Petition for Writ of Certiorari — Gregory Shields, Sr., Petitioner v. Kentucky

APPENDIX

i

APPENDIX

TABLE OF CONTENTS

Appendix A Opinion in the Supreme Court of

Kentucky

(February 24, 2022) . . . . . . . . . . . App. 1

Appendix B Order in the Commonwealth of

Kentucky Warren Circuit Court,

Division 2

(May 6, 2019). . . . . . . . . . . . . . . . App. 54

Appendix C S u p p l e m e n t a l

Order

in the

Commonwealth of Kentucky Warren

Circuit Court, Division 2

(May 7, 2019). . . . . . . . . . . . . . . . App. 56

Appendix D Order Denying Petition for Rehearing

in the Supreme Court of Kentucky

(June 16, 2022) . . . . . . . . . . . . . . App. 66

App. 1

APPENDIX A

SUPREME COURT OF KENTUCKY

2020-SC-0060-MR

[Filed: February 24, 2022]

__________________________________________

GREGORY SHIELDS, SR.

)

APPELLANT )

)

V.

)

)

)

COMMONWEALTH OF KENTUCKY

)

APPELLEE

)

__________________________________________)

ON APPEAL FROM WARREN CIRCUIT COURT

HONORABLE JOHN GRISE, JUDGE

NO. 17-CR-00339

OPINION OF THE COURT BY

JUSTICE HUGHES

AFFIRMING

The sole question presented on this appeal is

whether testimony taken at a preliminary hearing may

be used as evidence at trial when the witness is

unavailable due to her death. We conclude that the

trial court did not abuse its discretion by denying

Appellant Gregory Shields, Sr.’s motion to exclude the

deceased eyewitness’s preliminary hearing testimony.

App. 2

Under the facts of this case, Shields’s Sixth

Amendment right to confront the witness was not

violated because he had an adequate opportunity to

cross-examine the witness at the hearing and in fact

did so, asking several questions without any limitation

by the presiding judge.

FACTS AND PROCEDURAL BACKGROUND

Shields lived with and cared for his uncle and aunt,

Samuel and Maude Murrell. In early February 2017,

the Bowling Green Police Department responded to

Shields’s call that his uncle had been murdered. Upon

their arrival, officers observed that Samuel had cuts to

his chest, neck, arms and wrist. Shields gave

inconsistent stories of what had occurred. Mrs. Murrell

initially gave police an account involving an intruder,

but then informed the police that Shields was

responsible for Samuel’s death. Shields was arrested

and charged with murder and tampering with physical

evidence. The arrest citation states in part:

Dispatch received a 911 call from Gregory

Shields stating there had been a murder at 1313

S. Lee Drive. Officers responded to the scene and

located the victim, Samuel Murrell, deceased on

the floor of his bedroom. Samuel’s wife, Maude

Murrell, was also present in the house. Maude

first advised detectives an unknown person

came in and assaulted her husband. She later

stated Shields came into their bedroom and

pulled the blanket off of her and her husband.

She advised Shields started yelling and cussing

at Samuel, then struck him twice in the head

and neck area with his fist. She stated Shields

App. 3

then left the room, and returned with a knife.

She advised he started “slashing” at Samuel,

cutting Samuel in several areas. The location of

the knife is currently unknown.

Shields was arraigned in district court the next day

and appointed an attorney. At the preliminary hearing

held a week later, both eighty-two-year old Mrs.

Murrell and Detective Wartak testified. Mrs. Murrell

described an infuriated Shields coming into the

bedroom, pulling the covers off the bed, and yelling and

complaining about the car he had bought from Samuel.

Shields left the room, and returned with knives, one

brown-handled and another black-handled. Shields

cursed at Samuel, called him names and accused

Samuel of killing Shields’s mother (Samuel’s sister)

who had died long ago, and criticized Shields’s

maternal grandmother (Samuel’s mother) for treating

Shields’s mother poorly. Shields first cut Samuel on the

arm, and when Samuel and Mrs. Murrell told him to

stop, Shields repeated, “I don’t care.” Shields next cut

Samuel on his wrist, and then his chest. At one point,

Mrs. Murrell told Shields she was going to call 911, but

did not when Shields threatened to slit Samuel’s throat

if she made the call. He put the knife up against

Samuel’s throat to support his threat.

At that point, Mrs. Murrell went to the garage to

smoke and Shields subsequently came out to smoke. As

she reentered the house, Samuel was calling for her,

wanting the bloody bed sheets changed. With Shields’s

assistance, Samuel stood up using his walker, but fell

shortly afterward, landing facedown and hitting his

head. Shields helped Samuel off the floor, but as

App. 4

Samuel moved his walker to exit the room, he fell

backwards onto the floor. Shields bandaged the knife

wounds and also checked Samuel’s pulse multiple

times, stating initially that Samuel had a strong pulse.

Within a few minutes, however, Shields announced

that Samuel “was gone” and told Mrs. Murrell to call

911, but she insisted Shields make the call. Mrs.

Murrell testified that at Shields’s request, she did not

tell the police the truth, but told a story about an

unknown person attacking Samuel, Shields then

apprehending the intruder, followed by the intruder

escaping. Upon further questioning by the police at the

scene, Mrs. Murrell told them that it was in fact

Shields who had hurt Samuel. The knives Shields used

were later found by family members helping Mrs.

Murrell replace the stained mattress and do the

laundry. The knives were turned over to the police.

At the preliminary hearing Detective Wartak

testified that although Mrs. Murrell initially told the

story about the intruder, she followed that with a

statement which mirrored her preliminary hearing

testimony. Detective Wartak also explained that

although the police went through piles of clothing

within the home and garage, they did not find the

knives during their search.

Defense counsel questioned Mrs. Murrell about the

length of time she had known Shields, how long he had

lived with them, and if the behavior she described was

out of character for Shields. Mrs. Murrell stated that

Shields did whatever she and Samuel needed and

explained that he cooked, cleaned, washed clothes, took

them to appointments and the grocery store, and paid

App. 5

the bills. Mrs. Murrell agreed that Shields’s behavior

was out of character, that Shields was mad and

although he never said why, she assumed that it was

because of car problems, given that was what he was

talking about immediately before the incident. Defense

counsel elicited from Detective Wartak that Shields

told Officer Purvis, who recorded Shields’s witness

account, that “You’re confusing me.”

Based upon the testimony, the district court found

probable cause and referred the case to the grand jury.

Shields was indicted for murder, tampering with

physical evidence, and being a persistent felony

offender (PFO).1

Mrs. Murrell died in June 2018, sixteen months

after the preliminary hearing. In anticipation that the

Commonwealth would seek to use Mrs. Murrell’s

preliminary hearing testimony at trial, defense counsel

moved to exclude her recorded testimony. Because no

dispute existed as to Mrs. Murrell’s unavailability,

Shields’s only issue was whether he had an adequate

prior opportunity to cross-examine her as a witness.

Shields argued that a preliminary hearing does not

provide an adequate opportunity, or as he states—a

“meaningful opportunity”—for a defendant to

cross-examine a witness for trial purposes and

admitting the testimony into evidence at trial would

therefore violate Shields’s right to confrontation.

1

Shields was indicted in another case on charges of possession of

a handgun by a convicted felon, possession of a firearm by a

convicted felon, and being a PFO.

App. 6

At the hearing on Shields’s motion, defense counsel

offered multiple reasons why she did not have a

meaningful opportunity to cross-examine Mrs. Murrell

for trial purposes. She pointed out the purpose of a

preliminary hearing is to determine probable cause and

not the cross-examination of witnesses in place of that

expected, by right and usual circumstances, to occur at

trial. Defense counsel noted the local practice or usual

expectations for a probable cause hearing, explaining

that she could not recall a witness other than a law

enforcement officer testifying at a preliminary hearing

during her eight years of practice. Defense counsel

further explained that with the questioning of

preliminary hearing witnesses usually limited in scope,

with no pre-hearing notice that Mrs. Murrell would be

called as a witness in addition to the usual law

enforcement witness(es), with only the arrest citation

being provided in discovery at that time and with her

own investigation limited to the week before the

preliminary hearing, she was not prepared for

questioning in the manner she would be for a murder

trial. She noted that rather than having questions for

a thorough cross-examination of the only witness to the

alleged attack, she asked questions prepared

during the hearing, and did not spend much

time cross-examining Mrs. Murrell, an elderly,

hearing-impaired, grieving widow. Defense counsel also

identified other questions she likely would have asked,

especially if other discovery, such as the medical

examiner’s report, had been received before the

preliminary hearing.

The Commonwealth responded that defense counsel

was afforded a full and fair opportunity to

App. 7

cross-examine Mrs. Murrell during the preliminary

hearing, that she did cross-examine her without

limitation, and that admission of Mrs. Murrell’s sworn

and recorded testimony into evidence at trial would not

violate Shields’s Sixth Amendment right. The

Commonwealth further argued that notice that Mrs.

Murrell would be called as a witness was not required,

and that it was not a surprise to Shields that Mrs.

Murrell was the sole witness to the event. Also, Shields

knew Mrs. Murrell’s advanced age, and those

circumstances should have been considered in defense

counsel’s preparation for the hearing. Significantly, as

the Commonwealth pointed out, defense counsel did

not make an objection, a request for a continuance or a

request for additional information during the

preliminary hearing.

In response to the trial court’s questions at the

hearing on the motion, the Commonwealth explained

it met with Mrs. Murrell the day before the preliminary

hearing and called her as a witness both to preserve

the sole eyewitness’s testimony for trial as a

precautionary measure (while articulate and not

exhibiting dementia, she was elderly) and to establish

probable cause, although the detective’s testimony

alone was sufficient for that purpose. With the case

still being in the investigative stage mere days after

the murder, the Commonwealth had prepared and

provided only the citation in discovery.

Focusing on whether defense counsel had the

opportunity for meaningful cross-examination, the

circuit court reviewed with defense counsel the

questions asked and the questions she would have

App. 8

asked as part of a meaningful cross-examination at

trial. They also discussed the practical impact on

Shields’s case of defense counsel not having asked Mrs.

Murrell those questions. While in defense counsel’s

later discussion with Mrs. Murrell she made

statements which Shields could have offered in

mitigation, such as her statement that she had forgiven

Shields,2 the circuit court concluded in essence that the

other questions defense counsel would have pursued if

she had known she was cross-examining Mrs. Murrell

for trial were not particularly helpful to Shields’s

defense. The circuit court acknowledged that the

general concept of Due Process would suggest the

Commonwealth provide timely notice to defense

counsel of its atypical decision to call a fact witness at

the preliminary hearing to preserve the witness’s

testimony for trial and also provide discovery available

at that point.

Relying on Commonwealth v. Howard, 665 S.W.2d

320, 322 (Ky. App. 1984), and Parson v.

Commonwealth, 144 S.W.3d 775 (Ky. 2004), the circuit

court denied Shields’s motion to exclude Mrs. Murrell’s

testimony. The circuit court found that under the

circumstances Shields was not denied a meaningful

opportunity to cross-examine Mrs. Murrell, that she

was subject to adequate cross-examination and that it

was unclear that proper notice and timely discovery

would have benefitted Shields or his counsel in any

2

The Commonwealth stated it likely would not object to the

introduction of this statement if it were couched as Mrs. Murrell

had forgiven Shields but still wanted him punished.

App. 9

significant degree. Furthermore, Mrs. Murrell’s

testimony had the hallmarks of reliability.

In May 2019, following the denial of his motion,

Shields entered a conditional guilty plea to first-degree

manslaughter and to being a PFO in the first degree.

In accordance with the plea agreement, he was

sentenced to twenty-five years in prison, an enhanced

sentence due to his PFO status. This appeal followed.

ANALYSIS

Shields claims the circuit court abused its discretion

when it denied his motion to exclude Mrs. Murrell’s

preliminary hearing testimony from trial under both

the plain language of KRE 804(b)(1) and the

Confrontation Clause of the Sixth Amendment.3 He

posits that the constitutional right to a “meaningful”

cross-examination is “codified” in the evidentiary rule.

KRE 804(b)(1) is the hearsay exception for former

testimony. KRE 804(b), in relevant part, states:

Hearsay exceptions. The following are not

excluded by the hearsay rule if the declarant is

unavailable as a witness:

(1) Former testimony. Testimony given as a

witness at another hearing of the same or a

different proceeding, or in a deposition taken in

compliance with law in the course of the same or

another proceeding, if the party against whom

the testimony is now offered, or, in a civil action

3

The circuit court’s denial of Shields’s motion to withdraw his

guilty plea is not part of this appeal.

App. 10

or proceeding, a predecessor in interest, had an

opportunity and similar motive to develop

the testimony by direct, cross, or redirect

examination.

(Emphasis added.)

While an opportunity for cross-examination is

required as an evidentiary matter, that opportunity

also has constitutional ramifications. See Crawford v.

Washington, 541 U.S. 36, 61 (2004). Citing Crawford

for the premise that admission of a testimonial

statement violates the Confrontation Clause of the

Sixth Amendment if the defendant did not have an

opportunity to cross-examine the declarant, Shields

further cites Davis v. Alaska, 415 U.S. 308 (1974), for

the premise that in order to qualify as a sufficient

opportunity for cross-examination under Crawford and

the Confrontation Clause, it must be an opportunity for

“meaningful” cross-examination.4 Although Davis

concludes that the defendant did not have an

“adequate” opportunity to cross-examine a key

prosecution witness during trial, Davis does not

address what constitutes “adequate” preliminary

hearing cross-examination which may be later used at

trial when the witness is unavailable.5 In light of this

4

The Davis Court framed its analysis in terms of the “adequacy”

and not the “meaningfulness” of the cross-examination. In Davis,

the Court refers to the Alaska Supreme Court’s consideration of

Davis’s right to a meaningful confrontation.

5

In Davis, the United States Supreme Court granted certiorari to

consider whether the Confrontation Clause requires that a

defendant in a criminal case “be allowed to impeach the credibility

App. 11

of a prosecution witness by cross-examination directed at possible

bias deriving from the witness’ probationary status as juvenile

delinquent when such an impeachment would conflict with a

State’s asserted interest in preserving the confidentiality of

juvenile adjudications of delinquency.” 415 U.S. at 309. The Alaska

Supreme Court affirmed Davis’s conviction, 499 P.2d 1025, 1036

(Alaska 1972),

concluding that it did not have to resolve the potential

conflict in this case between a defendant’s right to a

meaningful confrontation with adverse witnesses and the

State’s interest in protecting the anonymity of a juvenile

offender since “our reading of the trial transcript convinces

us that counsel for the defendant was able adequately to

question the youth in considerable detail concerning the

possibility of bias or motive.”

415 U.S. at 314-15 (emphasis added). Addressing the limited

question of whether Davis, convicted of grand larceny and

burglary, was denied the right under the Confrontation Clause to

adequately cross-examine Green, a key prosecution witness on

probation for burglary and who might have identified Davis as a

suspect in stealing a safe and its contents from an Anchorage

business to shift suspicion from himself, the Court noted that “the

essential question turns on the correctness of the Alaska court’s

evaluation of the ‘adequacy’ of the scope of cross-examination

permitted.” 415 U.S. at 315 (emphasis added). The Davis Court did

not accept the Alaska Supreme Court’s conclusion that the limited

cross-examination was adequate. Id. at 318. The Davis Court

concluded:

[T]he jury might well have thought that defense counsel

was engaged in a speculative and baseless line of attack on

the credibility of an apparently blameless witness or, as

the prosecutor’s objection put it, a ‘rehash’ of prior

cross-examination. On these facts it seems clear to us that

to make any such inquiry effective, defense counsel should

have been permitted to expose to the jury the facts from

which jurors, as the sole triers of fact and credibility, could

appropriately draw inferences relating to the reliability of

App. 12

and our review of the other United States Supreme

Court cases discussed infra, despite the trial court

making a finding in regard to Shields’s meaningful

opportunity to cross-examine Mrs. Murrell, except

where context requires it, we refrain from using

“meaningful” in our analysis of this case to describe the

type of cross-examination opportunity which must be

afforded a defendant to satisfy the Sixth Amendment

Confrontation Clause. The constitutional touchstone is

an “adequate opportunity.”

Before this Court, Shields maintains that KRE

804(b)(1) reflects the requirement of “meaningful

opportunity” for cross-examination by requiring a

“similar motive” to develop the witness’s prior

testimony.6 As the Commonwealth notes, the specific

issue of whether Shields had a similar motive during

the witness. Petitioner was thus denied the right of

effective cross-examination which “would be constitutional

error of the first magnitude and no amount of showing of

want of prejudice would cure it.[”]

Id. at 318 (citing Smith v. Illinois, 390 U.S. 129, 131, 88 S. Ct. 748,

750, 19 L.Ed. 2d 956 (1968)) (quoting Brookhart v. Janis, 384 U.S.

1, 3, 86 S. Ct. 1245, 1246, 16 L. Ed. 2d 314 [(1966)]).

6

Kentucky’s former testimony provision, like the majority of

states, repeats Federal Rule 804(b)(1)(B)’s language—that the

prior testimony from that hearing “is now offered against a party

who had . . . an opportunity and similar motive to develop it by

direct, cross-, or redirect examination.” Under a plain reading of

KRE 804(b)(1), when the Commonwealth seeks to admit at trial an

unavailable witness’s preliminary hearing testimony, the

Commonwealth must establish both prerequisites—opportunity to

cross-examine and similar motive to cross-examine—at the prior

hearing.

App. 13

the preliminary hearing was not presented to the trial

court. Although Shields believes the “meaningful

opportunity” requirement is inextricably intertwined

with KRE 804’s “similar motive” requirement, he

recognizes the trial court’s order did not use the

“similar motive” language in its conclusions, and

otherwise requests palpable error review of the trial

court’s ruling.

As noted above, the trial court addressed Shields’s

argument that his attorney did not have a meaningful

opportunity to develop Mrs. Murrell’s testimony for

trial because of the lack of notice from the

Commonwealth that she would, in fact, testify and

because of the lack of discovery or opportunity to

investigate the matter to prepare for the development

of Mrs. Murrell’s cross-examination. Although Shields’s

arguments that he was not afforded a meaningful

opportunity due to the limited purpose of the probable

cause hearing, the different evidentiary rules involved,

and the short time between arrest and hearing may be

viewed as having a “similar motive” undercurrent, the

trial court resolved the issue by considering the actual

questions Shields would have asked and concluding

Shields had not shown his cross-examination of Mrs.

Murrell was inadequate. Rejecting this approach,

Shields complains that the trial court erred by

downplaying the topics of cross-examination that

defense counsel argued that she would have delved

more deeply into if she had been given notice that the

hearing was more than a mere preliminary hearing.

Under KRE 804(b), if the declarant is unavailable

as a witness, the declarant’s preliminary hearing

App. 14

testimony is not excluded by the hearsay rule from the

trial of the defendant against whom the testimony was

offered if two requirements are met—the defendant

“had an opportunity” and “similar motive”—to develop

the testimony by direct, cross-, or redirect examination.

While the former testimony hearsay exception’s

“opportunity” for cross-examination is also properly

analyzed under the constitutional standard of an

“adequate opportunity” for cross-examination, see

Crawford, 541 U.S. at 61, Shields, without citing

authority, states that the “similar motive to develop

testimony” test is required by both KRE 804(b)(1) and

the Confrontation Clauses of the United States and

Kentucky Constitutions.7

Neither this Court, nor our Court of Appeals, has

directly addressed the “similar motive” requirement in

the context of a preliminary or probable cause hearing,

either through a challenge pursuant to KRE 804(b)(1)

7

While it may readily be conceded that hearsay rules and the

Confrontation Clause are generally designed to protect similar

values, it is quite a different thing to suggest that the overlap is

complete and that the Confrontation Clause is nothing more or less

than a codification of the rules of hearsay and their exceptions as

they existed historically at common law. Our decisions have never

established such a congruence; indeed, we have more than once

found a violation of confrontation values even though the

statements in issue were admitted under an arguably recognized

hearsay exception. See Barber v. Page, 390 U.S. 719, 88 S. Ct.

1318, 20 L. Ed. 2d 255 (1968); Pointer v. Texas, 380 U.S. 400, 85 S.

Ct. 1065, 13 L. Ed. 2d 923 (1965). The converse is equally true:

merely because evidence is admitted in violation of a

long-established hearsay rule does not lead to the automatic

conclusion that confrontation rights have been denied.

California v. Green, 399 U.S. 149, 155–56 (1970) (footnote omitted).

App. 15

or pursuant to the Confrontation Clause. Howard and

Parson, relied upon by the trial court when concluding

Mrs. Murrell’s preliminary hearing testimony is

admissible at trial, both address out-of-court-testimony

reliability considerations.

In Howard, the Court of Appeals addressed whether

under Kentucky Rule of Criminal Procedure (RCr) 7.20,

in conjunction with RCr 7.22, the sworn testimony of a

witness at a bond reduction hearing, testimony subject

to cross-examination, is admissible at the trial of the

defendant.8 665 S.W.2d at 321. Relying on Ohio v.

Roberts, 448 U.S. 56 (1980), for Sixth Amendment

Confrontation Clause guidance, and Wells v.

Commonwealth, 562 S.W.2d 622 (Ky. 1978), as

authority for the introduction of testimony from a

previous trial under RCr 7.22, the Howard Court

stated:

It is our opinion that if the prior testimony is

found by the trial court to be reliable and

trustworthy, and the witness was subjected to

8

As noted in Howard, RCr 7.20(1) states:

At the trial or upon any hearing, a part or all of a

deposition, so far as otherwise admissible under the rules

of evidence, may be used if it appears: that the witness is

dead; or that the witness is out of the Commonwealth of

Kentucky, unless it appears that the absence of the

witness was procured by the party offering the deposition;

or that the witness is unable to attend or testify because of

sickness or infirmity; or that the party offering a

deposition had been unable to procure the attendance of

the witness by subpoena. . . .

665 S.W.2d at 323.

App. 16

cross-examination, it makes no difference

whether the prior testimony comes by way of

deposition, previous trial, preliminary hearing,

or as in this case, a bond reduction hearing,

provided the same offense and charge are being

dealt with.

665 S.W.2d at 323.

In Parson, the defendant challenged the admission

of a physical therapist’s deposition testimony at trial.

Parson, quoting then recently-decided Crawford9 and

citing other United States Supreme Court precedent,

described the defendant’s Sixth Amendment right to

confront his accusers at trial, 144 S.W.3d at 782-83,

and affirmed the trial court. While the issue of the

witness’s unavailability under KRE 804 was argued,

this Court concluded that the defendant had clearly

waived his right to confront the witness at trial when

he, through counsel, agreed that the testimony of

medical witnesses could be presented by deposition. Id.

at 783. We further concluded that the defendant could

not renege on his waiver after the deposition was

completed, and explained that even if error had

occurred, it was harmless beyond a reasonable doubt

for reasons including that

the deposition was videotaped in the courtroom

with the witness in the witness box [and] the

jury was able to “weigh the demeanor of the

9

“Testimonial statements of witnesses absent from trial have been

admitted only where the declarant is unavailable, and only where

the defendant has had a prior opportunity to cross-examine.” Id.

at 782 (quoting Crawford, 541 U.S. at 59).

App. 17

witness” in a courtroom setting. Barber v. Page,

[390 U.S. 719], 725 [(1968)]. [Furthermore, the

defendant was not] denied the right of

cross-examination or the right to “meet the

witness [ ] face to face.” Ky. Const. § 11. A judge

presided over the testimony just as would have

occurred at trial.

144 S.W.3d at 785 (alteration to Ky. Const. § 11 in

original).

Shields argues that while the circuit court relied

upon Howard and Parson, their facts are

distinguishable in regard to a “similar motive”

analysis. As to Howard, Shields contends that the

appellate court made no effort to determine whether

the same motive for a full and rigorous

cross-examination existed at a bond hearing as at trial,

and furthermore, because that case dealt specifically

with a bond hearing, the mention of the admissibility

of preliminary hearing testimony was dicta. As to

Parson, Shields argues it is not applicable because the

testimony of the medical witness was by deposition,

and with the defendant and his counsel having notice

that it was for the purpose of substituting for trial

testimony, the defense had both the opportunity and

the precise same motive to develop the testimony as

they would have had at trial. Indeed, the trial court in

this case relied upon Howard and Parson not for a

similar motive analysis, an issue not presented in those

cases, but apparently for guidance regarding whether

Mrs. Murrell’s cross-examined, preliminary hearing

testimony was sufficiently reliable to introduce to a

App. 18

jury. Both Kentucky cases looked to United States

Supreme Court precedent on that particular issue.

Pointer v. Texas, 380 U.S. 400 (1965),10 the seminal

case in which the Supreme Court held the Sixth

Amendment right to confrontation applied to the states

via the Fourteenth Amendment, addressed the

defense’s objection to the prosecution’s admission at

trial of Phillips’, the robbery victim’s, testimony from

the examining trial. Pointer, who did not have a lawyer

at the examining trial, did not cross-examine Phillips.

Id. at 401. The Court concluded:

Because the transcript of Phillips’ statement

offered against petitioner at his trial had not

been taken at a time and under circumstances

affording petitioner through counsel an

adequate opportunity to cross-examine Phillips,

its introduction in a federal court in a criminal

case against Pointer would have amounted to

denial of the privilege of confrontation

guaranteed by the Sixth Amendment.

Id. at 407.

Barber v. Page, 390 U.S. 719 (1968), decided three

years after Pointer, yielded greater discussion of the

confrontation right and the role of the preliminary

hearing. Barber and his co-defendant Woods were

charged with robbery. Id. at 720. At the preliminary

hearing, Barber’s counsel did not cross-examine Woods

whose testimony incriminated Barber, although an

attorney for another co-defendant did. Id. Oklahoma

10

Pointer is not cited in Howard or Parson.

App. 19

contended that Barber was afforded the right of

cross-examination at the preliminary hearing, but he

did not use it. Id. at 722. The Court rejected that

argument because Barber was unaware that Woods

would be in a federal prison at the time of his trial, but

even if Woods’s incarceration could be assumed, Barber

was unaware that Oklahoma would make no effort to

produce Woods at trial. Id. at 725.

It is true that there has traditionally been an

exception to the confrontation requirement

where a witness is unavailable and has given

testimony at previous judicial proceedings

against the same defendant which was subject to

cross-examination by that defendant. E.g.,

Mattox v. United States, [156 U.S. 237, 15 S. Ct.

337, 39 L. Ed. 409 (1895)] (witnesses who

testified in original trial died prior to the second

trial). This exception has been explained as

arising from necessity and has been justified on

the ground that the right of cross-examination

initially afforded provides substantial

compliance with the purposes behind the

confrontation requirement. See 5 Wigmore,

Evidence § 1395-96, 1402 (3d ed. 1940); C.

McCormick, Evidence § 231, 234 (1954).

Id. at 722.

The Court further explained that even if Barber’s

counsel had cross-examined Woods at the preliminary

hearing that would not satisfy the Sixth Amendment,

stating:

App. 20

The right to confrontation is basically a trial

right. It includes both the opportunity to

cross-examine and the occasion for the jury to

weigh the demeanor of the witness. [Many years

ago this Court stated that “(t)he primary object

of the (Confrontation Clause of the Sixth

Amendment) . . . was to prevent depositions or

ex parte affidavits . . . being used against the

prisoner in lieu of a personal examination and

cross-examination of the witness in which the

accused has an opportunity, not only of testing

the recollection and sifting the conscience of the

witness, but of compelling him to stand face to

face with the jury in order that they may look at

him, and judge by his demeanor upon the stand

and the manner in which he gives his testimony

whether he is worthy of belief.” Mattox v. United

States, 156 U.S. 237, 242-243, 15 S. Ct. 337, 339,

39 L. Ed. 409 (1895).] A preliminary hearing is

ordinarily a much less searching exploration into

the merits of a case than a trial, simply because

its function is the more limited one of

determining whether probable cause exists to

hold the accused for trial. While there may be

some justification for holding that the

opportunity for cross-examination of a witness

at a preliminary hearing satisfies the demand of

the confrontation clause where the witness is

shown to be actually unavailable, this is not, as

we have pointed out, such a case.

Id. at 721 (bracketed text), 725–26.

App. 21

Green was decided two years after Barber. In

contrast to Pointer and Barber, Green affirmed the

admission of preliminary hearing testimony. After

finding no constitutional violation when the

preliminary hearing testimony was admitted despite

the availability of the witness, the Court dealt with the

California Supreme Court’s conclusion that the

opportunity to cross-examine Porter at the preliminary

hearing did not satisfy the commands of the

Confrontation Clause. See 399 U.S. at 153. In the face

of Justice Brennan’s dissent which articulates the

concerns Shields now expresses as reasons Mrs.

Murrell’s preliminary hearing testimony is not

admissible at trial, see id. at 195-203,11 the Court

11

For example, Justice Brennan states:

[Considering that the prosecution at a typical preliminary

hearing need show only probable cause,] [i]t follows that the

purposes of the Confrontation Clause cannot be satisfied by a

face-to-face encounter at the preliminary hearing.

Cross-examination at the hearing pales beside that which takes

place at trial. This is so for a number of reasons. First, as noted,

the objective of the hearing is to establish the presence or absence

of probable cause, not guilt or innocence proved beyond a

reasonable doubt; thus, if evidence suffices to establish probable

cause, defense counsel has little reason at the preliminary hearing

to show that it does not conclusively establish guilt—or, at least,

he had little reason before today’s decision. Second, neither defense

nor prosecution is eager before trial to disclose its case by

extensive examination at the preliminary hearing; thorough

questioning of a prosecution witness by defense counsel may easily

amount to a grant of gratis discovery to the State. Third, the

schedules of neither court nor counsel can easily accommodate

lengthy preliminary hearings. Fourth, even were the judge and

lawyers not concerned that the proceedings be brief, the defense

and prosecution have generally had inadequate time before the

App. 22

advised that even if the witness were not available at

trial, it believed the circumstances of the witness’s

preliminary hearing testimony would have satisfied the

Confrontation Clause. Id. at 165.

The Green Court, having noted that if the

circumstances under which the out-of-court statements

were made were comparable to those at trial such that

the primary object of the Confrontation Clause as

explained in Mattox was met, found good reason to

conclude the admittance of the out-of-court statements

was constitutional. Id. at 157-58. The Court contrasted

the purposes of trial cross-examination with the

circumstances under which the out-of-court statements

were made:

Confrontation: (1) insures that the witness will

give his statements under oath—thus

impressing him with the seriousness of the

matter and guarding against the lie by

hearing to prepare for extensive examination. Finally, though

counsel were to engage in extensive questioning, a part of its force

would never reach the trial factfinder, who would know the

examination only second hand. . . .

....

It appears, then, that in terms of the purposes of the Confrontation

Clause, an equation of face-to-face encounter at the preliminary hearing

with confrontation at trial must rest largely on the fact that the witness

testified at the hearing under oath, subject to the penalty for perjury, and

in a courtroom atmosphere. These factors are not insignificant, but by

themselves they fall far short of satisfying the demands of constitutional

confrontation. . . .

Id. at 196–99.

App. 23

the possibility of a penalty for perjury; (2) forces

the witness to submit to cross-examination, the

‘greatest legal engine ever invented for

the discovery of truth’; (3) permits the jury that

is to decide the defendant’s fate to observe the

demeanor of the witness in making his

statement, thus aiding the jury in assessing his

credibility.

Id. at 158 (footnote omitted).

Analyzing the preliminary hearing, the Green

Court, having described Porter as being subjected to

extensive cross-examination by defense counsel, id. at

151, stated:

For Porter’s statement at the preliminary

hearing had already been given under

circumstances closely approximating those that

surround the typical trial. Porter was under

oath; respondent was represented by counsel—

the same counsel in fact who later represented

him at the trial; respondent had every

opportunity to cross-examine Porter as to his

statement; and the proceedings were conducted

before a judicial tribunal, equipped to provide a

judicial record of the hearings. Under these

circumstances, Porter’s statement would, we

think, have been admissible at trial even in

Porter’s absence if Porter had been actually

unavailable . . . .

App. 24

Id. at 165.12

The Court considered both Pointer, 380 U.S. at 407,

and Barber, 390 U.S. at 725-26, but found the Green

preliminary hearing was not significantly different

from an actual trial to warrant distinguishing it from

those two cases for purposes of the Confrontation

Clause. Id. at 165-66. The Court noted that in regard to

cross-examination at a “less searching into the merits”

preliminary hearing being able to satisfy the demand

of the Confrontation Clause, Green’s counsel did “not

appear to have been significantly limited in any way in

the scope or nature of his cross-examination of the

witness Porter at the preliminary hearing.” Id. at 166.

The Court concluded that even if Porter were

unavailable, “the right of cross-examination then

afforded provides substantial compliance with the

purposes behind the confrontation requirement.” Id.

In Roberts, the Court did not deal with

cross-examination of the prosecution’s witness, but

rather the defense’s examination of its own witness at

a preliminary hearing. The defendant was charged

with forgery of a check and possession of stolen credit

cards. The defense called a single witness, Anita, the

alleged victims’ daughter. Defense counsel attempted

to elicit from Anita that she had given the defendant,

a friend she had allowed to stay in her apartment, the

12

When Green was decided in 1970 videotaped preliminary hearing

proceedings were likely rare. Today, a jury is often able to see the

witness on video, rendering the circumstances even more like

observing the witness in the courtroom at trial. As the trial court

in this case stated, “the jury can observe on the videotape the

witness’ demeanor, memory, age and ability to express herself.”

App. 25

checks and the credit cards without informing him that

she did not have permission to use them. Anita denied

the allegations. Defense counsel did not ask to have the

witness declared hostile and did not request permission

to cross-examine her. The prosecutor did not question

the defense witness. 448 U.S. at 58.

At trial, the defendant testified that Anita had

given him the checks and credit cards with the

understanding that he could use them. Id. at 59. Anita

did not appear at trial and following a hearing, the trial

court allowed the prosecutor to admit the transcript of

her preliminary hearing testimony. Id. at 59-60. The

Ohio Supreme Court, in a 4-3 split decision, concluded

that Anita was unavailable, but citing the dissenting

opinion in Green, held that the transcript was

inadmissible and that the mere opportunity to

cross-examine at a preliminary hearing did not afford

constitutional confrontation for purposes of trial,

reasoning that “normally there is little incentive to

cross-examine a witness at a preliminary hearing,

where the ‘ultimate issue’ is only probable cause.” Id.

at 60-61. Citing United States v. Allen, 409 F.2d 611,

613 (10th Cir. 1969), the three dissenting justices

would have ruled that “the test is the opportunity for

full and complete cross-examination, rather than the

use which is made of that opportunity.” Id. at 62.

Rather than addressing whether the mere

opportunity to cross-examine at the probable cause

hearing satisfies the Confrontation Clause or whether

de minimus questioning is sufficient, the Roberts Court

looked at the actual cross-examination performed by

defense counsel. Id. at 70. The Court concluded that

App. 26

defense counsel tested Anita’s testimony with “the

equivalent of significant cross-examination.” Id. The

Court noted that defense “counsel’s questioning

comported with the principal purpose of crossexamination: to challenge ‘whether the declarant was

sincerely telling what he believed to be the truth,

whether the declarant accurately perceived and

remembered the matter he related, and whether the

declarant’s intended meaning is adequately conveyed

by the language he employed.’” Id. at 71 (citation

omitted). The Court, citing Green, explained despite

perhaps not being formally characterized as “crossexamination,” the questioning of Anita afforded

“substantial compliance with the purposes behind the

confrontation requirement” and although Ohio law may

have authorized objection by the prosecution, that did

not happen, and defense counsel was not “significantly

limited in any way in the scope or nature of his

cross-examination.” Id. (quoting Green, 399 U.S. at

166). The Court rejected Roberts’ argument that his

case fell among those in which the Court must

undertake a particularized search for “indicia of

reliability,” id. at 72, stating:

In sum, we perceive no reason to resolve the

reliability issue differently here than the Court

did in Green. “Since there was an adequate

opportunity to cross-examine [the witness], and

counsel . . . availed himself of that opportunity,

the transcript . . . bore sufficient ‘indicia of

reliability’ and afforded [‘]the trier of fact a

satisfactory basis for evaluating the truth of the

prior statement.[’]”

App. 27

Id. at 73 (quoting Mancusi v. Stubbs, 408 U.S. 204, 216

(1972)) (internally quoting Dutton v. Evans, 400 U.S.

74, 89 (1970)) (first bracket in original).

Although not so evident in its analysis of the

witness’s preliminary hearing examination at issue, as

to the adequate opportunity for examination Roberts

articulated a test to determine whether an unavailable

witness’s former testimony may be admitted at trial—a

test that was different from previous United States

Supreme Court precedent. As early as Mattox and more

recently in cases such as Mancusi, Green, and Pointer,

the Supreme Court had followed the rule that prior

trial or preliminary hearing testimony is admissible

only if the defendant had an adequate opportunity to

cross-examine. Crawford, 541 U.S. at 57. In 2004,

Crawford overruled Roberts’ test, 448 U.S. at 66, that

an unavailable witness’s statement is admissible “if it

bears adequate ‘indicia of reliability.’” As then

explained by Roberts, reliability could be inferred when

the evidence falls within a “firmly rooted hearsay

exception” or shows “particularized guarantees of

trustworthiness.” Having reviewed the historical

background of the Confrontation Clause, Crawford

concluded: “Where testimonial statements are at issue,

the only indicium of reliability sufficient to satisfy

constitutional demands is the one the Constitution

actually prescribes: confrontation.” 541 U.S. at 68-69.

Consequently, to the extent that Howard and Parson

rely on indicia of reliability beyond confrontation, or

the prior opportunity to cross-examine, Crawford

essentially overrules those cases.

App. 28

Although Crawford overruled Roberts, it noted that

Roberts’ outcome, which admitted testimony from a

preliminary hearing at which the defendant had

examined the witness, followed closely the traditional

rule. Id. at 58. Hence, Roberts, analyzing the

preliminary hearing testimony under the “adequate

opportunity” standard, remains instructive to this

Court along with the other United States Supreme

Court preliminary hearing cases discussed above.

Upon review of these cases, we are reminded that

the focus of the Confrontation Clause is ensuring a

defendant does not suffer use of ex parte examinations

as evidence against him. In these cases, Mattox is the

polestar, directing that the defendant must have the

opportunity for cross-examination. Furthermore, as

held in Pointer, the defendant must have an adequate

opportunity through counsel to cross-examine the

witness. After Barber acknowledged that the

less-searching probable cause hearing may satisfy the

trial confrontation demands, Green held that the

preliminary hearing cross-examination of a witness in

that case, a cross-examination described as extensive,

would have satisfied the Confrontation Clause.

Shields argues that he must have been afforded

either an adequate opportunity or actually crossexamined Mrs. Murrell as allowed at trial in order for

her preliminary hearing testimony to meet the

Confrontation Clause demands. Green and Roberts

suggest that if Shields were significantly limited in any

way in the scope or nature of his cross-examination of

Mrs. Murrell, her preliminary hearing testimony would

likely be inadmissible at trial. Part of the problem with

App. 29

Shields’s argument is that his questioning at the

preliminary hearing was self-limited; the defense did

not advance any cross-examination which the trial

court disallowed. Without doing so, whether because he

anticipated objections or because counsel felt ill

prepared due to not having pre-hearing notice that

Mrs. Murrell would testify, the argument that he was

not afforded an adequate opportunity to cross-examine

Mrs. Murrell is of little weight. Although Shields’s

defense counsel may have been caught off guard and

she may not have had complete discovery,13 her

experience of never having seen an eyewitness appear

to testify at a probable cause hearing would seem to

raise a red flag and either lead to asking the trial court

for relief or at least asking credibility-challenging

questions “comporting with the principal purpose of

cross-examination.” Roberts, 448 U.S. at 71. However,

defense counsel stated that it did not occur to her to

ask for a continuance because Shields was present for

the probable cause hearing. Regardless, the

circumstances cannot be viewed as denying the defense

the opportunity to confront the witness. Additionally,

as in Mancusi discussed infra the trial court properly

evaluated the adequacy of Shields’s opportunity to

cross-examine by considering the questions defense

counsel would have asked if she were cross-examining

Mrs. Murrell with full knowledge that her testimony

was being preserved for trial. This analysis allowed the

trial court to consider what further cross-examination

would have accomplished.

13

The preliminary hearing was held eight days after the murder,

which explains in part the paucity of discovery.

App. 30

The United States Supreme Court 1972 decision in

Mancusi predated Roberts by eight years. In Mancusi,

the defendant, Stubbs, challenged the admission of the

transcript of testimony given at his earlier trial.

Stubbs’s counsel had been appointed four days before

that first trial. 408 U.S. at 209. Because the crime

victim had moved out of the United States at the time

of Stubbs’s second trial and service for his appearance

was not obtained, the trial court allowed admission of

the victim’s prior testimony, over defense objection. Id.

Stubbs claimed that the lack of time for preparation

“necessarily requires a finding that the

cross-examination . . . was constitutionally

inadequate.” Id. at 214. The Court disagreed, reviewing

the actual cross-examination at the first trial and the

twelve questions which defense counsel offered that he

would have asked had the witness been present at the

second trial. Id. at 214-16. The Mancusi Court

concluded that there was “an adequate opportunity to

cross-examine [the witness] at the first trial and

counsel for Stubbs availed himself of that opportunity,

the transcript of [the witness’s] testimony in the first

trial bore sufficient ‘indicia of reliability’ and afforded

‘the trier of fact a satisfactory basis for evaluating the

truth of the prior statement.’” Id. at 216 (quoting

Dutton, 400 U.S. at 89). In regard to the questions

which defense counsel would have asked at the second

trial, the Court noted that “counsel at the retrial did

not in his proffer show any new and significantly

material line of cross-examination that was not at least

touched upon in the first trial.” Id. at 215.

Here, Shields argues he would have questioned Mrs.

Murrell about the medical examiner’s report indicating

App. 31

that Samuel was strangled, information about which

Mrs. Murrell had not testified.14 Allegedly the defense

would have pointed out to the jury that even though

the medical examiner was providing evidence of

strangulation as a possible cause of death, that is not

what Mrs. Murrell testified to, and, indeed the defense

did not believe that strangulation was the cause of

death. Also, the defense would have asked about the

falls in order for the jury to know that some of Samuel’s

injuries may have been from him falling. Mrs. Murrell

would have been questioned about her competency and

ability to remember, see and perceive the events.

Finally, the defense would have inquired in more detail

about the knives, where they were found, and whether

Mrs. Murrell saw Shields place the knives where they

were found. The trial court considered how Shields

would have benefitted from these questions and the

pertinent testimony that other witnesses may have to

offer at trial as well. After careful examination, the

trial court concluded that proper notice and timely

discovery prior to Mrs. Murrell’s testimony would not

have helped Shields or his counsel in any significant

degree.15

14

In her testimony Mrs. Murrell described leaving the room to

smoke in the garage. Shields was alone with the victim until he

joined her in the garage, a period when Mrs. Murrell would

obviously be unaware of Shields’s actions.

15

Roberts suggests that this type of analysis should be the

exception, rather than the rule. Roberts states in a footnote:

We need not consider whether defense counsel’s questioning at

the preliminary hearing surmounts some inevitably nebulous

threshold of “effectiveness.” In Mancusi, to be sure, the Court

App. 32

Upon review, we cannot conclude that the trial

court abused its discretion, or that its decision to admit

Mrs. Murrell’s preliminary hearing testimony under

KRE 804 was not supported by caselaw or

fundamentally unfair. Commonwealth v. English, 993

S.W.2d 941, 945 (Ky. 1999). Furthermore, we decline

Shields’s request for palpable error review as to the

specific issue of “similar motive” as that term is used in

KRE 804(b)(1). We simply cannot say that the trial

court committed palpable error under RCr 10.26 by not

sua sponte performing a “similar motive” analysis.

explored to some extent the adequacy of counsel’s

cross-examination at the earlier proceeding. See 408 U.S. at

214–15, 92 S. Ct. at 2313–14. That discussion, however, must be

read in light of the fact that the defendant’s representation at the

earlier proceeding, provided by counsel who had been appointed

only four days prior thereto, already had been held to be

ineffective. See id. at 209, 92 S. Ct. at 2311. Under those unusual

circumstances, it was necessary to explore the character of the

actual cross-examination to ensure that an adequate opportunity

for full cross-examination had been afforded to the defendant. Cf.

Pointer v. Texas, 380 U.S. at 407, 85 S. Ct. at 1069. We hold that

in all but such extraordinary cases, no inquiry into “effectiveness”

is required. A holding that every case involving prior testimony

requires such an inquiry would frustrate the principal objective of

generally validating the prior-testimony exception in the first

place—increasing certainty and consistency in the application of

the Confrontation Clause.

The statement in Mancusi quoted in the text indicates the

propriety of this approach. To the same effect is Mattox v. United

States, 156 U.S. at 244, 15 S. Ct., at 340. (“The substance of the

constitutional protection is preserved to the prisoner in the

advantage he has once had of seeing the witness face to face, and

of subjecting him to the ordeal of a cross-examination”).

Id. at 73 n.12.

App. 33

Indeed, Shields’s argument that a defendant does not

have a similar motive in cross-examination at a

preliminary hearing (where the focus is simply the

establishment of probable cause) vis-à-vis the trial has

been consistently rejected in other jurisdictions. See 4

Wayne R. LaFave, Jerold H. Israel, Nancy King, &

Orin S. Kerr, Criminal Procedure § 14.1(d) (State law

requirements.) (4th ed. Nov. 2021 Update) (“The

appellate opinions uniformly reject the contention that

the preliminary hearing’s screening function inherently

precludes the presence of a motivation that can be

classified as “similar” to the motivation that exists at

trial.”).16

16

The similar motive prerequisite was derived from the common

law (and early statutory) requirement that the prior proceeding

and the trial involved identical parties and centered on the same

factual issues. That requirement ensured that, in both the trial

and the prior proceeding, each party would have an incentive to

challenge the witnesses favoring the other side on those common

factual issues, but it did not also seek to ensure that this incentive

included an outcome of comparable benefit for each proceeding

should the party prevail in that challenge. Insisting that a

favorable outcome in the past proceeding provide the same level of

benefit as a favorable trial outcome would effectively limit that

past proceeding to a previous trial involving the same issues, and

the common law predecessor of the same motive formulation

clearly also applied to other types of proceedings. Indeed, the

preliminary hearing has a long history of being recognized as a

paradigm of a prior proceeding presenting the same factual issues

as the trial, as the prosecution in both proceedings has the burden

of establishing (albeit under different standards of proof) both that

the crime charged was committed and that the defendant

committed that crime.

Id. (footnotes omitted).

App. 34

In closing, the use of preliminary hearing testimony

at trial will be atypical, even rare. Defense counsel in

this case acknowledged that in her eight years of

practice she had never seen any witness beyond law

enforcement officers at a preliminary hearing and, in

fact, the appearance of lay witnesses/victims in that

setting is unusual. Moreover, death is the ultimate

unavailability and deceased witnesses are essentially

in a category of their own. Although not the only form

of unavailability, the bar will be high and could include

a witness being in a foreign country beyond summons,

incapacitated by dementia or similar compelling

circumstances. As for the dissent’s concern about a law

enforcement officer’s preliminary hearing testimony

being used when the officer is unavailable because of

illness or mandatory training (even deployment with

military reserves), those routine issues are addressed

by rescheduling trials or even agreements to pre-record

in-court testimony. Respectfully, our holding today will

not change the character of preliminary hearings. Most

importantly, we trust trial courts to proceed cautiously

with this precedent, by carefully examining the reasons

for the witness’s unavailability; considering whether

the defense was allowed the opportunity to

cross-examine the witness at the preliminary hearing;

ascertaining whether other witnesses to the crime

preclude the need for the preliminary hearing

testimony; and considering any other factors that may

be relevant including for example the complexity of the

case and the role of the unavailable witness.

App. 35

CONCLUSION

For the foregoing reasons, the Warren Circuit

Court’s order denying Shields’s motion to exclude Mrs.

Murrell’s preliminary hearing testimony from evidence

at trial is affirmed.

All sitting. Lambert and VanMeter, JJ., concur.

Minton, C.J., concurs in result only. Keller, J., dissents

by separate opinion, in which Conley and Nickell, JJ.,

join.

KELLER, J., DISSENTING: The question we must

answer today is whether Gregory Shields had an

adequate opportunity to cross-examine Mrs. Murrell at

his preliminary hearing. The answer to that question

is no.

Shields’s defense counsel asked Mrs. Murrell only

the following six questions during the crossexamination at the preliminary hearing:

1. Now, you said that Greg [Shields] had lived with

you all for about four years?

2. How long have you known Greg?

3. The night that this happened, did this seem out of

character for him?

4. Did he seem like he was acting usual?

5. Did it make sense that he was mad? Did you

understand why he was mad?

6. And you told [the prosecutor on direct examination]

that Greg took you all to doctors’ appointments and

ran errands for you, is that correct?

App. 36

This cross-examination was not searching. It was not

thorough. These questions barely touched on the facts

of the underlying incident. Instead, they primarily

served to elicit background evidence. I cannot agree

with the majority’s holding that because defense

counsel properly confined her questions to the scope of

a preliminary hearing—probable cause—Shields’s

constitutional right to confront the witnesses against

him was satisfied.

Holding as the majority does assigns defense

counsel an impossible task. In order to conduct an

effective cross-examination at the preliminary hearing,

defense counsel will be forced to undertake

significantly more investigation than currently occurs

before that hearing. Under Kentucky Rule of Criminal

Procedure (RCr) 3.10(2), the preliminary hearing must

take place within ten days of a defendant’s initial

appearance if he is in custody and within twenty days

if he is out of custody. Conducting sufficient

investigation to cross-examine a witness as one would

prepare for trial, especially without discovery provided

by the Commonwealth, is practically impossible within

that short time period. This cannot be what the

framers of our Constitution intended.

This Court sits at a fork in the road: we must

determine whether a preliminary hearing such as this

offers an adequate opportunity to cross-examine as

required by the Confrontation Clause of both the

United States and the Kentucky constitutions. I assert

that cross-examination at a preliminary hearing will

almost never provide a defendant with an adequate

App. 37

opportunity to cross-examine a witness to satisfy the

Confrontation Clause.

The significant right of an accused to confront the

witnesses against him is not new. For over a century,

the United States Supreme Court has opined that the

framers of the United States Constitution included the

Confrontation Clause in the Bill of Rights primarily

to prevent depositions or ex parte affidavits . . .

being used against the prisoner in lieu of a

personal examination and cross-examination of

the witness, in which the accused has an

opportunity, not only of testing the recollection

and sifting the conscience of the witness, but of

compelling him to stand face to face with the

jury in order that they may look at him, and

judge by his demeanor upon the stand and the

manner in which he gives his testimony whether

he is worthy of belief.

Mattox v. United States, 156 U.S. 237, 242–43 (1895).

That Court has further acknowledged that a

preliminary hearing is one of “the modern practices

with closest kinship to the abuses at which the

Confrontation Clause was directed.” Crawford v.

Washington, 541 U.S. 36, 68 (2004). Recognizing this

kinship, we must view testimony elicited at a

preliminary hearing with a critical eye towards

preventing the abuses the framers of the Constitution

sought to eliminate.

In Crawford v. Washington, the United States

Supreme Court held that under the Confrontation

Clause, a prior testimonial statement is only

App. 38

admissible at trial when (1) the statement was made by

a witness who is unavailable to testify at trial, and

(2) the defendant had an adequate opportunity to

cross-examine the witness when he made the statement.

541 U.S. at 53–54, 57. In so doing, Crawford effectively

overruled the requirement enunciated in Ohio v.

Roberts, 448 U.S. 56 (1980), that the prior statements

bear adequate “indicia of reliability.” Crawford, 541

U.S. at 60–64, 67–69. The United States Supreme

Court stated that the Confrontation Clause

“commands, not that evidence be reliable, but that

reliability be assessed in a particular manner: by

testing in the crucible of cross-examination.” Id. at 61.

It has long been recognized that “[t]he right to

confrontation is basically a trial right.” Barber v. Page,

390 U.S. 719, 725 (1968). It is the “literal right to

‘confront’ the witness at the time of trial that forms the

core of the values furthered by the Confrontation

Clause.” California v. Green, 399 U.S. 149, 157 (1970)

(emphasis added). A “face-to-face encounter” with a

witness is important “not so that the accused can view

at trial his accuser’s visage, but so that he can directly

challenge the accuser’s testimony before the factfinder.”

Id. at 192 (Brennan, J., dissenting) (citing 5 J.

Wigmore, Evidence ss 1364, 1365 (3d ed. 1940))

(emphasis added). To that end, the Confrontation

Clause protects “both the opportunity to cross-examine

and the occasion for the jury to weigh the demeanor of

the witness.” Barber, 390 U.S. at 725; see also Mattox,

156 U.S. at 242–43.

Because in the case at bar we are called to

determine the adequacy of the opportunity to

App. 39

cross-examine, it is essential that we focus on “[t]he

principal purpose of cross-examination.” Ohio v.

Roberts, 448 U.S. 56, 71 (1980), abrogated by Crawford,

541 U.S. 36. The United States Supreme Court has

described this purpose as “to challenge ‘whether the

declarant was sincerely telling what he believed to be

the truth, whether the declarant accurately perceived

and remembered the matter he related, and whether

the declarant’s intended meaning is adequately

conveyed by the language he employed.’” Id. (quoting

Davenport, The Confrontation Clause and the CoConspirator Exception in Criminal Prosecutions: A

Functional Analysis, 85 HARV. L. REV. 1378 (1972)).

Cross-examination is meant to ferret out the truth

through challenging the witness’s beliefs, recollections,

and perceptions. Only if the defendant has an

opportunity to do this can the prior cross-examination

satisfy the Confrontation Clause.

In two significant cases, the United States Supreme

Court has held that prior testimony at a preliminary

hearing was properly admitted at a subsequent trial

consistent with the Confrontation Clause. Roberts, 448

U.S. 56; Green, 399 U.S. 149. However, in both cases,

the cross-examination of the witness at the preliminary

hearing, as described by that Court, was extensive and

searching. Instances where the cross-examination at

the preliminary hearing is as thorough as in Roberts

and Green, however, are the exception rather than the

rule.

The United States Supreme Court described the

cross-examination in Roberts in great detail. In that

case, defense counsel questioned the witness at the

App. 40

preliminary hearing “at some length and attempted to

elicit from her an admission that she had given [the

defendant] checks and the credit cards without

informing him that she did not have permission to use

them. [The witness], however, denied this.” Roberts,

448 U.S. at 58. The Court went on to explain in depth

that despite technically being a direct examination of

the witness,

[c]ounsel’s questioning clearly partook of crossexamination as a matter of form. His

presentation was replete with leading questions,

the principal tool and hallmark of crossexamination. In addition, counsel’s questioning

comported with the principal purpose of crossexamination: to challenge “whether the

declarant was sincerely telling what he believed

to be the truth, whether the declarant accurately

perceived and remembered the matter he

related, and whether the declarant’s intended

meaning is adequately conveyed by the language

he employed.” [The witness]’s unwillingness to

shift the blame away from [the defendant]

became discernible early in her testimony. Yet

counsel continued to explore the underlying

events in detail. He attempted, for example, to

establish that [the witness] and [the defendant]

were sharing an apartment, an assertion that

was critical to [the defendant]’s defense at trial

and that might have suggested ulterior personal

reasons for unfairly casting blame on [the

defendant]. At another point, he directly

challenged [the witness]’s veracity by seeking to

have her admit that she had given the credit

App. 41

cards to [the defendant] to obtain a television.

When [the witness] denied this, defense counsel

elicited the fact that the only television she

owned was a “Twenty Dollar . . . old model.”

Id. at 70–71 (footnotes and citations omitted). This

description illustrates the comprehensive scope of the

examination of the witness. The examination was so

thorough that the Supreme Court described it as “the

equivalent of significant cross-examination” and

declined to determine if “de minimis questioning [at a

preliminary hearing] is sufficient” to satisfy the

Confrontation Clause. Id. at 70.

The cross-examination in the case at bar did not

“explore the underlying events in detail” or “challenge

[the witness]’s veracity” as did the cross-examination

at issue in Roberts. Id. at 70–71. Neither did the crossexamination achieve, nor even attempt to achieve, “the

principal purpose of cross-examination: to challenge

whether the declarant was sincerely telling what he

believed to be the truth, whether the declarant

accurately perceived and remembered the matter he

related, and whether the declarant’s intended meaning

is adequately conveyed by the language he employed.”

Id. at 71 (internal quotation marks and citation

omitted). Finally, the cross-examination of Mrs.

Murrell at Shields’s preliminary hearing cannot

accurately be described as “the equivalent of significant

cross-examination” as described in Roberts. Id. at 70. In

fact, the cross-examination at bar is more akin to “de

minimis questioning” that the Roberts Court declined

to analyze under the Confrontation Clause. Id.

App. 42

Similarly, in Green, the United States Supreme

Court noted that defense counsel was not “significantly

limited in any way in the scope or nature of his

cross-examination of the witness . . . at the preliminary

hearing.” 399 U.S. at 166. The Court held that the

preliminary hearing cross-examination was not

“significantly different from an actual trial to warrant

distinguishing the two . . . for purposes of the

Confrontation Clause,” and that the preliminary

hearing in that case “provide[d] substantial compliance

with the purposes behind the confrontation

requirement.” Id. at 165–66.

The cross-examination in the case at bar was not

similar to the one described in Green. Id. at 165.

Specifically, this cross-examination did not provide

“substantial compliance with the purposes behind the

confrontation requirement” as did the crossexamination in Green.17 Id. at 166.

The purposes of a cross-examination as described in

Roberts and Green are unlikely to be met within the

structural limitations inherent to a preliminary

hearing. Both the United States Supreme Court and

this Court have acknowledged the difference in scope of

a preliminary hearing compared to a full trial on the

merits of a criminal case. The Supreme Court has

described a preliminary hearing as “a much less

searching exploration into the merits of a case than a

17

Additionally, the facts in Green are further distinguishable

because the witness therein was subject to cross-examination at

trial. This fact further illuminates the totality of circumstance

affecting the Court’s analysis of adequacy of opportunity to crossexamine.

App. 43

trial, simply because its function is the more limited

one of determining whether probable cause exists to

hold the accused for trial.” Barber, 390 U.S. at 725.

Our Court, in turn, has explained that the “only

purpose” of a preliminary hearing in Kentucky “is to

determine whether there is sufficient evidence to

justify detaining the defendant in jail or under bond

until the grand jury has an opportunity to act on the

charges.” King v. Venters, 595 S.W.2d 714, 714 (Ky.

1980). Interestingly, this Court acknowledged that

when a preliminary hearing “is confined, as it should

be, to whether the prosecution has enough evidence to

warrant a trial, the protection to the defendant is more

shadow than substance.” Id. at 715. This is because the

“true purpose” of a preliminary hearing “is to prevent

arbitrary prosecution, and not to provide information to

the defendant.” Id. (emphasis added). Given this, it is

difficult to imagine that the cross-examination at a

typical preliminary hearing will provide an adequate

opportunity to cross-examine such that it satisfies a

defendant’s constitutional right to confront the

witnesses against him.

In his dissent in California v. Green, Justice

Brennan eloquently described several differences

between a preliminary hearing and a trial. These

differences illustrate why, in general, the crossexamination of a witness at a preliminary hearing does

not satisfy a defendant’s right to confront that witness

at trial. He explained,

First, as noted, the objective of the hearing is to

establish the presence or absence of probable

cause, not guilt or innocence proved beyond a

App. 44

reasonable doubt; thus, if evidence suffices to

establish probable cause, defense counsel has

little reason at the preliminary hearing to show

that it does not conclusively establish guilt—or,

at least, he had little reason before today’s

decision. Second, neither defense nor

prosecution is eager before trial to disclose its

case by extensive examination at the

preliminary hearing; thorough questioning of a

prosecution witness by defense counsel may

easily amount to a grant of gratis discovery to

the State. Third, the schedules of neither court

nor counsel can easily accommodate lengthy

preliminary hearings. Fourth, even were the

judge and lawyers not concerned that the

proceedings be brief, the defense and

prosecution have generally had inadequate time

before the hearing to prepare for extensive

examination. Finally, though counsel were to

engage in extensive questioning, a part of its

force would never reach the trial factfinder, who

would know the examination only second hand.

Green, 399 U.S. at 197 (Brennan, J., dissenting).

Although Green was decided in 1970, Justice Brennan

writes as if he were observing trial practice in the

Commonwealth today.

Justice Brennan went on to explain that the way an

attorney conducts his cross-examination will likely

differ markedly at a preliminary hearing as opposed to

a trial before a jury. He said,

[C]ounsel must always temper his crossexamination to the individual jurors, using their

App. 45

reactions as a guide to the most effective line of

questioning. The cross-examiner must remember

that he is a performer and the jurors are his

audience. No good performer ignores his

audience, and all performances are conducted for

the purpose of favorably impressing the

audience. We conclude that experience

demonstrates the essentiality of truly

contemporaneous cross-examination.

Id. at 198 (quoting People v. Green, 451 P.2d 422, 427

(Cal. 1969)) (internal quotation marks and alterations

omitted).

We acknowledge that at a preliminary hearing, as

at trial, the witness testifies in a courtroom setting,

under oath, and subject to the penalties for perjury.

But these similarities on their own are insufficient to

satisfy the demands of the Confrontation Clause. It

would “ignore[ ] reality” to assume that these factors

outweigh all competing considerations. Green, 399 U.S.

at 199 (Brennan, J., dissenting). In addition to the

differences between a preliminary hearing and a trial

discussed above,

the atmosphere and stakes are different in the

two proceedings. In the hurried, somewhat pro

forma context of the average preliminary

hearing, a witness may be more careless in his

testimony than in the more measured and

searching atmosphere of a trial. Similarly, a

man willing to perjure himself when the

consequences are simply that the accused will

stand trial may be less willing to do so when his

App. 46

lies may condemn the defendant to loss of

liberty.

Id.

It is impossible to overemphasize the differences

between a preliminary hearing and a trial. The scope of

the two proceedings is different, as is the evidentiary

burden. The two proceedings also operate under

different procedural and substantive rules. For

example, hearsay is permitted at a preliminary

hearing. RCr 3.14(2). Importantly, at the same time,

“[o]bjections to evidence on the ground that it was

acquired by unlawful means [cannot be] made at the

preliminary hearing.” Id. at (3). Finally, counsel for the

defendant almost always conducts the preliminary

hearing without the benefit of receiving discovery from

the Commonwealth and with only a short time to

investigate,18 as was the case here. In fact, due to the

requirements of our criminal rules, often, the

Commonwealth’s investigation is usually in its

beginning stages at the time of the preliminary

hearing. How a defendant can ever have an adequate

opportunity to cross-examine a witness with such

limited knowledge of the facts of the case is doubtful to

this writer.

In this case, there are several alleged facts that

likely would have become issues at trial but were not

explored in defense counsel’s cross-examination at the

18

The preliminary hearing “shall be held within a reasonable time

but no later than 10 days following the initial appearance if the

defendant is in custody.” RCr 3.10(2).

App. 47

preliminary hearing. These,

all-encompassing, include:

although

not

1. Mrs. Murrell went into the garage to smoke a

cigarette stating, “I’m not gonna sit in here and look

at this,” while Shields was attacking her husband.

2. After cutting and slashing his uncle, Samuel

Murrell, numerous times, Shields helped Mr.

Murrell get out of bed and stand up with his walker

while Mrs. Murrell changed the bloody sheets on

the bed.

3. After the attack ended and Mr. Murrell was

standing up beside his bed, Mr. Murrell fell twice,

falling forward and hitting his head on a dresser the

first time, and falling backwards onto the floor the

second time.

4. Shields attempted to aid his uncle by putting

bandages on his cuts.

5. The medical examiner’s report indicated

strangulation as a cause of death, but Mrs. Murrell

did not testify that Shields ever strangled Mr.

Murrell.

Although exploration of these facts at trial likely would

not have resulted in Shields being acquitted, they may

have been supportive of a finding of guilt on a lesser

offense than murder.

The cross-examination that occurred in this case is

similar to most cross-examinations that take place at

preliminary hearings. Under the majority’s

interpretation of the Confrontation Clause, the scope

App. 48

and tenor of preliminary hearings must change

dramatically in order to provide the defendant an

adequate opportunity to confront the witnesses against

him under both the United States and Kentucky

constitutions. The preliminary hearing will turn into a

miniature trial, lasting much longer than preliminary

hearings currently last, and will expend time and

resources the judiciary does not have. It will become a

more burdensome process for all parties involved.

Best practices, and even the provision of minimally

effective representation, will require that defense

counsel’s cross-examination of witnesses be extensive

and thorough. In fact, said cross-examination will

likely go above and beyond mere relevance to probable

cause. Cross-examination questions will likely draw

objections from the Commonwealth when they

inevitably exceed the scope of a preliminary hearing, as

we have previously described. The trial court will then

be placed in a quandary: sustain the Commonwealth’s

objection, limiting cross-examination to questions

regarding probable cause and likely set up a

Confrontation Clause issue if that witness is later

unavailable at trial, or overrule the Commonwealth’s

objection, allowing cross-examination to greatly exceed

the scope of probable cause and protect the defendant’s

Confrontation Clause rights just in case the witness is

unavailable for trial. In effect, the majority is placing

the trial court in the position of choosing between

adhering to the limited scope of the preliminary

hearing on the one hand, and providing a forum for

cross-examination sufficient enough to protect the

constitutional rights of the defendant on the other. This

presents an untenable dilemma for a trial court.

App. 49

Defense counsel will also face difficult choices,

especially because the majority’s holding is based, at

least in part, on the fact that Shields’s defense counsel

was not limited in her cross-examination by the trial

court. Defense counsel can “follow the rules” of

preliminary hearings and confine his questions to

probable cause. Doing so, however, risks exactly what

happened in this case: a trial court, or later an

appellate court, could conclude that because defense

counsel was not prohibited from asking any particular

question, she had an adequate opportunity to

cross-examine the witness, regardless of the scope of

questions actually asked. On the other hand, defense

counsel can “push the envelope” and ask questions that

exceed the scope of probable cause knowing the

questions may draw a justified objection and the ire of

a trial court in front of which counsel often practices.

Further, in asking a more extensive line of questioning

than that only relevant to probable cause, defense

counsel may be forced to reveal its defense strategy and

help build the Commonwealth’s case in the process.

The majority bases its holding in part on the fact

that Shields’s attorney was not limited by the trial

court in her cross-examination of Mrs. Murrell at the

preliminary hearing. Although true that the trial court

did not explicitly prohibit any questions, that may be

merely because defense counsel confined her questions

to probable cause. The majority seemingly finds fault

with defense counsel for failing to ask questions that

would exceed the bounds of probable cause and result

in limits being placed by the trial court. I strenuously

disagree with this proposition. We cannot allow a

defendant’s Confrontation Clause right to hinge on

App. 50

whether his attorney asks improper questions and

whether the trial court prohibits those improper

questions.

In order to conduct an effective cross-examination

at the preliminary hearing, defense counsel will be

forced to undertake significantly more investigation

than currently occurs before that hearing. Under RCr

3.10(2), the preliminary hearing must take place within

ten days of a defendant’s initial appearance if he is in

custody and within twenty days if he is out of custody.

Conducting sufficient investigation to cross-examine a

witness as one would prepare for trial, especially

without discovery provided by the Commonwealth is

practically impossible within that short time period.

Defense counsel would have to choose between

conducting the best cross-examination he could without

adequate information or requesting a continuance of

the preliminary hearing to a later date. A continuance

of the preliminary hearing date comes with its own

disadvantages. First, if the defendant is in custody, he

will likely remain in custody for the duration of that

continuance. Second, during the interim, the

Commonwealth could choose to present the case to the

grand jury for an indictment without the preliminary

hearing, and the defendant would lose any benefit he

may receive from hearing the testimony at the

preliminary hearing. The above circumstances present

significant potential prejudice to defendants.

In Shields’s case, the Commonwealth acknowledged

that it called Mrs. Murrell to testify at the preliminary

hearing, in part, to preserve her testimony, given her

advanced age. This strategy was a reasonable and

App. 51

sound one for the Commonwealth to undertake at the

time of the preliminary hearing. However, that hearing

took place on February 10, 2017, and the only

information provided to defense counsel from the

Commonwealth at that time was the one-page police

citation. The bulk of discovery in this case was provided

to defense counsel on April 10, 2017, two months after

the hearing. This discovery included prior statements

of the witness and a medical examiner’s report that

listed a cause of death not testified to by the witness.

Sadly, Mrs. Murrell passed away on June 10, 2018.

This was 16 months after the preliminary hearing and

14 months after discovery was provided to the defense!

Given the advanced age of the witness and the trauma

she had experienced, the Commonwealth could have,

and should have, moved to conduct her deposition to

preserve her testimony after the case had been fully

investigated and discovery had been provided to

defense counsel. It is fairly rare that the

Commonwealth has an eye-witness to almost the

entirety of the commission of a serious crime who was

uninvolved in said crime. It is even more unusual for

that eye-witness to also be willing and physically able

to testify to the crime at trial. The burden of proof in

criminal cases is on the Commonwealth, as is the

burden of preserving its witness’s testimony.

This writer is deeply concerned with the

implications of the majority’s holding on future factual

scenarios in which a witness is unavailable at trial.

Although the majority suggests various self-imposed

limitations to guide trial courts, those suggestions are

not binding and are, at best, aspirational.

App. 52

As the majority notes, the witnesses most often

testifying at preliminary hearings are law enforcement.

It is not unusual for a law enforcement officer to be

unavailable on a specific trial date, be it for mandatory

training, illness, or other professional or personal

reasons. The majority notes that many of these issues

can be resolved by scheduling changes, but such

changes may not always be possible. Furthermore,

those scheduling changes, even when possible, are not

mandatory under the majority’s analysis. Trial court

criminal dockets in the Commonwealth are

often crowded and difficult to manage. Will

the Commonwealth be able to credibly argue, and the

Court perhaps agree, that the limited

cross-examination of a law enforcement officer at the

preliminary hearing is sufficient to use at trial? This

writer is concerned that the aforementioned may

become the practice before the trial courts in the

Commonwealth and thus diminish a defendant’s right

to confront witnesses against him, regardless of the

otherwise standard flexibility of trial courts. For that

reason, while I have the utmost confidence that our

trial courts will act in good faith, good faith alone

cannot satisfy the Confrontation Clause’s guarantee.

We hope, as the majority asserts, that cases such as

the one at bar will be rare. We hope that preliminary

hearings will not change dramatically as a result.

Nevertheless, however high the bar suggested by the

majority’s holding, it creates a significant risk to a

Constitutional right that this writer is not willing to

suffer.

App. 53

For the reasons stated herein, I would hold that the

witness’s preliminary hearing testimony was not

admissible at Shields’s trial. While it appears in the

record developed thus far that Shields engaged in

heinous actions, I nonetheless must respectfully

dissent.

Conley and Nickell, JJ., join.

COUNSEL FOR APPELLANT:

Aaron Reed Baker

Assistant Public Advocate

COUNSEL FOR APPELLEE:

Daniel J. Cameron

Attorney General of Kentucky

Laurel Rachel Lewis

Assistant Attorney General

App. 54

APPENDIX B

COMMONWEALTH OF KENTUCKY

WARREN CIRCUIT COURT, DIVISION 2

INDICTMENT NOS. 17-CR-00339, 17-CR-00340

[Filed: May 6, 2019]

__________________________________________

COMMONWEALTH OF KENTUCKY

)

PLAINTIFF

)

)

V.

)

)

GREGORY LEE SHIELDS, SR.

)

DEFENDANT

)

__________________________________________)

ORDER DENYING DEFENDANT’S

MOTION IN LIMINE TO EXCLUDE PRIOR

TESTIMONY

THE COURT ORDERS that the defendant’s motion

in limine to exclude prior testimony of Maude Murrell

is DENIED. In order to rule quickly, the Court will

issue a detailed order later.

This 6 day of May, 2019.

/s/ John R Grise

JOHN R. GRISE, JUDGE

WARREN CIRCUIT COURT,

DIVISION 2

Clerk, send copies to: NH 5/6/2019

App. 55

: Christopher T. Cohron, Commonwealth’s Attorney

: Alyson McDavitt, Department of Public Advocacy

App. 56

APPENDIX C

COMMONWEALTH OF KENTUCKY

WARREN CIRCUIT COURT, DIVISION 2

INDICTMENT NOS. 17-CR-00339, 17-CR-00340

[Filed: May 7, 2019]

_____________________________________________

COMMONWEALTH OF KENTUCKY

)

PLAINTIFF

)

)

V.

)

)

GREGORY LEE SHIELDS, SR.

)

DEFENDANT )

_____________________________________________)

SUPPLEMENTAL ORDER DENYING

DEFENDANT’S MOTION IN LIMINE

TO EXCLUDE PRIOR TESTIMONY OF

MAUDE MURRELL

This matter is before the Court on the defendant’s

motion in limine to prevent the Commonwealth from

presenting the videotaped testimony of Maude Murrell

taken on February10, 2017, at the preliminary hearing.

The defendant argues that doing so would violate the

defendant’s constitutional right to confront and crossexamine his accuser. After a hearing on May 1, 2019,

the Court DENIED the motion in a short order entered

May 6, 2019, in order to rule timely. This order

supplements the prior one with the Court’s reasoning.

App. 57

The defendant, Gregory Lee Shields, Sr., was

arrested in the early morning hours of February 2,

2017, and charged with the murder of his uncle,

Samuel Murrell. The defendant was arraigned in

Warren District Court the morning of February 3,

2017, at which time Department of Public Advocacy

attorney Alyson McDavitt was appointed as counsel for

Mr. Shields. On February 10, 2017, a preliminary

hearing was conducted, and the Commonwealth's

Attorney not only called a Bowling Green Police

Department detective at the hearing, but also Maude

Murrell, the wife of the alleged victim. The

Commonwealth’s Attorney states that the purpose in

calling Ms. Murrell was to preserve her testimony since

she was an elderly 82-year-old woman, as well as to

establish probable cause to refer the case to the Grand

Jury. But, he also called Detective Melissa Wartak at

the preliminary hearing, and admits that her

testimony would have likely been sufficient to establish

probable cause and that it was unusual to call an

eyewitness, instead of, or in addition to, an

investigating law enforcement witness, at the

preliminary hearing.

The Commonwealth’s Attorney met with Ms.

Murrell to discuss her knowledge of the case the day

before the preliminary hearing, and the police had

interviewed her on at least two occasions prior to that

meeting. The Commonwealth’s Attorney did not advise

counsel for Mr. Shields that he was going to call Ms.

Murrell as a witness until moments before she was

sworn in at the preliminary hearing. Additionally, the

Commonwealth provided no discovery to defendant’s

counsel, such as any summaries of her statements to

App. 58

the police or to the Commonwealth’s Attorney, until

approximately two months after the preliminary

hearing.

Ms. Murrell sat in the witness box in the District

Courtroom, before the District Judge, and was placed

under oath. During her questioning by the

Commonwealth’s Attorney, which lasted approximately

16 minutes, Mr. Shields was present in the courtroom

with his appointed counsel, Ms. McDavitt. During her

testimony, Ms. Murrell gave her eyewitness account of

a confrontation between the defendant and her

husband, Samuel, in their bedroom, her discussions

with the defendant outside the bedroom, and her reentry into the bedroom to find her husband struggling

to stand and ultimately falling to the floor.

Though Ms. McDavitt handled the case through the

preliminary hearing, after the indictment on March 29,

2017, for Murder, Tampering with Physical Evidence,

and Persistent Felony Offender, 1st Degree, the case

was assigned to another attorney in the office who

managed it until she left the Department of Public

Advocacy in the late summer of 2017. Ms. McDavitt

took over the case again at least by September 18,

2017, when a hearing occurred, and the Court set the

case over for a week, until September 25, 2017, at

which time it set the matter for trial on April 17, 2018.

On February 26, 2018, the Court heard the

defendant’s motion to continue the trial that was set

for April 17, 2018, in order to give the defendant more

time to investigate the case and possible defenses. The

Commonwealth did not oppose the continuance and the

matter was set for a hearing on March 19, 2018, at

App. 59

which time the Court reset the trial for October 16,

2018. On June 10, 2018, Maude Murrell, apparently,

passed away. The trial was again later reset for

December 11, 2018, and, ultimately, for May 14, 2019.

The defendant anticipates that the Commonwealth

will attempt to introduce Ms. Murrell’s preliminary

hearing testimony as evidence at the trial under KRE

804, which provides a hearsay exception when the

declarant is unavailable by reason of death. KRE

804(a)(4). KRE 804(b)(1) provides that former

testimony “given as a witness at another hearing of the

same or a different proceeding . . . if the party against

whom the testimony is now offered . . . had an

opportunity and similar motive to develop the

testimony by direct, cross, or redirect examination” is

not excluded by the hearsay rule if the declarant is

unavailable as a witness. In this case, there is no

dispute that the declarant is unavailable due to her

death prior to the trial. Furthermore, there is no

dispute that her testimony was given at another

hearing (the preliminary hearing) of the same

proceedings. Furthermore, Mr. Shields was present

during Maude’s testimony. Lastly, the defendant’s

attorney did, in fact, have an opportunity to

cross-examine the defendant and, in fact, did ask

questions. The defendant argues now, however, that

his attorney did not have a meaningful opportunity “to

develop the testimony by direct, cross, or redirect

examination,” because of the virtual lack of notice from

the Commonwealth that she would, in fact, testify and

the lack of discovery or opportunity to investigate the

matter to prepare for the development of Ms. Murrell’s

testimony that the Commonwealth now wants to use at

App. 60

trial rather than just to establish probable cause before

the District Court to bring a charge.

After Ms. Murrell, on direct examination, described

her observations of the interaction between the

defendant and his uncle, the defendant’s attorney

asked a few questions, including establishing that the

defendant had lived with the Murrells for four years,

that the defendant took care of the Murrells and, as

Ms. Murrell volunteered, “did everything for them,

including cooking, cleaning, washing clothes, paying

bills, and whatever had to be done.” She further elicited

testimony that the alleged actions of the defendant

were out of character for him and that he appeared

mad.

At the hearing on defendant’s motion in limine,

defendant's counsel stated that several items

subsequently came to her attention through discovery

that she might have asked Ms. Murrell about and,

therefore, she did not have a meaningful opportunity to

develop the testimony to the extent it was going to be

presented at trial. First, there is apparently some

suggestion in the medical examiner’s report of

strangulation, which Ms. Murrell did not describe at all

in her preliminary hearing testimony. Ms. Murrell's

preliminary hearing testimony was fairly detailed and

seemed to reflect a complete memory, and the fact that

the particular possible injury speculated by the medical

examiner was not brought out or elicited by the

Commonwealth’s Attorney (who, apparently, had

already spoken with the medical examiner) would seem

to place the defendant in the best position for rebutting

any such opinion, if an opinion about possibilities were

App. 61

even to be allowed by this Court. Asking Ms. Murrell

about strangulation that she never mentions would

seem to be risky and of little benefit.

The defendant’s attorney next complains that she

was unable to explore with Ms. Murrell issues about

her competence, including her vision, memory, and

medical conditions. It is not clear, however, to this

Court what type of cross-examination could be

particularly productive in that regard, and that

evidence through other witnesses or medical records

might be more pertinent and helpful. The Court has

not been presented with any collateral evidence that

the witness was not competent, so this doesn’t seem to

be a particularly fruitful approach. Additionally, the

jury can observe on the videotape the witness’

demeanor, memory, age, and ability to express herself

and draw its own conclusions regarding that.

Next, the defendant states that some questions

regarding finding the knives allegedly used in the

attack would have been presented to Ms. Murrell

during cross-examination, but it would appear that her

knowledge about what happened to the knives after she

initially saw them was primarily from hearsay and did

not appear to be particularly probative in this case or

helpful to the defense.

Lastly, defense counsel states she now wishes to ask

questions about mitigation, but this is precisely the line

of questioning she pursued at the preliminary hearing.

Defense counsel notes, however, that when her

investigator spoke with Ms. Murrell, Ms. Murrell

stated that she “forgave” Mr. Shields and had come to

terms with it, though she thought he should be

App. 62

punished. The Commonwealth’s Attorney stated at the

hearing that he would not object to the introduction of

that hearsay testimony.

In Commonwealth v. Howard, 665 S. W .2d 320, 322

(Ky.App 1984), the Court of Appeals held that sworn

and recorded testimony provided during a bond hearing

that was subject to cross-examination could be

admissible at trial if the witness was unavailable:

It is our opinion that if the prior testimony is

found by the trial court to be reliable and

trustworthy, and the witness was subjected to

cross-examination, it makes no difference

whether the prior testimony comes by way of

deposition, previous trial, preliminary hearing,

or as in this case, a bond reduction hearing,

provided the same offense and charge are being

dealt with.

The Kentucky Supreme Court in Parson v.

Commonwealth, 144 S.W.3d 775 (Ky. 2004), allowed

the introduction of the deposition testimony of a

medical expert, recognizing circumstances where such

prior testimony may be introduced at trial in the

absence of the declarant without violating the

defendant’s right to confront the witness:

The Confrontation Clause of the Sixth

Amendment of the United States Constitution

guarantees a criminal defendant the right to

confront his accusers at trial. California v.

Green, 399 U.S. 149, 157, 90 S.Ct. 1930, 1934-35,

26 L.Ed.2d 489 (1970) (“[I]t is this literal right to

“confront” the witness at the time of trial that

App. 63

forms the core of the values furthered by the

Confrontation Clause.”); Barber v. Page, 390

U.S. 719, 725, 88 S.Ct. 1318, 1322, 20 L.Ed.2d

255 (1968) (“The right to confrontation is

basically a trial right.”). “Testimonial statements

of witnesses absent from trial have been

admitted only where the declarant is

unavailable, and only where the defendant has

had a prior opportunity to cross-examine.”

Crawford v. Washington, 541 U.S. 36,___, 124

S.Ct. 1354, 1369, 158 L.Ed.2d 177 (2004).

The Supreme Court in Parson also noted some factors

lending reliability to the prior testimonial statements:

. . . because the deposition was videotaped in the

courtroom with the witness in the witness box,

the jury was able to “weigh the demeanor of the

witness” in a courtroom setting. Barber v. Page,

supra, at 725, 88 S.Ct. at 1322. Nor was

Appellant denied the right of cross-examination

or the right to “meet the witness face to face.”

Ky. Const. § 11. A judge presided over the

testimony just as would have occurred at trial.

This Court acknowledges the defendant’s concerns

about the Commonwealth’s failure to give notice to him

or his counsel of the unusual decision to call a fact

witness at the preliminary hearing, to preserve her

testimony for trial, and not to provide any discovery

that it had to that point. Though the Commonwealth

states it typically does not provide discovery until after

the preliminary hearing or even the indictment, there

is no rule that says that it cannot, or should not, and

general concepts of Due Process would suggest timely

App. 64

notice and providing at least available discovery

regarding a witness whose imminent testimony it

contemplated for trial. The Commonwealth counters

that the defendant did not object to the testimony and

did not make a motion for a continuance, which defense

counsel acknowledges and in hindsight wishes she had.

She might also wish that she had demanded discovery

immediately after the District Court arraignment in a

formal written fashion instead of relying on the

Commonwealth’s unwritten policy of “open file”

discovery. Additionally, the defendant could have taken

a follow-up deposition if it discovered an important

area for cross-examination. In any case, it is risky for

the Commonwealth to fail to provide notice and

discovery in such a unique situation.

Under the facts of this particular case and witness,

and in this limited circumstance, however, this Court

does not find that the defendant was denied a

meaningful opportunity to cross-examine Ms. Murrell.

As the U.S. Supreme Court has stated, sufficient

indicia of reliability exist regarding the testimony, as

more particularly described by the Kentucky Supreme

Court in the Parson quote stated above. State of Ohio

v. Roberts, 448 U.S. 56 (1980). In short, it appears that

the defendant’s attorney had an opportunity to

cross-examine the witness, and adequately performed

that task. It is not clear to the Court that proper notice

and timely discovery pertinent to her testimony would

have helped the defendant or his counsel in any

significant degree at a later time, in this case. These

circumstances are likely the exception rather than the

rule, but this Court believes that Ms. Murrell’s

testimony has the hallmarks of reliability and

App. 65

trustworthiness and was subject to adequate

cross-examination, or a meaningful opportunity for the

same.

THE COURT ORDERS that the defendant’s motion

in limine is, therefore, DENIED.

This 7 day of May, 2019.

/s/ John R. Grise

JOHN R. GRISE, JUDGE

WARREN CIRCUIT COURT,

DIVISION 2

Clerk, send copies to: NH 5/7/2019

: Christopher T. Cohron, Commonwealth’s Attorney

: Alyson McDavitt, Department of Public Advocacy

App. 66

APPENDIX D

SUPREME COURT OF KENTUCKY

2020-SC-0060-MR

[Filed: June 16, 2022]

__________________________________________

GREGORY SHIELDS, SR.

)

APPELLANT )

)

V.

)

)

COMMONWEALTH OF KENTUCKY

)

APPELLEE

)

__________________________________________)

ON APPEAL FROM WARREN CIRCUIT COURT

HONORABLE JOHN GRISE, JUDGE

NO. 17-CR-00339

ORDER DENYING PETITION FOR REHEARING

The Petition for Rehearing, filed by the Appellant,

of the Opinion of the Court, rendered February 24,

2022, is DENIED.

All sitting. Minton, C.J.; Hughes, Lambert, and

VanMeter, JJ., concur. Conley, Keller, and Nickell, JJ.,

would grant the petition for rehearing.

ENTERED: June 16, 2022.

s/_______________________

CHIEF JUSTICE