Berry v. Commonwealth

680 S.W.3d 827

Eric BERRY, Appellant

v.COMMONWEALTH of Kentucky, Appellee

2022-SC-0181-MR

Supreme Court of Kentucky.

December 14, 2023

Modified December 18, 2023

ON APPEAL FROM JEFFERSON CIRCUIT COURT, HONORABLE ANGELA MCCORMICK BISIG, JUDGE, NO. 18-CR-000276

COUNSEL FOR APPELLANT: Robert C. Yang, Frankfort, Assistant Public Advocate.

COUNSEL FOR APPELLEE: Daniel J. Cameron, Attorney General of Kentucky, Joseph E. Beckett, Elizabeth Hedges, Assistant Attorneys General.

OPINION OF THE COURT BY JUSTICE CONLEY

This case comes before the Court on appeal as a matter of right¹ by Eric Berry. Berry was convicted of first-degree burglary, first-degree sexual assault, two counts of fourth-degree assault, first-degree fleeing or evading, and resisting arrest. The jury then found Berry to be a first-degree persistent felony offender. He was sentenced to twenty-five years in prison. Berry now argues that his right to speedy trial was violated; the trial court abused its discretion in not giving an intoxication defense instruction; the trial court erred in disallowing Berry’s former testimony from a domestic violence hearing, despite Berry asserting his Fifth Amendment right to not testify at his criminal trial; the trial court erred in not severing the April and December counts for separate trials; improper bolstering testimony; and cumulative error. After review, we affirm the trial court.

I. Facts

Berry and Kimberly Alford had been in a relationship from 2012-2016. The relationship ended acrimoniously, and, upon its ending, Alford got a protective order requiring Berry have no unlawful contact with her. Alford and Berry continued to talk through text messages and emails. On April 6, 2017, Alford pulled into her driveway and Berry quickly pulled in behind her, as if he had been waiting for her to arrive. Alford testified to being intimidated by Berry and attempted to avoid a confrontation by going into her house. Berry followed behind her and entered the house though he was not invited in. Berry told Alford he was in a "bad place," and desired to stay the night at her house. Alford agreed but told Berry he could not sleep with her in her bedroom. At some point during the night, Berry went to use the restroom then entered Alford’s bedroom. She was awakened by him entering the bed, lifting her shirt, and kissing her back. Alford resisted these advances verbally, then physically. After a struggle, Berry overpowered Alford, pulling down her pajamas, tearing off her underwear, and penetrating her with his fingers. Berry eventually stopped, threatened to kill Alford if he ever caught her with another man, and left the room. The next day Alford filed a domestic violence complaint, sought an amended protective order, and was examined by a Sexual Assault Nurse Examiner (SANE nurse). Alford, however, declined to formally press charges.

By December 2017, Alford had been in a relationship with Jonathan Bielefeld. On December 2, 2017, she, Bielefeld, and her daughter, K.K.,² had gone shopping for a Christmas tree. After setting up decorations that night, they all went to bed. Around 3:00 AM on December 3, 2017, Alford was awakened by loud booms caused by Berry banging and kicking on the backdoor. He eventually broke in. Alford ran to her daughter’s room, telling her to call the police because her initial emergency call had failed. Alford hid in her daughter’s closet. Berry stormed through the house and made his way to Alford’s bedroom where Bielefeld was. He attacked Bielefeld, and demanded "where’s she at?" Bielefeld responded he did not know but that she was "probably hiding from you." Enraged, Berry proceeded to repeatedly strike Bielefeld’s head.

Berry next went to K.K.’s room and again demanded to know where Alford was. K.K. too responded she did not know. Berry searched various parts of the room but failed to find Alford. He then went back to Alford’s room where he found Bielefeld using a t-shirt to clean the blood from his face. Berry snatched the shirt and used it to strangle Bielefeld to the point just short of unconsciousness. Berry then ceased this second attack and searched throughout the house for Alford. He eventually went back to Alford’s bedroom and for the third time attacked Bielefeld. Bielefeld grabbed Berry so as to bring him closer and restrict the movements of his arms. Berry bit Bielefeld’s ear.

After this Berry returned to K.K.’s room, again yelling at her, "where’s your mom?" He then ripped her closet door off its panel and found Alford. He immediately began to repeatedly hit her in the face, and Alford testified to believing she would be killed. Twelve-year old K.K., with no shortage of bravery, intervened but to no avail. Berry struck her too, punching her in the face. Berry renewed his attack on Alford, stripping off her pajamas and underwear. At this moment, police finally arrived with an officer banging and yelling on the front door loud enough to be heard in K.K.’s bedroom.

Berry ceased his attack and ran to the backdoor. Unbeknownst to him, another officer had entered the house through the backdoor, gun drawn. When this officer encountered Berry, he saw he was unarmed and began holstering his weapon. Berry surged forth, struck him in the head, and fled out the backdoor. Berry made for the front of the house when he encountered another officer. Again, Berry surged forth, lowering his head, and head-butting the officer. This officer managed to hold on to Berry, slowing him down, and allowing more responding officers to finally subdue him outside the house.

Berry was arraigned on January 26, 2018. Prior to trial he sought to sever the charges stemming from the April 2017 incident (sexual abuse and violation of protective order) from the December incident. The trial court denied that motion. While awaiting trial the Covid-19 pandemic occurred. After the initial orders by the Governor and this Court in March and April 2020, Berry orally moved for a speedy trial on April 30, 2020. He filed a written motion for speedy trial on June 18, 2020. Berry was released on bond on May 14, 2021. On November 30, 2021, he moved to dismiss for a speedy trial violation. The trial court denied the motion finding Berry’s own actions—such as a motion regarding evidence of mental defect and hiring private counsel—and the Covid-19 pandemic were principally to blame for the delay of trial. Finally, on February 8, 2022, the trial began.

We will discuss further facts below as they relate to the specific arguments before the Court. We now proceed to the merits.

II. Analysis

A. No Speedy Trial Violation

[1, 2] We determine a violation of the right to speedy trial by looking to "(1) the length of delay, (2) the reason for the delay, (3) the defendant’s assertion of his right, and (4) the prejudice to the defendant caused by the delay." Dunaway v. Commonwealth, 60 S.W.3d 563, 569 (Ky. 2001). None of these factors are "a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial. Rather, they are related factors and must be considered together with such other circumstances as may be relevant." Stacy v. Commonwealth, 396 S.W.3d 787, 795 (Ky. 2013) (quoting Barker v. Wingo, 407 U.S. 514, 533, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972)).

[3–6] As to length of delay, Berry’s time of arrest to time of trial was approximately 50 months. "This Court has generally considered delays of over one year to be presumptively prejudicial." Goncalves v. Commonwealth, 404 S.W.3d 180, 199 (Ky. 2013). Presumptive prejudice is not a rule that holds a sufficient length of delay is enough to conclude the constitutional right has been violated—"it simply marks the point at which courts deem the delay unreasonable enough to trigger the Barker enquiry." Doggett v. United States, 505 U.S. 647, 652 n.2, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992). In other words, if a length of delay is not presumptively prejudicial then courts need not inquire into the alleged violation whatsoever; absent a presumptively prejudicial delay there is no speedy trial violation. Goncalves, 404 S.W.3d at 199; Dunaway, 60 S.W.3d at 569.

[7, 8] The second factor looks to the reasons for the delay. There are three categories of reasons: "(1) a ‘deliberate attempt to delay the trial in order to hamper the defense’; (2) a ‘more neutral reason such as negligence or overcrowded courts’; and (3) ‘a valid reason, such as a missing witness.’ " Dunaway, 60 S.W.3d at 570 (quoting Barker, 407 U.S. at 531, 92 S.Ct. 2182). In blunt terms, we ask "whether the government or the criminal defendant is more to blame for that delay[.]" Doggett, 505 U.S. at 651, 112 S.Ct. 2686.

[9] This case raises an issue of first impression in Kentucky as to how the Covid-19 pandemic should be categorized. The Commonwealth has pointed us to two cases from the federal circuits addressing this issue: United States v. Snyder, 71 Frith 555 (7th Cir. 2023), and United States v. Keith, 61 Frith 839 (10th Cir. 2023). The Tenth Circuit held the pandemic is "a truly neutral justification—not favoring either side." Keith, 61 Frith at 853.

The Seventh Circuit followed Keith by holding the pandemic is a "justifiable" reason for delay that "cannot fairly be attributed to the government." Snyder, 71 F.4th at 578. Considering this persuasive authority, we hold that generally the Covid-19 pandemic falls under the third Barker category of a "valid reason" for delay and should not be weighed against the Commonwealth. We caution that this is not an iron rule but rather presumptive. The pandemic is a not a get-out-of-the-constitution-free card, as our decisions in Beshear v. Acree, 615 S.W.3d 780 (Ky. 2020), and Cameron v. Beshear, 628 S.W.3d 61 (Ky. 2021), make clear. It is within the realm of possibility that a case may arise where a defendant can demonstrate with evidence that the Commonwealth used the Covid-19 pandemic as a convenient excuse to not prosecute a case promptly even within the strictures imposed by...