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RENDERED: OCTOBER 24, 2024
TO BE PUBLISHED
Supreme Court of Kentucky
2023-SC-0012-MR
WILLIAM SLOSS APPELLANT
ON APPEAL FROM JEFFERSON CIRCUIT COURT
V. HONORABLE A.C. MCKAY CHAUVIN, JUDGE
NO. 20-CR-000434
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION OF THE COURT BY JUSTICE LAMBERT
AFFIRMING
William Sloss was convicted of murder, abuse of a corpse, and of being a
first-degree persistent felony offender and was sentenced to fifty yearsâ
imprisonment. In this matter of right appeal, he alleges that although he
contumaciously chose to be absent from both phases of his trial and
sentencing, his Sixth Amendment right to be present at all critical stages of his
trial was violated because the trial court failed to conduct a hearing prescribed
by Kentucky Rule of Criminal Procedure (RCr) 8.28(1) and failed to obtain his
personal waiver of his right to be present. He further alleges that the trial
court erred by failing to grant his motion for a mistrial, by failing to grant his
motions for directed verdict, by improperly admitting prior bad acts evidence,
and by improperly admitting hearsay statements by the victim into evidence.
In the alternative, he asserts cumulative error occurred. After thorough review,
we affirm.
I. FACTS AND PROCEDURAL BACKGROUND
The victim in this case, Amanda Berry, grew up in Bell County,
Kentucky. Like so many Kentuckians, Amanda struggled with substance use
disorder (SUD), and these struggles ostensibly led to her being convicted for
writing bad checks. 1 During her incarceration for this offense, she met Sloss
through a pen pal program. When Amanda was eventually granted parole, she
decided she wanted to leave home to better her chances at maintaining her
sobriety. In July 2019, she received permission from her parole officer to
change her residence from her motherâs home in Bell County to a home in
Louisville, Kentucky, owned by Slossâ older brother John Sloss. The home,
located at 3211 Virginia Avenue, was a home in the loosest sense of that term:
it was in a significant state of disrepair, it had no running water, it had limited
electricity, and it was very sparsely furnished. Although John Sloss owned the
home it was undisputed that Sloss and Amanda were the only people that lived
in it during the time frame at issue herein.
As Amanda and Sloss were essentially destitute, they relied on the
kindness of their neighbors for many things, including water. Two of their
neighbors testified that they would allow Amanda and Sloss to get water from
their houses by filling up large plastic storage totes. Photographic evidence in
1 It is unclear from the record when this conviction occurred and how long
Amanda was incarcerated for it.
2
this case demonstrated that there were numerous such plastic totes in several
different rooms of Amandaâs and Slossâ home.
At trial, Amandaâs and Slossâ neighbors from the 3200 block of Virginia
Avenue provided insight into their turbulent relationship. John Bolin and
Karen Bolin were siblings who lived immediately next door to Amanda and
Sloss at 3213 Virginia Avenue. John Bolin testified that he knew Amanda and
Sloss both used drugs, as he had participated in that activity with them. He
further stated that Amanda and Sloss argued often and that he could hear
those arguments from inside his home. Finally, he testified that at some point
after Amanda disappeared, her parole officer had been in the neighborhood
looking for her. When John Bolin later saw Sloss walking down the street he
asked him where Amanda was. Slossâ response was âI got rid of her,â which
John Bolin interpreted at the time to mean that he broke up with her.
Karen Bolin similarly testified that Amanda and Sloss fought often and,
due to the proximity of her home to theirs, she would frequently hear those
arguments. Although Karen never saw physical violence between them, she
did see the aftermath, including bruises on Amandaâs wrists, ankles, neck, and
face. When Amanda and Sloss first moved in, Sloss had a job and Karen saw
no indication that either of them were using drugs. But over time it became
apparent to her that they were and eventually Sloss stopped working. They
then started making money through Amandaâs involvement in sex work. Karen
said that at first Amanda and Sloss argued over her involvement in sex work
because Sloss was making Amanda do it against her will. But, over time Sloss
3
âstarted to not become okay with itâ and they began fighting about that. She
also testified that sometimes after they fought, Sloss would kick Amanda out or
she would leave and be gone for days or weeks, but she would always come
back. However, sometime around the middle of January 2020, Karen was
woken up at 3 a.m. to the sound of Amanda and Sloss having an argument
outside that was âlouderâ than the arguments they usually had. During that
argument Karen heard the backdoor of their house slam and did not hear
anything else after that. She never saw Amanda again.
Mary Sparks and Dwayne Crutcher were a couple that lived at 3247
Virginia Avenue on the opposite end of the street from Amanda and Slossâ
home. Their home was across the street from a corner store that Amanda
frequented. At some point Mary began speaking to Amanda when she saw her
and over time, they became âbest friends.â She too testified that Amanda and
Sloss argued constantly, and further stated that Amanda would use her home
as a kind of refuge from the chaos of the relationship. Mary never witnessed
physical violence, but Amanda told her that Sloss beat her, and Mary saw the
aftereffects. Mary had seen Amanda with black eyes, a busted nose, and a
busted lip. She further described a particular incident during which Amanda
and Sloss had gone out somewhere and had gotten in an argument on the way
home. Amanda came to Maryâs house afterwards and had mud all down the
front of her clothes, her shirt was ripped, her mouth was bleeding, her makeup
was smeared, she was crying, and it looked like Sloss had ripped portions of
her hair out. Finally, Mary testified that the last time she saw Amanda she
4
was talking about leaving Sloss and getting permission from her parole officer
to change her residence âbecause things were getting progressively worse with
her and [Sloss], they were arguing all the time, and he had hit her so many
times.â
Like the other neighbors, Dewayne testified that Amanda and Sloss
argued constantly, and that she was always doing something that Sloss did not
like or not doing something that he wanted her to do. But, unlike the other
neighbors, Dewayne saw Sloss be violent towards Amanda. On an unspecified
date, Amanda had come over to his house and her mouth was bleeding.
Dwayne, Mary, and Amanda were sitting in the sunroom at the back of the
house when Sloss came in the front door and walked through three rooms to
get to the sunroom. Dwayne told Sloss he could not just walk through his
house uninvited and made him leave. Amanda followed Sloss out, and when
they reached the bottom of the front steps Sloss âwailed on her, knocked her off
her feet.â Prior to that Dwayne had seen Sloss grab Amanda forcefully by the
arm to make her leave his and Maryâs home. He had also seen injuries on her
neck and arms and had seen her with a busted lip and a busted eye. After
Amanda disappeared, when Dwayne asked Sloss what happened to her Sloss
told him, âShe went back home to Bell County.â
Amandaâs mother, Teresa Berry, testified that after Amanda moved to
Louisville to live with Sloss in mid-July 2019, she would go home to visit her
three children and Teresa every two to two and a half weeks and would stay
anywhere between three days to a week and a half before returning to
5
Louisville. As neither Amanda nor Sloss had a vehicle, Teresa would pick
Amanda up at a bus station in London, Kentucky for these visits. The last time
Amanda went home was sometime in early November 2019. While Amanda
was in Louisville, she and Teresa consistently communicated three to four
times a week through a mixture of Facebook Messenger messages and phone
calls. Teresa testified that Amanda did not own a phone and therefore had to
borrow Slossâ phone or his iPad for these communications.
The last time Teresa spoke to Amanda on the phone was either December
19, 2019, or December 28, 2019. 2 And, by early 2020, Teresa had become
extremely concerned about Amanda. Amanda had completely stopped talking
to Teresa on the phone and Teresa did not believe that the messages she was
receiving from Amandaâs Facebook account were from Amanda due to the
language utilized. On January 11, 2020, Teresa received a message âout of the
blueâ from Amandaâs Facebook account stating that she was okay and that she
was âon the run.â When Teresa expressed concern in response to this
message, she received the response, âF*ck you, donât worry about me,â which,
according to Teresa, was not the way Amanda talked.
On the same day, January 11, 2020, Sloss texted Teresa and accused
her of prank calling his phone, which she denied. Teresa then told Sloss that
she had spoken to Amanda earlier (presumably on Facebook) and had asked
2 At trial, Teresa testified that December 19 was a date that âstuck out in her
mindâ as the last day she heard Amandaâs voice, but closer in time to Amandaâs
disappearance she told law enforcement that the last time she spoke to her was
December 28.
6
her to call but she had not and asked him where she was. He responded: âI
dont no but i did see amanda the other day thoâ 3 and âI was with amanda.â
Teresa responded that Amanda had an appointment that day that she did not
show up for and again asked Sloss where she was. He responded: âOk she can
call you I gave her my tablet,â âSheâs not at my house so I dont know,â and
â[Parole] officer came to my house looking for to I donât know where she at sheâs
around somewhere somewhere I have no clue where she at she wonât say where
she stay[.]â Teresa asked why the parole officer was looking for her, but Sloss
did not respond until two days later.
When Sloss responded on January 13, 2020, he sent the messages,
âHave amanda call youâ and âShe want text me back r call[.]â Teresa
responded that she had not talked to her and told Sloss to ask Amanda to call
her. Sloss responded with the messages, âOk i will tryâ and âHave she done
this bforâ to which Teresa responded she had not. Sloss then sent: âOk
amanda is crazy for doing this[.]â When Teresa asked what he meant he
responded, âWhatever she is doingâ and âWe donât talk no more.â Teresa sent
something in response that was redacted from the record, to which Sloss
replied, âI dont care where she is at we not together[,]â âYea i put her ass out[,]â
and âMy brother was there when i put amanda out[.]â Teresa asked when that
happened, and he did not respond. Six days later on January 19, 2020, Teresa
again asked if Sloss had seen or heard from Amanda, but he never responded.
3 We provide the messages from Sloss to Teresa in their original form, including
grammatical and spelling errors.
7
In the interim, on January 13, 2020, Teresa had filed a missing person
report for Amanda with the Louisville Metro Police Department (LMPD) over the
phone, but she heard nothing from LMPD for over two weeks thereafter.
Consequently, Teresa called LMPD again on January 29, 2020, and spoke to
Bill Clark, an LMPD missing persons detective. Immediately after speaking to
Teresa, Det. Clark went to the home that Sloss and Amanda had been living in
and knocked on the door, but no one answered. On the same day, January 29,
Det. Clark obtained a search warrant for the home. Prior to executing the
warrant, Det. Clark contacted John Sloss, as he was the owner, and asked him
to let law enforcement into the home in lieu of having to âbreak down the door.â
John Sloss agreed to let the officers in but, because he lived in Elizabethtown,
Kentucky, he could not get there right away. John Sloss therefore had his
younger sister Rachel Sloss meet the officers at the home while he was en
route; Rachel lived around the corner from Virginia Avenue. She let the officers
in, and John Sloss arrived in Louisville sometime thereafter. Neither John
Sloss nor Rachel were allowed in the home during the execution of the warrant.
The search warrant was executed sometime around 6-6:30 p.m. on
January 29. Det. Clark was accompanied by two other detectives as well as
crime scene unit (CSU) technicians who took photographs of the exterior and
first floor of the home. Those photographs depicted that, although no one was
present when the officers responded, there were a few lights and a number of
space heaters on throughout the home. No photographs were taken of the
basement or the attic at that time. The detectives observed no signs of foul
8
play and, although the three of them searched the basement together, they
found nothing. The search took about an hour to complete, meaning that the
officers left the premises sometime around 7-7:30 p.m.
About three hours later at 10:10 p.m. John Sloss called Rachel, who had
returned home after letting the police in, and asked her to come back to the
house. Rachel would later tell law enforcement that when John Sloss asked
her to come back over, he told her he âmight know something about a body,â
although she was reluctant to admit the same at trial. Rachel testified that
when she entered the first floor of the home it smelled âlike Pine Sol and
bleach.â 4 Rachel followed John Sloss into the basement of the home. Rachel
testified, again reluctantly, that John Sloss was on the phone with Sloss while
they were in the basement and that Sloss did not know Rachel was there.
Rachel could hear Sloss on the other end of the line yelling at John Sloss that
he was not looking in the right spot in the basement. John Sloss then began
telling Rachel to move items around at which point she left to sit in John Slossâ
car outside; she testified that she did not want to touch anything in the
basement because she did not want her fingerprints on anything down there.
After Rachel left him in the basement, John Sloss texted John Bolin and
asked him to do him a favor. As previously mentioned, John Bolin was the
next door neighbor but, prior to that night, John Bolin had only spoken to
4 A spray bottle of âSpic and Spanâ cleaner was observed on the hearth of the
fireplace in the front room of the home, and a spray bottle of âValue Cleaner with
Bleachâ was found on a table in a different room.
9
John Sloss a few times in passing. John Sloss told John Bolin that a search
warrant had been executed at the home earlier that day and he wanted to go in
and look around to make sure ânothing funnyâ was going on. John Bolin
testified that when he met John Sloss at the house he did not look around and
instead went directly to the basement. He further testified that it was very
dark in the basement and that he had no light source, but John Sloss was
using the light on his phone to look around.
Before proceeding with discussion of what occurred, a brief description of
the basement is needed. The stairs that descended into the basement ended in
an open and empty space. Indeed, the entire basement was empty save for one
small alcove in the far corner diagonal to the stairs. The alcove was about six
feet long and four feet wide and was filled side to side, front to back, and
approximately knee to hip height with various items: trash bags, scrap wood, a
door, some aluminum ducts, clothing, an empty plastic storage tote, etc. John
Sloss led John Bolin to that alcove and told him to start looking around. While
near the back wall of the alcove, John Bolin lifted a trash bag off a blanket and
then lifted the blanket. He asked John Sloss what was under it at which point
John Sloss looked over John Bolinâs shoulder, briefly shined the light on
something, and then told John Bolin, âOkay, letâs go.â The two then
immediately left the house.
What John Bolin did not know at that time was that he had found
Amandaâs body. She was naked and had been stuffed face down in the fetal
10
position into a 35â x 21â x 18â plastic storage tote. 5 The tote did not have a lid
on it and had instead been covered with a blanket and other items. The
medical examiner that performed Amandaâs autopsy testified that her body
showed signs of moderate decompositional changes including discoloration of
the skin, slippage of the skin and hair, and a significant amount of mold
growth. Based on these changes, the medical examiner concluded that
Amanda had been dead for âweeks,â but could not provide an exact date or
time frame. He noted that a cold environment, such as an unheated basement
in winter, could slow the process of decomposition. He determined that
Amandaâs cause of death was multiple traumatic injuries sustained in an
assault including manual strangulation and blunt force injuries to the head.
She had defensive wounds on her forearms. Amandaâs toxicology report
showed the presence of amphetamine, a metabolite of methamphetamine, in
her blood. The medical examiner classified the amount present as an
intoxicating level, but there was no indication that it was enough to cause an
overdose.
John Bolin was also not aware that John Sloss had been recording a
video of him the entire time they were in the basement. Sometime soon after
they left the basement, John Sloss recorded three portions of that video on
another recording device and deleted the original video. In other words, John
Sloss took three recordings of a recording, none of which had audio. The first
5 Amanda was 5â1â and weighed 147 pounds.
11
clip did not show anything pertinent. The second clip showed John Bolin
standing in the alcove of the basement and lifting a black trash bag off items
below it. The third clip showed Amandaâs body in the plastic tote very briefly,
and then demonstrated that John Sloss immediately began walking towards
the basement stairs.
After John Bolin and John Sloss left the basement, John Bolin returned
home. Shortly thereafter at 11:09 p.m. John Sloss called Jody Speaks, an
LMPD homicide detective. John Sloss told Det. Speaks that he had seen a
deceased femaleâs body in a decomposed state but would not initially tell him
who or where the body was. John Sloss wanted Det. Speaks to expunge his
criminal record and help him get some vehicles out of impound in exchange for
that information. After Det. Speaks explained that he did not have the
authority to do either of those things, John Sloss agreed to meet with him in
person. Det. Speaks and Detective Timothy OâDaniel picked John Sloss up âin
the areaâ of Virginia Avenue and drove around the neighborhood with him in
the backseat.
During the detectivesâ conversation with John Sloss in Det. Speaksâ
vehicle, he again tried to exchange the information he had for expungement
and help with his impounded cars, which the detectives again explained they
could not do. John Sloss was still not immediately forthcoming with
information about Amandaâs body; at first he told them that her body was in
the woods, and then he told them that her body was in a different house in the
neighborhood. After about twenty minutes he admitted that her body was in
12
the house he owned and showed the detectives the video clips he had recorded
of the video of John Bolin in the basement. Based on John Slossâ statements
and the video clips the detectives obtained a second search warrant for the
house and executed it during the early morning hours of January 30, 2020.
During the execution of the warrant, John Sloss took the detectives directly to
Amandaâs body.
After Amandaâs body was found, John Sloss was cooperative and
participated in several different interviews with the police, but he gave them
multiple, varying stories about how he knew where Amandaâs body was, who
killed Amanda, and what Sloss told him had happened to Amanda. 6 Regarding
how he knew where Amandaâs body was, he told the police at different times
that âa dude down the streetâ called him and told him where she was; that âthe
guy next doorâ told him where the body was; and that some unknown person
called him from a blocked number and told him where it was. He also gave
varying accounts of who killed Amanda: he told police that âWayne 7 and
Amanda got into it, and he killed herâ; that âa guy next door and a black guyâ
killed her; and that he did not know who killed her. Finally, as to what Sloss
said had happened to Amanda, John Sloss told the police that Sloss told him
that Amanda had ârun off with some dudeâ; that âshe went back homeâ; that
â[Sloss] had sent her back homeâ; that âthey were high on some sh*t and an
6 The dates of these statements and when they occurred within a particular
interview was not clarified at trial.
7 It is not clear who âWayneâ was, but it was clarified at trial that John Sloss
was not referring to Dwayne Crutcher.
13
overdose happenedâ; that they were at a party, got high, got into a fight, Sloss
left, and when he came back she was gone; and that they were at a party, Sloss
left, and when he came back Amanda wasnât moving.
Sloss also told Rachel several different stories about what happened to
Amanda that Rachel later recounted to law enforcement. Sloss had told her
that Amanda went back home, that he did not want to be with her anymore,
that she had been getting on his nerves for months, that he got rid of her and
sent her back home, that he gave her money and put her on a Greyhound bus,
and that she had run off with âsome dude.â
Amandaâs body and the plastic tote she was found in were both swabbed
and tested for DNA against buccal swabs taken from Sloss, John Sloss, and
John Bolin. None of the partial DNA profiles that were found were sufficient for
comparison and only Amandaâs DNA was definitively present.
The defense asserted three arguments to the jury. First, it highlighted
that the Commonwealth had presented no direct evidenceâDNA, eyewitness
testimony, etc.âthat Sloss killed Amanda and contended that just because
Sloss abused Amanda did not mean he murdered her. Moreover, even though
a data extraction was performed on John Slossâ phone, the Commonwealth
presented no evidence of whom he spoke to around the time that he and
Rachel went into the basement together on the night Amandaâs body was
found. Second, although at least one witness told law enforcement that
Amanda was engaged in sex work and several witnesses told them that she
14
used drugs, the lead detective in the case never investigated the possibility that
Amanda had been murdered by one of her clients or one of her dealers.
Finally, the defense presented a kind of quasi aaltperp defense. While
the defense did not assert that John Sloss killed Amanda, Sloss argued that
John Sloss had something to do with placing her body in the basement after
the first search warrant had been executed on January 29. Sloss contended
that it was not possible that Amandaâs body was in the house during the
execution of the first warrant because three experienced detectives searched
the basement and did not find her. Sloss asserted that John Sloss placed
Amandaâs body in the basement after the police left the premises. He asserted
that this was critical because Sloss did not have a vehicle and had no way of
transporting Amandaâs body. The defense also implied that John Sloss had
originally tried to frame Rachel and, when that did not work, John Sloss tried
to frame John Bolin. Sloss contended that was why John Sloss had recorded
John Bolin in the basement and showed that video to the detectives. The
defense believed John Sloss was attempting to divert law enforcementsâ
attention away from himself rather than away from Sloss.
After hearing the foregoing evidence, the jury deliberated for two hours
before finding Sloss guilty of murder, abuse of a corpse, and of being a first-
degree persistent felony offender (PFO 1st). The jury recommended a sentence
of thirty-five years for murder and five years for abuse of a corpse which was
enhanced to fifteen years due to his PFO 1st status. The jury recommended
these sentences run consecutively for a total of fifty years.
15
Additional facts are discussed below as necessary.
II. ANALYSIS
A. Sloss waived his constitutional right to be present during the guilt and
penalty phases of his trial and sentencing.
Sloss contends that his right to be present at every critical stage of the
proceedings against him was violated even though he willfully refused to attend
both phases of his trial and sentencing after being advised numerous times by
both the court and his counsel of his right to be present and the potentially
disastrous consequences of failing to be present. As the circumstances that led
to his absence are crucial to our analysis, we begin there.
Slossâ disruptive behavior and unwillingness to participate in his own
defense began long before his trial. At the time of his arraignment in August
2020, Sloss was represented by appointed counsel Sheila Seadler. By
February 2021, Sloss began filing several pro se motions expressing
dissatisfaction with Seadler and requesting her removal. 8 In response to these
motions, Seadler filed a motion for an ex parte hearing regarding her status.
During that ex parte hearing, held in May 2021, the trial court explained
to Sloss that it took his concerns seriously but emphasized that he had been
appointed highly competent counsel. The trial court asked Sloss what his
specific grievances against Seadler were, to which he responded, âI donât know.â
After being asked again if he had any specific concerns about his counsel that
8 We note that these pro se motions were filed after Sloss had been told by the
trial court numerous times not to file pro se motions, as they could be used against
him at trial to his detriment.
16
he wanted the court to address he said, âNo.â The trial court noted that it
seemed as though Sloss was attempting to make his attorneyâs job harder,
which was not in his best interest as her job was to help him. Sloss responded
that he had been locked up all his life and that it could not get any worse. The
trial court tried to reason with Sloss and told him that it could get worse and
that if he failed to assist counsel in his defense it almost surely would get
worse. The trial court told Sloss it wanted him to have a fair trial and wanted
him to help himself in that endeavor. Sloss simply responded, âOkay.â
At a subsequent pre-trial hearing in June 2021, the trial court again
addressed Sloss directly concerning his seeming unwillingness to work with
Seadler. The court emphasized that Sloss had been appointed an excellent
lawyer that was working hard on his behalf and that if he did not work with her
it could end up âdisastrouslyâ for him. Sloss responded by repeatedly saying, âI
donât care.â The court told him that he should care and that for someone to
say that they do not care if they spend the rest of their life in prison is
abnormal. Sloss continued to say that he did not care. The trial court then
advised him that if his behavior thus far was an effort to create a reversible
issue on appeal, the court had seen other defendants attempt to do the same
thing and it was a âterrible strategy.â The trial court again implored him to
work with his attorney to help himself. Seadler then began talking about
having Sloss measured for trial clothing and the following exchange occurred:
Seadler: I will anticipate being before the court for something. I
know that when it comes to it I will ask the court to allow me to
measure William because he doesnât know what size he is and itâ
17
Sloss: It doesnât matter Iâm not coming back in this courtroom. Iâm
going to refuse to come. Iâm just letting you know Iâm not coming
back in here. Never. Going to have to make me come.
Court: Mr. Sloss, yeah, I can. But why would you want me to do
that?
Sloss: Nah, Iâm just saying youâre going to have to make me come.
Iâm not going. Iâll refuse to come back in here I donât care what
court date is it. Iâm not coming. You gotta make me come.
Court: Alright, so I know I talk to you casually and I try to be nice,
but in the end, Iâm going to control this courtroom.
Sloss: I donât care. What are you going to do? Take me to court? I
donât care. Iâm ready to get out of here.
[Sloss then stands up and walks out of the courtroom while saying
something inaudible]
Court: (Reluctantly) Thatâs contempt. Thirty days off your good
time.
After Sloss was out of the courtroom, the court noted that he believed Slossâ
behavior to that point was a choice and perhaps the result of a personality
disorder. But, out of an abundance of caution, the court sua sponte ordered
Sloss to be evaluated for competency to stand trial at KCPC 9. Although Sloss
later filed a letter stating he would refuse to go to KCPC and would refuse to be
evaluated, he was ultimately transported to KCPC, evaluated, and found to be
competent.
In July 2021, Sloss signed, dated, and filed a piece of paper into the
record that contained explicit threats to both the trial court and Seadler. It
said:
9 Kentucky Correctional Psychiatric Center.
18
To: Chauvin I have someone cut you head off and place it in a pot
and turn on the stove when your head gets done cooking I would
like to be there to feed it to your family b*tch
To: Seadler I hope you fell over dead inside the court room bitch
next time Iâm gonna spit in your face you will get the f*ck off my
case
In response to this, and continued pro se motions to remove Seadler, the trial
court removed Seadler from Slossâ case and appointed Mac Adams, who
represented him throughout trial and sentencing. The order removing Seadler
found that she acted with âthe highest degree of competenceâ in representing
Sloss, but Slossâ inexplicable level of hostility against her compelled the court
to remove her.
On August 12, 2021, Sloss filed yet another pro se motion that was
styled: âMotion to waive all my rights voluntarily to a trial.â Several months
later, on Wednesday, October 12, 2022, the court and the parties held a final
status conference in anticipation of Slossâ trial which was set to begin the
following Monday. During the status conference Sloss remained in the
holdover and the court noted he had âopted not to join them.â The court stated
it was okay with that for the day but would âobviously not be okay with that on
Monday.â
On the following Monday (October 17) at 10:28 a.m., the court and the
parties were present in the courtroom, but Sloss was not. The trial court
explained that Sloss had again refused to come out of the holdover area and
into the courtroom. Defense counsel stated the following regarding the
situation:
19
I did speak with him back there and he has made it clear that heâs
not going to take part in this, at least right now. . . His refusal to
participate, and I will say this, started a little bit last week when
we were here and he wouldnât come out but I did not think that it
was going, honest to god I didnât think it would carry over. And I
spoke to him, he spoke to me in the chatroom, it wasnât like he was
refusing that much, but now he wonât come out of one of the cells
and even go in the chatroom. And I brought him some clothes to
dress out and he has refused to participate in that as well. Iâm
highly reluctant to go in his absentia, I just think that is an awful,
galactically bad idea for him.
The trial court agreed that it was a terrible idea for Sloss not to be present but
felt that it was his decision not to be. The court stated for the record that Sloss
had
been obstructionist and disrespectful and difficult from the get-go.
Itâs not brand new but this is new and the reason I bring that up is
that I donât want to do something to deprive somebody of their due
process rights either but if they want to give up their due process
rights, my responsibility is bigger than just him and he cannot do
this in order to control what happens. Thatâs, to say the least, a
bad precedent.
The Commonwealthâs position was that if Sloss was choosing not to
participate he could be tried in absentia and that they needed resolution in the
case. Defense counsel requested some additional time that day to try to reason
with Sloss and, if that did not work, requested that the court push the
beginning of trial back one day to give counsel another opportunity to speak
with him and to allow Sloss âto sleep on it.â If Sloss still refused, counsel noted
he would have a continuing objection to proceeding without him. The court
agreed to meet again at 2 p.m. that day to give defense counsel time to speak
with Sloss. When the parties came back at 2 p.m., the trial court stated, âMr.
Sloss has made it clear that he is opting not to be here.â Nevertheless, the
20
court agreed to push the first day of trial to the following day to give the
defense another opportunity to speak with him.
The following day, October 18, Sloss refused to even be transported from
the jail to the courthouse. The trial court stated that âthe sheriffâs department
talked to Mr. Sloss this morning in anticipation of bringing him up to court.
He made it very clear to them with what was described to me as very colorful
language that he had no intention of being present for the trial.â Slossâ defense
counsel was obviously very concerned. He informed the court that he had done
some research regarding waiver of a criminal defendantâs due process rights
and believed the circumstances implicated Kentucky Rule of Criminal
Procedure (RCr) 8.28. However, he went on to say:
I think that probably weâre past the point of a hearing of any sort
as far as his waiver of being here and giving up his right to be here.
. . I have spoken to Mr. Sloss every week for the past three weeks. .
. He is aware we had trial set yesterday because I told him, and I
needed his sizes to dress him out. . . I brought over several things
for him to try on, he refused yesterday. He had also said,
basically, âWhat am I even over here for?â and I was like âWilliam
you know what weâre here for, weâre set for trial, you need to come
out.â It was my advice that he come out and participate but, as I
told him, youâre a grown human and Iâm not going to beg you to do
it. Iâve already begged him as much as Iâm going to. But I told him
I think his chances of success go down drastically the minute he
doesnât come out here. . . I think that under the rule, [RCr] 8.28(1),
I think heâs waived his due process right to be here at least for
what weâre going to do today.
The trial court responded:
Iâm familiar with the rule and it talks about a hearing, but itâs a
hearing for which heâs not going to be present and our choices are
limited. Itâs accede to his wishes or drag him up here. I canât
imagine the consequences of that if we have him strapped to a
chair in front of the jury[.]
21
Defense counsel agreed that he did not want to do that. The court noted that it
thought Slossâ previous refusal to attend the final status conference would be a
one-off decision on Slossâ part and therefore did not push the issue at that
time. The court noted that âin retrospectâ it maybe should have had a
conversation with Sloss directly, but it was not inclined âto go visit him at the
jail or bring him up here for that purposeâ as the court believed Sloss had
âample opportunity to make a choice about whether or not to be here[.]â
Defense counsel never requested that the trial court go to the jail to speak to
Sloss in person to confirm his decision, never requested that Sloss appear by
video to confirm his decision, and never requested that the court have Sloss
confirm his decision in writing.
The trial court then made findings regarding Slossâ waiver of his right to
be present and why the court was deciding to move forward with the trial in his
absence:
I donât know what anybody else could have done differently to allow
him any better opportunity to participate fully. I think this is Mr.
Sloss being Mr. Sloss, heâs trying to build into this record issues
that will be reviewed on appeal. And so, Iâm talking directly to the
court of appeals: certainly counsel has done everything he can,
corrections, the sheriff department, the court, to make sure Mr.
Sloss understands the consequences of his failure to appear at his
trial. And, to the extent that he is setting this up, in his mind, for
some kind of inquiry into his stability, again, the record reflects
this is just how he is. Itâs not a mental disorder, itâs his
personality in my experience and I donât see any basis for giving
him the opportunity to either continue this case unnecessarily or
to build in that type of issue unnecessarily. Iâm at a loss for
options here. We either let him control how this goes or we move
forward and if those are the two choices weâre going to move
forward.
22
The trial began that day in defendantâs absence, and the Commonwealth
presented its body of proof until the evening of October 20. At that time, the
court and defense counsel agreed that Sloss needed to be brought to the
courthouse the following morning so that he could decide whether he wanted to
testify on his own behalf during the defenseâs case in chief.
The following morning, Sloss was transported to the courthouse and
defense counsel informed the court that he and Sloss had discussed the trial
thus far as well as Slossâ right to be present. Sloss indicated to defense
counsel that he âwas not interestedâ in testifying in his own defense and that
he âwas not interested in coming out.â Defense counsel noted he would speak
to Sloss again after the verdict to see if he wanted to be present for the penalty
phase. The court agreed Sloss had a continuing right to be present and that
informing him of that right was all they could do on his behalf. We note here
that the trial court provided a jury instruction that read, âMr. Sloss is not
compelled to testify or be present in person at the trial, and the fact that he did
not and he was not cannot be used as an inference of his guilt and shall not
prejudice him in any way.â This instruction was in the written jury
instructions and was read aloud to the jury by the court prior to closing
arguments.
Later the same day, the jury returned its guilty verdicts against Sloss.
Sloss had been returned to the jail after speaking with counsel that morning,
and defense counsel stated that he needed to be brought back prior to the
penalty phase. The trial court agreed, but noted there would be some delay in
23
getting Sloss back to the courthouse because the jail was in the middle of a
shift change. The court did not anticipate that Slossâ stance would change, but
the court wanted to give him the opportunity to testify out of an abundance of
caution. However, because the jury was waiting to proceed, the court allowed
the Commonwealth to proceed with its penalty phase proof at that time.
Defense counsel objected to proceeding with the penalty phase without Sloss.
The trial court agreed that Sloss had a right to be present but again stated for
the record that Sloss had waived that right.
After the Commonwealth completed its proof for the penalty phase, the
court ordered a brief recess outside the presence of the jury. Sloss had been
transported to the courthouse and defense counsel was able to speak to him.
Defense counsel stated:
Judge I spoke with my client Mr. Sloss and he has informed me
that he is not interested, that he is still going to waive his
appearance, that heâs not interested in coming out and
participating in [the penalty phase]. I did inform him he has an
absolute right to do so, but, as he told me, âI havenât been out
there yet, why would I go back out there now?â
The penalty phase instructions provided the same admonition concerning
Slossâ absence that was included in the guilt phase instructions supra. After
the jury made its sentencing recommendations, Slossâ final sentencing hearing
was scheduled for December 13, 2022.
For whatever reason, the parties were unable to locate the video record of
Slossâ sentencing. But they have filed an agreed upon ânarrative statementâ as
to what occurred at sentencing. In relevant part, that narrative statement
provides:
24
3. The Court advised the parties that information from Louisville
Metro Corrections had been relayed to the assigned courtroom
sheriff that Defendant Sloss had once again refused to come to
court.
4. The Court and the parties took notice of Defendant Slossâ
previous refusals to come to court for trial that began October 17,
2022.
5. The Court and the parties took notice of Defendant Slossâ prior
use of abusive language towards LMDC staff during his refusals to
be brought to court for his trial.
6. Mr. Sloss was never present in the courtroom.
7. No evidentiary hearing with sworn witnesses was held on the
issue of whether Mr. Sloss waived his right to be present at the
sentencing.
There is no indication from the narrative statement that defense counsel
objected to proceeding with sentencing without Sloss.
On appeal to this Court, Sloss asserts two interrelated arguments. He
first contends that the trial court failed to hold a hearing pursuant to RCr
8.28(1). He further asserts that the trial court was precluded from finding that
he waived his right to be present because it never obtained a personal, verbal
waiver of his right to be present.
Slossâ defense counsel lodged a continuing objection to proceeding with
the guilt phase of trial in Slossâ absence and objected to conducting the penalty
phase of his trial without him. We accordingly consider these arguments to be
preserved and will review for harmless error. See Talbot v. Commonwealth, 968
S.W.2d 76, 83-84 (Ky. 1998) (citing Chapman v. California, 386 U.S. 18 (1967)).
Because these alleged errors involve a constitutional right, the test to be
25
applied in the event we hold error occurred is âwhether the error was harmless
beyond a reasonable doubt.â Talbot, 968 S.W.2d at 84.
However, there is no indication that Slossâ counsel objected to proceeding
with sentencing without him, rendering that alleged error unpreserved.
â[A]lleged constitutional errors, if unpreserved, are subject to palpable error
review.â Capstraw v. Commonwealth, 641 S.W.3d 148, 157 (Ky. 2022) (quoting
Walker v. Commonwealth, 349 S.W.3d 307, 313 (Ky. 2011)). Sloss has
requested palpable error review under RCr 10.26 in the event this Court deems
any of these issues unpreserved. âUnder this rule, an error is reversible only if
a manifest injustice has resulted from the error. That means that if, upon
consideration of the whole case, a substantial possibility does not exist that the
result would have been different, the error will be deemed nonprejudicial.â
Martin v. Commonwealth, 207 S.W.3d 1, 3 (Ky. 2006).
The Confrontation Clause of the Sixth Amendment to the United States
Constitution provides that âIn all criminal prosecutions, the accused shall
enjoy the right. . . to be confronted with the witnesses against him[.]â Accord
KY. CONST. § 11 (In all criminal prosecutions the accused has the right. . . to
meet the witnesses face to face, and to have compulsory process for obtaining
witnesses in his favor.â). The guarantees of the Sixth Amendment are made
obligatory upon the states by virtue of the Fourteenth Amendment to the
United States Constitution. Pointer v. Texas, 380 U.S. 400 (1965). âOne of the
most basic of the rights guaranteed by the Confrontation Clause is the
26
accusedâs right to be present in the courtroom at every stage of his trial.â
Illinois v. Allen, 397 U.S. 337, 338 (1970).
Nevertheless, it is well-established that â[m]ost rights. . . constitutional
rights included, may be waived.â Commonwealth v. Simmons, 394 S.W.3d 903,
907 (Ky. 2013) (citing Commonwealth v. Townsend, 87 S.W.3d 12, 15
(Ky.2002)), accord Johnson v. Zerbst, 304 U.S. 458, 464 (1938). â[T]he validity
of any waiver of a constitutional right, as well as the inquiry required by the
court to establish a valid waiver, will depend on the circumstances of the
particular case and the nature of the constitutional right at issue.â Simmons,
394 S.W.3d at 907. But our courts may not presume the waiver of a
fundamental right from a silent record. Zerbst, 304 U.S. at 464. Rather, â[t]he
waiver of a constitutional right must be given voluntarily, knowingly, and
intelligently âwith sufficient awareness of the relevant circumstances and likely
consequences.ââ Simms v. Commonwealth, 354 S.W.3d 141, 143 (Ky. App.
2011) (quoting Brady v. U.S., 397 U.S. 742, 748 (1970)). However, there is no
question that a defendant need not always verbalize his intent to waive a
constitutional right and may instead waive certain rights through conduct.
Allen, 397 U.S. at 342-43 (âNo doubt the privilege (of personally confronting
witnesses) may be lost by consent or at times even by misconduct.â).
In Allen, the United States Supreme Court made clear that there are
circumstances in which a defendantâs Sixth Amendment right to be present
may be waived by his actions. In Allen, the defendant refused court appointed
counsel and insisted on representing himself. 397 U.S. at 339. The trial court
27
granted his request but appointed counsel to assist him in protecting the
record. Id. During voir dire, after the court instructed his court appointed
counsel to proceed with examination of the venire, the defendant argued with
and threatened the trial court and disrupted the proceedings. Id. at 339-40.
The trial court warned the defendant that if he continued to make outbursts he
would be removed. Id. at 340. The trial court had the defendant removed after
his continued outbursts and jury selection continued in his absence. Id. The
trial court allowed the defendant back into the courtroom at the beginning of
trial conditioned on his ability to behave himself. Id. After his appointed
counsel invoked the rule to remove the witnesses from the courtroom, he again
became disruptive and was removed. Id. at 340-41. The defendant remained
out of the courtroom for the entirety of the prosecutionâs proof. Id. at 341. The
defendant was then permitted to return to the courtroom and, as he behaved
himself, was present for the remainder of the trial. Id.
On appeal, the Supreme Court rejected the Court of Appealsâ holding
that âthe defendantâs Sixth Amendment right to be present at his own trial was
so âabsoluteâ that, no matter how unruly or disruptive the defendantâs conduct
might be, he could never be held to have lost that right so long as he continued
to insist upon itâ and that the solution under such circumstances was âto have
restrained the defendant by whatever means necessary, even if those means
included his being shackled and gagged.â Id. at 342. Instead, the Allen Court
held that a defendant could lose his right to be present at trial if, after being
warned by the judge, âhe continues his disruptive behavior, he nevertheless
28
insists on conducting himself in a manner so disorderly, disruptive, and
disrespectful of the court that his trial cannot be carried on with him in the
courtroom.â Id. at 343. It reasoned:
It is not pleasant to hold that the respondent Allen was properly
banished from the court for a part of his own trial. But our courts,
palladiums of liberty as they are, cannot be treated disrespectfully
with impunity. Nor can the accused be permitted by his
disruptive conduct indefinitely to avoid being tried on the
charges brought against him. It would degrade our country
and our judicial system to permit our courts to be bullied,
insulted, and humiliated and their orderly progress thwarted
and obstructed by defendants brought before them charged
with crimes. . . Being manned by humans, the courts are not
perfect and are bound to make some errors. But, if our courts are
to remain what the Founders intended, the citadels of justice, their
proceedings cannot and must not be infected with the sort of
scurrilous, abusive language and conduct paraded before the
Illinois trial judge in this case.
Id. at 346-47 (emphasis added), see also Taylor v. United States, 414 U.S. 17
(1973) (holding that the defendantâs voluntary absence after trial began in his
presence constituted a voluntary waiver of his right to be present).
Wilson v. Harris, 595 F.2d 101 (2d Cir. 1979), is also illustrative of the
tenet that waiver of the right to be present may be apparent from conduct
alone. On the morning of Wilsonâs trial, âpursuant to orders of the trial judge,
Wilson's counsel and the prosecutor went to the Manhattan House of Detention
to interview Wilson, who knew that his trial was to begin that day.â Id. at 103.
The parties reported back to the court that âWilson refused to see them or to
see anyone connected with the case and on that day he had reaffirmed his
refusal âto come to court.ââ Id. The trial court, âsatisfied that Wilson, knowing
his trial was to begin forthwith, had voluntarily waived his right to be present,
29
began the trial.â Id. The trial continued in his absence, and he was ultimately
convicted. Id. On appeal, the Second Circuit framed the issue as follows:
whether the record adequately sets forth that petitioner knew of
his trial, knew that his trial was to start on December 7, 1972, and
that, so informed, he deliberately endeavored to frustrate its
commencement and continuation and, therefore, knowingly and
voluntarily waived his constitutional rights to be present
throughout the trial; and whether, the petitioner being in custody,
it was necessary either for him to have been physically brought
before the state trial judge so that there could be a record in open
court of the waiver or for that judge to have used other means to
obtain an express waiver from the defendant.
Id. The Court held that Wilson
knew when his trial was to begin, and he had no unilateral
right to determine the time or the circumstances under which
he would stand trial. His flat refusal to attend the trial was,
without question, an explicit and intentional relinquishment
of a known right and an undeniable waiver of his
constitutional right to be present in court at the trial and to
confront adverse witnesses. He knew on December 7 that his
trial was to start that day, and on December 8 he knew that it was
in process. . .He had the opportunity to be present but, by his own
volition, chose to forego that opportunity.
Id. at 103-04 (emphasis added).
The criminal procedural rule at issue, RCr 8.28(1), reflects a defendantâs
constitutional right to be present at trial and other critical stages of the
proceedings against him. But it further contemplates that a defendant, by
intentionally refusing to appear, i.e., through his conduct, may waive the right
to be present. It provides in relevant part:
The defendant shall be present at the arraignment, at every critical
stage of the trial including the empaneling of the jury and the
return of the verdict, and at the imposition of the sentence. The
defendant's voluntary absence after the trial has been commenced
in his or her presence shall not prevent proceeding with the trial
up to and including the verdict. . . . Upon a hearing and finding by
30
the trial court, that a defendant in custody on any charge,
including a felony, intentionally refuses to appear for any
proceeding, including trial, short of physical force, such refusal
shall be deemed a waiver of the defendant's right to appear at that
proceeding.
Sloss alleges that the trial court reversibly erred by altogether failing to hold a
hearing pursuant to RCr 8.28(1). He contends that this rule required the trial
court to hold a formal evidentiary hearing and that the trial court was
precluded from finding that Sloss waived his right to be present without
speaking to Sloss directly. We disagree.
To begin, there is nothing in the plain language of RCr 8.28(1) that
requires a formal evidentiary hearing, and the term âhearingâ is not defined by
the Kentucky Rules of Criminal procedure. See RCr 1.06. While certainly the
term âhearingâ can evoke the idea of swearing in witnesses and formally
submitting evidence into the record, often during normal pre-trial practice
âhearingsâ occur in the form of nothing more than discussions between the
court and the parties which in turn result in the court issuing a ruling.
Although a trial court is certainly free to hold a formal evidentiary hearing
under RCr 8.28(1) if it so chooses, we hold that a formal evidentiary hearing is
not required to satisfy the rule. The very facts of this case demonstrate why a
formal evidentiary hearing is not necessary for the court to validly reach the
conclusion that a defendant has waived his or her right to be present at trial.
We hold that the conversations that the trial court had with counsel on
the record about Slossâ refusal to attend trial, coupled with the courtâs personal
knowledge of Slossâ behavior throughout the proceedings, constituted sufficient
31
âhearingsâ under RCr 8.28(1). We further hold that, based on these hearings,
the trial court made the requisite finding that Sloss refused to attend his trial,
short of being forced, and therefore waived his constitutional right to be
present.
From the outset of the criminal proceedings against Sloss the trial court
witnessed firsthand his outright refusal to aid counsel in his defense and his
complete apathy towards the situation in which he found himself. The trial
court repeatedly advised Sloss, to no avail, that a failure to participate in his
own defense would almost certainly have disastrous consequences. Indeed, the
trial court was concerned enough about Slossâ behavior to sua sponte order a
KCPC competency evaluation. But that evaluation confirmed the courtâs
suspicion that Slossâ behavior was the result of his own choices rather than a
mental defect. In addition, during a pretrial hearing Sloss made it clear to the
court that he would refuse to come back to court and that the court would
have to âmake himâ come back. We acknowledge that Sloss thereafter attended
pretrial hearings until the final status conference but believe Slossâ statements
to the court were significant because they put the court on notice that, in the
event Sloss chose not to be present, he would have to be physically forced to
return. It is also notable that Sloss filed a pre-trial, pro se motion into the
record to voluntarily waive all rights to a trial.
The foregoing information was already known by the trial court when the
parties appeared for the first day of trial. The court did not need any witnesses
to be sworn or have any evidence formally placed in the record to apprise it of
32
these facts. And, on the mornings of the first two days of trial, the trial court
had extensive discussions with the parties regarding how to proceed and did
everything within its power to give Sloss the opportunity to change his mind.
On October 17, Slossâ counsel informed the court that Sloss was refusing to
participate in the trial and was refusing to put on the clothes counsel had
purchased him. As an attorney licensed in the Commonwealth, Slossâ attorney
owed a duty of candor to the court, SCR 10 3.130(3.3), and there is no reason to
believe that his statements that day or throughout the rest of the trial would
have been any different if the court had first placed him under oath. Despite
the fact that Sloss made it clear that day that he did not want to be present for
trial, the trial court still granted defense counsel both the afternoon and the
evening to try to reason with him.
On the following day, October 18, Sloss refused to even be transported to
the courthouse even though there was a transport order in place that legally
obligated the department of corrections to transport him. The court had
spoken to someone in corrections that morning who informed him that Sloss
âin very colorfulâ language had refused to be transported and had no intention
of being present for trial. As the jail was under a legal obligation to deliver
Sloss that morning, there was no reason for the court to place someone under
oath to testify that Sloss was refusing to be transported. Moreover, Slossâ act
of refusing to come was in and of itself a statement to the court that he did not
10 Supreme Court Rule.
33
intend to be present. And, significantly, his counsel made it clear that Sloss
knew his trial was going to start that day and that he had been advised that
his chances of succeeding at trial were drastically diminished if he did not
attend.
After being apprised of this information, the court found that its only two
options were to âaccede to his wishes or drag him up hereâ and that it did not
want to â[strap] him to a chairâ in front of the jury. We hold that this
constituted the requisite finding under RCr 8.28(1) that Sloss was refusing to
attend trial âshort of physical force,â and that the trial court was therefore
permitted to find, as it did, that Sloss was waiving his right to attend trial.
Based on Slossâ continued refusals to participate in the penalty phase and
sentencing, the trial court correctly found that he had waived his right to be
present at those proceedings as well.
Before this Court, Sloss faults the trial court for not halting the
proceedings, while the empaneled jurors were kept waiting, to go to the jail to
speak to Sloss directly, to have Sloss appear by video, or to obtain a sworn
statement from him that he was waiving his right to be present. But nothing in
RCr 8.28(1) required the court to do so, nor were those requests made by Slossâ
counsel. The only thing the court was required to do was hold a âhearingâ and
issue a finding that Sloss was refusing to attend trial âshort of forceâ and that
he had therefore waived his right to be present. It did so. And, because Sloss
knew trial was going to begin that day, knew that he had a right to be present,
and knew that his failure to attend could be ruinous to his chances of success,
34
we hold that â[h]is flat refusal to attend the trial was, without question, an
explicit and intentional relinquishment of a known right and an undeniable
waiver of his constitutional right to be present[.]â Wilson, 595 F.2d at 103. No
error, palpable or otherwise, occurred.
B. The trial court did not err by denying Slossâ motion for a mistrial.
Slossâ next argument is that the trial court reversibly erred by failing to
grant his motion for a mistrial after the lead detective in the case impermissibly
commented on his right to remain silent. This issue was properly preserved for
our review by Slossâ request for a mistrial. We will accordingly uphold the trial
courtâs ruling unless it constituted an abuse of discretion. Bray v.
Commonwealth, 68 S.W.3d 375, 383 (Ky. 2002). An abuse of discretion occurs
if the trial courtâs âdecision was arbitrary, unreasonable, unfair, or
unsupported by sound legal principles.â Commonwealth v. English, 993 S.W.2d
941, 945 (Ky.1999). âA mistrial is appropriate only where the record reveals a
manifest necessity for such an action or an urgent or real necessity.â Bray, 68
S.W.3d at 383.
During the Commonwealthâs direct examination of the lead detective,
Anthony Sumerall, it was discussing his investigation of the case when the
following exchange occurred:
CW: 11 At some point was an arrest made in this case?
Sumerall: Yes.
CW: And when was that?
11 Commonwealth.
35
Sumerall: On February 6.
CW: Okay, and Mr. Sloss was located and arrested?
Sumerall: Yes.
CW: And he was charged at that point with what?
Sumerall: Okay, on February 6 Mr. Sloss was located and detained
and brought to our office. He did not give me a statement at the
timeâ
Court: Stop. Approach.
During the bench conference the trial court, clearly irate, said, âI knew it, I
knew g*d d*mn well. Heâs a terrible witness, and I knew g*d d*mn well he was
going to say that.â Defense counsel immediately requested a mistrial, which
the court denied. Without waiving his objection, counsel requested an
admonition. The trial court immediately provided a thorough admonition as
follows:
I canât believe I have to say this, obviously a person doesnât have to
give a statement to police. They have an absolute right not to talk
to the police and the fact that he didnât is not evidence of anything.
It should not have been mentioned by this officer in any way
because it calls attention to it, and youâre not supposed to do that.
Weâre not supposed to think about that, weâre not supposed to
have any consideration at all if the decision is made not to talk to
police because you have an absolute right not to talk to the police.
An absolute right. So you are not to consider that statement.
Youâre not going to forget it, I mean I canât erase that part of your
brain where it is, but what Iâm telling you is that you may not
consider that statement in any way, shape, or form in deciding
whether or not the Commonwealth has proven its case, and if you
canât do that let me know. Can everyone assure me that thatâs not
going to be part of your consideration when you go to decide this
case? Anybody have any hesitation or reservation about that?
36
None of the jurors indicated that they could not follow the admonition, and the
Commonwealth proceeded with its examination. The fact that Sloss declined to
speak to police was never mentioned again.
In general, â[t]he Commonwealth is prohibited from introducing evidence
or commenting in any manner on a defendantâs silence once that defendant
has been informed of his rights and taken into custody.â Hunt v.
Commonwealth, 304 S.W.3d 15, 35 (Ky. 2009). However,
not every isolated instance referring to post-arrest silence will be
reversible error. It is only reversible error where post-arrest silence
is deliberately used to impeach an explanation subsequently
offered at trial or where there is a similar reason to believe the
defendant has been prejudiced by reference to the exercise of his
silence as a prosecutorial tool. The usual situation where reversal
occurs is where the prosecutor has repeated and emphasized post-
arrest silence as a prosecutorial tool.
Wallen v. Commonwealth, 657 S.W.2d 232, 233 (Ky. 1983), see also Hunt v.
Commonwealth, 304 S.W.3d 15, 36 (Ky. 2009). Here, Det. Sumerallâs comment
was a single, fleeting statement that it occurred during a five-day trial. It was
not responsive to the question asked by the Commonwealth and Slossâ decision
to remain silent was never even mentioned by the Commonwealth again, let
alone used as a prosecutorial tool. Moreover, the trial court provided an
extensive admonition immediately after the comment occurred. âA jury is
presumed to follow an admonition to disregard evidence and the admonition
thus cures any error.â Johnson v. Commonwealth, 105 S.W.3d 430, 441 (Ky.
2003) (citing Mills v. Commonwealth, 996 S.W.2d 473, 485 (Ky. 1999)).
There are only two circumstances in which the presumptive
efficacy of an admonition falters: (1) when there is an
37
overwhelming probability that the jury will be unable to follow the
court's admonition and there is a strong likelihood that the effect
of the inadmissible evidence would be devastating to the defendant
or (2) when the question was asked without a factual basis and
was âinflammatoryâ or âhighly prejudicial.â
Johnson v. Commonwealth, 105 S.W.3d 430, 441 (Ky. 2003) (internal citation
omitted). Sloss alleges that the courtâs admonition was insufficient to cure the
error because there was a strong possibility that jury would have been unable
to follow it simply because he was not present at trial. We disagree. There is
no reason to assume that Slossâ absence, alone, would render the jury unable
to follow the courtâs admonition. We therefore hold that the trial court did not
abuse its discretion by denying Slossâ motion for mistrial.
C. The trial court did not err by denying Slossâ motions for directed
verdict for the charges of murder and abuse of a corpse.
Next, Sloss contends that the trial court erred by denying his motions for
directed verdict on the charges of murder and abuse of a corpse. At the close
of the Commonwealthâs proof, defense counsel moved for directed verdict on
both counts. Defense counsel asserted the Commonwealth failed to prove the
charge of murder because there had been no direct evidence that indicated that
Sloss was the person that killed Amanda. Regarding abuse of a corpse the
defense argued that, as there was no proof that Sloss murdered Amanda, there
was no proof that he did anything with her body. The trial court denied the
motions. At the close of the defenseâs proof, defense counsel renewed his
motions for directed verdict. The sole argument he asserted for both charges
was that the Commonwealth did not put on any proof that the body found in
38
the basement was identified as Amanda. The trial court again denied the
motions.
Before this Court, Sloss contends that the trial court erred by denying
his motion for directed verdict in relation to his murder charge because there
was insufficient proof that he killed Amanda and because there was insufficient
proof that the body found in the basement was in fact Amanda. And, he
argues the trial court erred by denying his motion for directed verdict on the
charge of abuse of a corpse because, again, the Commonwealth failed to prove
that he was the individual that killed Amanda and because it failed to prove
that her body was disposed of in a way that âwould outrage ordinary family
sensibilitiesâ pursuant to Kentucky Revised Statute (KRS) 525.120(1). We
address these arguments in reverse order.
To begin, Slossâ argument that the body was not disposed of in a way
that would outrage ordinary family sensibilities and therefore could not
constitute abuse of a corpse was not raised before the trial court and is
consequently unpreserved. âThe failure to identify a particular ground in a
motion for directed verdict forecloses appellate review of the trial court's denial
of the motion except to the extent that palpable error is shown.â Murphy v.
Commonwealth, 509 S.W.3d 34, 42 (Ky. 2017) (citing McCleery v.
Commonwealth, 410 S.W.3d 597, 601â602 (Ky. 2013)).
Upon review of the record, this Court concludes that the evidence was
sufficient to prove that the way Amandaâs body was disposed ofâthat is,
naked, beaten, and strangled, stuffed face down in the fetal position in a
39
plastic tub and left to decay and grow mold for weeks in a cold, dark
basementâwas more than enough to outrage ordinary family sensibilities. Any
conclusion to the contrary would be inhumane and inane. Accordingly, no
manifest injustice resulted. Cf. Yates v. Commonwealth, 430 S.W.3d 883, 888
(Ky. 2014) (holding that failure to prove the forcible compulsion element of
first-degree rape resulted in manifest injustice).
Next, we conclude that Slossâ arguments that there was insufficient proof
that he killed Amanda and that there was insufficient proof that Amanda was
the decedent were properly preserved for review. See Ray v. Commonwealth,
611 S.W.3d 250, 266 (Ky. 2020); RCr 9.22. When ruling on a motion for
directed verdict, âthe trial court must assume that the evidence for the
Commonwealth is true, but reserving to the jury questions as to the credibility
and weight to be given to such testimony.â Commonwealth v. Benham, 816
S.W.2d 186, 187 (Ky. 1991). If the trial court concludes that the âevidence is
sufficient to induce a reasonable juror to believe beyond a reasonable doubt
that the defendant is guilty,â it should not grant a directed verdict. Id. âOn
appellate review, the test of a directed verdict is, if under the evidence as a
whole, it would be clearly unreasonable for a jury to find guilt, only then the
defendant is entitled to a directed verdict of acquittal.â Id.
While Sloss is correct that there was no direct proof entered into evidence
that he murdered Amanda or that the body found in the basement was
40
Amandaâs, 12 â[c]ircumstantial evidence is sufficient to support a criminal
conviction as long as the evidence taken as a whole shows that it was not
clearly unreasonable for the jury to find guilt.â Bussell v. Commonwealth, 882
S.W.2d 111, 114 (Ky. 1994) (citing Trowel v. Commonwealth, 550 S.W.2d 530
(Ky. 1977)). Circumstantial evidence may also be sufficient to prove the
identity of a decedent, as long as the identity is shown by proof beyond a
reasonable doubt. Powell v. Commonwealth, 123 S.W.2d 279, 285 (Ky. 1938).
In a light most favorable to the Commonwealth, the evidence presented
was that Amanda met Sloss through a pen pal program and had known him for
only briefly before moving in with him. As Amanda had been a lifelong resident
of Bell County, Sloss was the only person she knew in Louisville when she
moved there. And, as she had no job, no car, no phone of her own, and was
struggling with SUD, her life was in many ways controlled by Sloss. Slossâ
control over Amanda was in fact so great that he coerced her into engaging in
sex work, at least for a time, against her will.
Four different witnesses testified that Sloss and Amanda argued on a
regular basis and that those arguments frequently resulted in Sloss being
violent. Those witnesses at various times saw Amanda with a busted lip, black
eyes, bruises on her throat, and bruises on her arms and legs. The bruising to
her neck and the injuries to her face were particularly noteworthy because
Amandaâs cause of death was multiple blunt force trauma to the head and
12 The bodyâs state of putrefaction rendered it unrecognizable.
41
manual strangulation. Amanda told Mary Sparks that Sloss was the individual
that inflicted those injuries and there was no evidence that anyone other than
Sloss had been violent towards her in the months preceding her death.
Dwayne Crutcher witnessed Slossâ deplorable actions against Amanda
firsthand.
Mary Sparks testified that the last time she saw Amanda, she was
talking about leaving Sloss. And Karen Bolin testified that sometime in the
middle of January 2020, at 3 a.m., she heard Amanda and Sloss having an
argument that was âlouderâ than usual. During this argument Karen heard
the back door to their home slam, and she never saw Amanda again. The
medical examiner testified that Amanda had been dead for âweeksâ when her
body was found on January 30, 2020.
After Amanda disappeared, Sloss gave several different stories to
numerous people about where she was. At various times, he told people she
had left with another man, that she went back home, that he did not know
where she was, etc. Sloss told Amandaâs mother Teresa that he had not been
able to contact Amanda and did not know where she was, but he never
contacted the police out of concern for her wellbeing. Instead, Teresa alerted
the police to the situation and directed them to the house that Amanda and
Sloss had been living in. There was no evidence that anyone other than
Amanda and Sloss had been living in that house in the months preceding her
death. Amandaâs body was ultimately discovered because Sloss called John
Sloss and directed him to where the body was, and it was evident that Sloss
42
had still been living in that house on the day the search warrants were
executed because several lights and space heaters were on throughout it. Once
Amandaâs body was discovered, LMPD informed Teresa that it was Amandaâs
body, and we presume that Teresa ultimately took custody of that body for
burial or cremation.
Based on the foregoing, the trial court did not abuse its discretion by
denying Slossâ motions for directed verdict, and we hold that it would not have
been clearly unreasonable for the jury to find that Sloss murdered Amanda and
that the body discovered in the basement was Amanda.
D. The trial court did not abuse its discretion by admitting the testimony
of Mary Sparks and Dwayne Crutcher regarding Slossâ past abuse of
Amanda.
Sloss argues that the Commonwealth failed to give adequate notice of its
intention to introduce the testimony of Mary Sparks and Dwayne Crutcher
about Slossâ past abuse of Amanda, and that the testimony itself was
inadmissible under KRE 404(b).
On Sunday, October 16, 2022, the day before trial was scheduled to
begin, the Commonwealth filed a notice of intent to introduce evidence
pursuant to Kentucky Rule of Evidence (KRE) 404(b). The notice stated that
the Commonwealth
hereby gives notice pursuant to KRE 404(c) of its intent to
introduce evidence falling within the purview of KRE 404(b) during
is case in-chief.
⢠Dwayne Crutcher witnessed Defendant try to grab the victim
by the arm. He also saw defendant stomp on her. He pulled
defendant off the victim. This happened outside Mr.
43
Crutcherâs residence. Mr. Crutcher saw injuries on the
victim, including a black eye and marks on her neck.
Mary Sparks never witnessed any incidents, but observed
multiple injuries on the victim, including blood on her face,
her hair messed up, black eyes, a busted mouth, skinned up
knees, busted nose, and fingerprint marks on her neck.
This information has previously been referenced in discovery
materials. The Commonwealth intends to introduce this relevant
evidence because it is inextricably intertwined with other evidence
essential to the case.
The following day, October 17, the Commonwealth explained during a hearing
that Mary and Dwyane were spoken to during the policeâs initial missing
person investigation. During the Commonwealthâs trial preparation, it received
additional information from them, and that information was reflected in her
KRE 404(c) notice. The Commonwealth did not intend to introduce any other
prior assaultive behavior.
The defense objected to the evidence of the prior assaultive behavior and
the observations of injuries on Amanda based on a lack of notice and a lack of
any indication as to when the observations and the assaultive behavior
occurred. The court found that the notice was sufficient, but it initially ruled
to exclude the prior acts of abuse. The court left open the possibility that the
witnesses could provide testimony concerning the acts of abuse depending on
what they testified to as the basis of their knowledge. The courtâs primary
concern was avoiding undue prejudice to Sloss.
At trial, John Bolin and Karen Bolin testified before Mary Sparks and
Dwayne Crutcher. The extent of John Bolinâs testimony was that Amanda and
Sloss argued a lot. Karen Bolin then testified, and her direct examination by
44
the Commonwealth was limited to, the fact that she was Amanda and Slossâ
neighbor, the last time she saw Amanda was either a month or two weeks
before her body was found, and that she knew Amanda and Sloss were both
drug users. It was not until the defense cross examined Karen that the prior
abusive behavior by Sloss against Amanda was elicited. Karen had begun to
make a statement about Amanda being involved in sex work, but the
Commonwealth cut her off with an objection. During the bench conference,
the court noted that at that point the jury would have already figured out what
she was going to say about Amanda being involved in sex work and he believed
that evidence cut both for and against Sloss. The trial courtâs concern was the
basis of Karenâs knowledge for that information.
The trial court then had Karen approach the bench and from its
discussion with her it established: (1) Karen knew Amanda was engaged in sex
work against her will because their homes were in such close proximity she
could hear Amanda and Sloss arguing about it; (2) Karen could also hear what
she believed to be domestic violence against Amanda occurring, but she never
witnessed the physical abuse herself. She did, however, see bruises on
Amandaâs face, neck, and arms; and (3) On an unspecified date prior to
Amandaâs disappearance at about 3 a.m. she heard them have a big fight and
heard the back door slam, and she never saw Amanda again.
The trial court concluded that the information Karen had just provided
was testimony that the jury had a right to hear and that it was âso painfully
45
relevantâ that it was inclined to allow it. When the defense resumed its cross-
examination of Karen it elicited all of the information listed above.
Later, prior to the testimony of Mary Sparks and Dwayne Crutcher, the
parties approached the bench and the defense asked for clarification regarding
the courtâs ruling on their testimony about the injuries they observed and the
timing of what they saw. The court found that âthe genie was out of the bottleâ
on that issue, as there had been testimony elicited from both sides about
âfighting, arguing, bruising.â The court found that the basis for its initial ruling
was to prevent any potential prejudice to Sloss from discussing that
information. But, as that information had already been elicited from other
witnesses, talking about it more would not result in additional prejudice to
Sloss. It found:
itâs certainly relevant and probative as to who may have killed her
if she was afraid of the person who was arguing with her and
beating her on occasion and she was trying to get away from him.
Itâs clearly relevant, clearly probative, and the prejudicial impact of
that has been greatly lessened by the previous testimony in terms
of the fact that these people argued quite a bit and that she had
apparently suffered physical injuries as a consequence of those
arguments.
Defense counsel did not object to Dwayne Crutcherâs testimony.
In criminal cases, KRE 404(c) mandates that the Commonwealth âshall
give reasonable pretrial notice to the defendant of its intention to offer [prior
bad acts] evidence.â The purpose of this evidentiary rule is âto provide the
accused with an opportunity to challenge the admissibility of [prior bad act]
evidence through a motion in limine and to deal with reliability and prejudice
problems at trial.â See, e.g., Walker v. Commonwealth, 52 S.W.3d 533, 538
46
(Ky. 2001) (quoting Tamme v. Commonwealth, 973 S.W.2d 13, 31 (Ky. 1998)).
âWhether reasonable pre-trial notice has been given is decided on a case-by-
case basis.â Walker, 52 S.W.3d at 538. In this case, while Commonwealthâs
KRE 404(c) notice may have been late coming, it served the purpose of the
notice rule in that it gave the defense the opportunity to object to the evidence
and obtain a ruling from the court concerning its admissibility. The trial court
accordingly did not abuse its discretion in determining that the notice was
sufficient.
Next, as for the admissibility of the evidence under KRE 404(b), that rule
directs that â[e]vidence of other crimes, wrongs, or acts is not admissible to
prove the character of a person in order to show action in conformity
therewith.â However, such evidence may be admissible âif offered for some
other purpose, such as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident[.]â KRE 404(b)(1). Due
to the inherent prejudicial nature of this kind of evidence, KRE 404(b) has
always been interpreted as being exclusionary in nature, and trial courts are
expected to âapply the rule cautiously, with an eye towards eliminating
evidence which is relevant only as proof of an accusedâs propensity to commit a
certain type of crime.â Bell v. Commonwealth, 875 S.W.2d 882, 889 (Ky. 1994).
But, as this Court noted in Driver v. Commonwealth,
âIt has long been a rule in this jurisdiction that threats [and the
use of prior actual force] against the victim of a crime are probative
of the defendant's motive and intent to commit the crime[.]â
Sherroan v. Commonwealth, 142 S.W.3d 7, 18 (Ky.2004) (citing
Richie v. Commonwealth, 242 S.W.2d 1000, 1004 (Ky.1951)); see
47
also Davis v. Commonwealth, 147 S.W.3d 709, 722 (Ky.2004)
(â[g]enerally, evidence of prior threats and animosity of the
defendant against the victim is admissible as evidence of ...
intent.â); Harp v. Commonwealth, 266 S.W.3d 813 (Ky.2008) (âAs
we have definitively held, âevidence of similar acts perpetrated
against the same victim are almost always admissible....â â).
361 S.W.3d 877, 884 (Ky. 2012). The foregoing general rule is limited in one
important respect: âprior acts are not admissible when the conduct occurred
too remote in time to fairly represent any reasonable application to the present
crimes.â Id. Sloss attempts to seize upon this limitation by asserting that the
prior bad acts were not admissible because there is no indication as to when
they occurred. While it is true that neither Mary Sparks nor Dwayne Crutcher
could provide exact dates regarding the prior instances of violence or their
observations of Amandaâs injuries, it is clear from context that everything they
observed had to have taken place within the five to six months between
Amanda moving in with Sloss in July 2019 and when she was murdered
sometime between December 2019 and January 2020. Five to six months is
certainly not âtoo remote in time to fairly represent any reasonable application
to the present crimes.â Id. We therefore hold that the trial court did not abuse
its discretion by admitting this evidence.
E. The trial court did not abuse its discretion by allowing hearsay to be
admitted under the state of mind exception.
Prior to trial, Sloss objected to Mary Sparks testifying that Amanda told
her she wanted to leave Sloss. The trial court overruled the objection based on
its ruling that the state-of-mind exception under KRE 803(3) applied. This
issue is therefore preserved, and we will review for abuse of discretion. Mason
48
v. Commonwealth, 559 S.W.3d 337, 342 (Ky. 2018). Accordingly, we must
uphold the trial courtâs ruling unless it was âarbitrary, unreasonable, unfair, or
unsupported by sound legal principles.â English, 993 S.W.2d at 945.
Hearsay âis a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the
matter asserted.â KRE 801(c). âA fundamental rule in the law of evidence is
that hearsay evidence is inadmissible evidence. However, hearsay evidence may
be admissible if âit meets one of our well established exceptions.ââ Walker v.
Commonwealth, 288 S.W.3d 729, 739 (Ky. 2009) (quoting Wells v.
Commonwealth, 892 S.W.2d 299, 301 (Ky.1995)). One such exception is the
state of mind exception under KRE 803(3), which provides:
A statement of the declarant's then existing state of mind, emotion,
sensation, or physical condition (such as intent, plan, motive,
design, mental feeling, pain, and bodily health), but not including a
statement of memory or belief to prove the fact remembered or
believed unless it relates to the execution, revocation,
identification, or terms of declarant's will.
To be admitted, evidence that meets the state of mind exception must still meet
the relevancy standards of KRE 401-403. Sturgeon v. Commonwealth, 521
S.W.3d 189, 198 (Ky. 2017). The state of mind exception is also limited
to a statement about a then-existing mental state or condition. The
âcrucial component of this [exception] [i]s contemporaneity of the
declarant's state of mind and the statement describing it,â and it
âle[aves] no room for the use of a statement describing a state of
mind that existed at some early time.â Robert G. Lawson, The
Kentucky Evidence Law Handbook § 8.5[2][a], at 648 (5th ed.
2013). The statement cannot be about a âpast fact,â but must
instead âcast light upon her future intentions,â Ernst v.
Commonwealth, 160 S.W.3d 744, 753 (Ky. 2005), which includes
statements of present or then-existing mental states.
49
Thus, the statement âI felt scared yesterdayâ would not be
admissible, but the statement âI feel scared nowâ would be[.]
Dillon v. Commonwealth, 475 S.W.3d 1, 22â23 (Ky. 2015).
Sloss asserts before this Court that Maryâs testimony was inadmissible
hearsay because it was offered to prove the truth of the matter asserted: that
Sloss regularly abused Amanda and she wanted to leave him. We disagree.
While it is true that Amandaâs conversation with Mary occurred in the past, it
demonstrated her then-present intention concerning a future event: she
wanted to leave Sloss because of the months of abuse she had endured.
Additionally, this Court has consistently determined that a victim's
statement concerning future plans to break off a relationship with
the offender is admissible as state of mind evidence. See, e.g.,
Dillon, 475 S.W.3d at 23 (victim's statements to daughter that she
planned on leaving the appellant and moving to a different state
were admissible under KRE 803(3)); [Crowe v. Commonwealth, 38
S.W.3d 379, 383 (Ky. 2001)] (victim's statements to coworkers that
she planned on filing for divorce from appellant demonstrated her
mental state).
Rucker v. Commonwealth, 521 S.W.3d 562, 571-72 (Ky. 2017). Mary testified
that the last time she saw Amanda, she was planning to leave Sloss because
their relationship was getting progressively worse, and she no longer wanted to
be abused. During that conversation, she and Mary also discussed getting
permission from Amandaâs parole officer to allow her to move in with Mary
until she could find other arrangements. We accordingly hold that Amandaâs
statements were properly admitted under the state of mind exception to the
rule against hearsay and that the trial court did not abuse its discretion by
admitting them.
50
F. No cumulative error occurred.
For his final assertion, Sloss contends that cumulative error occurred
necessitating reversal. âCumulative error is a doctrine âunder which multiple
errors, although harmless individually, may be deemed reversible if their
cumulative effect is to render the trial fundamentally unfair.ââ Commonwealth
v. Harbin, 602 S.W.3d 166, 174 (Ky. App. 2019). Cumulative error has
previously been found âonly where the individual errors were themselves
substantial, bordering, at least, on the prejudicial.â Id. (citing Brown v.
Commonwealth, 313 S.W.3d 577, 631 (Ky. 2010)). We hold that no cumulative
error occurred in this case.
III. CONCLUSION
Based on the foregoing, we affirm.
All sitting. Bisig, Conley, and Thompson, JJ., concur. Nickell,
J., dissents by separate opinion in which VanMeter, C.J., and Keller, J., join.
NICKELL, J., DISSENTING: Respectfully, I dissent. Distilled to its
essence, the majority concludes the trial court made an implied finding of
waiver following an implied hearing based on nothing more than hearsay and
double hearsay. I cannot agree such an implied finding of waiver is sufficient
to hold Sloss positively and intentionally waived a fundamental constitutional
right.
More than two centuries ago, in discussing the importance of the
Confrontation Clause, Chief Justice Marshall pointedly cautioned, âI know of
no principle in the preservation of which all are more concerned. I know none,
51
by undermining which, life, liberty, and property, might be more endangered.
It is therefore incumbent on courts to be watchful of every inroad on a principle
so truly important.â U.S. v. Burr, 25 F.Cas. 187, 193 (No. 14,694) (CC Va.
1807). Ninety years later, the Supreme Court of the United States reiterated
that the Sixth Amendmentâs right to confrontation was â[o]ne of the
fundamental guaranties of life and liberty . . . a right long deemed so essential
for the due protection of life and liberty that it is guarded against legislative
and judicial action by provisions in the constitution of the United States and in
the constitutions of most, if not of all, the states composing the Union.â Kirby
v. U.S., 174 U.S. 47, 55-56 (1899). 13 More recently, Justice Scalia wrote:
The Sixth Amendment gives a criminal defendant the right
âto be confronted with the witnesses against him.â This language
âcomes to us on faded parchment,â California v. Green, 399 U.S.
149, 174, 90 S.Ct. 1930, 1943, 26 L.Ed.2d 489 (1970) (Harlan, J.,
concurring), with a lineage that traces back to the beginnings of
Western legal culture. There are indications that a right of
confrontation existed under Roman law. The Roman Governor
Festus, discussing the proper treatment of his prisoner, Paul,
stated: âIt is not the manner of the Romans to deliver any man up
to die before the accused has met his accusers face to face, and
has been given a chance to defend himself against the charges.â
Acts 25:16. It has been argued that a form of the right of
confrontation was recognized in England well before the right to
jury trial. Pollitt, The Right of Confrontation: Its History and
Modern Dress, 8 J.Pub.L. 381, 384-387 (1959).
Coy v. Iowa, 487 U.S. 1012, 1015-16 (1988). In my view, the majorityâs
decision today fails to heed Burrâs warning, disregards the historical
underpinnings of the right of confrontation, and inflicts a crippling blow to a
13 See KY. CONST. §11.
52
fundamental constitutional right which is essential to due process of law in a
fair adversary process.
âA defendant is guaranteed the right to be present at any stage of the
criminal proceeding that is critical to its outcome if his presence would
contribute to the fairness of the procedure.â Kentucky v. Stincer, 482 U.S. 730,
745 (1987). This right is rooted in the Sixth Amendment and the due process
clause of the Fourteenth Amendment to the United States Constitution as well
as Section Eleven of the Kentucky Constitution. The constitutional right of a
defendant to be present at all times with the aid of counsel has been long
recognized in this Commonwealth. In Temple v. Commonwealth, 14 Bush 769,
770-71, 29 Am.Rep. 442 (Ky. 1879), this Courtâs predecessor held:
The bill of rights declares âThat in all criminal prosecutions
the accused hath a right to be heard by himself and counsel.â The
right to be heard by himself and counsel necessarily embraces the
right to be present himself and to have a reasonable opportunity to
have his counsel present also at every step in the progress of the
trial, and to deprive him of this right is a violation of that provision
of the fundamental law just quoted.
The presence of the accused is not a mere form. It is of the
very essence of a criminal trial not only that the accused shall be
brought face to face with the witnesses against him, but also with
his triers. He has a right to be present not only that he may see
that nothing is done or omitted which tends to his prejudice, but to
have the benefit of whatever influence his presence may exert in
his favor.
The right to be present is also explicitly set forth in RCr 8.28(1):
The defendant shall be present at the arraignment, at every
critical stage of the trial including the empaneling of the jury and
the return of the verdict, and at the imposition of the sentence.
The defendantâs voluntary absence after the trial has been
commenced in his or her presence shall not prevent proceeding
with the trial up to and including the verdict. The defendant may
53
be permitted to remain on bail during the trial. Upon a hearing
and finding by the trial court, that a defendant in custody on any
charge, including a felony, intentionally refuses to appear for any
proceeding, including trial, short of physical force, such refusal
shall be deemed a waiver of the defendantâs right to appear at that
proceeding. 14
The right to be present is intended to protect a defendant against
purposeful or involuntary exclusion, but not voluntary exclusion. See, e.g.,
Price v. Commonwealth, 31 S.W.3d 885, 892 (Ky. 2000). It is a defendantâs
personal right under the Sixth Amendment and Section Eleven and may,
therefore, be waived. See Gannett Co., Inc. v. DePasquale, 443 U.S. 368, 379-
80 (1979). Even â[t]he most basic rights of criminal defendants are . . . subject
to waiver.â New York v. Hill, 528 U.S. 110, 114 (2000) (quoting Peretz v. United
States, 501 U.S. 923, 936 (1991)). However, any such waiver must be
sufficiently clear âas to indicate a conscious intent.â Powell v. Commonwealth,
346 S.W.2d 731, 734 (Ky. 1961). The standard for finding a waiver of a
defendantâs right to be present should be evaluated as any other constitutional
right which requires âan intentional relinquishment or abandonment of a
known right or privilege.â Johnson v. Zerbst, 304 U.S. 458, 464 (1938). These
important rights âmay be waived only by a voluntary and knowing action.â
Boyd v. Dutton, 405 U.S. 1, 2-3 (1972). The United States Court of Appeals for
the District of Columbia Circuit has further explained the importance of
obtaining an explicit on-the-record waiver.
14 The final sentence which permits a waiver only after a hearing and finding by
the trial court was added to the rule by Order 2009-01, and became effective April 1,
2009, some thirteen years before trial in this matter commenced.
54
On the subject of waiver, âit has been pointed out that
âcourts indulge every reasonable presumption against waiverâ of
fundamental constitutional rights and that we âdo not presume
acquiescence in the loss of fundamental rights.â . . . This
protecting duty imposes the serious and weighty responsibility
upon the trial judge of determining whether there is an intelligent
and competent waiver by the accused.â Cross [v. United States],
325 F.2d [629,] 631 (quoting Johnson v. Zerbst, 304 U.S. 458, 464-
65, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938)). Where the
defendant is in custody, ââthe serious and weighty responsibilityâ of
determining whether he wants to waive a constitutional right
requires that he be brought before the court, advised of that right,
and then permitted to make âan intelligent and competent waiver.ââ
Id.
In applying this rule to the instant case, it is clear that
rather than permitting defense counsel to waive [the defendantâs]
right to presence, the court should have held an on-the-record
hearing to advise [the defendant] of his right to be present at voir
dire and obtained a personal waiver in open court. The slight
additional burden on the criminal justice process wrought by a
personal waiver requirement is more than offset by avoidance of
lengthy appeals to determine whether the defendantâs right to
presence has been violated. The practice of obtaining open court
waivers is, as we have noted, particularly warranted in cases like
this where the defendant is not out on bail, but remains in custody
and readily available to the court.
Further, we find an on-the-record-waiver desirable because
in its absence it is difficult, if not impossible, to determine whether
the defendant has knowingly and intelligently relinquished a
known right.
United States v. Gordon, 829 F.2d 119, 125-26 (D.C. Cir. 1987) (footnote
omitted).
Based on these authorities, it is plain that a defendantâs fundamental
constitutional right to be present to confront his accusers and any witnesses
against him is not of recent vintage, nor is its existence something which can
be seriously doubted or questioned. This right should be protected with equal
fervor to all other fundamental constitutional rights.
55
For instance, before a defendant may enter a guilty plea, which
âconstitutes a waiver of several fundamental constitutional rights[,]â due
process demands that to be valid the plea âmust be knowing, intelligent, and
voluntary.â Haight v. Commonwealth, 760 S.W.2d 84, 87-88 (Ky. 1988) (citing
Boykin v. Alabama, 395 U.S. 238 (1969); Brady v. United States, 397 U.S. 742
(1970)). Under Boykin, a trial court must make an affirmative showing on the
record that a guilty plea is intelligent and voluntary before it may be accepted.
395 U.S. at 242.
Waiver of the defendantâs right to a jury trialâone of the fundamental
constitutional rights lost when entering a guilty pleaâcannot be presumed
from a silent record. Id. at 243. RCr 9.26, which was promulgated by this
Court over forty years ago, requires a defendantâs waiver of his right to be tried
by a jury to be âin writing with the approval of the court and the consent of the
Commonwealth.â RCr 9.26(1). No separate colloquy or inquiry by the trial
court is required because âthe rule presumes voluntariness from a written
waiverâ and the âwriting requirement is designed to impress the defendant with
the gravity of the right relinquished and provide[s] the best evidence of the
defendantâs voluntary consent.â Marshall v. Commonwealth, 60 S.W.3d 513,
522 (Ky. 2001) (quoting United States v. Martin, 704 F.2d 267, 271 (6th Cir.
1983)).
Furthermore, before a defendant may waive his constitutional right to
counsel, due process demands he be âmade aware of the dangers and
disadvantages of self-representation, so that the record will establish that he
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knows what he is doing and his choice is made with eyes open.â Faretta v.
California, 422 U.S. 806, 835 (1975) (internal quotation marks omitted). This
Court has explained âas to the Sixth Amendment . . . the constitutional
minimum for determining whether a waiver was âknowing and intelligentâ is
that the accused be made sufficiently aware of his right to have counsel
present and the possible consequences of a decision to forego the aid of
counsel.â Depp v. Commonwealth, 278 S.W.3d 615, 618 (Ky. 2009) (analyzing
Iowa v. Tovar, 541 U.S. 77 (2004)). Although no specific script or âmagic
wordsâ are required, a trial court must make an adequate record which is
sufficient for a reviewing court to determine the correctness of the finding of
waiver. Id. at 618-19.
Based on my review of the record, I do not believe Slossâs fundamental
constitutional right to be present was adequately protected. Nor can I agree
with the majorityâs conclusion that Sloss voluntarily waived his right pursuant
to RCr 8.28(1).
This is not a case wherein a defendant has forfeited his right to be
present, thereby relieving the trial court of the obligation to conduct a Boykin-
type inquiry. Sloss was not removed from the courtroom for being unruly and
disruptive as was the defendant in Allen, 397 U.S. at 340, et seq. Nor did Sloss
ever threaten to be disorderly, disruptive, or disrespectful warranting his
involuntary removal or banishment from the courtroom. Additionally, it is
abundantly clear that Sloss did not voluntarily absent himself after the
commencement of trial, so the provision of RCr 8.28(1) permitting trial in his
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absence in such a circumstance is inapplicable. Thus, the focus must be on
the remaining provisions of RCr 8.28(1) and the cases cited above to make a
proper determination of whether a finding of a waiver was appropriate.
Pertinent to this matter, before a defendant in custody may be deemed to
have waived his right to be present, the plain and unambiguous language of
RCr 8.28(1) requires a trial court to conduct a hearing and make several
findings. The court must conclude the defendant is in custody, that he is
intentionally refusing to appear, and nothing short of physical force will compel
his attendance.
Unlike the provisions of RCr 9.26 which requires a waiver of a
defendantâs right to a jury trial to be in writing, no rule or statute specifies the
appropriate method for waiving the right to be present âat every critical stage of
the trial.â While I do not today advocate for implementing a formalistic process
for effectuating a waiver, a record must be made from which it is clear that a
defendant knows or is advised of his rights, and that he is voluntarily
relinquishing that known right. However, in my view, the trial court did not do
so here and the majorityâs decision to sanction the loss of Slossâs entitlement to
be present based on the trial courtâs deficient finding of a voluntary waiver
erodes the rights of all defendants who shall hereafter appear before the trial
courts of this Commonwealth.
Although multiple on-the-record discussions occurred regarding Slossâs
recalcitrant and obstreperous behavior, noticeably lacking in the instant case
is any colloquy between the trial court and Sloss in which Sloss was apprised
58
of his right to be present and the hazards of waiving such right. Nor was there
a hearing at which competent evidence was introduced. I am unconvinced by
the majorityâs assertion that the âconversationsâ the trial court conducted with
counsel qualify as a hearing. I am even more unconvinced the trial court made
the requisite findings to comply with RCr 8.28(1). While I concede that a
waiver may be implied and not express, the record must contain some evidence
of substance and reliability to support the implication. No such competent
evidence appears in the record before us today. The majorityâs conclusion to
the contrary misses wide of the mark.
Certainly, RCr 8.28(1) contains language permitting a trial to continue in
a defendantâs voluntary absence after the trial has commenced. But where, as
here, the defendant is absent and trial has not gotten underway, the rule
requires âa hearing and finding by the trial courtâ that the defendant is in
custody and is intentionally refusing to appear. The trial court must further
conclude the only way to compel the defendantâs presence is through the use of
physical force. Should these conditions be met, only then may a defendant be
deemed to have voluntarily waived his constitutional right to be present. 15 But
â[t]here is no conclusive presumption of voluntariness from the mere fact of
15 There are clearly times when a defendant in custody could waive his right to
be present. However, a defendant who is in custody is not personally in control of his
own presence or absence as would be a defendant who has been released on bail.
Indeed, it is difficult to imagine a scenario where such a defendant, short of
effectuating an escape, can be said to have voluntarily absented himself from trial,
considering he is under the custody and control of the jailer and is incapable of free
volition as to his movements.
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absence; the defendant is entitled to show that his absence was not voluntary.â
McKinney v. Commonwealth, 474 S.W.2d 384, 386 (Ky. 1971) (citing Fleming v.
Commonwealth, 280 S.W.2d 148 (Ky. 1955)).
Because the right to be present is a fundamental constitutional right,
trial courts should ensure a defendant is proceeding with âeyes openâ and issue
warnings of the dangers of absenting oneself from trial prior to determining a
waiver has occurred. Doing so creates a record from which it can readily be
determined that any such waiver was knowing, voluntary, and intelligent.
Thus, an on-the-record hearingâas required by ruleâshould occur as
such determinations can rarely, if ever, be made in passing or without
consideration of the specifics of the particular case and individual defendant at
bar. Although no âmagic wordsâ need be employed, a defendant must, at a
minimum be questioned about his desire to intentionally refuse to appear and
thus waive his right to appear at trial and appropriate findings shall be made.
âWhen a defendant expresses a desire not to attend trial, the district court
must ensure that the defendant knows that he has the opportunity to attend
and knows the ramifications of his choices so that the decision to waive his
right will be intelligently made.â U.S. v. Nichols, 56 F.3d 403, 417 (2d. Cir.
1995).
It is true that a person in custody, as can any person, choose to be
voluntarily absent. RCr 8.28(1) contemplates such a situation. But I posit that
much more is required to find a voluntary waiver of oneâs presence than what
occurred here. Sloss was available and in the custody and control of the
60
authorities. However, the record does not clearly reflect that he was advised of
his right to be present, nor that he personally waived that right. Thus, a
knowing, voluntary, and intelligent waiver of this fundamental right is not
evident from this record.
Certainly, the trial court was placed in a difficult situation, one it
acknowledged it had never before encountered. Yet, even recognizing the
requirements of the rule to conduct a hearing and make a finding, the trial
court did not do so. Contrary to the majorityâs assertions, my review of the
record reveals no hearing occurred and no finding consistent with RCr 8.28(1)
was made. Had the trial court received any direct statement from Sloss
regarding waiver, or even made the simple finding required by RCr 8.28(1) that
Sloss was intentionally refusing to appear and nothing âshort of physical forceâ
could compel his attendance, perhaps my view of this case would be different.
But unfortunately, that is not the record before the Court. In my view, more
needed to be done to pass constitutional muster, and certainly more than the
double inference relied upon by the majority.
For the foregoing reasons, I must respectfully dissent. I fear the
majorityâs decision today erodes the Confrontation Clause and opens the door
to potential mischief. And because I believe trial in absentia was a
fundamental reversible error, I would reverse and remand for a new trial
without reaching the merits of any of Slossâs other claims.
VanMeter, C.J., and Keller, J. join.
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COUNSEL FOR APPELLANT:
Kathleen K. Schmidt
Assistant Public Advocate
COUNSEL FOR APPELLEE:
Russell Coleman
Attorney General of Kentucky
Shawn D. Chapman
Deputy Solicitor General
Sarah N. Christensen
Assistant Attorney General
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Case Information
- Court
- Ky.
- Decision Date
- October 24, 2024
- Status
- Precedential