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ACTION.RENDERED: SEPTEMBER 26, 2019

NOT TO BE PUBLISHED

2018-SC-000244-MR

ANTHONY BALL APPELLANT

ON APPEAL FROM JEFFERSON CIRCUIT COURT

V. HONORABLE A.C. MCKAY CHAUVIN, JUDGE

NO. 15-CR-003365-001

COMMONWEALTH OF KENTUCKY APPELLEE

MEMORANDUM OPINION OF THE COURT

AFFIRMING

A Jefferson County jury found Anthony Wade Ball guilty of one count of

attempted murder, one count of first-degree robbery, and one count of

possession of a handgun by a convicted felon. He was sentenced to twenty (20)

years on the attempted murder charge; twenty (20) years on the first-degree

robbery charge; and ten (10) years on the charge of possession of a handgun by

a convicted felon. The court ordered the sentences to run consecutively, and

they were enhanced under the persistent felony offender statute, Kentucky

Revised Statute ( “ KRS ” ) 532.080, to life imprisonment. This appeal followed asa matter of right. Having reviewed the arguments of the parties, we affirm the

judgment of the Jefferson Circuit Court.

I. BACKGROUND

On October 30, 2015, Anthony Ball and Mack Matthews, both armed,

robbed the 7 th Street Food Mart in Louisville, Kentucky. During the robbery,

Matthews approached the store owner at the checkout counter while Ball

approached David Bryant, who was sweeping near the back of the store. Ball

confronted Bryant, informed him that the store was being robbed, and pointed

his gun at him. At this point, Bryant turned around. Ball then shot Bryant in

the back of the neck. Soon after, Ball and Matthews ran from the store, having

been unsuccessful in their attempts to get behind the bulletproof glass at the

front counter. Surveillance video showed two men getting into a pickup truck

and leaving the scene. After the pair left, the store owner called 911. B r yant

survived, with significant injuries to his jaw.

On December 2, 2015, the Louisville Metro Police Department ( “ LMPD ” )

issued a media release with a photo of the pickup truck taken from

surveillance footage. After the media release, LMPD received a tip involving a

stolen vehicle report for a truck matching that description. That truck

belonged to Ball, who had reported it stolen. LMPD then began surveillance,

which lead to the arrest of Ball and Matthews on December 15, 2015. That

same day, Ball was interviewed by LMPD detectives after signing a waiver of his

rights.

2Ultimately, both Ball and Matthews were indicted for attempted murder

and first-degree robbery. Ball was also indicted for possession of a handgun by

a convicted felon. After a joint trial, the jury found Matthews guilty of firstdegree robbery and not guilty of attempted murder. The jury found Ball guilty

on all counts, and, as a persistent felony offender, his sentence was enhanced

to life imprisonment. This appeal followed.

II. ANALYSIS

Ball argues that the trial court erred when it (1) denied his motion to

suppress his statements to police officers; (2) denied his motion for new

counsel; (3) denied his motion to sever the attempted murder charge from the

remaining charges; (4) allowed both Ball and Matthews to be tried in the same

trial; (5) denied Ball ’ s motion for recusal of the trial court judge; and (6) failed

to give a renunciation instruction to the jury. We address each of these

arguments in turn.

A. The trial court did not err in denying Ball ’ s motion to suppress.

When reviewing the denial of a motion to suppress, “ we defer to the trial

court ’ s factual findings if they are supported by substantial evidence and only

review such findings for clear error. ” Bond v. Commonwealth, 453 S.W.3d 729,

732 (Ky. 2015) (citing Rule of Criminal Procedure ( “ RCr ” ) 9.78 1 ; Commonwealth

v. Neal, 84 S.W.3d 920, 923 (Ky. App. 2002)). For example, “ [w]hen the trial

court is faced with conflicting testimony regarding the voluntariness of a

confession, its determination, including its evaluation of credibility, if

1 The current version of RCr 9.78 is now RCr 8.27.

3supported by substantial evidence, is conclusive. ” Henson v. Commonwealth,

20 S.W.3d 466, 469 (Ky. 1999). We then review the trial court ’ s application of

the law to the facts de novo. Id. (citing Roberson v. Commonwealth, 185 S.W.3d

634, 637 (Ky. 2006)).

Specifically, in this case, we must determine whether Ball made a

knowing, intelligent, and voluntary waiver of his constitutional rights, or

whether, as he argues, his confession resulted from coercive police activity. In

determining whether a confession was coerced, the reviewing court must

consider “ (1) whether the police activity was ‘ objectively coercive ’ ; (2) whether

the coercion overbore the will of the defendant; and (3) whether the defendant

showed that the coercive police activity was the ‘ crucial motivating factor ’

behind the defendant ’ s confession. ” Bailey v. Commonwealth, 194 S.W.3d 296,

300 (Ky. 2006) (quoting Henson v. Commonwealth, 20 S.W.3d 466, 469 (Ky.

1999)). The Court must consider “ the totality of the circumstances

surrounding the making of the confession ” when evaluating these factors. Id.

(quoting Mills v. Commonwealth, 996 S.W.2d 473, 481 (Ky. 1999), overruled on

other grounds by Padgett v. Commonwealth, 312 S.W.3d 336 (Ky. 2010)).

In the present case, Ball, through counsel, filed a motion to suppress the

statements he made to police after his arrest on December 15, 2015. In the

motion, Ball alleged that his Miranda 2 waiver and the confession that followed

were made under duress and as a result of coercion from law enforcement

2 Miranda v. Arizona, 384 U.S. 436 (1966).

4officers. More specifically, Ball alleged that the officers “ primed ” him prior to

his interrogation and impliedly threatened harm to Ball and his family.

The trial court denied Ball ’ s motion. The court found Ball ’ s testimony 3 “ to

be self-serving and wholly unsupported by the evidence. ” It also found “ Ball ’ s

testimony as to the facts to be the product of contrivance, dishonesty, and

objectively unreasonable misapprehension all in a misinformed and misguided

effort to create issues of law which could lead to the suppression of his

statement. ” Simply put, the trial court found Ball ’ s testimony to be incredible.

It also found that “ [t]he tone, tenor, and content of his extended and extensive

statement to the police belie[d] his assertion of coercion. ” Furthermore, the

court found no connection between the officer ’ s alleged threat and the

statements made by Ball. Accordingly, the trial court denied the motion to

suppress, holding that the police conduct was lawful and not coercive and that

Ball ’ s statements were therefore voluntary.

On appeal, Ball first points out that he was not immediately Mirandized

upon arrest. However, the law does not require that a suspect be Mirandized

prior to or immediately after arrest; it only requires that the suspect be

Mirandized prior to a custodial interrogation. At Ball ’ s suppression hearing, he

3 Ball testified on January 29, 2018, the second day of his suppression hearing. The

recording of that day ’ s testimony was initially omitted from the record, and as a result,

a supplemental recording was filed purporting to provide the January 29th recording.

However, that supplemental filing included only the recording for January 26, 2019,

the first day of the hearing. The Commonwealth sought to supplement the record

again, and a certified copy of the January 29, 2018 recording was then provided to

this Court on August 8, 2019.

5testified that he was Mirandized before being transported to LMPD 4 and was re

read those rights after he arrived at LMPD. He does not argue to this Court

that a custodial interrogation took place prior to either Miranda warning being

given. Furthermore, the Commonwealth did not seek to introduce at trial any

statements made prior to the formal interrogation at LMPD. Nevertheless, Ball

argues that, prior to being formally interrogated at the police department, the

detectives “ primed ” him for interrogation by threatening the safety of his

parents.

Ball discussed this allegedly coercive conversation at his suppression

hearing. He testified that Detective Smith Mirandized him at some point after

his arrest but prior to being transported to LMPD offices. According to Ball ’ s

testimony, he verbally acknowledged his Miranda rights and said that he

wanted a lawyer and wished to remain silent, at which point Detective Smith

stated his belief that Ball had hidden evidence at his parents ’ home in Palmyra,

Indiana and SWAT might have to execute a search warrant there. 5 Ball

testified that Detective Smith told him that the SWAT team responsible for

executing that warrant would be “ going in blind ” and did not know how many

guns or people were on the property, so “ if anything bad happened, ” it would

be Ball ’ s fault. He also testified that Detective Smith asked Ball if his father

owned any weapons. According to Ball, he responded that his dad had two

4 When questioned by Ball at the suppression hearing, Detective Smith did not recall

Mirandizing Ball at the arrest site.

5 Ball does not argue on appeal that Detective Smith improperly interrogated him

after he requested a lawyer.

6guns, probably for hunting varmints, and Detective Smith asked whether there

would be a shootout with Ball ’ s father. Ball claimed that he took these

statements as a threat and felt compelled to sign a written waiver of his rights

once he arrived at LMPD.

Detective Smith, on the other hand, testified that he could not recall the

exact conversation that took place at the arrest site, but he believed it would

typically consist of small talk, “ general conversation, ” or answering Ball ’ s

questions. During the interrogation, he also referred to a pre-interrogation

“ general conversation ” and specifically mentioned talking to Ball about finding

his dog, which ran off when the police arrived. Ball disputes this by pointing to

a single line from the audio recording of his interrogation, in which a detective

commented that they were discussing confessions prior to the interrogation.

The detective stated, “ I told you before we sat down, when we sat down here,

we told you and you asked and we were talking about confessions, right, we sat

there and told you we got, we don ’ t need confessions on this stuff. ” Ball relies

on this line to argue that the detectives must have discussed more than general

conversation prior to the interrogation and that he was therefore “ primed ” for

the interrogation. However, this single statement could be equally indicative of

the detectives ’ willingness to answer Ball ’ s own questions about confessions. It

could also reference the involvement of others, including Matthews, and the

detectives ’ belief that they did not need confessions from those individuals.

Likely, it was a reference to the detectives ’ comments at the beginning of the

interrogation. The detectives had explained that they knew what Ball had been

7doing the previous day and they had some information about his involvement

in several robberies, but they wanted to clarify his role in those crimes. In

other words, they did not need a confession to tie him to the crimes, but they

wanted more information, if possible. The comment provides no indication that

any detective referenced Ball ’ s parents prior to the interrogation, and it

certainly does not indicate that a threatening conversation took place. Without

more, this statement does not suggest that the detectives made coercive threats

or comments prior to the interrogation.

Ball next alleges that Detective Smith falsely testified that he never

threatened to send a SWAT team to Ball ’ s parents ’ home. To be clear, Detective

Smith denied threatening Ball ’ s family; he did not deny making any references

to searching the home of Ball ’ s parents during the interrogation. Rather, he

testified that his focus was on recovering evidence that he believed Ball had

hidden at his parents ’ home. In that context, Detective Smith commented that

Ball ’ s willingness to work with the detectives would likely save them a trip to

his parents ’ house. Other statements made by Detective Hollis similarly

referenced a search of Ball ’ s parents ’ home. However, Detective Hollis ’ s

testimony made clear that such statements were to ensure the safety of the

parents and police. For example, he asked whether Ball ’ s father owned any

weapons and how he might react if police officers arrived at his home. Though

Ball became adamant during the interrogation that such statements were

threatening, Detective Hollis explained to him that they were not threats. On

8this point, it is important to note that many of these comments were made after

Ball confessed to shooting Bryant. 6

To the extent the detectives ’ statements conflict with Ball ’ s testimony, we

defer to the trial court ’ s evaluation of the witnesses ’ credibility. As we have

previously explained, the trial court ’ s evaluation of credibility is conclusive so

long as it is supported by substantial evidence. Henson, 20 S.W.3d at 469

(citations omitted). Having reviewed the testimony presented by each

suppression hearing witness, including Ball, we conclude that the trial court ’ s

determination that Ball lacked credibility is supported by substantial evidence.

Furthermore, having reviewed the interrogation tape and the totality of

the circumstances surrounding these statements, we cannot find that the

statements at issue were coercive. This Court has previously held that

investigators may “ urge a suspect ’ s cooperation by threatening the arrest of an

implicated friend or

family member, provided that probable cause and good

faith would support that arrest. ” Stanton v. Commonwealth, 349 S.W.3d 914,

919 (Ky. 2011) (citations omitted). For example, in Henson we upheld the

defendant ’ s confession despite the investigator ’ s threat to arrest the

defendant ’ s girlfriend because the police were authorized to make that arrest.

20 S.W.3d 466. We found that defendant ’ s claims of coercion were

unpersuasive, explaining, “ [Henson] claims his confession was coerced, and

6 At his suppression hearing, Ball lists the time-stamps for 18 allegedly threatening

comments made during the interrogation. Ball confessed to shooting Bryant

approximately half-way through the approximately seven-hour interrogation. Eleven

of the allegedly threatening comments were made well after this confession, with most

occurring

in the last hour of the interrogation.

9therefore involuntary, because he felt threatened by a true statement of

fact.

. . . However, there were no offensive practices or oppressive conduct by

the police officer, ” such as prolonged detention, repeated rounds of

interrogation, or physical abuse. Id. at 469-470.

We have also found that a suspect may be informed of the potential

removal of his children from the family home when that comment is “ an

accurate statement of what was apt to happen next in such cases. ” Stanton,

349 S.W.3d at 921. For example, in Stanton, the suspect ’ s social worker

“ indicate[d] that she was prepared to ‘ pick up the phone and call [the judge] for

an order to remove the children. ” ’ Id. at 917. Stanton claimed that he was

coerced by this statement into cooperating with police and confessing to crimes

he did not commit. The social worker later testified that her comment was not

intended as a threat. Rather, “ [i]t was meant to apprise him of the seriousness

of the situation, ” as the process of removal would have been standard

procedure in that case, which involved allegations of sexual abuse. The trial

court ultimately concluded that the removal information “ was not delivered in a

threatening manner, ” even if it was said forcibly; instead, it “ was simply an

accurate statement of the usual next step. ” Id. at 920. We affirmed, noting

that

[t]his warning was not a speculative threat of ultimate loss of

Stanton ’ s children, but an accurate statement of what was apt to

happen next in such cases, and as such it did not amount to

overreaching by the state agents involved and did not pressure

Stanton to such an extent as to impair his capacity to choose.

Id. at 921.

10We reach a similar conclusion here. The statements regarding the

potential search of Ball ’ s parents ’ home were accurate representations of the

steps the detectives could have taken, and likely would have needed to take, in

order to collect additional evidence. For example, according to Ball ’ s own

testimony, Detective Smith stated that he had surveyed Ball travelling to his

parents ’ home the night before and believed he left certain evidence there,

namely, a white Cadillac used in another crime. 7 Detective Smith likely would

have relied on that surveillance to obtain a search warrant for Ball ’ s parents ’

home. Furthermore, some of the detectives ’ statements, such as their inquiries

into the father ’ s ownership of weapons, stemmed from valid concerns for the

safety of the parents and the officers. Though Ball claims that he found such

statements threatening, we agree with the trial court ’ s finding that Ball lacked

credibility. More importantly, the statements must be objectively coercive.

Bailey, 194 S.W.3d at 300. The detectives provided credible testimony that

they did not intend to threaten Ball and instead had valid reasons for making

the statements at issue. They spoke calmly and cordially with Ball. There is

no evidence that their statements were accompanied by oppressive

interrogation tactics, like physical abuse or prolonged confinement. 8 In fact,

they provided food and water, allowed Ball to take several bathroom breaks,

and purchased rolling tobacco for Ball at his request. For these reasons, we

7 During Ball ’ s interrogation, he was questioned on his involvement in several other

robberies.

8 Ball ’ s interrogation lasted approximately seven hours. However, as noted at the

suppression hearing, that duration can be attributed primarily to Ball ’ s own willingness to talk.

11find that the statements at issue were not objectively coercive and were instead

accurate representations “ of what was apt to happen next in such cases, and

as such [they] did not amount to overreaching by the state agents involved and

did not pressure [Ball] to such an extent as to impair his capacity to choose. ”

Id.

Next, Ball argues that the detectives violated LMPD ’ s internal procedures

by permitting more than two interrogators to actively participate in an

interrogation without first obtaining a written waiver from the suspect.

Detective Smith admitted that three detectives actively participated in at least

one part of the interrogation. This Court acknowledges that three officers may

be more intimidating than two; however, the Court does not find that, under

the facts of this case, the mere presence of the three officers, without more, is

sufficient to demonstrate coercion. Beyond Ball ’ s incredible testimony, there is

nothing in the record to suggest that the presence of an additional detective

overbore Ball ’ s will or was a crucial motivating factor in his confession. In fact,

the detectives testified that, at one point, two of the three detectives left the

room because they felt that Ball wanted them to leave.

Lastly, Ball argues that he was not permitted to ask the detectives about

KRS 422.110 during trial. That statute states, in full,

No peace officer, or other person having lawful custody of any

person charged with crime, shall attempt to obtain information

from the accused concerning his connection with or knowledge of

crime by plying him with questions, or extort information to be

used against him on his trial by threats or other wrongful means,

nor shall the person having custody of the accused permit any

other person to do so.

12Ball briefly referenced this “ sweating ” statute during his suppression hearing,

and the Commonwealth did not object. Whether he was able to again reference

the statute while questioning the detectives at trial is irrelevant to our review of

the denial of Ball ’ s Motion to Suppress.

For the reasons set forth above, we find that the trial court ’ s findings of

fact are supported by substantial evidence in the record, and its application of

the law to those facts is without error. Accordingly, we affirm the trial court ’ s

denial of the motion to suppress.

B. The trial court did not err in denying Ball's Motion to Request

New Counsel.

An indigent defendant represented by a public defender or appointed

counsel “ does not have a constitutional right to be represented by any

particular attorney, and is not entitled to the dismissal of his counsel and the

appointment of substitute counsel except for adequate reasons or a clear abuse

by counsel. ” Henderson v. Commonwealth, 563 S.W.3d 651, 668 (Ky. 2018)

(citing Henderson v. Commonwealth, 636 S.W.2d 648, 651 (Ky. 1982)). Thus,

“ [w]hen an indigent defendant seeks to change his appointed counsel, he

carries the burden of demonstrating to the court that there exists []good

cause. ” Id. (quoting Stinnett v. Commonwealth, 364 S.W.3d 70, 81 (Ky. 2011))

(internal quotation marks omitted). Good cause has been described as “ (1) a

complete breakdown of communications between counsel and defendant; (2) a

conflict of interest; and (3) where the legitimate interests of the defendant are

being prejudiced. ” Stinnett, 364 S.W.3d at 81 (quoting Deno v. Commonwealth,

177 S.W.3d 753, 759 (Ky. 2005)) (internal quotation marks omitted). It must

13be more than “ mere dissatisfaction with appointed counsel ’ s performance. ” Id.

at 81. Ultimately, the decision rests within the sound discretion of the trial

court. Henderson, 563 S.W.3d at 669 (citing Pillersdorf v. Dept. of Public

Advocacy, 890 S.W.2d 616, 621 (Ky. 1994)).

Here, Ball sought new counsel because, according to Ball, his appointed

counsel refused to respond to his correspondence and ignored his requests to

file certain motions. Ball also alleged that his counsel created a conflict of

interest by “ argu[ing] against claims made by ” Ball, such as his request for an

expert in digital audio recordings. Lastly, Ball argued that his interests were

prejudiced because his attorney had failed to find and interview witnesses at

Ball ’ s request and “ erroneously declaring those witnesses to be inadmissible. ”

Based on these assertions, Ball argued that there had been a complete

breakdown in communication, a conflict of interest, and that his counsel

created a situation prejudicing his legitimate interests.

Ball ’ s stated reasons, however, do not constitute good cause as defined

in this Court ’ s precedent. First, there is no evidence that Ball ’ s counsel

refused to respond to his correspondence to the point that a complete

breakdown of communication occurred. In fact, the record contains

correspondence between Ball and his counsel in which counsel provided a

detailed explanation of the available discovery documents and the need to

discuss Ball ’ s defense theories at an upcoming meeting. Ball is also seen

conversing with counsel during various pretrial proceedings. In addition, we

note that an attorney need not defer to his or her client on the means

14necessary to achieve the client ’ s objectives. See Supreme Court Rule ( “ SCR ” )

3.130. In other words, while Ball ’ s appointed counsel was required to defer to

Ball ’ s overarching objectives and consult with him about the means to achieve

those objectives, she was not obligated to interview specific witnesses or file the

specific motions he requested, particularly if she found them to be frivolous or

lacking factual support. Furthermore, Ball ’ s request to represent himself as

“ hybrid counsel ” was granted, permitting him to file motions and otherwise

participate in his own trial as counsel. Accordingly, we cannot find that his

appointed counsel created a situation in which Ball ’ s legitimate interests were

prejudiced. For these reasons, we find that the trial court did not abuse its

discretion in denying Ball ’ s Motion to Request New Counsel, and we affirm the

trial court ’ s ruling on said motion.

C. The trial court did not err in denying Ball ’ s motion to sever the

attempted murder charge.

Under RCr 6.18, multiple charges may be brought in a single indictment

so long as the charges “ are based on the same acts or transactions connected

together or constituting parts of a common scheme or plan. ” However, under

RCr 8.31, if it appears that the defendant will be prejudiced by joining the

offenses for trial, “ the court shall order separate trials of counts, grant separate

trials of defendants or provide whatever other relief justice requires. ” This

Court has further clarified that a defendant requesting severance must “ prove

that joinder would be so prejudicial as to be unfair or unnecessarily or

unreasonably hurtful. ” Elam v. Commonwealth, 500 S.W.3d 818, 822 (Ky.

2016) (quoting Ratliff v. Commonwealth, 194 S.W.3d 258, 264 (Ky. 2006))

15(internal quotation marks omitted). Furthermore, on appeal, it must be clear

“ that prejudice occurred and that the likelihood of prejudice was so clearly

demonstrated to the trial judge that the refusal to grant a severance was an

abuse of discretion. ” Id. (quoting Murray v. Commonwealth, 399 S.W.3d 398,

405 (Ky. 2013)) (internal quotation marks omitted). Thus, a trial court ’ s denial

of such a request will be upheld “ absent a showing of actual prejudice and a

clear abuse of discretion. ” Id. at 822-23 (quoting Murray, 399 S.W.3d at 405)

(internal quotation marks omitted).

The present case involves an attempted murder charge and a robbery

charge stemming from the same transaction, namely, the October 30, 2015

incident at the 7 th Street Food Mart. Ball does not allege that the two charges

were improperly

joined in the indictment. Instead, Ball, through counsel, filed

a motion to sever the attempted murder charge from the robbery charge and

conduct separate trials on each because he wanted to testify regarding one, but

not both, charges. The motion was addressed on the first day of the trial,

February 26, 2018. Ball declined to orally argue the motion at that time,

saying only that he wanted to testify for one charge, but not both. The trial

court orally denied this request, noting that the charges were properly joined

and there was nothing in the record indicating prejudice. The trial court

explained that Ball could not create the prejudice by seeking to testify to only

one charge. Ball now alleges that, due to the trial court ’ s denial of his request,

he declined to testify at trial, thereby suffering prejudice.

16We agree with the trial court ’ s analysis. These charges stem from the

same transaction and were properly joined for trial. The only suggestion of

prejudice is Ball ’ s own decision not to testify. He was not prevented from

testifying at trial, but instead made a strategic decision to avoid examination

on one charge by declining to testify to either charge. Based on these

circumstances, we cannot find actual prejudice or a clear abuse of discretion.

Accordingly, we affirm the trial court ’ s denial of Ball ’ s motion to sever the

attempted murder charge from the robbery charge.

D. The trial court did not err in trying both defendants in the same

trial.

Under RCr 6.20, two or more defendants may be jointly tried if “ they are

alleged to have participated in the same act or transaction or in the same series

of acts or transactions constituting an offense or offenses. ” However, as noted

above, RCr 8.31 directs the trial court to “ grant separate trials of defendants or

provide whatever other relief justice requires ” if it appears that a defendant will

be prejudiced by a joint trial. Thus, to warrant severance, a joint trial must be

so prejudicial as to be “ unnecessarily or unreasonably hurtful. ” Elam, 500

S.W.3d at 822 (quoting Ratliff, 194 S.W.3d at 264) (internal quotation marks

omitted). This Court has explained, however, that “ [n]either antagonistic

defenses nor the fact that the evidence for or against one defendant

incriminates the other amounts, by itself, to unfair prejudice. ” Ratliff, 194

S.W.3d at 265 (quoting Ware v. Commonwealth, 537 S.W.2d 174, 177 (Ky.

1976), overruled on other grounds as recognized by Webb v. Commonwealth,

172017 WL 5504420 (Ky. March 23, 2017)). As explained above, a trial court ’ s

denial of such a request will be upheld “ absent a showing of actual prejudice

and a clear abuse of discretion. ” Id. at 822-23 (quoting Murray, 399 S.W.3d at

405) (internal quotation marks omitted).

In the present case, Ball, through counsel, filed a Motion for Separate

Trial from Co-Defendant Mack Matthews. Matthews filed a similar motion. By

Order entered January 11, 2018, the court addressed both motions. In that

order, the trial court found that it was “ certainly possible in the instant case to

redact the Defendants ’ statements so as to exclude any portion of same which

either directly or implicitly references to each [sic] other. It is therefore possible

for the Commonwealth to introduce the Defendants ’ statements without

prejudice to each other. ” Accordingly, the trial court held the motions in

abeyance, permitting the parties an opportunity to discuss the manner in

which the statements could be redacted. By Order entered February 14, 2018,

the Court denied the motions, “ [i]nsofar as the statements made by the

Defendants have been redacted so as to remove any potential conflict between

their respective 5 th and 6 th Amendment rights. ”

The trial court found support for its decision in Bruton v. United States,

391 U.S. 123 (1968) and Richardson v. Marsh, 481 U.S. 200 (1987). We agree

that, under Bruton, Richardson, and their progeny, it was appropriate to redact

the defendants ’ statements and continue with a joint trial. Those cases

establish the general rule that a defendant ’ s prior statements may be

introduced at a joint trial, even if the defendant refuses to testify and the

18statements implicate his co-defendant, so long as appropriate redactions are

made and a limiting instruction is provided. By making these redactions and

properly instructing the jury, the co-defendant is no longer implicated in the

statements and his Sixth Amendment confrontation rights are no longer at

issue.

It is important to note that Ball does not argue that any portion of

Mathew

’ s statements were improperly redacted or otherwise incriminated Ball

or that the jury was improperly instructed on this issue. Instead, Ball argues

that the redaction requirement forced Ball to forgo presentation of certain

portions of his own interrogation. He argues that this fundamentally altered

his defense and his approach to questioning witnesses. Ball makes this

argument without referencing any specific portions of his statement that he

wished to present, nor does he explain how the redaction of Matthews ’ s identity

prevented him from submitting substantive portions of his statement. Without

this information, we cannot find that “ joinder would be so prejudicial as to be

unfair or unnecessarily or unreasonably hurtful. ” Elam, 500 S.W.3d at 822

(quoting Ratliff, 194 S.W.3d at 264) (internal quotation marks omitted).

Accordingly, absent a finding of actual prejudice and a clear abuse of

discretion, we must affirm the trial court ’ s denial of Ball ’ s Motion for Separate

Trial.

E

. The trial court did not err in denying Ball ’ s motion for recusal.

KRS 26A.015(2)(a) and (e) provide that a judge shall disqualify himself in

any proceeding “ (wjhere he has a personal bias or prejudice concerning a party,

19or personal knowledge of disputed evidentiary facts concerning the

proceedings, or has expressed an opinion concerning the merits of the

proceeding

” or “ [w]here he has knowledge of any other circumstances in which

his impartiality might reasonably be questioned. ” 9 The burden rests on the

moving party to demonstrate the necessity of recusal, and the burden “ is an

onerous one. ” Stopherv. Commonwealth, 57 S.W.3d 787, 794 (Ky. 2001). For

example, “ [t]here must be a showing of facts ‘ of a character calculated seriously

to impair the judge ’ s impartiality and sway his judgment. ’ ” Id. (quoting Foster v.

Commonwealth, 348 S.W.2d 759, 760 (1961)) (internal quotation marks

omitted). Thus, “ [t]he mere belief that the judge will not afford a fair and

impartial trial is not sufficient grounds for recusal. ” Id. (citing Webb v.

Commonwealth, 904 S.W.2d 226 (Ky. 1995)). On appeal, we review the trial

court ’ s decision on a motion to recuse for an abuse of discretion. Minks v.

Commonwealth, 427 S.W.3d 802, 806 (Ky. 2014) (citing Hodge v.

Commonwealth, 68 S.W.3d 338, 345-46 (Ky. 2001); Sommers v.

Commonwealth, 843 S.W.2d 879, 880-82 (Ky. 1992)).

In the present case, Ball, acting as hybrid counsel, filed a Motion

Requesting to Recuse Judge, in which he argued that certain comments by the

trial court judge demonstrated the judge ’ s personal bias. The trial court denied

the motion, “ [i] nsofar as there is no basis in fact to suggest that the

undersigned ’ s impartiality might reasonably be questioned or that the

9 This same statute also mandates recusal in other situations, such as where the

judge has a pecuniary or proprietary interest in the outcome of the proceeding, but

those provisions are not at issue in this case.

20undersigned has a personal bias or prejudice concerning the Defendant or his

lawyer, or personal knowledge of disputed evidentiary facts concerning the

proceeding. ”

Having reviewed the record and the trial judge ’ s allegedly prejudicial

comments, we cannot find that Ball satisfied the onerous burden of

demonstrating bias or prejudice. For example, Ball references a comment

made on February 16, 2018 during a pretrial conference. On that date, Ball

declined to waive any potential conflict of interest arising from the fact that

both defendants were represented by public defenders. Judge Chauvin

appeared concerned that Ball had received bad advice from a jail mate, noting

that sometimes people in jail “ say stupid things. ” However, he repeatedly told

Ball that it was “ okay ” if he declined to waive the conflict of interest, and he

explained that he could not tell Ball what to do. Similarly, at trial, Judge

Chauvin allowed Ball to ask a detective about alleged violations of LMPD

procedures, but he warned Ball that its relevance was limited and “ the further

afield you go

. . . the goofier it makes you look. ” This conversation took place

during a bench conference after Ball ’ s own attorney interrupted Ball ’ s

questioning to voice her concern that the jury was “ getting a very bad

impression ” of Ball. Judge Chauvin ultimately allowed Ball to pursue this line

of questioning.

These comments do not rise to the level of prejudice necessary to warrant

recusal. In fact, having reviewed the record, we note that the Judge Chauvin

treated Ball respectfully, and he patiently guided him through the pretrial

21proceedings and trial. Accordingly, we will affirm the trial court ’ s denial of

Ball ’ s Motion Requesting to Recuse Judge.

F. The trial court did not err when it declined to give a renunciation

instruction.

We review the trial court ’ s refusal to give a specific jury instruction for an

abuse of discretion. Sargent v. Schaffer, 467 S.W.3d 198, 204 (Ky. 2015). In

doing so, we note that a trial court is under no obligation to instruct the jury

on a theory that is unsupported by the evidence. Thompkins v. Commonwealth,

54 S.W.3d 147, 151 (Ky. 2001) (citing Houston v. Commonwealth, 975 S.W.2d

925 (Ky. 1998)). When considering whether the theory was supported by the

evidence, the reviewing court “ must consider the evidence in the light most

favorable to ” the requesting party. Thomas v. Commonwealth, 170 S.W.3d 343,

347 (Ky. 2005) (citing Ruehl v. Houchin, 387 S.W.2d 597, 599 (Ky. 1965)).

In the present case, Ball wanted to include a renunciation, or

abandonment, instruction on his attempted murder charge pursuant to KRS

506.020. Under that provision, a defendant charged with attempt to commit a

crime may present a defense that “ under circumstances manifesting a

voluntary and complete renunciation of his criminal purpose, the defendant

abandoned his effort to commit the crime and, if mere abandonment was

insufficient to avoid the commission of the crime, took the necessary

affirmative steps to prevent its commission. ” KRS 506.020(1).

Ball argued that he was entitled to the instruction because he presented

evidence that he left the store after shooting B r yant. In other words, Ball

22argues that he abandoned the attempt to murder Bryant because he left

without taking any additional steps to ensure that Bryant actually died,

thereby allowing Bryant to receive life-saving medical assistance. There is no

evidence, however, that he made any efforts to abandon his commission of the

crime or took any steps to avoid its commission prior to shooting. He shot

Bryant in the neck, left him in the back of the store, and attempted to get

behind the bulletproof glass at the front counter. When he and Matthews

failed to do so, they fled. Leaving the store after the crime does not constitute

abandonment, as the crime

— the shooting of Bryant

— had already taken place.

Simply put, even considering the evidence in the light most favorable to Ball,

there is no evidence that he either abandoned his efforts to commit the crime

or took the necessary steps to prevent its commission. There was no factual

issue to present to the jury, and therefore, the trial court did not abuse its

discretion in declining to give a renunciation instruction. Accordingly, we

affirm the trial court ’ s ruling on this issue.

G. Cumulative Error

We find no error and, as a result, Ball ’ s cumulative error argument is

without merit. McQueen v. Commonwealth, 721 S.W.2d 694, 701 (Ky. 1986) ( “ In

view of the fact that the individual allegations have no merit, they can have no

cumulative value. ” ).

23III. CONCLUSION

For the reasons set forth above, we hereby affirm the judgment of the

Jefferson Circuit Court.

All sitting. All concur.

COUNSEL FOR APPELLANT:

Robert Chung-Hua Yang

Department of Public Advocacy

COUNSEL FOR APPELLEE:

Andy Beshear

Attorney General of Kentucky

James Coleman Shackelford

Assistant Attorney General

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