Joseph Goncalves v.Com., 2010-SC-142-MR, decided 2/21/13.
Kentucky Supreme Court. First degree robbery and PFO I -35 years. Affirming on all issues except public defender fees and court costs.
This pro se defendant won two mistrials before losing his third trial. In this direct appeal from the third trial, the Kentucky Supreme Court upheld the trial court’s decision to deny suppression based on its conclusion that a valid arrest warrant existed at the time of defendant’s arrest. The Court found that 1) the prosecutor’s argument “to believe this defendant not guilty you must disbelieve, etc. etc.” did not improperly shift the burden of proof on a complicity instruction, 2) a “missing evidence” instruction cured any prejudice caused by failure to preserve a computer hard drive that contained video surveillance of the robbery, and 3) the court did not err in refusing to compel the prosecutor’s testimony regarding potential tampering with evidence.
The speedy trial analysis is worth reading. This was a claim of denial of a speedy trial after two mistrials and a total two-year delay from arrest to the third trial. The Court stated that the rule in Kentucky requires looking at the period from the arrest to the third and final trial, treating the mistrials as delays to be considered in the analysis. The Court held most of the delays were caused by Goncalves’ motions and pre-trial demands. Delays agreed to by both parties. Delays caused by Goncalves’ dissatisfaction with his representation and Faretta issues were counted against Goncalves. The delay due to an absent witness (a prosecution detective) was considered neutral. Finally, the Commonwealth was not held responsible for the delay caused by the mistrials, and instead got credit for bringing the case to trial three times in a two-year period. Goncalves’ claim of oppressive incarceration failed due to lack of evidence of prejudice beyond the suffering natural to such incarceration.
The Court ruled it was okay to deny Goncalves the right to cross-examine with the actual prior record when the prosecution did not challenge the accuracy of Goncalves own notes on prior testimony. Even if this had been error, here it was harmless.
The Court held that Goncalves had adequate pro se pre-trial access to the trial record and was not denied adequate access to legal materials. Goncalves’ appellate counsel also had adequate access to the trial record to prepare the appellate brief despite the fact that part of the record was not provided until the day the brief was due.
Contributed by Erin Yang