to appear in court. Additionally, without evidence of when the Warrant was
-6- served, the Commonwealth would be unable to prove the obvious, but crucial, point that the Warrant was not served prior to that date and the Defendant was not incarcerated on or prior to that date.
The issue was revisited at the pre-trial conference held on June 2,
2021. The trial court found, once again, that while the Commonwealth was not
permitted to introduce the documents, it could elicit testimony regarding them.
The admissibility of evidence pursuant to KRE 404(b)(1) was raised
for a final time in Caldwell’s motion for judgment notwithstanding the verdict and
for a new trial and in the Commonwealth’s response to that motion. The trial court
heard arguments on July 23, 2021. Caldwell’s motions were denied and the
sentence was imposed.
Despite the Commonwealth’s consistent and repeated assertions that
all of the documents were admissible, the trial court remained aware of its
obligation to “weigh the evidence’s probativeness against the danger of undue
prejudice.” Commonwealth v. Bell, 400 S.W.3d 278, 283 (Ky. 2013). As such, the
court carefully tailored its ruling to allow the Commonwealth to present its case
while limiting the potential for prejudice against Caldwell. Indeed, the trial court
readjusted its ruling numerous times. Accordingly, this Court finds no abuse of
discretion as to the evidentiary rulings herein and therefore, no basis for reversal.
-7- III. PHYSICAL RESTRAINTS
The most concerning of Caldwell’s arguments involves his insistence
that potential jurors were permitted to see him in physical restraints. Courts have
long addressed themselves to the egregious potential for prejudice engendered by
such displays. Deck v. Missouri, 544 U.S. 622, 125 S. Ct. 2007, 161 L. Ed. 2d 953
(2005).
In White v. Commonwealth, 301 Ky. 228, 229-30, 191 S.W.2d 244,
245 (1945), the issue before the trial court was whether the defendant was seen by
jurors while handcuffed to his co-defendant. Following his conviction, White, like
Caldwell, filed a motion for a new trial “without affidavit or proof.” Id. at 230,
191 S.W.3d at 245. That motion was denied. On appeal, the Commissioner
concluded that, “there is nothing to show, as is suggested in appellant’s brief, that
the defendants were brought through the courtroom to a back room before ‘the
jurors who were to try him.’” Id.
Here, as in Moss v. Commonwealth, 949 S.W.2d 579 (Ky. 1997), there
has been no “showing or offer of any proof which might support the contention
that the juror saw appellant bound. Appellant has shown no prejudice and
therefore, no error occurred.” Id. at 583. As such, this Court is not obliged to
engage in the heightened analysis prescribed in Deal v. Commonwealth, 607
S.W.3d 652 (Ky. 2020). Further, as stated in Meece v. Commonwealth, 348
-8- S.W.3d 627, 684 (Ky. 2011), where an issue is not raised until after trial, it is not
properly preserved for appellate review.
Thus, the only analysis to be made by this Court is whether the trial
court committed any palpable error pursuant to RCr2 10.26. Based upon the record
presented herein, there was no showing of an “easily perceptible, plain, obvious
and readily noticeable” error. Brewer v. Commonwealth, 206 S.W.3d 343, 349
(Ky. 2006). For this Court to find that a palpable error occurred, it must determine
that the error in question resulted in “manifest injustice.” Kingery v.
Commonwealth, 396 S.W.3d 824, 831 (Ky. 2013). Such a showing requires this
Court to find that there is a “probability of a different result or error so
fundamental as to threaten a defendant’s entitlement to due process of law.”
Young v. Commonwealth, 426 S.W.3d 577, 584 (Ky. 2014). Due to the inaction of
Caldwell and his trial counsel in raising the issue of restraints, no evidence was
acquired to demonstrate the basic fact that any potential juror observed Caldwell,
much less that such an “inadvertent viewing” influenced that juror and his or her
decision as to his guilt. Moss, 949 S.W.2d at 582-83.
Accordingly, we affirm the judgment of the Pike Circuit Court.
ALL CONCUR.
2 Kentucky Rules of Criminal Procedure.
-9- BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Jared Travis Bewley Daniel Cameron Frankfort, Kentucky Attorney General of Kentucky
Christina L. Romano Assistant Attorney General Frankfort, Kentucky
-10-