Saxton v. Commonwealth

671 S.W.3d 1

Hasan A. SAXTON, Appellant

v.COMMONWEALTH of Kentucky, Appellee

2021-SC-0353-MR

Supreme Court of Kentucky.

December 15, 2022

Rehearing Denied April 27, 2023

COUNSEL FOR APPELLANT: Erin Hoffman Young, Sarah D. Dailey, Assistant Public Advocate.

COUNSEL FOR APPELLEE: Daniel Cameron, Attorney General of Kentucky, Jenny Lynn Sanders, Assistant Attorney General.

OPINION OF THE COURT BY JUSTICE CONLEY

This case comes before the Court on appeal as a matter of right¹ by Hasan Saxton, the Appellant, from the judgment and sentence of the Graves Circuit Court. After a jury trial, Saxton was convicted of first-degree strangulation, tampering with physical evidence, second-degree persistent felony offender, criminal mischief, possession of marijuana, and possession of drug paraphernalia.² The jury recommended thirty years, but the trial court reduced the sentence and imposed only twenty years.³

Saxton now alleges five errors: 1) unauthenticated physical evidence was improperly admitted; 2) insufficient evidence to sustain a conviction for tampering with physical evidence; 3) error in failing to direct a verdict on the strangulation charge; 4) error in failing to declare a mistrial; and 5) a due process violation by denying effective cross-examination of the victim. For the following reasons, we reverse the convictions for tampering with physical evidence and strangulation, as well as the concomitant convictions for persistent felony offender based upon them, and the possession of drug paraphernalia conviction. We affirm the conviction for possession of marijuana. Saxton has made no argument regarding his conviction for criminal mischief. We affirm that conviction to the extent it was appealed. Early v. Commonwealth , 470 S.W.3d 729, 734 (Ky. 2015) ("[I]t is an appellant's burden to present a complete record and to establish that an error is preserved for our review."). Because of our affirming some convictions, we address the failure to declare a mistrial. We also address the cross-examination argument since it is a novel constitutional issue and has ramifications beyond Saxton's own case.

I. Facts

Hasan Saxton and Unique Robinson were engaged to be married. On July 8, 2020, after spending the day together, the couple retired to their home. Robinson did not feel good, so she laid down to sleep. Per Robinson's testimony, Saxton announced he was leaving to purchase weed. When Robinson awoke, Saxton had yet to return so she phoned him. He informed her he would be home shortly but inquired if anyone was at the home with her. She answered no, the call ended, and she went back to sleep.

Robinson then testified she awoke to Saxton screaming at her, demanding to know who had been in the house. He tore the covers off her and stood over her—"breathing hard and mad[,]" his eyes "kinda [sic] crazy"—Robinson answered several times that no one had been in the house. Saxton was recalcitrant. Robinson testified he slapped her, accused her of lying and demanded she have sex with him to prove her fidelity. Robinson refused. Saxton then grabbed her throat with his hand, squeezing, so that, as Robinson testified, she could not scream nor breathe. Saxton then released her, spun her around and locked her neck in his forearm, pinning her to the bed. Once more he squeezed. Robinson testified she feared she would pass out. In desperation, she managed to bite Saxton on his arm, and he released her. Robinson grabbed her phone and dialed 911. When she began reporting the incident to the operator, Saxton left the room, and eventually the home.

Among the responding police officers were Officers Rogers and Copeland of the Mayfield Police Department. Officer Copeland encountered Saxton on a public street not far from his home. He detained Saxton, placed him in the back of his cruiser, and drove to the home to further aid the investigation. After arriving, Officer Copeland went to speak with another officer. He returned and noticed that Saxton was leaning forward in his seat. Saxton stated he was trying to stretch his legs. Officer Copeland did not believe him and removed Saxton to another cruiser. He then performed a search of the backseat and body cam footage shows that, approximately eleven seconds after beginning the search, he found a bag of marijuana under the driver's seat. The video is not clear, but Officer Copeland testified the bag was only partially under the driver's seat and that his cruiser was designed with a "blocker" under the driver's seat to prevent items from being hidden from sight by the seat. At some point, a black plastic container and a burnt cigar containing marijuana were also allegedly found on Saxton in a search incident to arrest performed by Officer Rogers. Officer Rogers never testified to this, however, and the only definitive proof such a search incident to arrest occurred is a citation report completed by Officer Rogers. Officer Copeland's testimony was only that the plastic container "may have been" found on Saxton in a search incident to arrest, and he only testified to that after reading the citation report to refresh his memory. The report stated, "A search of the patrol vehicle and Saxton's person incident to arrest also revealed a small plastic container with a burnt marijuana cigar inside." The Commonwealth, however, clearly believed the plastic container had been recovered during Officer Copeland's search of the vehicle. After playing Officer Copeland's body cam footage showing that search to attempt to refresh his memory, Officer Copeland still testified that he could not recall finding the plastic container.

At trial, a multitude of incidents occurred which form the basis for Saxton's appeal. We address each in more detail in our analysis below. But generally, the morning trial began, as Saxton and his counsel attempted to walk past the front row of jurors to their table, the Commonwealth's investigator intervened and told them to approach the table by another direction. It seems after a brief back-and-forth between the investigator and defense counsel, Saxton and counsel were able to get to their table as originally planned. During trial, Saxton attempted to cross-examine Robinson as to whether she was ever informed of her rights under Marsy's Law. The trial court prohibited the line of inquiry twice; once during the cross-examination itself and second, after a written motion and arguments in chambers were heard the second morning of trial. Saxton argues this was a denial of his right to effective cross-examination.

Saxton also objected to the introduction of several pieces of evidence; namely, eight DNA swabs and accompanying reports, as well as the plastic container and marijuana cigar. Saxton did stipulate to one swab, taken from his bloody left forearm. The stipulation included that there was an injury on his left forearm, it was bloody and a swab was taken, and transported to the relevant lab for testing. For the other DNA swabs, as well as the plastic container and cigar, Saxton argues a fatal flaw at the inception of the chain of custody—no one testified to collecting the drug evidence from his person or taking the swabs from Saxton and Robinson. Thus, he claims a basic failure to link him to the evidence at the foundation. Because of this, Saxton requests reversal of his convictions for strangulation, tampering with physical evidence, and his two PFO and possession convictions.

The jury convicted Saxton of strangulation and tampering with physical evidence, recommending ten and five years in prison respectively. But finding him guilty of being a persistent felony offender (second degree), the jury enhanced the sentences to twenty and ten years, respectively. The jury then recommended the sentences be served consecutively for a total of thirty years; with the misdemeanor sentences all being served concurrently with the thirty-year felony sentences. The trial court, however, reduced the sentence to twenty years. Saxton appealed, and we now address the merits.

II. Analysis

A. Marsy's Law and Denial of Effective Cross-Examination

The first issue we address, because novel and most consequential, regards Saxton's allegation that Robinson's testimony was coerced by threats of the Commonwealth to charge Robinson with contempt of court if she did not testify, which, if convicted, would necessarily impact her ability to regain custody of her children.⁴ Importantly, Saxton frames this argument as Robinson being forced to testify "under duress[,]" but not that Robinson was forced to testify falsely or not testify at all. At the trial court, Saxton stated he wished to investigate whether Robinson had been informed of her rights under Marsy's Law. Ky. Const. § 26A. The trial court prohibited that line of inquiry. The next morning of trial, after filing a written motion, Saxton argued in chambers

I should be able to inquire whether or not the victim was given her constitutional rights under Marsy's Law in order to be able to consult with her about whether or not she was consulted as to how she wanted the case to proceed, whether she wanted the charges to go on, whether she wanted to go forward.

Saxton then linked this to a larger issue of duress, wherein prior to trial Robinson had expressed her feelings to Saxton that she was being "bullied" by the Commonwealth and forced to testify against him. Trial counsel argued that Robinson, by virtue of Marsy's Law, had a "right to remain silent" in the same manner as Saxton and that is what she wanted to investigate on cross-examination.⁵ The trial court denied the motion and again prohibited that line of questioning. Before proceeding with our analysis, we reiterate that a witness's credibility is always relevant. Myers v. Commonwealth , 87 S.W.3d 243, 246 (Ky. 2002). But there is no allegation that the Commonwealth coerced Robinson to give false testimony, only that she was compelled to testify at all.

We will not analyze this issue under Marsy's Law. That...