IMPORTANT NOTICE

NOT TOBE PUBLISHED OPINION

THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."

PURSUANT TO THE RULES OF CIVIL PROCEDURE

PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),

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RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR

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ACTION.
2019-SC-000242-MR

RENDERED: APRIL 30, 2020

BE PUBLISHED

WILLIAM MATTINGLY

ON APPEAL FROM JEFFERSON CIRCUIT COURT

V. HONORABLE JUDITH E. MCDONALD-BURKMAN, JUDGE

NO. 15-CR-003102

COMMONWEALTH OF KENTUCKY APPELLEE

MEMORANDUM OPINION OP THE COURT

AFFIRMING

William Mattingly was convicted of second-degree manslaughter and

attempted second-degree manslaughter. He was sentenced to twenty years in

accordance with the jury’s finding that he was a first-degree persistent felony

offender (PFO). Mattingly now appeals his convictions to this Court. After

review, we affirm.

I. FACTUAL BACKGROUND

Mattingly and the victims in this case, Tommy Grismer (Tommy) and

Chris Bloyd (Chris), met during a short stint in a rehabilitation center for drug

addiction. Tommy and Chris were released from the center a week before

Mattingly. The day Mattingly left the center he contacted Chris and they got a

hotel room for the night where they intended to hang out and do drugs. Chris

and Mattingly bought some methamphetamine (meth) and began drinking

alcohol and smoking meth in the hotel room.
Shortly thereafter Chris asked his friend Toby Clark (Toby) and his fiance

Crystal Dishon (Crystal) to come to the hotel. Toby had been Chris’ friend

since childhood but Mattingly did not know Toby or Crystal. Crystal was the

only one in the group with a vehicle, so she later went to pick up Tommy.

Tommy brought a hypodermic needle with him, and the group began to “shoot”

the meth intravenously.

Both Chris and Crystal1 testified that when Mattingly shot the meth, his

demeanor instantly changed. Prior to that the mood in the room was light and

everyone was “having a good time.” But when Mattingly shot up, he instantly

became paranoid and violent. Mattingly grabbed Tommy and put him in a

standing chokehold while holding a glass beer bottle in his other hand.

Mattingly commanded that no one move, or he would kill Tommy. Mattingly

also started asking why they were all out to get him and made them lift up

their shirts to prove that none of them had a gun. Mattingly then demanded

that Chris walk into the bathroom with him and Tommy.

Mattingly, with Tommy still in a chokehold, and Chris walked into the

bathroom. Mattingly made Chris close the door and stand with his hands

against the door with his back to Mattingly. Chris tried to convince Mattingly

that no one was going to hurt him, but he would not listen. Chris turned and

saw Mattingly choke Tommy to death and drop him. Mattingly then put Chris

in a chokehold and commanded that Toby and Crystal slide a phone under the

bathroom door. Mattingly called 911 and told them Tommy was overdosing.

When responding officer Jason Hilliard arrived on scene, he had to break

the bathroom door to get in. Ofc. Hilliard testified that when he got into the

1 Investigating officers were unsuccessful in locating Toby to testify.
bathroom, he saw three men stacked on top of each other. Tommy was on the

bottom of the pile, blue and unresponsive. Mattingly was in the middle with

his back on Tommy, and Chris was on top. Mattingly had Chris in a

chokehold, which he refused to release until Ofc. Hilliard pointed a gun at him.

After his arrest, Mattingly requested to be examined by EMS personnel at

the crime scene because he had an elevated heartrate. The paramedic who

assessed him said he believed Mattingly was under the influence of meth based

on his observations of Mattingly’s elevated heartrate, dilated pupils, paranoia,

agitation, and nervousness. The paramedic further stated that Mattingly was

not able to make medically informed decisions and was therefore transported to

the hospital. Mattingly’s primary diagnosis was rhabdomyolysis2 with a

secondary diagnosis of acute meth intoxication.

At trial, Mattingly conceded that he killed Tommy and attempted to kill

Chris. However, he asserted that he had a drug-induced, truly held yet

mistaken belief that he needed to use force in self-defense against Tommy and

Chris. There was no evidence presented that anyone actually intended to harm

Mattingly in any way that evening.

Additional facts are discussed below as necessary.

II. ANALYSIS

Mattingly asserts four arguments on appeal. First, that he was denied

his due process right to present a defense when the trial court ruled that a

2 Rhabdomyolysis is “the destruction or degeneration of muscle

tissue...accompanied by the release of breakdown products into the bloodstream and

sometimes leading to acute renal failure.” https://www.merriamwebster.com/dictionaiy/rhabdomyolysis?src=search-dict-box (last visited March 3,

2020).
mental health expert could not testify that he was legally insane during the

offenses. Next, that the trial court erred by not suppressing his post-arrest

statement to the police. Third, that two statements made by the

Commonwealth during its closing argument violated his right to a fair trial.

Finally, that he is entitled to a new penalty phase hearing.

A. THE TRIAL COURT DID NOT ERR BY FORBIDDING TESTIMONY THAT

MATTINGLY WAS LEGALLY INSANE DURING THE CRIMES

Before trial, the defense retained a licensed clinical psychologist, Dr.

Wayne Hemer, to evaluate Mattingly’s criminal responsibility. The trial court

ultimately ruled that Dr. Hemer could testify, but he could not testify that

Mattingly was legally insane at the time of the offenses. Mattingly’s first

assertion to this Court is that limiting Dr. Hemer’s testimony in this manner

denied Mattingly his due process right to present a defense.3 This Court

reviews a trial court’s ruling on the admission of evidence for abuse of

discretion.4 A trial court abuses its discretion when it rules in a way that is

arbitrary, unreasonable, unfair, or unsupported by sound legal principles.5

Mattingly insists that Dr. Hemer’s report concluded that Mattingly was

legally insane at the time of the offenses, and that Dr. Hemer should therefore

have been permitted to testify to that effect. We disagree. The relevant portion

of Dr. Hemer’s report states:

Based on all the available data, it is this psychologist

(sic) opinion with a reasonable degree of psychological

certainty that Mr. Mattingly was indeed suffering an

3 This argument was properly preserved for appeal. Based on the court’s ruling,

the defense did not call Dr. Hemer to testify at trial. The defense informed the court

that, had Dr. Hemer testified, he would have discussed Mattingly’s significant

psychiatric history and that Mattingly was not guilty due to insanity because of meth

intoxication and rhabdomyolysis. See Kentucky Rule of Evidence (KRE) 103(a)(2).

4 Holt v. Commonwealth, 250 S.W.3d 647, 652 (Ky. 2008).

5 Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
acute psychotic paranoid episode at the time of

the index offense, precipitatedby acute

polysubstance abuse (methamphetamine, MDMA,

and heroin) with increased confusion compounded

by the rhabdomyolysis.

Review of all of the witness reports are essentially

consistent in the description of how the offense

unfolded, describing the irrational paranoia and

hypervigilance displayed by Mr. Mattingly. All the

available information indicates that Mr. Mattingly

was in all psychological certainly laboring under a

drug induced irrational psychotic/delusional

system during the time of the index offense

preventing him from appreciating the nature of his

acts or controlling his actions. Admittedly his

action were only two (sic) “protect himself” from a

perceived threat.6

Clearly, Dr. Hemer did in fact believe Mattingly was having a psychotic episode

during the offenses. However, Dr. Hemer concluded that the episode was

drug-induced, and not the result of a mental illness or defect.

Kentucky’s insanity statute, when satisfied, absolves a criminal

defendant of all culpability for a crime if, “at the time of such conduct, as a

result ofmental illness or intellectual disability, he lacks substantial capacity

either to appreciate the criminality of his conduct or to conform his conduct to

the requirements of law.”7 In that vein, this Court has previously held that,

“[d]rug addiction, by itself, is not a disease constituting or leading to ‘mental

illness,’ and “[t]he legislature of this state has not expressed any intention that

drug addiction arising from the voluntary ingestion of drugs, by itself, affords a

defense to a criminal charge based on mental illness.”8

6 Emphasis added.

7 Kentucky Revised Statute (KRS) 504.020(1) (emphasis added).

8 Lickliter v. Commonwealth, 142 S.W.3d 65, 68 (Ky. 2004) (citing

Commonwealth v. Tate, 893 S.W.2d 368 (Ky. 1995)).
Therefore, Dr. Hemer could not testify that Mattingly was insane during

the offense. The fact that Mattingly was also diagnosed with rhabdomyolysis

does not change this conclusion. The trial court did not err by limiting Dr.

Hemer’s testimony accordingly.

B. THE TRIAL COURT COMMITTED HARMLESS ERROR WHEN IT FAILED

TO SUPPRESS MATTINGLY’S POST-ARREST INTERVIEWS

Mattingly was taken directly to the hospital from the crime scene.

Shortly after Mattingly arrived at the hospital, Detective Leigh Maroni and

Lieutenant Donny Burbrink interviewed him. At that time the officers were still

uncertain about Tommy’s cause of death, but Mattingly was in custody for

possession of a controlled substance. Mattingly was therefore handcuffed to

the bed throughout the questioning. Det. Maroni read Mattingly his “Miranda

rights” before questioning him first for approximately fifty-four minutes, and Lt.

Burbrink arrived towards the end of the interview. Twenty minutes after the

first interview ended, Lt. Burbrink, with Det. Maroni present, conducted the

second interview which lasted about thirty-two minutes. The interviews, which

are audio only, were conducted somewhere between four and five hours after

Mattingly last ingested meth.

Mattingly asserts that the trial court committed reversible error when it

denied his motion to suppress these post-arrest interviews because they were

not given voluntarily, knowingly, and intelligently.9 This Court’s review of a

trial court’s ruling on the suppression of evidence is a two-part inquiry: “we

review the trial court's factual findings for clear error, and deem conclusive the

9 This error was properly preserved by Mattingly’s pre-trial motion to suppress.

Kentucky Rule of Criminal Procedure (RCr) 9.22.
trial court's factual findings if supported by substantial evidence. The trial

court's application of the law to the facts we review de novo.”10

Whether a statement during a custodial interrogation was given

voluntarily, knowingly, and intelligently, as required by Miranda v. Arizona,11

has two distinct components:

First, the relinquishment of the right must have been

voluntary in the sense that it was the product of a free

and deliberate choice rather than intimidation,

coercion, or deception. Second, the waiver must have

been made with a full awareness of both the nature of

the right being abandoned and the consequences of

the decision to abandon it. Only if the totality of the

circumstances surrounding the interrogation reveal

both an uncoerced choice and the requisite level of

comprehension may a court properly conclude that the

Miranda rights have been waived.12

Here, the trial court found that Mattingly’s statement was voluntary

based on its finding that “[t]here [was] no indication that Maroni or Burbrink

used any threatening or coercive tactics to get Defendant to talk. Their tone of

voice, choice of words and subject matter were devoid of deception, threats, or

lies. Defendant consistently wanted to speak with Maroni.” We hold there was

no error in this factual finding, nor with the resulting legal conclusion that

Mattingly voluntarily gave his statement. Review of the interview recordings

demonstrates that Mattingly wanted to talk to the officers. Several times

throughout the interviews Mattingly asks the officers if they are going to talk to

10 Williams v. Commonwealth, 364 S.W.3d 65, 68 (Ky. 2011).

11 384 U.S. 436 (1966).

12 Moran v. Burbine, 475 U.S. 412, 421 (1986) (internal quotation marks and

cites omitted).
him and listen to him, and there is no indication that Mattingly’s “will was

overbome” by the officers in any way.13

Regarding whether Mattingly’s waiver was knowing and intelligent, the

trial court stated:

The court has considered the totality of the

circumstances leading up to his recorded interview,

including his drug use, his compliance when arrested,

his request for medical attention, his improved

condition as the morning progressed, his consistent

requests to speak to detectives, his ability to recall

events of the evening and morning, his theory of being

set up by the other two men, and his concern for his

children. Despite some bizarre comments during the

interview, he was able to understand and respond

coherently.

Most of the facts cited by the trial court certainly have support from the record.

However, after review of the interview recordings, we hold that the trial court

erred by finding that Mattingly’s waiver was knowing and intelligent.

To begin, it is abundantly clear that Mattingly was still highly intoxicated

during the interviews: his speech was slurred, he was difficult to understand,

he asked the detectives the same questions repeatedly as though he did not

remember asking them before, and he would go off on repetitive, odd, rambling

tangents that had no correlation to the questions he was asked. The officers

had to ask him to focus numerous times and had to ask the same leading

questions multiple times to get any sort of answer. More often than not

Mattingly didn’t respond meaningfully to the questions the officers asked. The

foregoing can be said about the entirety of both interviews.

13 Soto v. Commonwealth, 139 S.W.3d 827, 847 (Ky. 2004) (internal citations

and quotation marks omitted).
Further, at least once during both interviews, a doctor came in the room

to check on Mattingly. Mattingly did not seem to understand that the doctors

were trying to give him medical treatment and would not respond meaningfully

to their questions either. Mattingly was in fact so out of it that at one point

after a doctor left the room Det. Burbrink seemed to get exasperated with him

and said, “Tony.14 Look at me. Nobody...is going...to hurt you. Here’s the

deal, he is a doctor, Tony. Nobody is going to hurt you. You have to 

understand this. Nobody, while we are in this room with you is going to hurt

you.” The fact that Mattingly was unable to understand the role of a treating

physician while he was a patient in a hospital room calls into question whether

he truly understood the purpose and gravity of his interview with the officers.

Of course, a defendant’s intoxication alone does not render his statement

inadmissible.15 “[A] confession may be suppressed when the defendant was

intoxicated to the degree of mania or was hallucinating, functionally insane, or

otherwise unable to understand the meaning of his statements.”16 Here,

Mattingly was very obviously suffering from some form of delusion throughout

the course of the interviews. He stated numerous times during both interviews

that he had the ability to see things before they happened; that either God, his

late father, or his late brother spoke to him and told him the future before it

occurred. He seemed to imply that he believed someone or something spoke to

him that night and told him he was being set up, but his statements are so

incoherent it is difficult to discern.

14 Mattingly goes by the name Tony.

15 Id. at 848 (citing Britt v. Commonwealth, 512 S.W.2d 496 (Ky. 1974)).

16 Smith v. Commonwealth, 410 S.W.3d 160, 164 (Ky. 2013) (internal quotation

marks omitted).
Accordingly, based on the foregoing totality of the circumstances, we hold

that the trial court erred by failing to suppress Mattingly’s post-arrest

interviews.

But that is not the stopping point of our analysis. When a trial court

fails to suppress a statement taken in violation of Miranda, “[r]eversal is not

required ifthe error complained of is harmless beyond a reasonable doubt.”17

In this case, we hold that the error was harmless beyond a reasonable doubt

because the jury ultimately returned one of the verdicts Mattingly requested.

At trial, the jury was instructed on murder and attempted murder, firstdegree manslaughter and attempted first-degree manslaughter, second-degree

manslaughter and attempted second-degree manslaughter, and reckless

homicide and attempted reckless homicide.

As previously mentioned, Mattingly conceded all of the actus reus

elements for these offenses: he did not dispute that he killed Tommy and

attempted to kill Chris. However, the point of contention between the

Commonwealth’s case and the defense’s case was that Mattingly did not have

the requisite mens rea for murder and attempted murder or first-degree

manslaughter and attempted first-degree manslaughter. The reason being that

these offenses did not allow the jury to find that Mattingly had a truly held, yet

mistaken belief that he needed to use force against Tommy and Chris for his

own protection. But second-degree manslaughter and attempted seconddegree manslaughter as well as reckless homicide and attempted reckless

homicide did allow for that finding. Because of this, the defense specifically

stated at least twice in its closing argument that the jury, by law, had to find

17 Id.
Mattingly guilty of either second-degree manslaughter and attempted second

degree manslaughter or reckless homicide and attempted reckless homicide.

Ultimately, the defense got what it requested when the jury found

Mattingly guilty of second-degree manslaughter and attempted second-degree

manslaughter. Thus, playing Mattingly’s statements for the jury was harmless

beyond a reasonable doubt. It had no prejudicial effect on the jury’s ability to

find that Mattingly had a truly held yet mistaken belief he needed to use force

to protect himself from Tommy and Chris.

C. THE COMMONWEALTH’S CLOSING ARGUMENT DID NOT VIOLATE

MATTINGLY’S RIGHT TO A FAIR TRIAL

Next, Mattingly argues that two statements made by the Commonwealth

during its closing argument violated his right to a fair trial.18 Regarding the

first statement, the Commonwealth began by going into great detail about how

manual strangulation by chokehold is a painful way to die. Then the

Commonwealth said the following:

Now, why did I just go on and on about this? Alright, I

went on and on about this because this is the reality of

this case. This is the reality about what happened to

Tommy Grismer (gesturing to the gallery) a son, a

mother, an uncle, a human being.19 It’s not easy, it’s

hard for me as a parent to stand up in front of these

parents (gesturing to the gallery again).

The defense objected to this statement, arguing that the Commonwealth was

making an emotional appeal to the jurors. Later, in the second statement at

issue in this appeal, the Commonwealth argued:

18 This alleged error was preserved by the defense’s contemporaneous objection

to the statements. RCr 9.22.

19 On the first day of trial, Tommy’s brother testified that many members of

Tommy’s family were in the gallery to watch the trial. Though closing arguments

occurred on the third day of trial, we presume that those family members were still

present.
The defendant claims that this is not murder. He

claims that this is not murder. If this is not murder,

what is murder? Our laws do not permit, and our

society is not ready to allow someone who chooses to 

consume illegal drugs, put these drugs into his body,

get high, and now claim no responsibility—

At this point the defense objected and requested a mistrial on the grounds that

the Commonwealth was asking the jury to send a message about what we as a

society will not tolerate, and that she was not arguing the law.

But closing arguments are just that, arguments. They are not evidence.

Consequently, attorneys are given wide latitude in what they choose to argue.

Therefore, our review “must center on the essential fairness of the trial as a

whole, with reversal being justified only if the prosecutor's misconduct was so

improper, prejudicial, and egregious as to have undermined the overall fairness

of the proceedings.”20 Specifically, this Court may only reverse on the basis of

prosecutorial misconduct during closing argument “ifthe misconduct is

“flagrant’ or if each of the following three conditions is satisfied: (1) Proof of

defendant's guilt is not overwhelming; (2) Defense counsel objected; and (3) The

trial court failed to cure the error with a sufficient admonishment to the

jury.”21

In this case, the Commonwealth’s closing argument does not satisfy the

test for flagrant misconduct because the proof of Mattingly’s guilt was

overwhelming. Again, Mattingly conceded that he killed Tommy and tried to

kill Chris, and the only issue for the jury to decide was what his state of mind

was during the commission of those crimes. And Mattingly received one of the

20 Dickerson v. Commonwealth, 485 S.W.3d 310, 329 (Ky. 2016) (internal

quotation marks omitted).

21 Barnes v. Commonwealth, 91 S.W.3d 564, 568 (Ky. 2002).
sentences he requested that the jury return. We therefore hold that the

Commonwealth’s closing argument did not “undermine the fairness of the

overall proceedings.”

D. MATTINGLY IS NOT ENTITLED TO A NEW SENTENCING HEARING

Mattingly’s final argument is that he is entitled to a new sentencing

hearing because the jury was incorrectly informed that he was previously

convicted for second-degree burglary, rather than his actual conviction of

third-degree burglary. He concedes this issue was not preserved for our

review, but requests palpable error review under RCr 10.26:

A palpable error which affects the substantial rights of

a party may be considered by the court on motion for a

new trial or by an appellate court on appeal, even

though insufficiently raised or preserved for review,

and appropriate relief may be granted upon a

determination that manifest injustice has resulted

from the error.

Accordingly, we may only grant Mattingly a new penalty phase if a manifest

injustice resulted from the alleged error.

During Mattingly’s sentencing hearing the Commonwealth sought to 

prove that he qualified for first degree PFO status, meaning he had previously

been convicted of two or more felonies.22 The Commonwealth called Shawna

Farmer, a paralegal with the Commonwealth’s Attorney’s office, to testify about

Mattingly’s prior convictions. On direct examination the Commonwealth had

the following exchange with Ms. Farmer:

CW: Alright, go on to the next conviction.

SF: Marion County Circuit Court, 96-CR-00040.

CW: And what was the offense date?

22 KRS 532.080(3).
SF: February 23, 1996.

CW: And what offense was he convicted of?

SF: Burglary second-degree and theft by unlawful taking over

$300.

CW: And were any of those crimes felonies?

SF: Both.

On cross-examination the defense corrected Ms. Farmer’s mistake:

D: And can you tell me what charge that actually says he pled

guilty to?

SF: Complicity to commit burg (sic) third, theft by unlawful taking

over three hundred.

D: So you just previously testified that he was convicted of

burglary in the second degree, is that correct?

SF: Yes.

D: Would you agree now that that is not correct?

SF: That’s correct.

Finally, the Commonwealth clarified, on re-direct that both second-degree

burglary and third-degree burglary are felonies.23

Mattingly now argues, correctly, that a sentencing phase jury cannot

hear evidence of prior charges that were dismissed or amended down.24

However he concedes in his brief to this Court that “to be sure, the record does

not demonstrate this charge had been amended down.” After review, we agree

that the record does not suggest that Mattingly’s third-degree burglary charge

was amended down from a second-degree burglary charge. Instead, it appears

that Ms. Farmer misspoke, and her mistake was later corrected by the defense.

23 See KRS 511.030(2) and KRS 511.040(2), respectively.

24 Martin v. Commonwealth, 409 S.W.3d 340, 348 (Ky. 2013).
We accordingly hold that no manifest injustice resulted from Ms. Farmer’s

testimony.

III. CONCLUSION

Based on the foregoing, we affirm.

All sitting. All concur.

COUNSEL FOR APPELLANT:

Joshua Michael Reho

Louisville Metro Public Defender

Leo Gerard Smith

Louisville Metro Public Defender

COUNSEL FOR APPELLEE:

Daniel Jay Cameron

Attorney General of Kentucky

Mark Barry

Assistant Attorney General
2019-SC-000242-MR

WILLIAM MATTINGLY APPELLANT

V.

ON APPEAL FROM JEFFERSON CIRCUIT COURT

HONORABLE JUDITH E. MCDONALD-BURKMAN, JUDGE

NO. 15-CR-003102

COMMONWEALTH OF KENTUCKY APPELLEE

ORDER DENYING PETITION FOR REHEARING

The Petition for Rehearing, filed by the Appellant, of the Memorandum

Opinion of the Court, rendered April 30, 2020, is DENIED.

I

All sitting. All concur.

ENTERED: July 9, 2020

CHIEF JUSTICE