Timothy Hargroves, Jr. v. Commonwealth of Kentucky

RENDERED: JANUARY 21, 2021
TO BE PUBLISHED

Supreme Court of Kentucky
2019-SC-0181-MR

TIMOTHY HARGROVES, JR. APPELLANT

ON APPEAL FROM HARDIN CIRCUIT COURT
V. HONORABLE KEN M. HOWARD, JUDGE
NO. 17-CR-00982

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION OF THE COURT BY JUSTICE NICKELL

AFFIRMING

Timothy Hargroves, Jr., appeals as a matter of right from a Hardin

Circuit Court judgment convicting him of murder in the death of neighbor

Bernard Williams; first-degree assault in the shooting of Millareisha Dixon, the

mother of his two-year-old daughter,1 with whom he argued a day earlier upon

seeing her and their child with another man; and first-degree wanton

endangerment of their child who was sitting beside Dixon when Hargroves shot

Dixon in the chest. Jurors also found Hargroves guilty of possessing

marijuana. Consistent with the jury’s recommendation, he was sentenced to a

1 To protect the two-year-old’s identity she will be referred to as “child.”
combined term of forty-five years’ imprisonment. On appeal, he alleges he was

wrongly denied instructions on extreme emotional disturbance (EED) and

voluntary intoxication; the lead detective impermissibly told jurors Hargroves

was guilty and doubted he acted in self-defense; the prosecutor improperly

reenacted a version of the shooting; and, while Hargroves was advised of his

rights2 before being interviewed at the Radcliff Police Department, he should

have received a second warning before talking to another officer while being

transported to the Hardin County Detention Center. Following review of the

record, briefs and law, we affirm the trial court.

FACTS

Hargroves and Dixon had a rocky relationship. Though unmarried, they

had a child in common and the trio lived together in a second-floor apartment

in Radcliff, Kentucky. Dixon, a former soldier, had custody of the child. In

closing argument, the Commonwealth theorized the shooting resulted from

Hargroves’ attempt to eliminate Dixon to gain custody of their child.

On the night of November 1, 2017, Hargroves came home to find Dixon

and their child in the company of a man who jumped out a window. Hargroves

said he was upset—not because Dixon was with another man—but because his

child was with them. That night, Hargroves and Dixon established they were

not a couple, Dixon was not “his,” and Dixon could do as she pleased.

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

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 The next morning, Hargroves and two friends bought a bottle of Smirnoff

Vodka and began drinking. The remainder of the bottle was given to a fourth

person. The amount of liquor Hargroves consumed was never quantified.

Just before 8:00 p.m., dressed in multiple layers of clothing with a full

outer layer of field camouflage, and armed with a .38 special revolver

containing six bullets, Hargroves went to Williams’ first-floor apartment.

Williams was a career Army veteran described as a “gentle giant.” According to

Hargroves, he and Dixon would often “chill” with Williams in his apartment—

which was directly below theirs—where Williams shared his “wisdom.”

Williams and Dixon were not romantically involved. Also, Hargroves was not

jealous of the older Williams whom he considered a “friend” and “homey.”

Hargroves knocked loudly on Williams’ door—loud enough to awaken an

upstairs neighbor who was napping. Receiving no response, Hargroves

knocked again, louder this time, again rousing the upstairs neighbor. When

Williams opened his apartment door, Dixon and their child were sitting on the

couch. Hargroves quickly fired six shots through the open door, striking

Williams four times—once in the spine—and striking Dixon once in the chest.

The child was unharmed. Hargroves fled on foot.

Radcliff Police Officer Brad Hunt arrived on scene two minutes after

hearing the call of “shots fired.” With his bodycam recording, he found

Williams on the floor just inside the apartment door struggling to breathe; a

child was sitting on the couch. Officer Hunt rendered first aid to Williams who

managed to give his name and say Tim Hargroves, his upstairs neighbor, had

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shot him. Williams was taken to University Hospital where he was pronounced

dead of multiple gunshot wounds after six minutes of treatment.

As Officer Jason Vance arrived on scene, Dixon approached him in the

parking lot with a bleeding chest wound. She was transported to the hospital

where she would remain five days after trauma surgeon Dr. Keith Miller

inserted a chest tube. He diagnosed Dixon as having a collapsed lung,

pulmonary contusion of the lung, clavicle and rib fractures, bleeding from the

lung itself, and air around the heart. Dr. Miller testified blood around Dixon’s

heart could have been fatal without treatment.

Based on Williams’ identification of Hargroves as the shooter, officers

quickly focused on him. Hargroves had telephoned his father, also a friend of

Williams, asking him to collect his child from Williams’ apartment and care for

her. Hargroves’ father complied and while on scene gave officers his son’s cell

number. Det. Michael Berry used the number to “ping” Hargroves’ phone

repeatedly and relay his movement to searchers.

Following Det. Berry’s coordinates, Officer Shawn Frakes heard rustling

in a wooded area. He illuminated the zone with a light on his rifle, and spotted

Hargroves about 750 feet behind the apartment complex. Hargroves obeyed

Officer Frakes’ commands and emerged from the woods where Officer Wyatt

Rossell handcuffed him.

When apprehended around 11:00 p.m., Hargroves was unarmed, but

possessed three baggies of marijuana, $470 in cash, and debit cards. His

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cellphone was found nearby. Officer Rossell noted Hargroves smelled of alcohol

but followed all police commands in surrendering.

Hargroves did not assist officers in finding the revolver he normally wore

in a holster concealed under his clothing. After daylight, the gun was

recovered under leaf matter within 60 feet of Williams’ apartment. Ballistics

linked the revolver to the shooting. Hargroves was taken to the Radcliff Police

Department where he submitted to a gunshot residue test which also

connected him to the shooting. After receiving a Miranda warning, he agreed to

talk but feigned foggy memory and revealed nothing about the shooting. When

Det. Berry asked whether he shot in self-defense, Hargroves did not respond.

While he shared no details of the actual shooting, Hargroves recalled

events preceding the shooting with clarity. He said he spent the day drinking

with two friends, Sam and Powell; he played the video game Call of Duty; he

played with Spanish kids in the neighborhood; and, he learned some Spanish

from Ruth. During the interview, Hargroves reached for the holster buried

under his clothing and realized it was empty.

Questioning continued until about 1:17 a.m. when Hargroves moved

from the interview room to the adjacent squad room. Around 1:53 a.m., sitting

on a bench, with his hands cuffed behind his back and wearing a white police-

issued jumpsuit, Hargroves spontaneously said he now recalled the shooting.

Officer Daniel Padilla activated his bodycam and recorded the conversation.

Hargroves asked the whereabouts of his “chain.” He said upon seeing a

chain (necklace) being collected from him and taken into evidence, he suddenly

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remembered walking inside Williams’ apartment—as he had done numerous

times—and Williams choking him so violently he was lifted off the ground to

the point he “almost” could not breathe. Hargroves went on to say one of three

chains he was wearing around his neck was broken by Williams’ force, and he

shot Williams because Williams choked him. When asked who he was trying to

shoot—because both Williams and Dixon were struck—Hargroves said, “I think

I was trying to shoot him.” As he continued talking, Hargroves said, “Jesus

saved her (Dixon) last night, cause I was supposed to be gone last night. I

swear, I was supposed to be gone last night.” Hargroves denied arguing or

quarreling with Williams prior to the shooting which according to the upstairs

neighbor quickly followed the second round of door knocks he had heard.

A chain with a medallion and intact clasp was collected from Hargroves’

pocket and taken into evidence along with five rings and a bracelet. A second

chain, with a broken clasp, was found on the ground outside Williams’

apartment, eight to ten feet from the threshold.

Just after 2:00 a.m., Officer Rossell drove Hargroves approximately thirty

minutes to the Hardin County Detention Center. During the drive, Hargroves

again said, “I shot Mr. Bernard (Williams) because he choked me. He choked

me and he grabbed me by the neck and lifted me up in the air. Hey, I’m pretty

sure. I’ll probably get attempted murder and have to do time for that.”

Hargroves also said Dixon had a controlling personality, had threatened to kill

his entire family, and would not allow him to smoke marijuana or spice.

Despite criticizing Dixon, Hargroves never said he shot out of revenge or anger

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toward her for being with another man. Instead, he attributed the shooting

entirely to Williams choking him, lifting him off the ground, and breaking his

chain, after which he said he was sorry and had gone “too far.”

During the ride to the jail, Hargroves evinced concern that no one had

looked at or photographed his neck to preserve evidence of the alleged choking

because it “might help my case.” Upon arrival at the jail, both Officer Rossell

and a nurse inspected Hargroves’ neck for injuries but found no sign of

choking or other fresh injury. Additional facts will be developed as warranted.

ANALYSIS

I. Denial of Requested Jury Instructions

Hargroves claims the trial court erred in denying instructions on EED

and voluntary intoxication, both of which he requested and included in

tendered instructions.

It is well established that the trial court is required to instruct the
jury on the “whole law of the case, and this rule requires
instructions applicable to every state of the case deducible or
supported to any extent by the testimony.” Taylor v.
Commonwealth, 995 S.W.2d 355, 360 (Ky. 1999) (citing Kentucky
Rule of Criminal Procedure (RCr) 9.54(1); Kelly v. Commonwealth,
267 S.W.2d 536, 539 (Ky. 1954)). Additionally, the trial court is
required to “instruct the jury on all lesser-included offenses which
are supported by the evidence.” Yarnell v. Commonwealth, 833
S.W.2d 834, 837 (Ky. 1992) (citing Cannon v. Commonwealth, 777
S.W.2d 591 (Ky. 1989)); McClellan v. Commonwealth, 715 S.W.2d
464 (Ky. 1986). While we evaluate the trial court’s decision to
instruct on a specific claim for an abuse of discretion, the
substantive content of the jury instructions will be reviewed de
novo. Sargent v. Shaffer, 467 S.W.3d 198, 204 (Ky. 2015).

Gribbins v. Commonwealth, 483 S.W.3d 370, 373 (Ky. 2016). A trial court

abuses its discretion when it acts arbitrarily, unreasonably, unfairly, or takes

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action “unsupported by sound legal principles.” Commonwealth v. English, 993

S.W.2d 941, 945 (Ky. 1999). Under the facts of this case, we discern no

instructional error and no abuse of discretion.

a. EED

Under proper facts, EED reduces murder, a capital offense under

Kentucky Revised Statutes (KRS) 507.020, to first degree manslaughter, a

Class B felony under KRS 507.030(1)(b). See McClellan, 715 S.W.2d at 468.

EED is a successor to the “old common law concept of ‘heat of passion[.]’”

Driver v. Commonwealth, 361 S.W.3d 877, 887 (Ky. 2012). It is defined as

a temporary state of mind so enraged, inflamed, or disturbed as to
overcome one’s judgment, and to cause one to act uncontrollably
from the impelling force of the extreme emotional disturbance
rather than from evil or malicious purposes. It is not a mental
disease in itself, and an enraged, inflamed, or disturbed emotional
state does not constitute an extreme emotional disturbance unless
there is a reasonable explanation or excuse therefor, the
reasonableness of which is to be determined from the viewpoint of
a person in the defendant’s situation under circumstances as
defendant believed them to be.

McClellan, 715 S.W.2d at 468–69.

To justify giving an EED instruction, Hargroves needed definite and non-

speculative proof, Padgett v. Commonwealth, 312 S.W.3d 336, 341 (Ky. 2010),

of an occurrence “so dramatic as to render the mind temporarily uncontrollable

and provoke ‘an explosion of violence.’” Luna v. Commonwealth, 460 S.W.3d

851, 883 (Ky. 2015). Neither Hargroves, nor Dixon, the only surviving

eyewitnesses—other than their two-year-old daughter—testified. Thus, jurors

heard no firsthand account of the shooting. To establish his defense,

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Hargroves relied solely on post-shooting statements he had given police,

portions of which the Commonwealth introduced during its case-in-chief.

Hargroves’ words simply did not describe the “explosion of violence as a result

of some triggering event” needed to justify an instruction on EED. Id.

Appellate counsel frames the “triggering event” as “Hargroves coming

home to find his girlfriend with another man” in the presence of his child.

Hargroves told police he found Dixon in their apartment with another man on

November 1, 2017—the night before the shooting. Williams was not the “man”

Hargroves found with Dixon in their apartment. After the “man” fled through

the window, Hargroves and Dixon discussed their relationship and Hargroves

came to realize Dixon was not his wife, he did not “own” her, and she could do

as she pleased. Hargroves evinced no qualms about Dixon and their child

being in Williams’ apartment and emphatically stated Dixon and Williams were

not romantically involved. Hargroves never linked the shooting to finding

Dixon with another man. In fact, he said Dixon being with another man did

not upset him. His sole concern about the prior night was his daughter being

with Dixon and the “other man.” Based on Hargroves’ own words, contrary to

appellant’s brief, events of the previous day could not have constituted the

“triggering event” required by Luna to support an EED instruction.

Moreover, Hargroves’ multiple statements to police were consistent and

did not indicate he shot out of rage or anger. According to Hargroves, he

knocked on Williams’ door. When no one answered, he knocked again. When

Williams opened the door, Hargroves said he realized Dixon and their child

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were inside and Williams almost immediately began violently choking

Hargroves, lifting him off the ground to the point he could barely breathe, and

breaking a chain he was wearing around his neck, “cause I walked in his

house.”

Hargroves maintained he shot Williams to stop Williams from choking

him. Based on Hargroves’ own statements, believing he acted because he saw

Dixon with another man the previous night would have been speculation at

best, contrary to Hargroves’ statements, and insufficient basis for an EED

defense under Padgett, 312 S.W.3d at 341. As told by Hargroves, if anyone

was upset or angry the night of the shooting, it was Williams who allegedly

choked Hargroves for no reason other than he entered Williams’ apartment.

Because the proof did not establish a dramatic, triggering event supporting

EED, the trial court did not abuse its discretion in denying the requested

instruction.

b. Voluntary Intoxication

Hargroves next argues the jury should have been instructed on voluntary

intoxication—a defense only when it “[n]egatives the existence of an element of

the offense[.]” KRS 501.080(1). This Court has construed the statute to mean

“the [voluntary intoxication] defense is justified only
where there is evidence reasonably sufficient to prove
that the defendant was so [intoxicated] that he did not
know what he was doing.” Fredline [v. Commonwealth,
241 S.W.3d 793, 797 (Ky. 2007)] (quoting Rogers v.
Commonwealth, 86 S.W.3d 29, 44 (Ky. 2002)). “[M]ere
drunkenness,” in other words (sic)—i.e., the mere
impairment of judgment and/or physical control that
commonly leads intoxicated persons to do things they

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 would not ordinarily do—“does not equate with the
Kentucky Penal Code’s definition of the ‘defense’ of
voluntary intoxication.” Nichols [v. Commonwealth,
142 S.W.3d 683, 688 (Ky. 2004)] (quoting Rogers [v.
Commonwealth, 86 S.W.3d 29, 44 (Ky. 2002))]. The
defense requires proof of something “more” than “mere
drunkenness.” Id.

Conyers v. Commonwealth, 530 S.W.3d 413, 432 (Ky. 2017).

In statements to police, Hargroves claimed he blacked out after

consuming vodka with friends the morning of the shooting; still smelled of

alcohol when apprehended at 11:00 p.m.; and, was so drunk he did not realize

his revolver was missing when questioned by police. He relies on Nichols

wherein evidence supported an instruction on voluntary intoxication because a

witness testified Nichols was “acting wild.” Unlike Nichols, no one testified

Hargroves was acting wild or was drunk. Still, he maintains he could not have

formed the intent needed for conviction of intentional murder, first-degree

manslaughter or intentional second-degree assault. Citing Mishler v.

Commonwealth, 556 S.W.2d 676, 680 (Ky. 1977), he insists a voluntary

intoxication instruction should have been given no matter how “preposterous”

his story.

In contrast, the Commonwealth argues the most Hargroves established

was mere drunkenness, far below the elevated showing required by Conyers.

In the Commonwealth’s view, Hargroves and two friends bought a bottle of

vodka the morning of the shooting, began drinking, and gave the remainder of

the bottle to Hargroves’ “girl.” Thus, at least four people shared a partial bottle

of vodka, with neither the amount of alcohol Hargroves personally consumed,

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nor the period of time in which he drank it, being quantified. Hargroves’ ability

to specify “Smirnoff” vodka was purchased when describing his day to police

shows he was able to recall minute details and belies the extreme drunkenness

needed for an involuntary intoxication instruction.

Hargroves, who donned full camouflage at some point, apparently

navigated the bulk of the day without incident. He played Call of Duty, played

with Spanish kids in the neighborhood, and learned Spanish from Ruth. He

returned to the apartment complex and went directly to Williams’ apartment

where he knocked on the door. When no one answered, he knocked again.

About 7:53 p.m., when Williams opened the door, Hargroves knowing Dixon

and his child were inside, fired six shots into the apartment and fled on foot.

After the shooting, he concealed himself in trees behind the complex, and

called his father to collect and care for his daughter. The Commonwealth

theorized Hargroves would not have called his father to arrange for child care

had he believed Dixon was alive and able to care for their daughter. Hargroves

kept his cellphone nearby. When an officer heard rustling in a wooded area,

and saw Hargroves standing there, Hargroves followed the officer’s verbal

commands, without error, and surrendered as Officer Rossell handcuffed him.

Once in custody, Hargroves chose to waive his Miranda rights and speak.

In two conversations at the police department, one of which was played for

jurors, his speech was not garbled; his story was consistent; and, he expressed

himself, clarified details, and drew critical distinctions. For example, he knew

he had loaded six bullets in the revolver, knew he had no more ammunition,

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and understood officers to say the six bullets he fired had struck Williams; he

questioned how Dixon had also been struck. He also distinguished having a

girlfriend from having a wife, saying a girlfriend is not “mine.”

Hargroves’ memory of the day’s events seemed intact and clear until just

before the shooting. When Det. Berry initially asked him whether he shot in

self-defense, Hargroves did not answer. Later, after developing a self-defense

theory, he said he then recalled shooting Williams “because he choked me.” He

went on to say, “But I know for sure that man picked me up and choked me.

So, [inaudible] I opened up fire on his ass.” Hargroves’ own words indicate he

deliberately chose to shoot Williams because he was being choked and could

not breathe. He also said, “Mr. Bernard [Williams] was my friend. I went too

far. But he went too far too. I was drinking.” Under Fredline, while Hargroves

may have consumed alcohol, the proof does not show he was so drunk he did

not know what he was doing. Therefore, we cannot say the trial court abused

its discretion by declining to instruct jurors on voluntary intoxication.

II. Whether Det. Berry Expressed Opinion on Hargroves’ Guilt

Hargroves’ next claim is Det. Berry, in describing the decision to charge

Hargroves with murder in Williams’ death, wrongly conveyed to jurors his

personal belief Hargroves did not act in self-defense and was guilty of murder.

Defense counsel did not object to this line of questioning during trial, rendering

the claim unpreserved for our consideration and prompting a request for

palpable error review under RCr 10.26. Proper application of the rule is

explained in Martin v. Commonwealth, 409 S.W.3d 340, 344 (Ky. 2013).

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 Under RCr 10.26, an unpreserved error may generally
be noticed on appeal if the error is “palpable” and if it
“affects the substantial rights of a party.” Even then,
relief is appropriate only “upon a determination that
manifest injustice resulted from the error.” RCr 10.26.
“For an error to rise to the level of palpable, ‘it must be
easily perceptible, plain, obvious and readily
noticeable.’” Doneghy v. Commonwealth, 410 S.W.3d
95, [106] (Ky. 2013) (quoting Brewer v. Commonwealth,
206 S.W.3d 343, 349 (Ky.2006)). Generally, a palpable
error affects the substantial rights of the party “only if
it is more likely than ordinary error to have affected
the judgment.” Ernst v. Commonwealth, 160 S.W.3d
744, 762 (Ky. 2005) (quoting Christopher C. Mueller
[&] Laird C. Kirkpatrick, Federal Evidence § 21 (2d ed.
1994)).

On direct examination, the prosecutor asked Det. Berry whether he

would automatically charge someone with murder because he had killed

another. He said he would not because there may be potential explanations

and extenuating circumstances, such as self-defense, to explore. Det. Berry

was then asked whether he would charge someone if he believed no crime had

occurred at all. He again responded he would not. A few minutes later, the

prosecutor confirmed with Det. Berry, after canvassing all available witnesses,

he chose to prefer a murder charge against Hargroves in Williams’ death.

Based on this limited questioning—covering less than two minutes in four days

of guilt phase testimony—Hargroves argues palpable error mandates reversal.

We disagree.

First, we do not perceive Det. Berry’s responses to the prosecutor to

express an opinion on Hargroves’ guilt. When police arrived on scene, Williams

identified Hargroves as the man who shot him. Furthermore, when talking to

police, Hargroves admitted shooting Williams who died from multiple gunshot
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wounds to the torso. Neither the cause of death nor the shooter’s identity was

in doubt. The only question was Hargroves’ culpability.

During opening statement, defense counsel told jurors Williams grabbed

Hargroves by the throat, lifted him off the floor, and squeezed his neck so hard

Hargroves could not breathe, prompting Hargroves to shoot Williams. Defense

counsel concluded her opening statement by saying, at the end of trial, “we’re

not going to ask you if Tim Hargroves shot Bernard Williams, what we’re going

to ask you, is why?” Defense counsel’s opening remarks primed jurors to

determine whether Hargroves acted in self-defense to stop Williams from

choking him. By arguing self-defense—as well as EED and voluntary

intoxication—in an attempt to negate or reduce the murder charge, Hargroves

made the charging decision relevant. Because Det. Berry’s decision to charge

Hargroves with murder was placed in issue by the defense, it was properly

explored on direct examination. See Brewer, 206 S.W.3d at 352.

Second, as the Commonwealth argues, Det. Berry’s testimony about the

murder charge was cumulative of the indictment the trial court read to jurors

prior to voir dire. Jurors learned nothing new or different about the murder

charge from Det. Berry they had not previously learned from the trial court’s

reading of the indictment, followed by his warning it was not evidence to be

used against Hargroves. Id.

Third, less than two minutes of a multi-day trial was devoted to this

topic. Any error was harmless and did not rise to the level of palpable error

affecting Hargroves’ substantial rights and causing manifest injustice. Martin,

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409 S.W.3d at 344. If any error occurred, at most it was “ordinary,” and did

not mandate reversal.

III. Reenactment

Hargroves’ third complaint is the prosecutor improperly reenacted his

theory of the shooting during the direct examination of Dr. William Ralston, the

medical examiner. Upon close inspection, the true gist of trial counsel’s third

objection—the one pursued on appeal—was not that a reenactment occurred,

but that Dr. Ralston was asked questions outside his expertise.

We begin by noting a demonstration may properly occur during the

presentation of evidence while it is subject to exploration on cross-examination.

Robinson v. Kathryn, 23 Ill.App.2d 5, 8 (1959). A demonstration during closing

argument, however, which involves the actual victim and offers no opportunity

for cross-examination, has been deemed improper. Price v. Commonwealth, 59

S.W.3d 878, 881 (Ky. 2001). Still, no mistrial was required in Price because the

trial court’s admonition to disregard the reenactment cured any error. We

further note it is not uncommon for a medical examiner to testify about bullet

trajectory which was the basis of the Commonwealth’s questions. Daniel v.

Commonwealth, 607 S.W.3d 626, 631 (Ky. 2020); McQueen v. Commonwealth,

339 S.W.3d 441, 446 (Ky. 2011). We review a trial court’s evidentiary rulings

for abuse of discretion. Mason v. Commonwealth, 559 S.W.3d 337, 339 (Ky.

2018).

Dr. Ralston identified four bullet pathways riddling Williams’ body. He

indicated the bullets traveled right to left. He, and the jury, watched two back-

16
to-back demonstrations during his testimony. Both occurred out of camera

range, with the prosecutor representing the apartment occupant/victim

(Williams) and Det. Berry3 representing a visitor approaching the apartment

(Hargroves).

The first demonstration, which drew no objection, focused on whether

Williams’ injuries were consistent with a person inside the apartment opening

the exterior door, and a visitor standing outside the apartment door producing

and firing a gun into the apartment. Dr. Ralston agreed the proposed scenario

could produce wounds consistent with those suffered by Williams.

The prosecutor then asked, if the apartment occupant and visitor were in

closer proximity, with the occupant choking the visitor, and the visitor

produced a gun and fired—as the defense maintained—would those bullets

have likely traveled from the occupant’s right side to his left? At that point,

defense counsel objected, arguing the prosecutor was smaller than Williams

and the disparity in sizes rendered the demonstration useless. The prosecutor

responded he was referencing “trajectory” and would apprise jurors he and Det.

Berry were not to scale. The trial court overruled the objection, noting it was

just a demonstration, the question and answer had to be within Dr. Ralston’s

scope of knowledge, the trajectory of entry and exit wounds is often shown at

trial, the prosecutor must clarify he and Det. Berry were out of scale to

3 Appellate counsel says the demonstration was performed by the prosecutor

and Dr. Ralston. It appears the prosecutor and Det. Berry were the true participants,
although Dr. Ralston briefly exited the witness box for better viewing.

17
Williams and Hargroves, and, the demonstration was subject to attack on

cross-examination.

Testimony resumed with the prosecutor apprising jurors neither he nor

Det. Berry was the same size as Williams or Hargroves. The Commonwealth

then asked Dr. Ralston whether, if Williams had been choking someone and

lifting him off the ground, and that person produced and fired a gun, would the

bullets have travelled from Williams’ right to his left. Dr. Ralston responded,

“Correct.” The prosecutor followed up by asking the witness if he could

envision a scenario in which someone shooting with his right hand could

produce a wound matching the trajectory of the bullet wounds he found on

Williams’ body. Dr. Ralston responded, “Well, the right hand would obviously

have to move to your right side of the body which would mean—right.”

Defense counsel objected again, saying Dr. Ralston had testified to a

special set of knowledge as a medical examiner, but was now getting into “rank

speculation” about how the shooting occurred based on proposed trajectories

and counsel doubted the current questions were within his scope of expertise.

The Commonwealth argued Dr. Ralston had performed the autopsy, had

personally examined Williams’ body, and had plotted the trajectory of the

bullets making his testimony proper. The trial court found Dr. Ralston

qualified to express opinions on projectile trajectory and deemed his testimony

proper. The court went on to say the path of a bullet fired by a right-handed

person, as Hargroves appeared to be, would be common knowledge to most

18
people and overruled the objection. The Commonwealth, having completed its

direct exam, passed Dr. Ralston to the defense for cross-examination.

As noted at the outset of this argument, reenactments during trial are

not forbidden. When offered during a party’s case-in-chief, and therefore,

subject to cross-examination, as in both Robinson and this case, they may be

helpful. Moreover, medical examiners often testify about bullet trajectory. See

Daniel, 607 S.W.3d at 641. We discern no abuse of discretion by the trial

court. Mason, 559 S.W.3d at 339.

IV. Continuing Efficacy of Miranda Warning

Lastly, Hargroves claims he should have received a second Miranda

warning between being interviewed by Det. Berry at the police station and

Officer Rossell engaging with him while driving him to the jail a couple of hours

later. Importantly, Hargroves has not alleged he did not receive Miranda rights

before speaking to Det. Berry; did not knowingly, intelligently and voluntarily

waive those rights; did not freely choose to speak to Det. Berry and later to

Officer Rossell; nor, that he requested but was denied, an attorney. His sole

argument is a reasonable person would have “assumed” the interview ended

when he left the interview room even though he remained handcuffed within

the police department, and anything he said in the nearly thirty-minute car

ride to the jail could not be used at trial because he was not readvised of his

Miranda rights. Officer Rossell’s bodycam captured the challenged

conversation, portions of which were played for the jury following the trial

court’s denial of a mid-trial suppression motion.

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 “When reviewing a trial court’s denial of a motion to suppress, we utilize

a clear error standard of review for factual findings and a de novo standard of

review for conclusions of law.” Sykes v. Commonwealth, 453 S.W.3d 722, 724

(Ky. 2015) (quoting Jackson v. Commonwealth, 187 S.W.3d 300, 305 (Ky.

2006)). We begin our review with the timeline of events provided by the trial

court. On November 1, 2017, Hargroves was apprehended in a field behind the

apartment complex where the shooting occurred. He was handcuffed by Officer

Rossell at 11:00 p.m. and taken to the Radcliff Police Department where he

submitted to a gunshot residue test. Without dispute, he entered the interview

room inside the police department at 11:23 p.m. and a uniformed officer read

him Miranda rights at 11:43 p.m. After speaking to Det. Berry for about two

hours, Hargroves left the interview room at 1:17 a.m. and took a seat on a

bench in the squad room outside the interview room. He was shoeless, his

hands were cuffed behind his back and he wore a police-issued jumpsuit.

At 1:53 a.m., still sitting on the bench in the squad room, Hargroves

spontaneously began speaking, telling officers he now recalled shooting

Williams because Williams had choked him with such force he could barely

breathe and a chain he was wearing around his neck was broken. Officer

Padilla activated his bodycam and recorded the conversation. At 2:02 a.m.,

Officer Rossell entered the squad room and announced he would be

transporting Hargroves to the Hardin County Detention Center. Five minutes

later, at 2:07 a.m., Officer Rossell escorted Hargroves to the police cruiser, and

at 2:35 a.m., they arrived in the detention center sally port. Hargroves moved

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from the police department interview room to the adjacent squad room to the

police car to the jail. He challenges only the conversation between the police

station and the jail.

At trial, defense counsel admitted there is no consensus as to when a

Miranda warning becomes stale and a new warning is required. The defense

sought suppression only because a lay person would “assume” an interview

ends upon leaving the room in which it occurs. In an attempt to distinguish

Hargroves’ conversations, trial counsel argued: they involved different officers

(Det. Berry and Officer Rossell); they occurred in different locations (the

interview room and a moving vehicle); and, they covered different topics (Officer

Rossell asked Hargroves about his television viewing habits).4 Finally, once

inside the car, Hargroves was not asked if he recalled his Miranda rights.

Opposing suppression, the Commonwealth noted Hargroves was not

forced to speak to Officer Rossell but freely chose to do so; Hargroves never

invoked his rights; he never requested an attorney; he initiated many voluntary

statements; and, bodycam footage showed Officer Rossell entering the squad

room and announcing he was ready to transport Hargroves to the detention

center before placing Hargroves in the police cruiser. Based on these facts, the

Commonwealth argued there was no “break” between Det. Berry’s conversation

with him in the interview room, the squad room conversation captured on

4 Det. Berry’s actual interview is not in the record. We do not know its scope

but from his testimony, it appears to have focused on the shooting of Williams and
Dixon in the company of the child.

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Officer Padilla’s bodycam, and Officer Rossell’s conversation with Hargroves as

he sat in the back of the police cruiser still handcuffed. But for learning the

items taken from him were being taken into evidence, Hargroves’

circumstances between the police department and the jail did not change, and

the entire time he was asked about a single set of charges.

Relying on State v. Chew, 150 N.J. 30, 65, 695 A.2d 1301, 1319 (1997),

the trial court considered the totality of the circumstances, specifically:

conditions and length of detention and interrogation; whether Miranda rights

were given; and, the accused’s age and schooling. Noting absence of a bright

line rule governing when a Miranda warning goes stale, the trial court

specifically found Hargroves was not a young man; was of above-average

intelligence; and for a total of about two-and-one-half hours was questioned

about a single criminal event during a continuing inquiry with no lengthy gaps.

The trial court distinguished Hargroves’ case from one in which different crimes

are investigated and there is a substantial break in time.

The trial court mentioned two other major factors—Hargroves’ prior

experience with both law enforcement and the judicial system. The shooting of

Williams and Dixon was Hargroves’ second or third arrest in 2017; he had

previously been inside the Radcliff Police Department; and, he was familiar

with many of its officers. Also, at the time of the shooting, he was on pretrial

release for fleeing and evading, he had multiple prior misdemeanors, and, since

2005 had amassed a lengthy criminal history. Additionally, the Radcliff Police

Department was a common denominator in all discussions with Hargroves. It

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was the site of Det. Berry’s interview with Hargroves; as well as the location of

Hargroves’ spontaneous revelations captured on Officer Padilla’s bodycam; and,

the starting point of the drive to the jail and Officer Rossell’s conversation.

Moreover, the crimes were investigated by multiple uniformed officers

familiar to Hargroves and performing multiple tasks. For example, Officer

Rossell handcuffed Hargroves in the field when he was apprehended at 11:00

p.m. and then transported him to the detention center at 2:07 a.m. just three

hours later. In reviewing the recording of the drive to the detention center, the

trial court observed Officer Rossell asked some questions, but there were also

periods of silence, and at times, Hargroves voluntarily initiated topics.

Describing the ride as a “friendly, noncoercive conversation,” the trial court

concluded nothing coercive happened and no Miranda violation occurred

during the drive.

We also note Hargroves had a goal in chatting with Officer Rossell during

the drive. He was developing his self-defense theory and hoped examination of

his neck might reveal valuable proof for his case—specifically, evidence of

Williams having choked him and broken his chain. Based on the conversation

during transport, upon arrival at the jail Officer Rossell and a nurse checked

his neck for evidence of choking but found nothing.

We reject Hargroves’ premise that the Miranda warning he received soon

after arriving at the police department lost its efficacy when he was transported

to the jail in a police cruiser driven by the same uniformed officer who had

apprehended him in the field. Hargroves knowingly chose to converse with

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Officer Rossell. The trial court properly applied the law in denying the motion

to suppress. We discern no error in the trial court’s conclusions of law.

CONCLUSION

For the reasons expressed, we affirm the Hardin Circuit Court.

All sitting. All concur.

COUNSEL FOR APPELLANT:

Brandon Neil Jewell
Assistant Public Advocate

COUNSEL FOR APPELLEE:

Daniel J. Cameron
Attorney General of Kentucky

Micah Brandon Roberts
Assistant Attorney General

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