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
