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DARNELL sMITH ' APPELLANT`

ON APPEAL FROM JEFFERSON CIRCUIT COURT
V. HONORABLE JUDITH E. MCDONALD-BURKMAN, JUDGE
' ' NO. 14-CR-000973

COMMOHNWEALTH OF KENTUCKY _' APPELLEE

OPINION OF THE COURT BY JUSTICE .WRIGHT
`AFFIRMING

\

Darnell Smith was convicted of a number of offenses related to three
separate robberies and sentenced to a total of 25 years _in prison. In this
matter-of-right appeal, he raises four claims of error: (1) that admitting his
recorded statements to a detective violated his Miranda rights; (2) that barring
him from introducing evidence of his refusal to sign a Miranda-“iaiver form
prevented him- from fully informing the jury of the circumstances surrounding d
his statements and thus infringed his right to present a complete defense;

(3) that admitting evidence of a sweatshirt With no apparent connection to any
of the charged offenses was.reversible error; and (4) that denying his motion to

sever the charged offenses for separate trials Was reversible error. This Court.

affirms.

I. BACKGROUND

Smith’s convictions arose from three separate robberies committed in
downtown Louisville in January 2014.

The first occurred on the evening of January 18. Wesley Kingsolving was
waiting at a bus stop when two men asked him whether they should walk or
take the bus to the Phoenix Hill Tavern (which happened to be very close to
Kingsolving’s apartment). I-Ie recommended the bus and volunteered to show
them Which stop to get off at because he lived across the street from the‘bar.
So they all rode the bus and got off at the same stop. Kingsolving pointed out
the bar before turning and heading home. But the two men did not go to the v
bar; they robbed Kingsolving instead. The robbers physically assaulted
Kingsolving and forced him to let them into his apa-rtment_there they stole a
backpack, money, an XboX, a laptop, condoms, and a cell phone. The lead
assailant_the taller of the two men, whom Kingsolving would later identify
through a police photo lineup and at trial as Smith_also threatened to shoot
` him with a “clip.” After the robbers left, Kingsolving asked a neighbor to call
91 1. Surveillance cameras on the bus captured images of the men..

Thirty minutes later, the second robbery happened about one-and-a-half
miles away, outside the Jewish Hospital campus downtown. There, two men
approached a Jewish Hospital nurse, Joshua Worthington, who was outside on
a smoke break. One of the men asked him for a cigarette, and Worthingtor_l
declined. The man walked away but immediately returned and asked instead

for a drag from the cigarette Worthington Was then smoking. Worthington

again declined. The man punched him in the face, stole his cellphone, and ran
away. Worthington never positively identified who struck him, but described
his assailant as a black male wh`o had “acne scars on his face” and Was
wearing a dark coat or jacket. (Smith has distinctive facial scars.) Surveillance
cameras outside the hospital recorded the assault and captured images of the
two assailants_their appearance matched that of the two suspects recorded on
the bus surveillance before the Kingsolving robbery.

The third robbery occurred almost one week later, on January 24. That
evening, Rodney Pino arrived in the parking lot of his apartment.with his son
and noticed two men standing in the lot. As he parked his car, one of the men d
approached and asked for a cigarette. Pino said, “Yes.” But as he was exiting
his vehicle, the man grabbed him. Pino tried to fight him off. During the
struggle, according to Pino, the man implied that he had a gun and threatened,
“You don’t want it.” Eventually, after Pino’s son threw something at him, the
attacker ordered his companion into Pino’s car’s driver seat. The attacker
jumped into the passenger’s seat, and they fled With the vehicle.

Patrol officers soon encountered the stolen vehicle on the road_the
ensuing chase ended when the vehicle crashed. Smith exited from the
passenger side of the crashed vehicle and briefly attempted to flee on foot
before submitting to police. Law enforcement never apprehended the driver
(and Smith never identified him, claiming that he hadn’t known the man well
and was unsure even of his name). Pino arrived at the'scene a short time later

and identified the handcuffed Smith as his attacker; he would identify Smith as

his attacker at trial as well. When police arrested him, Smith was wearing a
dark jacket that appeared to be the same jacket that he was wearing in the bus
and hospital surveillance footage from the earlier robberies.

Smith was charged with three counts of first-degree robbery, first-degree
burglary, first-degree fleeing or evading police, two counts of third-degree
terroristic threatening, and being a second-degree persistent felony offender
(PFO).1 (For all, he was charged with either principally committing or else being
complicit in the commission of each offense. See KRS 502.020.] Before trial, he
moved to sever the charges and have separate trials held for each of the three
robberies; the trial court denied the motion.

After a three-day trial, the jury found Smith guilty of the three first-
degree robbery counts, first-degree burglary, second-degree fleeing or evading
police,- both counts of third-degree terroristic threatening, and being a second-
degree PFO. The trial court sentenced him to a total of 25.years’ imprisonment
as recommended by the jury.

Smith now appeals to this Court as a matter of right. See Ky. Const.

§ 110(2)(b]. We will develop additional facts as needed in the discussion below.

 

1 The Commonwealth also initially charged Smith with theft by unlawful taking
over $500, which related to a separate incident involving Smith’s then-girlfriend that is
irrelevant to this appeal; as well as a third count of third-degree terroristic-
threatening, resisting arrest, and third-degree criminal mischief, which all arose from
a separate and unrelated incident involving police that is also irrelevant to this appeal.
All of these charges were either severed or dismissed before trial.

4

II. ANALYSIS

A. The trial'court did not err iii declining to suppress Smith’s
statements to Detective Ditch.

Smith’s first claim of error involves statements he gave to Detective Matt
Ditchabout the Worthington robbery while he was in jail on other charges.
Smith claims that the trial court erred in denying his motion to suppress the
statements, which he argues Detective Ditch procured in violation of his Fifth
Amendment right to counsel. See Edwards 1). Arizorra; 451 U.S. 47 7, 485~86
(1981] (“The Fifth Amendment right identified in Miranda [v. Arizona, 384 U.S.
436 (1966)] is the right to have counsel present at any custodial
interrogation.”) .2

We review suppression decisions under a mixed standard of review,
employing a two-step process. First, We examine the trial court’s factual
findings fer clear error. Welch v. Commonwealth, 149 S.W.3d 407, 409 (Ky.
2004]. We treat those findings as conclusive if supported by substantial
evidence. Bauder v. Commonwealth, 299 S.W.3d 588, 591 (Ky. 2009). We then
review the application -of the law to those facts de novo, giving no deference to

the lower court’s legal conclusions. Id.

 

2 The Fifth Amendment right to counsel is distinct from the right to assistance
of counsel guaranteed by the Sixth Amendment, which is offense-specific and attaches
generally upon the initiation of judicial proceedings against the accused. See Maine v.
Moulton, 474 U.S. 159, 168-70 (1985). Because no criminal proceedings had yet been
initiated against Smith on the subject matter of Detective Ditch’s questioning (the
Worthington robbery), as Smith concedes, the Sixth Amendment’s guarantees did not

apply. ' .¢

Smith’s claim rests on an alleged violation of his rights under the Fifth
Amendment as laid out by the United States Supreme Court in Mirand.'a. _
Broadly speaking, to protect the Fifth Amendment right not to incriminate
oneself, Miranda laid out a set of constitutionally mandated guidelines that
state authorities must follow to obtain self-incriminating statements that may
be' used against the defendant at trial. See United States v. Dickerson, 530 U.S.
428, 434-35 (2000]. The Miranda requirements are geared toward mitigating
against the inherently coercive nature of isolated and pressured interactions
with police_namely, custodial interrogations Id. Those protections are not
implicated unless and until the suspect is both “in custody” and subject to
interrogation3 by the state. Rhode Islan'd v. Sims, 446 U.S. 291, 300-01 (1980).
To introduce statements obtained through in-custody interrogation without a
lawyer present, the state has the burden of showing that the defendant
knowingly and intelligently waived his rights and chose to speak to police
voluntarily. Miranda, 384 U.S. at 475; see also North Carolina v. Butler, 441
U.S. 369, 373 (1979].

If a suspect clearly asserts his right to remain silent and to have counsel,
a bright-line rule prohibits any further questioning without counsel being
present Edwards, 451 U.S. at 484. The Edwards rule in effect renders any
post-invocation waivers presumptively invalid_post-invocation waivers are not

considered voluntary if obtained through police persistence. Id. The rule bars

 

3 It does not appear that the “interrogation” requirement for applying Miranda
was ever disputed, and it is not at issue in this appeal.

6

“police from badgering a defendant into waiving his previously asserted
Miranda right by presuming his postassertion statements to be involuntar'y.”
Montego v. Louisiana, 556 U.S. 778, 787 (2009].

But that bright-line presumption is overcome if the suspect himself '
“initiates further com-munication, exchanges, or conversations with the police.”
Edwards, 45 1 U.S. at 485. “Edwards does not foreclose finding a waiver of
Fifth Amendment protections after counsel has been requested, provided the
accused has initiated the conversations or discussions with the
authorities.” Minnick v. Mississippi, 498 U.S. 146, 156 (1990). “Only the
suspect may reinitiate dialogue with the authorities; the authorities cannot
continue to cajole or otherwise induce the suspect to,continue to speak without
first affording the suspect an attorney.” Brad.ley v. Commonwealth, 327 S.W.3d
512, 518 (Ky. 2010].

Edwards does not, however, protect a Miranda invocation in perpetuity.
Instead, it is subject to an expiration date of sorts, recognizing that the coercive
pressures engendered by a custodial setting subside as time passes after a
break in custody. See Maryland v. Shatzer, 559 U.S. 98, 107-08 (2010]. Indeed,
the Supreme Court crafted a bright-line rule dictating when the Edwards
presumption expires: 14 days. Shatzer, 559 U.S. at 110. “That provides plenty
of time for the suspect to' get reacclimated to his normal life, to consult with
friends and counsel, and to shake off any residual coercive effects of his prior

custody.” Id. So once 14 out-of-custody days have passed, law enforcement is

not barred from rewarning under Miranda and reinitiating questioning; the
onus is then on the suspect to reinvoke or waive.

With those general principles in mind, we turn to what happened here.
As mentioned above, Smith was arrested for the Pino robbery on January 24,
2014. He remained thereafter in the Louisville Metro Department of Corrections
jail on those charges. While he was in jail, police investigations tied him to the
other two robberies as well. Detective Ditch was the lead investigator for the
Worthington case.

On March 7, Detective Ditch traveled to the jail and met with Smith in an
interrogation room. I-le attempted to ask Smith questions, but Smith
“immediately refused” to speak to him and instead “lawyered up.” So the
detective ceased questioning and left.

Almost a month later, on fler 3, Detective Ditch returned to the jail, at
an Assistant Commonwealth’s Attorney’s- request, to again try to speak to
Smith about the Worthington robbery. The second time around, Smith was
more receptive_he eventually conceded to the detective that one of the men on
the Jevvish Hospital surveillance footage was indeed he, yet maintained that he
was innocent of the Worthington assault and robbery. An audio recording of
this interview was played for the jury at trial.

.In claiming that the Constitution required suppressing his statements to
Detective Ditch, Smith begins by arguing that his invoking his Miranda rights
when the detective first tried to speak with him on March 7 barred the later

questioning on April 3. Once he invoked, he insists, law enforcement was

8

prohibited from questioning him at all unless counsel Was present or Smith
reinitiated dialogue with the authorities himself. Since he did not initiate
further communications with law enforcement nor Was an attorney made
present, Smith contends Detective Ditch violated his rights when he returned
on April 3-to try again to get him to talk. So he insists that any waiver of his
rights after being rewarned of them was ineffective under Edwards’s bright-line
prohibition against post-invocation questioning A suspect’s subsequent waiver
after invoking is deemed involuntary and invalid if it was the product of police
prodding_he claims that is exactly what the second try on April 3 was.

Smith is-mistaken. His argument, given Shatzer’s 14-day rule,

_ presupposes that he remained “in custody” under Miranda during the nearly
month-long period between Detective Ditch’s visits. In doing so, he relies on a
flawed -premise: he takes as granted that “locked up” equals “in custody"_it
does not.

What Smith’s argument loses sight of is that in this Fifth Amendment
context, custody is a judicially defined legal term of art, untied as it were from
many of the usual senses of the term_it is limited to circumstances that entail
“a serious danger of coercion.” Howes v. Fields, 565 U.S. 499, 508-09 (2012).
Just because a person is incarcerated when interviewed does not invariably
mean that he is in “custody” for Miranda purposes. See id at 508. More to the
point, at least where the custodial interrogation is unrelated to the reason the
suspectis incarcerated, an inmate-s'uspect’s post-invocation return to the jail’s

general population is conceptually indistinguishable from an unjailed suspect’s

9

invoking, being released from custody, and going home. See Shatzer 559 U.S.
at 1 13-14.

So once Smith was returned to the jail’s general population after he
invoked on March 7, he was no longer in custody under Miranda. Because
more than 14 noncustodial days passed before Detective Ditch- returned on
April 3, that earlier invocation did not bar the detective from reinitiating
questioning after he rewarned Smith of his rights, -whi`ch Smith was then
obliged to reassert or else waive.

Smith argues that even if his March 7 invocation should be deemed to
have expired, suppression was still required because he indeed reasserted his
rights on April 3; the Commonwealth disagrees, insisting that he waived them
and spoke to the detective voluntarily.4

lf Smith is correct, of course, -we would be left to conclude that the
Edwards rule should have barred the admission of his statements 451 U.S. at

485. The applicability of that “rigid” rule requires courts to “determine whether

 

4 The Commonwealth also argues, as an alternative ground for affirming the
trial court’s decision not to suppress the statements here, that Smith was not actually
“in custody” under Miranda during the April 3 questioning The trial court’s order
denying Smith’s motion to suppress did not address, at least explicitly, whether the
interrogation was custodial; its ruling that Smith validly waived his Miranda rights,
though, implies that it believed it was custodial.

lf the Commonwealth is correct and the interrogation was noncustodial, then
there could have been no infringement of the Miranda right allegedly invoked, See
Rhode Island v. Innis, 446 U.S. 291, 298 n.2 (1980). To be sure, the custody question
comes before the invocation-waiver question in the analysis_the answer to the former
dictates whether the latter even needs to be asked. But despite that, we choose to pass
on the custody question here because it is unnecessary to affirm the trial court. As we
explain below, we agree with the trial court that suppression was not required because
Smith did not clearly assert, and thus waived, his right to have counsel present during
questioning before he voluntarily spoke to the detective.

10

the accused actually invoked his right to counsel.” Davis v. United States, 512
U.S. 452, 459 (1994) (quoting Smith v. Elinois, 469 U.S. 91, 95 (1984]]. So the
question is: Did Smith clearly ask for counsel to be present during the
custodial interrogation? To answer that requires us to consider the relevant
dialogue between suspect and-detective.

Detective Ditch kicked off the April 3 encounter with Smith by reading
aloud all of his Miranda rights_including his right to cut off questioning at any
time and ask for counsel_from a waiver form that he hoped to have Smith
sign. This exchange followed:

Ditch: If you would sign [the waiver form] for me before l talk to
you, I’d appreciate it. You don’t have to. If it’s, it’s_you do
know how to read, `right?

Smith: Mmm hmm [a_ffirmative].

Ditch: You know how to read and write? Okay, if you would, sign
that where it says “Signed,” and I’ll sign as a witness. Then
I’ll put the time down. You want me to read it to you? Okay.

Smith: So what is this for?

Ditch: I’m gonna show you. And I’m gonna, I’m gonna_trust me,
you want to see this. Okay?

Smith: What is this for though? Can I_can l know what it’s for?
Ditch: It’s pertaining to you. And it’s pertaining to a report.
Smith: I don’t know man.

Ditch: But here’s the thing. There’s nothing incriminating on i_t,
okay? If you don’t want to sign that, that’s fine with me,
okay?

Smith: Yeah, I’d just rather have my lawyer present

Ditch: You don’t want to sign that?

11'

Smith: No.

Ditch: Okay. So the question, then, is: do you want to talk to me?
Smith: I’ll answer as many questions as I can.

Ditch: Okay, so you will talk to me?

Smith: Yeah.

Ditch: Right now?

Smith: Yeah.

Ditch: Without your lawyer here? Without having a courtroom or
anything like that?

Smith: Yeah.

Ditch: Okay. But you don’t want to sign this rights-waiver form?
Smith: Mmm mmm [negative].

Ditch: Okay. But you do understand your rights?

Smith: Mmm hmm [affirmative].

Ditch: Let me just read ’em to you again', so there’s no question.
And l understand that you don’t want to sign it. I’m gonna
write right here, “refused to sign.” Alright? So I’m just going
to read it to you again just so there’s no questions about it.
You have the right to remain silent_

Smith: [inaudible] l understand. I just want to know, maybe, l
don’t know man. I don’t know what_

Ditch: Here, let’s do this. You do understand your rights?
Smith: Yeah.

Ditch: Okay. I have some stuff I want to show you.
Smith: Okay.

Ditch: lf you decide you don’t want to talk about it, you don’t have
to.

Smith: Okay.

12

Ditch: If you decide, you know_whatever. This is all about you,
okay?

Smith: Yeah.

Ditch: So do you understand your rights? And you do want to talk
to me right now? Okay, can you say it out loud please?

Smith: Mmm hmm [affirmative].
Ditch: Yeah? Okay, so you just don’t want to sign this?
Smith: Mmm mmm [negative].

Ditch: But you do understand it, and you do Want to talk to me?
Alright.

Detective Ditch then questioned Smith about his presence on the Jewish
Hospital surveillance footage and his role in the Worthington robbery.

Smith maintains that his statement about wanting to have his lawyer
present was a clear request for counsel that required Detective Ditch to
immediately cease questioning Because the detective instead “ignored,” as
Smith puts it, the alleged request for counsel and persisted, Smith argues that
the Statements the detective subsequently elicited from him were taken in
violation of Miranda and so could -not be admitted against him under Edwards.
There is some surface appeal to this argument; but it wanes under scrutiny.

To be sure, Smith told the detective, “I’d rather have my lawyer present.”
But he said that when asked if he would sign the detective’s waiver form, not
when asked if he Would Speak to the detective at all. The reference to his lawyer
did not assert his desire for counsel to be present for questioning, as protected
by Miranda and Edwards; it asserted only his desire for counsel’s assistance

with signing the form. And in this regard, there is no question about whether

13

Smith understood his rights-he confirmed, seemingly exasperatedly,
numerous times during the back-and-forth that he did. Plus, that he invoked
those rights less than one month earlier is a good indication of his clear
understanding and familiarity with them. Here, he was apparently just leery of
signing something without his lawyer. Detective Ditch made clear that Smith
did not_ have to sign it if he did not want to_he did not want to sign it without
his lawyer, so he did not.

If any doubts lingered, Detective Ditch’s follow-up questioning laid them
lto rest. He asked Smith to clarify whether he wanted to have an attorney
present during questioning in general, o`r whether he was actually okay with
speaking to the detective at that time (and just didn’t want to sign the waiver
form without his attorney). In responding to those clarifying questions, Smith
could hardly have been clearer_he had no qualms about speaking to Detective
Ditch at that time without counsel present

In the end, the reference to his lawyer, clarified as it was by the detective,
was simply not the type of unambiguous and unequivocal assertion of the right
to counsel that would have otherwise required thel detective to cut off the
interrogation. “[I]f a suspect makes a reference to an attorney that is
ambiguous or equivocal in that a reasonable officer in light of the
circumstances would have understood only that the suspect might be invoking
the right to counsel, the cessation of questioning” is not required. deis, 512
U.S. at 459. A suspect '“must articulate his desire to have counsel present

sufficiently clearly that a reasonable police officer in the circumstances would

14

understand the statement to be a request for an attorney. If the statement fails
to meet the requisite level of clarity, Edwards does not require that the officers
stop questioning the susp'ect.” Id.

Smith’s statement failed to meet that required level of clarity. Instead, he
articulated rather clearly the opposite_that he did not desire counsel’s
presence during questioning The Fifth Amendment, under the Mimnda-
Edwards caselaw, prohibits further police questioning once a suspect indicates
his desire to have counsel present; it does not prohibit further police
questioning to flesh out whether a suspect has in fact indicated that desire.

Because Smith did not clearly assert his right to have counsel present for
questioning under Miranda, Detective Ditch’s continued questioning of him was
permissible The trial court did not err in admitting the statements that he gave
during that questioning

B. The trial court did not abuse its discretion in prohibiting Smith
from introducing evidence about his refusal to sign the waiver form.

Smith’s next complaint is also related to the April 3 questioning by
Detective Ditch. With the trial court having rebuffed his attempt to suppress
the April 3 statements, Smith sought to introduce evidence that the detective
elicited those statements despite his refusing to sign the rights-waiver form
Without counsel. He argued that this evidence touched on the reliability of his
statements to Detective Ditch_it was evidence, he insisted, of his being
coerced into making unreliable statements The trial court rejected that

argument and excluded any reference to his refusal to sign the form. The court

.15

concluded that Smith was merely attempting to relitigate the suppression
issue_a matter of law for the judge, not fact for the jury.

On appeal, Smith maintains that this barred him from informing the jury
of all the circumstances surrounding his statements to Detective Ditch, and so
violated his right to present a defense. He impugns the trial court’s allegedly
flawed logic as “rest[ing] on the apparent assumption that evidence bearing on
the voluntariness of a confession and evidence bearing on its credibility fall in
conceptually distinct and mutually exclusive categories.” Crane v. Kentucky,
476 U.S. 683, 687 (1986].

The problem for Smith in making this argument is that he only assumes,
but does not show how, the evidence at issue here in fact bears on the
' credibility of his statements to Detective Ditch. He never explains how his
refusal to sign the waiver form, alone, should cast doubt on the credibility or
reliability of his subsequent, voluntary statements His mere refusal to sign the
form doesn’t seem to say anything at all about the credibility or reliability of
what Smith later told the detective

To be sure, we recognize that “the physical and psychological
environment that yield[s] [a] confession can be of substantial relevance to
the ultimate factual issue of the defendant’s guilt or innocence.” Crane, 476
U.S. at 689. But Smith’s refusal to sign the waiver form without counsel being
present in no way shows or even implies that the detective’s continued
questioning somehow overbore his'will or otherwise rendered his answers

unreliable. That evidence simply does not say anything at all about how

16

truthful or untruthful he was with the detective_it does not cast doubt on his
statements’ credibility.

The case that Smith quotes, Crane v. Kentucky, is informative. In Crane,
the defendant’s defense was that _no physical evidence linked him to the crime
and that there were numerous reasons why his confession should not be
believed. Id. at 691. I-le sought to convince the jury that he, young and
uneducated, was held at length against his will in a small, windowless room
until he succumbed to the pressure to confess to every unsolved crime in the
county. Id. So “introducing evidence of the circumstances that yielded the
confession was all but indispensable to any chance of [his defense]
succeeding” Id.

The same cannot be said of the evidence at issue here, His mere refusing
to sign the waiver form says nothing about the physical or psychological
circumstances that yielded a confession. (We use the term confession loosely
here because Smith admitted only that he was one of the men in the
surveillance footage; he maintained his innocence despite that concession.]

Instead, it seems clear that Smith offered this evidence, not to assist the
jury in judging the credibility or reliability of his statements but rather to try
to turn the jury against the prosecution by impugning law enforcement’s
investigation tactics Indeed, Smith’s own arguments below confirm this
suspicion_he argued to the trial court, after all, that “this is about the

detective, and what he was doing, and his investigation, and the things that he

17

was prepared to do, up to and including continuing to interview someone who
has already refused to waive his rights.”

Police, or prosecution tactics are not subject to attacks geared at nothing
more than making the state look bad..Where nothing about the tactics actually
implicates the credibility or reliability of the evidence they uncovered, they lack
evidentiary worth. Attempts to garner sympathy from the jury by turning it
against state authorities are not protected by the Constitution, which
guarantees criminal defendants “a meaningful opportunity to present a
complete defense,” Califomia v. Trom.betta, 476 U.S. 479, 485 (1984). Anti-
police sentiment (and anti-prosecution sentiment by extension] is` not a
defense-the Constitution'does not guarantee criminal defendants an
opportunity to engender it.

We review a trial court’s decision to exclude evidence for abuse of
discretion, meaning we will reverse only if it was “arbitrary, unreasonable,
unfair, or unsupported by sound legal principles.” Commonwealth v. English,
993 S.W.2d 941, 945 (Ky. 1999]. The trial court here acted well within its
discretion when it excluded evidence related to Smith’s refusal to sign the
waiver form without having an attorney present,

C. The admission of Smith’s hooded sweatshirt was not reversible
error.

Smith also complains about the trial court’s allowing the Commonwealth
to introduce into evidence a black hooded sweatshirt that police discovered
when executing a search warrant for his property being held by Louisville

Metro Department of Corrections. According to Smith’s counsel, the sweatshirt

18

was taken from him after an earlier arrest in 2011 and is completely unrelated
to the arrest and charges in this case. The Commonwealth does not dispute
this,-at least to the extent that it concedes that it does not know how or when
the sweatshirt came to be included in Smith’s property with the jail.

Smith thus insists that the evidence was inadmissible both under
KRE 401 and 402 as irrelevant, and under KRE 403 as posing a danger of
undue prejudice that substantially outweighed its probative value. The
sweatshirt evidence was unduly prejudicial, he contends, because some of the
witnesses testified that one or both assailants wore a dark or black “hoodie.”
He complains that introducing the sweatshirt thus unduly inculpated him
further by improperly corroborating and tying to Smith the dark-hoodie
testimony, despite the fact that he was wearing a brown zip-up jacket when he
was arrested and when he appeared on the bus and hospital surveillance

We agree with Smith that this sweatshirt should have been excluded
from evidence. Its relevance and probative value do not seem to have been
sufficiently established to permit its being used as evidence against him_the
mere fact that the hoodie was included with Smith’s property being held by the
jail does not alone tie it in any way to the charged offenses The
Commonwealth, in offering this evidence, was'obliged to establish its relevance
and probativeness; by its own concession, it was unable to do so.

Despite that, we agree with the Commonwealth that any error in
admitting the sweatshirt was harmless and does not require reversal. An

erroneous admission `of evidence is harmless “if the reviewing court can say

19

with fair assurance that the judgment was not substantially swayed by the
error.” Winstead v. Commonwealth, 283 S.W.3d 678, 688-89 (Ky. 2009]. We
can say that here.

Simply put, the evidence against Smith was overwhelming Several
witnesses positively identified him, and the identifications had little or nothing
to do with Whether he was wearing a “dark hoodie.” Clear surveillance footage
tied him to the Kingsolving robbery and captured the Worthington robbery. His
own statements to police also tied him to the crimes (while trying to deflect
blame onto his unidentified companion). Indeed, apparently recognizing the
wealth of evidence pointing to his guilt, Smith’s entire defense effectively turned
on selling the jury on_ the theory that his companion had in fact committed the
charged crimes in every instance_the jury obviously did not buy it.

So when all of the evidence here is considered alongside the relative
immateriality of the complained-about sweatshirt evidence, we have no doubt
that admitting that evidence did not substantially sway the jury’s verdict
convicting Smith of each of the charged crimes

D. Joinder of the separate offenses did not unduly prejudice Smith.

Smith’s last claim of error involves the trial court’s denial of his motion to
sever and try separately the various charges related to the Kingsolving,
Worthington, and Pino robberies

RCr 6. 18 allows for the joinder of multiple offenses if they “are of the

same or similar character or are based on the same acts or transactions

20

connected together or constituting parts of a common scheme or plan.” But
even if joinder is permitted under that rule, “tlie court shall order separate
trials of counts or provide whatever other relief justice requires” if it appears
that the joinder will result in prejudice to either the defendant or the
Commonwealth. RCr 8.31.5 The prejudice contemplated by this rule is “undue
prejudice”_which goes beyond the prejudice that is inherent to being tried at
all to that Which is “unnecessary or unreasonable.” Peacher v. Commonwealth,
391 S.W.3d 821, 838 (Ky. 2013); see also Parker v. Commonwealth, 291 S.W.3d
647, 656-57 (Ky. 2009].

These two rules, RCr 6.18 and 8.31, thus seek to strike a balance
between the prejudice inherent to joining separate charges in a single trial and
the interests of judicial economy. Murray v. Commonwealth, 399 S.W.3d 398,
405 (Ky. 2013]. Recognizing that trial courts are in the best position to strike
the proper balance, appellate courts have long afforded them much discretion
in handling joinder issues Id. So a reviewing court will not overtum a
severance decision absent “a showing of prejudice and a clear abuse of
discretion." Cohron v. Commonwealth, 306 S.W.3d 489, 493 (Ky. 2010). Even if
the failure to sever counts was in error, “an erroneous severance ruling does
not justify appellate relief unless it resulted in actual prejudice to the party

opposing the ruling” Peacher, 391 S.W.3d at 838.

 

5 At the time of Smith’s trial, RCr 9. 16 was the applicable rule, RCr 8.31 has
since replaced that rule without changing its substance.

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At the outset, joinder was permissible here because the separate offenses
were undoubtedly of the “same or similar character.” RCr 6.18. Briefly, they all
involved opportunistic robberies_thefts involving both threatened and use of
force_of strangers at night, committed within close proximity to each other,
both spatially and temporally. The primary perpetrator in all three was a black
male who was on foot and wore a dark jacket, and he Was accompanied by a
shorter man in a lighter colored sweatshirt. The crimes were also similar in
other respects_for example, in all three robberies, the suspect initiated contact
with the victim by asking a question. In the Worthington and Pino robberies,
the suspect first asked for a cigarette before attacking the victim; and
Kingsolving’s robber first asked him how to get to a nearby bar before attacking
and robbing him.

We have said that RCr 6. 18 provides for liberal joinder of offenses
Peacher, 391 S.W.3d at 837. lt is proper when, as here, “the crimes are closely
related in character, circumstance, and time.” Seay v. Commonwealth, 609
S.W.2d 128, 131 (Ky. 1980). The three separate incidents were sufficiently
similar to permit joinder under the “sa_me or similar” rubric of RCr 6.18. Even
so, the facts here also arguably support joinder of the offenses as “constituting
parts of a common scheme” to rob people when opportunity struck. Cf.
Chestnut v. Commonwealth, 250 S.W.3d 288, 300 (Ky. 2008).

Of course that does not end our inquiry; we must still assess whether

Smith showed that, despite those similarities trying the separate offenses in

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one trial unduly prejudiced him. Because joinder of same-or-similar offenses
often raises the same concerns addressed by KRE 404_which prohibits other-
bad-acts evidence from being introduced to show bad character or criminal
" disposition-one of the primary considerations in assessing whether joinder
resulted in undue prejudice is the extent to which evidence proving each
offense would be admissible in a separate trial of the other offenses Peacher,
391 S.W.3d at 838; Roark v. Commonwealth, 90 S.W.3d 24, 28 (Ky. 2002)_

But we need not delve into that analysis to resolve this claim. Even if
Smith is correct that the trial court should have severed the separate charges,
and that the failure to do so was an abuse of discretion, he is still not entitled
to relief because he cannot show that`he was actually prejudiced by their
joinder. See Peacher, 391 S.W.3d at 838. That is because we can say with fair
assurance that the jury’s beliefs as'to each of the offenses were not
“substantially likely to have been tainted” by inadmissible evidence of the
others Id at 839 (quoting Rearick v. Commonwealth, 858 S.W.2d 185, 188 (Ky.
1993)) (cleaned up). One factor in assessing prejudice resulting from joinder is
“the strength of the evidence of the separate crimes.” Id. [citing federal cases].
Indeed, prejudice is unlikely “where the admissible evidence of the offense is
overwhelming”; it is “more likely to the extent that weaker evidence of one
offense is improperly bolstered by the spillover of strong evidence of the other
offense.” Id. l

Because Smith’s case is of the former rather than latter variety_that is,

the evidence of each offense, standing alone, was so strong as to be fairly

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overwhelming_there was little likelihood of prejudice resulting from trying the
separate counts together. Smith has shown us nothing to suggest that joining

them in one trial resulted in any actual undue prejudice.

III. CONCLUSION

The judgment of the Jefferson Circuit Court is affirmed.

All sitting All concur.

COUNSEL FOR APPELLANT:
Bruce P. I-lackett

Chief Appellate Defender
Joshua Michael Reho
Assistant Public Advocate
COUNSEL FOR APPELLEE:

Andy Beshear
Attorney General of Kentucky

Matthew Robert Krygiel
Assistant Attomey General

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