RENDERED: JANUARY 21, 2021 TO BE PUBLISHED
Supreme Court of Kentucky 2019-SC-0181-MR
TIMOTHY HARGROVES, JR. APPELLANT
ON APPEAL FROM HARDIN CIRCUIT COURT V. HONORABLE KEN M. HOWARD, JUDGE NO. 17-CR-00982
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION OF THE COURT BY JUSTICE NICKELL
AFFIRMING
Timothy Hargroves, Jr., appeals as a matter of right from a Hardin
Circuit Court judgment convicting him of murder in the death of neighbor
Bernard Williams; first-degree assault in the shooting of Millareisha Dixon, the
mother of his two-year-old daughter,1 with whom he argued a day earlier upon
seeing her and their child with another man; and first-degree wanton
endangerment of their child who was sitting beside Dixon when Hargroves shot
Dixon in the chest. Jurors also found Hargroves guilty of possessing
marijuana. Consistent with the jury’s recommendation, he was sentenced to a
1 To protect the two-year-old’s identity she will be referred to as “child.” combined term of forty-five years’ imprisonment. On appeal, he alleges he was
wrongly denied instructions on extreme emotional disturbance (EED) and
voluntary intoxication; the lead detective impermissibly told jurors Hargroves
was guilty and doubted he acted in self-defense; the prosecutor improperly
reenacted a version of the shooting; and, while Hargroves was advised of his
rights2 before being interviewed at the Radcliff Police Department, he should
have received a second warning before talking to another officer while being
transported to the Hardin County Detention Center. Following review of the
record, briefs and law, we affirm the trial court.
FACTS
Hargroves and Dixon had a rocky relationship. Though unmarried, they
had a child in common and the trio lived together in a second-floor apartment
in Radcliff, Kentucky. Dixon, a former soldier, had custody of the child. In
closing argument, the Commonwealth theorized the shooting resulted from
Hargroves’ attempt to eliminate Dixon to gain custody of their child.
On the night of November 1, 2017, Hargroves came home to find Dixon
and their child in the company of a man who jumped out a window. Hargroves
said he was upset—not because Dixon was with another man—but because his
child was with them. That night, Hargroves and Dixon established they were
not a couple, Dixon was not “his,” and Dixon could do as she pleased.
2 Miranda v. Arizona, 384 U.S. 436 (1966).
2 The next morning, Hargroves and two friends bought a bottle of Smirnoff
Vodka and began drinking. The remainder of the bottle was given to a fourth
person. The amount of liquor Hargroves consumed was never quantified.
Just before 8:00 p.m., dressed in multiple layers of clothing with a full
outer layer of field camouflage, and armed with a .38 special revolver
containing six bullets, Hargroves went to Williams’ first-floor apartment.
Williams was a career Army veteran described as a “gentle giant.” According to
Hargroves, he and Dixon would often “chill” with Williams in his apartment—
which was directly below theirs—where Williams shared his “wisdom.”
Williams and Dixon were not romantically involved. Also, Hargroves was not
jealous of the older Williams whom he considered a “friend” and “homey.”
Hargroves knocked loudly on Williams’ door—loud enough to awaken an
upstairs neighbor who was napping. Receiving no response, Hargroves
knocked again, louder this time, again rousing the upstairs neighbor. When
Williams opened his apartment door, Dixon and their child were sitting on the
couch. Hargroves quickly fired six shots through the open door, striking
Williams four times—once in the spine—and striking Dixon once in the chest.
The child was unharmed. Hargroves fled on foot.
Radcliff Police Officer Brad Hunt arrived on scene two minutes after
hearing the call of “shots fired.” With his bodycam recording, he found
Williams on the floor just inside the apartment door struggling to breathe; a
child was sitting on the couch. Officer Hunt rendered first aid to Williams who
managed to give his name and say Tim Hargroves, his upstairs neighbor, had
3 shot him. Williams was taken to University Hospital where he was pronounced
dead of multiple gunshot wounds after six minutes of treatment.
As Officer Jason Vance arrived on scene, Dixon approached him in the
parking lot with a bleeding chest wound. She was transported to the hospital
where she would remain five days after trauma surgeon Dr. Keith Miller
inserted a chest tube. He diagnosed Dixon as having a collapsed lung,
pulmonary contusion of the lung, clavicle and rib fractures, bleeding from the
lung itself, and air around the heart. Dr. Miller testified blood around Dixon’s
heart could have been fatal without treatment.
Based on Williams’ identification of Hargroves as the shooter, officers
quickly focused on him. Hargroves had telephoned his father, also a friend of
Williams, asking him to collect his child from Williams’ apartment and care for
her. Hargroves’ father complied and while on scene gave officers his son’s cell
number. Det. Michael Berry used the number to “ping” Hargroves’ phone
repeatedly and relay his movement to searchers.
Following Det. Berry’s coordinates, Officer Shawn Frakes heard rustling
in a wooded area. He illuminated the zone with a light on his rifle, and spotted
Hargroves about 750 feet behind the apartment complex. Hargroves obeyed
Officer Frakes’ commands and emerged from the woods where Officer Wyatt
Rossell handcuffed him.
When apprehended around 11:00 p.m., Hargroves was unarmed, but
possessed three baggies of marijuana, $470 in cash, and debit cards. His
4 cellphone was found nearby. Officer Rossell noted Hargroves smelled of alcohol
but followed all police commands in surrendering.
Hargroves did not assist officers in finding the revolver he normally wore
in a holster concealed under his clothing. After daylight, the gun was
recovered under leaf matter within 60 feet of Williams’ apartment. Ballistics
linked the revolver to the shooting. Hargroves was taken to the Radcliff Police
Department where he submitted to a gunshot residue test which also
connected him to the shooting. After receiving a Miranda warning, he agreed to
talk but feigned foggy memory and revealed nothing about the shooting. When
Det. Berry asked whether he shot in self-defense, Hargroves did not respond.
While he shared no details of the actual shooting, Hargroves recalled
events preceding the shooting with clarity. He said he spent the day drinking
with two friends, Sam and Powell; he played the video game Call of Duty; he
played with Spanish kids in the neighborhood; and, he learned some Spanish
from Ruth. During the interview, Hargroves reached for the holster buried
under his clothing and realized it was empty.
Questioning continued until about 1:17 a.m. when Hargroves moved
from the interview room to the adjacent squad room. Around 1:53 a.m., sitting
on a bench, with his hands cuffed behind his back and wearing a white police-
issued jumpsuit, Hargroves spontaneously said he now recalled the shooting.
Officer Daniel Padilla activated his bodycam and recorded the conversation.
Hargroves asked the whereabouts of his “chain.” He said upon seeing a
chain (necklace) being collected from him and taken into evidence, he suddenly
5 remembered walking inside Williams’ apartment—as he had done numerous
times—and Williams choking him so violently he was lifted off the ground to
the point he “almost” could not breathe. Hargroves went on to say one of three
chains he was wearing around his neck was broken by Williams’ force, and he
shot Williams because Williams choked him. When asked who he was trying to
shoot—because both Williams and Dixon were struck—Hargroves said, “I think
I was trying to shoot him.” As he continued talking, Hargroves said, “Jesus
saved her (Dixon) last night, cause I was supposed to be gone last night. I
swear, I was supposed to be gone last night.” Hargroves denied arguing or
quarreling with Williams prior to the shooting which according to the upstairs
neighbor quickly followed the second round of door knocks he had heard.
A chain with a medallion and intact clasp was collected from Hargroves’
pocket and taken into evidence along with five rings and a bracelet. A second
chain, with a broken clasp, was found on the ground outside Williams’
apartment, eight to ten feet from the threshold.
Just after 2:00 a.m., Officer Rossell drove Hargroves approximately thirty
minutes to the Hardin County Detention Center. During the drive, Hargroves
again said, “I shot Mr. Bernard (Williams) because he choked me. He choked
me and he grabbed me by the neck and lifted me up in the air. Hey, I’m pretty
sure. I’ll probably get attempted murder and have to do time for that.”
Hargroves also said Dixon had a controlling personality, had threatened to kill
his entire family, and would not allow him to smoke marijuana or spice.
Despite criticizing Dixon, Hargroves never said he shot out of revenge or anger
6 toward her for being with another man. Instead, he attributed the shooting
entirely to Williams choking him, lifting him off the ground, and breaking his
chain, after which he said he was sorry and had gone “too far.”
During the ride to the jail, Hargroves evinced concern that no one had
looked at or photographed his neck to preserve evidence of the alleged choking
because it “might help my case.” Upon arrival at the jail, both Officer Rossell
and a nurse inspected Hargroves’ neck for injuries but found no sign of
choking or other fresh injury. Additional facts will be developed as warranted.
ANALYSIS
I. Denial of Requested Jury Instructions
Hargroves claims the trial court erred in denying instructions on EED
and voluntary intoxication, both of which he requested and included in
tendered instructions.
It is well established that the trial court is required to instruct the jury on the “whole law of the case, and this rule requires instructions applicable to every state of the case deducible or supported to any extent by the testimony.” Taylor v. Commonwealth, 995 S.W.2d 355, 360 (Ky. 1999) (citing Kentucky Rule of Criminal Procedure (RCr) 9.54(1); Kelly v. Commonwealth, 267 S.W.2d 536, 539 (Ky. 1954)). Additionally, the trial court is required to “instruct the jury on all lesser-included offenses which are supported by the evidence.” Yarnell v. Commonwealth, 833 S.W.2d 834, 837 (Ky. 1992) (citing Cannon v. Commonwealth, 777 S.W.2d 591 (Ky. 1989)); McClellan v. Commonwealth, 715 S.W.2d 464 (Ky. 1986). While we evaluate the trial court’s decision to instruct on a specific claim for an abuse of discretion, the substantive content of the jury instructions will be reviewed de novo. Sargent v. Shaffer, 467 S.W.3d 198, 204 (Ky. 2015).
Gribbins v. Commonwealth, 483 S.W.3d 370, 373 (Ky. 2016). A trial court
abuses its discretion when it acts arbitrarily, unreasonably, unfairly, or takes
7 action “unsupported by sound legal principles.” Commonwealth v. English, 993
S.W.2d 941, 945 (Ky. 1999). Under the facts of this case, we discern no
instructional error and no abuse of discretion.
a. EED
Under proper facts, EED reduces murder, a capital offense under
Kentucky Revised Statutes (KRS) 507.020, to first degree manslaughter, a
Class B felony under KRS 507.030(1)(b). See McClellan, 715 S.W.2d at 468.
EED is a successor to the “old common law concept of ‘heat of passion[.]’”
Driver v. Commonwealth, 361 S.W.3d 877, 887 (Ky. 2012). It is defined as
a temporary state of mind so enraged, inflamed, or disturbed as to overcome one’s judgment, and to cause one to act uncontrollably from the impelling force of the extreme emotional disturbance rather than from evil or malicious purposes. It is not a mental disease in itself, and an enraged, inflamed, or disturbed emotional state does not constitute an extreme emotional disturbance unless there is a reasonable explanation or excuse therefor, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under circumstances as defendant believed them to be.
McClellan, 715 S.W.2d at 468–69.
To justify giving an EED instruction, Hargroves needed definite and non-
speculative proof, Padgett v. Commonwealth, 312 S.W.3d 336, 341 (Ky. 2010),
of an occurrence “so dramatic as to render the mind temporarily uncontrollable
and provoke ‘an explosion of violence.’” Luna v. Commonwealth, 460 S.W.3d
851, 883 (Ky. 2015). Neither Hargroves, nor Dixon, the only surviving
eyewitnesses—other than their two-year-old daughter—testified. Thus, jurors
heard no firsthand account of the shooting. To establish his defense,
8 Hargroves relied solely on post-shooting statements he had given police,
portions of which the Commonwealth introduced during its case-in-chief.
Hargroves’ words simply did not describe the “explosion of violence as a result
of some triggering event” needed to justify an instruction on EED. Id.
Appellate counsel frames the “triggering event” as “Hargroves coming
home to find his girlfriend with another man” in the presence of his child.
Hargroves told police he found Dixon in their apartment with another man on
November 1, 2017—the night before the shooting. Williams was not the “man”
Hargroves found with Dixon in their apartment. After the “man” fled through
the window, Hargroves and Dixon discussed their relationship and Hargroves
came to realize Dixon was not his wife, he did not “own” her, and she could do
as she pleased. Hargroves evinced no qualms about Dixon and their child
being in Williams’ apartment and emphatically stated Dixon and Williams were
not romantically involved. Hargroves never linked the shooting to finding
Dixon with another man. In fact, he said Dixon being with another man did
not upset him. His sole concern about the prior night was his daughter being
with Dixon and the “other man.” Based on Hargroves’ own words, contrary to
appellant’s brief, events of the previous day could not have constituted the
“triggering event” required by Luna to support an EED instruction.
Moreover, Hargroves’ multiple statements to police were consistent and
did not indicate he shot out of rage or anger. According to Hargroves, he
knocked on Williams’ door. When no one answered, he knocked again. When
Williams opened the door, Hargroves said he realized Dixon and their child
9 were inside and Williams almost immediately began violently choking
Hargroves, lifting him off the ground to the point he could barely breathe, and
breaking a chain he was wearing around his neck, “cause I walked in his
house.”
Hargroves maintained he shot Williams to stop Williams from choking
him. Based on Hargroves’ own statements, believing he acted because he saw
Dixon with another man the previous night would have been speculation at
best, contrary to Hargroves’ statements, and insufficient basis for an EED
defense under Padgett, 312 S.W.3d at 341. As told by Hargroves, if anyone
was upset or angry the night of the shooting, it was Williams who allegedly
choked Hargroves for no reason other than he entered Williams’ apartment.
Because the proof did not establish a dramatic, triggering event supporting
EED, the trial court did not abuse its discretion in denying the requested
instruction.
b. Voluntary Intoxication
Hargroves next argues the jury should have been instructed on voluntary
intoxication—a defense only when it “[n]egatives the existence of an element of
the offense[.]” KRS 501.080(1). This Court has construed the statute to mean
“the [voluntary intoxication] defense is justified only where there is evidence reasonably sufficient to prove that the defendant was so [intoxicated] that he did not know what he was doing.” Fredline [v. Commonwealth, 241 S.W.3d 793, 797 (Ky. 2007)] (quoting Rogers v. Commonwealth, 86 S.W.3d 29, 44 (Ky. 2002)). “[M]ere drunkenness,” in other words (sic)—i.e., the mere impairment of judgment and/or physical control that commonly leads intoxicated persons to do things they
10 would not ordinarily do—“does not equate with the Kentucky Penal Code’s definition of the ‘defense’ of voluntary intoxication.” Nichols [v. Commonwealth, 142 S.W.3d 683, 688 (Ky. 2004)] (quoting Rogers [v. Commonwealth, 86 S.W.3d 29, 44 (Ky. 2002))]. The defense requires proof of something “more” than “mere drunkenness.” Id.
Conyers v. Commonwealth, 530 S.W.3d 413, 432 (Ky. 2017).
In statements to police, Hargroves claimed he blacked out after
consuming vodka with friends the morning of the shooting; still smelled of
alcohol when apprehended at 11:00 p.m.; and, was so drunk he did not realize
his revolver was missing when questioned by police. He relies on Nichols
wherein evidence supported an instruction on voluntary intoxication because a
witness testified Nichols was “acting wild.” Unlike Nichols, no one testified
Hargroves was acting wild or was drunk. Still, he maintains he could not have
formed the intent needed for conviction of intentional murder, first-degree
manslaughter or intentional second-degree assault. Citing Mishler v.
Commonwealth, 556 S.W.2d 676, 680 (Ky. 1977), he insists a voluntary
intoxication instruction should have been given no matter how “preposterous”
his story.
In contrast, the Commonwealth argues the most Hargroves established
was mere drunkenness, far below the elevated showing required by Conyers.
In the Commonwealth’s view, Hargroves and two friends bought a bottle of
vodka the morning of the shooting, began drinking, and gave the remainder of
the bottle to Hargroves’ “girl.” Thus, at least four people shared a partial bottle
of vodka, with neither the amount of alcohol Hargroves personally consumed,
11 nor the period of time in which he drank it, being quantified. Hargroves’ ability
to specify “Smirnoff” vodka was purchased when describing his day to police
shows he was able to recall minute details and belies the extreme drunkenness
needed for an involuntary intoxication instruction.
Hargroves, who donned full camouflage at some point, apparently
navigated the bulk of the day without incident. He played Call of Duty, played
with Spanish kids in the neighborhood, and learned Spanish from Ruth. He
returned to the apartment complex and went directly to Williams’ apartment
where he knocked on the door. When no one answered, he knocked again.
About 7:53 p.m., when Williams opened the door, Hargroves knowing Dixon
and his child were inside, fired six shots into the apartment and fled on foot.
After the shooting, he concealed himself in trees behind the complex, and
called his father to collect and care for his daughter. The Commonwealth
theorized Hargroves would not have called his father to arrange for child care
had he believed Dixon was alive and able to care for their daughter. Hargroves
kept his cellphone nearby. When an officer heard rustling in a wooded area,
and saw Hargroves standing there, Hargroves followed the officer’s verbal
commands, without error, and surrendered as Officer Rossell handcuffed him.
Once in custody, Hargroves chose to waive his Miranda rights and speak.
In two conversations at the police department, one of which was played for
jurors, his speech was not garbled; his story was consistent; and, he expressed
himself, clarified details, and drew critical distinctions. For example, he knew
he had loaded six bullets in the revolver, knew he had no more ammunition,
12 and understood officers to say the six bullets he fired had struck Williams; he
questioned how Dixon had also been struck. He also distinguished having a
girlfriend from having a wife, saying a girlfriend is not “mine.”
Hargroves’ memory of the day’s events seemed intact and clear until just
before the shooting. When Det. Berry initially asked him whether he shot in
self-defense, Hargroves did not answer. Later, after developing a self-defense
theory, he said he then recalled shooting Williams “because he choked me.” He
went on to say, “But I know for sure that man picked me up and choked me.
So, [inaudible] I opened up fire on his ass.” Hargroves’ own words indicate he
deliberately chose to shoot Williams because he was being choked and could
not breathe. He also said, “Mr. Bernard [Williams] was my friend. I went too
far. But he went too far too. I was drinking.” Under Fredline, while Hargroves
may have consumed alcohol, the proof does not show he was so drunk he did
not know what he was doing. Therefore, we cannot say the trial court abused
its discretion by declining to instruct jurors on voluntary intoxication.
II. Whether Det. Berry Expressed Opinion on Hargroves’ Guilt
Hargroves’ next claim is Det. Berry, in describing the decision to charge
Hargroves with murder in Williams’ death, wrongly conveyed to jurors his
personal belief Hargroves did not act in self-defense and was guilty of murder.
Defense counsel did not object to this line of questioning during trial, rendering
the claim unpreserved for our consideration and prompting a request for
palpable error review under RCr 10.26. Proper application of the rule is
explained in Martin v. Commonwealth, 409 S.W.3d 340, 344 (Ky. 2013).
13 Under RCr 10.26, an unpreserved error may generally be noticed on appeal if the error is “palpable” and if it “affects the substantial rights of a party.” Even then, relief is appropriate only “upon a determination that manifest injustice resulted from the error.” RCr 10.26. “For an error to rise to the level of palpable, ‘it must be easily perceptible, plain, obvious and readily noticeable.’” Doneghy v. Commonwealth, 410 S.W.3d 95, [106] (Ky. 2013) (quoting Brewer v. Commonwealth, 206 S.W.3d 343, 349 (Ky.2006)). Generally, a palpable error affects the substantial rights of the party “only if it is more likely than ordinary error to have affected the judgment.” Ernst v. Commonwealth, 160 S.W.3d 744, 762 (Ky. 2005) (quoting Christopher C. Mueller [&] Laird C. Kirkpatrick, Federal Evidence § 21 (2d ed. 1994)).
On direct examination, the prosecutor asked Det. Berry whether he
would automatically charge someone with murder because he had killed
another. He said he would not because there may be potential explanations
and extenuating circumstances, such as self-defense, to explore. Det. Berry
was then asked whether he would charge someone if he believed no crime had
occurred at all. He again responded he would not. A few minutes later, the
prosecutor confirmed with Det. Berry, after canvassing all available witnesses,
he chose to prefer a murder charge against Hargroves in Williams’ death.
Based on this limited questioning—covering less than two minutes in four days
of guilt phase testimony—Hargroves argues palpable error mandates reversal.
We disagree.
First, we do not perceive Det. Berry’s responses to the prosecutor to
express an opinion on Hargroves’ guilt. When police arrived on scene, Williams
identified Hargroves as the man who shot him. Furthermore, when talking to
police, Hargroves admitted shooting Williams who died from multiple gunshot 14 wounds to the torso. Neither the cause of death nor the shooter’s identity was
in doubt. The only question was Hargroves’ culpability.
During opening statement, defense counsel told jurors Williams grabbed
Hargroves by the throat, lifted him off the floor, and squeezed his neck so hard
Hargroves could not breathe, prompting Hargroves to shoot Williams. Defense
counsel concluded her opening statement by saying, at the end of trial, “we’re
not going to ask you if Tim Hargroves shot Bernard Williams, what we’re going
to ask you, is why?” Defense counsel’s opening remarks primed jurors to
determine whether Hargroves acted in self-defense to stop Williams from
choking him. By arguing self-defense—as well as EED and voluntary
intoxication—in an attempt to negate or reduce the murder charge, Hargroves
made the charging decision relevant. Because Det. Berry’s decision to charge
Hargroves with murder was placed in issue by the defense, it was properly
explored on direct examination. See Brewer, 206 S.W.3d at 352.
Second, as the Commonwealth argues, Det. Berry’s testimony about the
murder charge was cumulative of the indictment the trial court read to jurors
prior to voir dire. Jurors learned nothing new or different about the murder
charge from Det. Berry they had not previously learned from the trial court’s
reading of the indictment, followed by his warning it was not evidence to be
used against Hargroves. Id.
Third, less than two minutes of a multi-day trial was devoted to this
topic. Any error was harmless and did not rise to the level of palpable error
affecting Hargroves’ substantial rights and causing manifest injustice. Martin,
15 409 S.W.3d at 344. If any error occurred, at most it was “ordinary,” and did
not mandate reversal.
III. Reenactment
Hargroves’ third complaint is the prosecutor improperly reenacted his
theory of the shooting during the direct examination of Dr. William Ralston, the
medical examiner. Upon close inspection, the true gist of trial counsel’s third
objection—the one pursued on appeal—was not that a reenactment occurred,
but that Dr. Ralston was asked questions outside his expertise.
We begin by noting a demonstration may properly occur during the
presentation of evidence while it is subject to exploration on cross-examination.
Robinson v. Kathryn, 23 Ill.App.2d 5, 8 (1959). A demonstration during closing
argument, however, which involves the actual victim and offers no opportunity
for cross-examination, has been deemed improper. Price v. Commonwealth, 59
S.W.3d 878, 881 (Ky. 2001). Still, no mistrial was required in Price because the
trial court’s admonition to disregard the reenactment cured any error. We
further note it is not uncommon for a medical examiner to testify about bullet
trajectory which was the basis of the Commonwealth’s questions. Daniel v.
Commonwealth, 607 S.W.3d 626, 631 (Ky. 2020); McQueen v. Commonwealth,
339 S.W.3d 441, 446 (Ky. 2011). We review a trial court’s evidentiary rulings
for abuse of discretion. Mason v. Commonwealth, 559 S.W.3d 337, 339 (Ky.
2018).
Dr. Ralston identified four bullet pathways riddling Williams’ body. He
indicated the bullets traveled right to left. He, and the jury, watched two back-
16 to-back demonstrations during his testimony. Both occurred out of camera
range, with the prosecutor representing the apartment occupant/victim
(Williams) and Det. Berry3 representing a visitor approaching the apartment
(Hargroves).
The first demonstration, which drew no objection, focused on whether
Williams’ injuries were consistent with a person inside the apartment opening
the exterior door, and a visitor standing outside the apartment door producing
and firing a gun into the apartment. Dr. Ralston agreed the proposed scenario
could produce wounds consistent with those suffered by Williams.
The prosecutor then asked, if the apartment occupant and visitor were in
closer proximity, with the occupant choking the visitor, and the visitor
produced a gun and fired—as the defense maintained—would those bullets
have likely traveled from the occupant’s right side to his left? At that point,
defense counsel objected, arguing the prosecutor was smaller than Williams
and the disparity in sizes rendered the demonstration useless. The prosecutor
responded he was referencing “trajectory” and would apprise jurors he and Det.
Berry were not to scale. The trial court overruled the objection, noting it was
just a demonstration, the question and answer had to be within Dr. Ralston’s
scope of knowledge, the trajectory of entry and exit wounds is often shown at
trial, the prosecutor must clarify he and Det. Berry were out of scale to
3 Appellate counsel says the demonstration was performed by the prosecutor
and Dr. Ralston. It appears the prosecutor and Det. Berry were the true participants, although Dr. Ralston briefly exited the witness box for better viewing.
17 Williams and Hargroves, and, the demonstration was subject to attack on
cross-examination.
Testimony resumed with the prosecutor apprising jurors neither he nor
Det. Berry was the same size as Williams or Hargroves. The Commonwealth
then asked Dr. Ralston whether, if Williams had been choking someone and
lifting him off the ground, and that person produced and fired a gun, would the
bullets have travelled from Williams’ right to his left. Dr. Ralston responded,
“Correct.” The prosecutor followed up by asking the witness if he could
envision a scenario in which someone shooting with his right hand could
produce a wound matching the trajectory of the bullet wounds he found on
Williams’ body. Dr. Ralston responded, “Well, the right hand would obviously
have to move to your right side of the body which would mean—right.”
Defense counsel objected again, saying Dr. Ralston had testified to a
special set of knowledge as a medical examiner, but was now getting into “rank
speculation” about how the shooting occurred based on proposed trajectories
and counsel doubted the current questions were within his scope of expertise.
The Commonwealth argued Dr. Ralston had performed the autopsy, had
personally examined Williams’ body, and had plotted the trajectory of the
bullets making his testimony proper. The trial court found Dr. Ralston
qualified to express opinions on projectile trajectory and deemed his testimony
proper. The court went on to say the path of a bullet fired by a right-handed
person, as Hargroves appeared to be, would be common knowledge to most
18 people and overruled the objection. The Commonwealth, having completed its
direct exam, passed Dr. Ralston to the defense for cross-examination.
As noted at the outset of this argument, reenactments during trial are
not forbidden. When offered during a party’s case-in-chief, and therefore,
subject to cross-examination, as in both Robinson and this case, they may be
helpful. Moreover, medical examiners often testify about bullet trajectory. See
Daniel, 607 S.W.3d at 641. We discern no abuse of discretion by the trial
court. Mason, 559 S.W.3d at 339.
IV. Continuing Efficacy of Miranda Warning
Lastly, Hargroves claims he should have received a second Miranda
warning between being interviewed by Det. Berry at the police station and
Officer Rossell engaging with him while driving him to the jail a couple of hours
later. Importantly, Hargroves has not alleged he did not receive Miranda rights
before speaking to Det. Berry; did not knowingly, intelligently and voluntarily
waive those rights; did not freely choose to speak to Det. Berry and later to
Officer Rossell; nor, that he requested but was denied, an attorney. His sole
argument is a reasonable person would have “assumed” the interview ended
when he left the interview room even though he remained handcuffed within
the police department, and anything he said in the nearly thirty-minute car
ride to the jail could not be used at trial because he was not readvised of his
Miranda rights. Officer Rossell’s bodycam captured the challenged
conversation, portions of which were played for the jury following the trial
court’s denial of a mid-trial suppression motion.
19 “When reviewing a trial court’s denial of a motion to suppress, we utilize
a clear error standard of review for factual findings and a de novo standard of
review for conclusions of law.” Sykes v. Commonwealth, 453 S.W.3d 722, 724
(Ky. 2015) (quoting Jackson v. Commonwealth, 187 S.W.3d 300, 305 (Ky.
2006)). We begin our review with the timeline of events provided by the trial
court. On November 1, 2017, Hargroves was apprehended in a field behind the
apartment complex where the shooting occurred. He was handcuffed by Officer
Rossell at 11:00 p.m. and taken to the Radcliff Police Department where he
submitted to a gunshot residue test. Without dispute, he entered the interview
room inside the police department at 11:23 p.m. and a uniformed officer read
him Miranda rights at 11:43 p.m. After speaking to Det. Berry for about two
hours, Hargroves left the interview room at 1:17 a.m. and took a seat on a
bench in the squad room outside the interview room. He was shoeless, his
hands were cuffed behind his back and he wore a police-issued jumpsuit.
At 1:53 a.m., still sitting on the bench in the squad room, Hargroves
spontaneously began speaking, telling officers he now recalled shooting
Williams because Williams had choked him with such force he could barely
breathe and a chain he was wearing around his neck was broken. Officer
Padilla activated his bodycam and recorded the conversation. At 2:02 a.m.,
Officer Rossell entered the squad room and announced he would be
transporting Hargroves to the Hardin County Detention Center. Five minutes
later, at 2:07 a.m., Officer Rossell escorted Hargroves to the police cruiser, and
at 2:35 a.m., they arrived in the detention center sally port. Hargroves moved
20 from the police department interview room to the adjacent squad room to the
police car to the jail. He challenges only the conversation between the police
station and the jail.
At trial, defense counsel admitted there is no consensus as to when a
Miranda warning becomes stale and a new warning is required. The defense
sought suppression only because a lay person would “assume” an interview
ends upon leaving the room in which it occurs. In an attempt to distinguish
Hargroves’ conversations, trial counsel argued: they involved different officers
(Det. Berry and Officer Rossell); they occurred in different locations (the
interview room and a moving vehicle); and, they covered different topics (Officer
Rossell asked Hargroves about his television viewing habits).4 Finally, once
inside the car, Hargroves was not asked if he recalled his Miranda rights.
Opposing suppression, the Commonwealth noted Hargroves was not
forced to speak to Officer Rossell but freely chose to do so; Hargroves never
invoked his rights; he never requested an attorney; he initiated many voluntary
statements; and, bodycam footage showed Officer Rossell entering the squad
room and announcing he was ready to transport Hargroves to the detention
center before placing Hargroves in the police cruiser. Based on these facts, the
Commonwealth argued there was no “break” between Det. Berry’s conversation
with him in the interview room, the squad room conversation captured on
4 Det. Berry’s actual interview is not in the record. We do not know its scope
but from his testimony, it appears to have focused on the shooting of Williams and Dixon in the company of the child.
21 Officer Padilla’s bodycam, and Officer Rossell’s conversation with Hargroves as
he sat in the back of the police cruiser still handcuffed. But for learning the
items taken from him were being taken into evidence, Hargroves’
circumstances between the police department and the jail did not change, and
the entire time he was asked about a single set of charges.
Relying on State v. Chew, 150 N.J. 30, 65, 695 A.2d 1301, 1319 (1997),
the trial court considered the totality of the circumstances, specifically:
conditions and length of detention and interrogation; whether Miranda rights
were given; and, the accused’s age and schooling. Noting absence of a bright
line rule governing when a Miranda warning goes stale, the trial court
specifically found Hargroves was not a young man; was of above-average
intelligence; and for a total of about two-and-one-half hours was questioned
about a single criminal event during a continuing inquiry with no lengthy gaps.
The trial court distinguished Hargroves’ case from one in which different crimes
are investigated and there is a substantial break in time.
The trial court mentioned two other major factors—Hargroves’ prior
experience with both law enforcement and the judicial system. The shooting of
Williams and Dixon was Hargroves’ second or third arrest in 2017; he had
previously been inside the Radcliff Police Department; and, he was familiar
with many of its officers. Also, at the time of the shooting, he was on pretrial
release for fleeing and evading, he had multiple prior misdemeanors, and, since
2005 had amassed a lengthy criminal history. Additionally, the Radcliff Police
Department was a common denominator in all discussions with Hargroves. It
22 was the site of Det. Berry’s interview with Hargroves; as well as the location of
Hargroves’ spontaneous revelations captured on Officer Padilla’s bodycam; and,
the starting point of the drive to the jail and Officer Rossell’s conversation.
Moreover, the crimes were investigated by multiple uniformed officers
familiar to Hargroves and performing multiple tasks. For example, Officer
Rossell handcuffed Hargroves in the field when he was apprehended at 11:00
p.m. and then transported him to the detention center at 2:07 a.m. just three
hours later. In reviewing the recording of the drive to the detention center, the
trial court observed Officer Rossell asked some questions, but there were also
periods of silence, and at times, Hargroves voluntarily initiated topics.
Describing the ride as a “friendly, noncoercive conversation,” the trial court
concluded nothing coercive happened and no Miranda violation occurred
during the drive.
We also note Hargroves had a goal in chatting with Officer Rossell during
the drive. He was developing his self-defense theory and hoped examination of
his neck might reveal valuable proof for his case—specifically, evidence of
Williams having choked him and broken his chain. Based on the conversation
during transport, upon arrival at the jail Officer Rossell and a nurse checked
his neck for evidence of choking but found nothing.
We reject Hargroves’ premise that the Miranda warning he received soon
after arriving at the police department lost its efficacy when he was transported
to the jail in a police cruiser driven by the same uniformed officer who had
apprehended him in the field. Hargroves knowingly chose to converse with
23 Officer Rossell. The trial court properly applied the law in denying the motion
to suppress. We discern no error in the trial court’s conclusions of law.
CONCLUSION
For the reasons expressed, we affirm the Hardin Circuit Court.
All sitting. All concur.
COUNSEL FOR APPELLANT:
Brandon Neil Jewell Assistant Public Advocate
COUNSEL FOR APPELLEE:
Daniel J. Cameron Attorney General of Kentucky
Micah Brandon Roberts Assistant Attorney General