Hicks v. Commonwealth - No. 2007-SC-000751-MR, 2009 Ky. Unpub. LEXIS 125 (Oct. 29, 2009)

Rule:

It is well-settled that "[t]he presentation of evidence as well as the scope and duration of cross-examination rests in the sound discretion of the trial judge. This broad rule applies to both criminal and civil cases." Moore v. Commonwealth, 771 S.W.2d 34, 38 (Ky. 1988). Moreover, under KRE 611, a trial court is vested with sound judicial discretion as to the scope and duration of cross-examination and may limit such examination when "limitations become necessary to further the search for truth, avoid a waste of time, or protect witnesses against unfair and unnecessary attack." Derossett v. Commonwealth, 867 S.W.2d 195, 198 (Ky. 1993).

Facts:

On June 17, 2006, Appellant, Noah Hicks, picked up Carroll Garvey in his car at Garvey's brother's house in Radcliffe, Kentucky. The two men made plans to "hang out" that night. Ultimately, they ended up hanging out with other men. A while later, the men tackled Garvey and tied his wrists and ankles together. After tying him up, they took his cell phone, identification cards, and his $395.00, which he had not mentioned to anyone except Hicks. Hicks then retrieved some sheets, taped a sheet over Garvey's head and another around the rest of Garvey's body so that Garvey could not move and could not see. He was then carried outside and placed in the trunk of the car. The car eventually stopped and Garvey heard a door open and close. At trial, one of the men testified that, at this stop, Hicks got out of the car, went into a house and got a pistol. Hicks opened up the trunk, said something about Garvey being untied, and ordered Garvey to get out. As he got out, Garvey noticed they were in a wooded area, Hicks and Rogers were standing directly in front of him, and Hicks was holding the handgun and pointing it at Garvey's feet. One bullet struck Garvey in the back of his right arm, exiting through the front of his shoulder. The bullet knocked Garvey down but he immediately got back up and continued running. Garvey eventually arrived at Albert and Jennifer Heckman's home where he got help. Before going to the hospital, Garvey provided the police with the names of his attackers, and specifically named Rogers and Hicks as responsible for his injuries. The police then executed a search warrant at Hicks’ home and, although they did not find anything, Hicks confirmed that the gun was at Rogers' house. The police executed a search warrant at Rogers' home, and found the gun, a loaded 9 mm Glock 17 handgun and an extra clip, hidden in Rogers' bathroom under some laundry. They also located the crime scene on Edgar Basham Road and recovered two 9 mm shell casings on the side of the road as well as Garvey's lost tennis shoe. Later, the Breckinridge Co. Sheriff interviewed Hicks, at which time Hicks signed a written waiver of rights. During the interrogation, Hicks admitted he picked up Garvey. He admitted Garvey was jumped and tied up at his house. He admitted that he grabbed a belt and extension cord to tie up Garvey. He admitted that he helped put Garvey in the trunk of his car and they drove around for one and one-half to two hours. He also admitted that he had the gun in his hand when Garvey got out of the trunk, as well as firing the gun when Garvey started running away. Hicks said that he was at the rear of the vehicle when he fired the gun and that Garvey was running last time he saw him.

Hicks, Banks, and Ropers were tried jointly. Hicks was found guilty of 1) Kidnapping (with serious physical injury); 2) Second-Degree Robbery; and 3) First-Degree Assault, enhanced by a finding of Second-Degree Persistent Felony Offender ("PFO"). The trial court accepted the jury's recommendation and sentenced Appellant to twenty-five years imprisonment for the Kidnapping conviction, ten years for the PFO-enhanced Second-Degree Robbery conviction, and twenty-five years for the PFO-enhanced First-Degree Assault conviction, all to be served concurrently for a total term of twenty-five years. This appeal followed with Hicks alleging error in: 1) the trial court denying him the right to confront a witness against him, 2) denying him an instruction on Second-Degree Assault, and 3) ordering his witness to show a tattoo to the jury during his testimony.

Issue:

Were Hicks’ convictions for Kidnapping, Robbery in the Second Degree and Assault in the First Degree proper?

Answer:

Yes.

Conclusion:

The court affirmed Hicks’ convictions for Kidnapping, Robbery in the Second Degree and Assault in the First Degree. The court held that the trial courts "retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant." Accordingly, given the trial court's power to limit the scope of cross-examination, the trial court did not abuse its discretion in refusing to permit Hicks to ask Garvey about whether his misdemeanor probationary status prevented him from using illegal drugs at the time that Hicks robbed, kidnapped, and shot him. The trial court allegedly erred in refusing to give a jury instruction for Second-Degree Assault as a lesser-included offense of the First-Degree Assault charge. At issue is the magnitude of Garvey's injuries, the evidence introduced at trial demonstrated Garvey suffered an injury that was either a "prolonged impairment of health" or "a prolonged loss or impairment of the function of [a] bodily organ." Thus, the Commonwealth proved, as a matter of law, that the injury Garvey suffered as a result of being shot by Hicks constituted a "serious physical injury." In light of this evidence, a reasonable juror could not entertain a reasonable doubt that Garvey received only a physical injury; accordingly, no lesser instruction for Second-Degree Assault was warranted. Thus, the trial court did not err in refusing to grant Hicks’ request for a Second-Degree Assault instruction. Finally, Hicks argued that the trial court erred by requiring Hicks’ witness, Ryan Spence, to take off his shirt and show an alleged swastika tattoo to the jury. The court agreed, but concluded that the error was harmless.