GARY WARICK v. COMMONWEALTH OF KENTUCKY
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RENDERED: December 4, 1998; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1997-CA-002319-MR
GARY WARICK
APPELLANT
APPEAL FROM PIKE CIRCUIT COURT
HONORABLE CHARLES E. LOWE, JR., JUDGE
ACTION NO. 93-CR-000262
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING IN PART - REVERSING IN PART AND REMANDING
** ** ** ** **
BEFORE:
COMBS, DYCHE AND GUIDUGLI, JUDGES.
GUIDUGLI, JUDGE.
Gary Warick (Warick) entered a conditional
plea (RCr 8.09) to the offense of operating a motor vehicle while
under the influence of alcohol, (DUI) third offense
(KRS 189A.010).
the county jail.
Warick was sentenced to twelve (12) months in
Said jail sentence was to run concurrently with
time he was serving on an unrelated felony conviction.
Warick
entered his conditional plea subsequent to the trial court’s
adverse ruling to his motions to suppress, motion in limine and
motion to set aside prior convictions.
Having thoroughly
reviewed this matter, we affirm in part, reverse in part and
remand for sentencing.
On October 13, 1993, the Pike Circuit Grand Jury returned an
indictment against Warick alleging the following:
On or about the 28th day of August, 1993,
in Pike County, Kentucky, the above named
Defendant committed the offense of operating
a motor vehicle with alcohol concentration of
or above 0.10 or while under the influence of
alcohol or other substance which impaired his
ability to operate a motor vehicle, after
having previously been convicted of said
offense on at least three occasions as a
result of violations occurring: March 3,
1990; April 17, 1990 and May 25, 1990; all of
said offenses occurring within five years of
August 28, 1993; against the peace and
dignity of the Commonwealth of Kentucky.
At the suppression hearing held the same day, but
before the jury was sworn, Trooper Greg Roberts (Trooper Roberts)
of the Kentucky State Police testified to the following events on
the day Warick was arrested in this matter.
On the afternoon of
August 28, 1993, Trooper Roberts was dispatched to the scene of a
three-vehicle automobile accident at the Island Creek Trailer
Park in Pike County.
Upon arrival he was informed by four people
that a car had backed into two other unoccupied parked vehicles.
They reported that the driver got out of the car and said he was
going to call the police.
The witnesses informed the driver that
the police had already been notified, whereupon the driver said
he was going to call an attorney and left the scene.
Trooper
Roberts was told that the driver was under the influence and
described him as being shirtless but wearing worn blue pants with
a reddish-orange bandanna in his rear pocket.
Trooper Roberts
drove around the area but could not locate the driver.
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He then
returned to the trailer park to complete his accident report.
Upon his departure shortly thereafter, the trooper observed
appellant, matching the description given, staggering along the
highway.
Appellant was approximately one mile from the scene of
the accident when Trooper Roberts stopped him and administered
two field sobriety tests which appellant failed.
As a result of
his observations of Warick, Trooper Roberts arrested him for DUI
and transported Warick back to the trailer park where all four
witnesses identified him as the operator of the vehicle that
caused the accident.
In response to appellant’s discovery motions, the
Commonwealth filed in the record the certified court records
regarding Warick’s prior convictions for violations of KRS
189A.010 from Floyd and Johnson District Courts.
Said certified
records indicated that Warick had the following three
dispositions for violation of KRS 189A.010: (1) He pled guilty in
Floyd District Court on May 25, 1990 (case 90-T-1444); (2) He was
tried in absentia and found guilty in Floyd District Court on May
10, 1990 (case 90-T-1092; (3) He pled guilty in Johnson District
Court on July 3, 1990 (case 90-T-244).
After numerous continuances at the request of Warick,
including his first attorney withdrawing from the case, the
matter was finally scheduled for jury trial in August, 1997.
On
August 20, 1997 and August 25, 1997, Warick filed several
pre-trial motions.
The trial court denied appellant’s two
suppression motions concerning his arrest and witness
identification.
As to appellant’s motion to set aside his prior
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convictions so that they could not be used to enhance his
punishment, the court sustained the motion as to one conviction
(Floyd District Court case 90-T-1444) but denied it as to the
other (Floyd District Court case 90-T-1092).
Based upon the
trial court’s rulings on these matters, Warick entered his
conditional plea of guilty to DUI third offense and this appeal
followed.
Appellant first argues that the trial court erred by
not setting aside his prior DUI conviction (case 90-T-1092) in
which he was tried and convicted in absentia.
We agree.
Appellant alleges that the record in that case does not show that
he was afforded notice of the trial date.
The Commonwealth’s
position, on the other hand, is that appellant waived his right
to be present during the trial of the charged offense when he
failed to appear.
The certification of court records regarding
this case (90-T-1092) from Floyd County indicates that the date
of violation was April 27, 1990.
The citing officer listed on
the uniform citation that the court date (arraignment) was
scheduled for April 19, 1990, at 10:00 a.m. in the Floyd District
Court.
However, the post-arrest complaint also states that
Warick was admitted to the hospital and that this fact prevented
the physical arrest of appellant.
There is nothing in the
certified record as to the court proceedings scheduled for April
19, 1990.
The next docket notation is from May 3, 1990, which
indicates that the defendant (Warick) was not present in court at
that time but that a trial date was set for May 10, 1990.
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On May
10, 1990, appellant was again not present in court, but was tried
in absentia on the DUI charges and found guilty.
Rules of Criminal Procedure (RCr) 8.28(4) in effect in May,
1990 states:
In prosecutions for misdemeanors the court
may permit arraignment, plea, trial and
imposition of sentence in the defendant’s
absence.
This rule was amended effective October 1, 1994, to read:
(4) In prosecutions for misdemeanors or
violations the court may permit arraignment,
plea, trial and imposition of sentence in the
defendant’s absence. However, no plea of
guilty to a violation of KRS 189A or KRS 218A
may be entered in the defendant’s absence,
unless the defendant first executes a written
waiver of his or her right to be present.
The Commonwealth relies upon Burns v. Commonwealth, Ky.
App., 655 S.W.2d 497 (1983), and contends that where the
Commonwealth proves the defendant knew of the trial date, an
inference may be drawn that the absence was intentional, knowing
and voluntary and consequently waived.
The Commonwealth then
contends that once it has met this burden, the burden then shifts
to the defendant to prove that his absence was not intentional,
knowing and voluntary and consequently not waived.
To best
understand Burns on this issue, one needs to review the exact
language of the case:
RCr 8.28(4) provides for trial in absentia
of a misdemeanant. However, the
constitutions of the Commonwealth and the
United States provide him with protection to
the extent that he can’t be tried in his
absence unless that absence is voluntary and
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therefore a waiver of his right to be
present. Ky. Const. Art. XIII, § 12 (1891);
U.S. Const. Amend. XIV; Butcher v.
Commonwealth, Ky., 276 S.W.2d 437 (1955);
McKinney v. Commonwealth, Ky., 474 S.W.2d 384
(1971).
This rule is qualified in cases where the
Commonwealth proves the defendant knew of the
trial date, as here, and did not appear. An
inference then may be indulged that the
absence was intentional, knowing and
voluntary and consequently waived. Then the
defendant not only has the right but also the
burden of going forward with proof that his
absence was not intentional, knowing and
voluntary, and was consequently not waived.
McKinney v. Commonwealth, supra. But, the
waiver resulting from the indulged inference
can only be determined from consideration of
all the circumstances that show the waiver so
clear and unequivocal as to indicate
conscious intent to be absent. Powell v.
Commonwealth, Ky., 346 S.W.2d 731 (1961).
Burns, 655 S.W.2d at 498 (emphasis added).
It should also be
noted that Burns reversed and remanded a case in which the
defendant had been tried in absentia on facts of notice much
clearer and stronger than those presented in this case.
Both parties cite Tipton v. Commonwealth, Ky. App., 770
S.W.2d 239 (1989).
Appellant argues that Tipton supports his
position in that a guilty plea in absentia cannot be used for
enhancement purposes, unless the plea complies with all elements
of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274
(1969).
The Commonwealth distinguishes Tipton from this case in
that Tipton deals with a DUI conviction obtained in absentia by
entry of a guilty plea through the defendant’s counsel, whereas,
in the present case appellant’s conviction was obtained by trial
in absentia without a guilty plea.
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In Tipton the Court
specifically held that a guilty plea must comply with Boykin,
supra:
This panel of the Court is of the opinion
that a plea of guilty taken from someone
other than the defendant does not comply with
Boykin, supra. This is so, even in the light
of RCr 8.28(4) permitting pleas in absentia.
RCr 8.28(4) is discretionary, and we consider
it an abuse of discretion to accept a plea of
guilty in absentia for any offense, such as
driving under the influence, for which an
enhanced penalty may be imposed for
subsequent convictions. The mandates of
Boykin overshadow the procedural latitude
that misdemeanors are granted in RCr 8.28(4).
Reasoning that Boykin applies, then if a
first offense DUI was pled under RCr 8.28(4),
as herein, the Commonwealth could never
properly get a conviction of a defendant with
a second offense under KRS 189A.010(2)(b).
We do not believe that a rule of procedure
can frustrate a criminal statute in that
manner. The district court ruled properly on
this point.
Tipton 770 S.W.2d at 242.
In response to the Tipton ruling
published in 1989, RCr 8.28(4) was amended in 1994 to
specifically prohibit a guilty plea to a violation of KRS 189A in
the defendant’s absence unless a written waiver is provided.
The recently decided case of Donta v. Commonwealth, Ky.
App., 858 S.W.2d 719 (1993), deals with trials in absentia
pursuant to RCr 8.28(4).
This case confirms the
constitutionality of RCr 8.28(4) (see McKinney v. Commonwealth,
Ky., 747 S.W.2d 384 (1971)), and the fact the Commonwealth has
the burden of proving the defendant’s absence from trial was
intentional, knowing and voluntary.
We believe that in the case sub judice the Commonwealth
has failed to meet its burden of showing that Warick knew of his
trial date and was voluntarily absent.
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The trial court relied
upon the certification of record provided by the Commonwealth.
This certification showed only that the citation provided an
arraignment court date.
However the defendant had been admitted
to the hospital after an automobile accident according to the
citation and there is nothing in the record which would indicate
that Warick was physically or mentally capable of receiving the
citation or of attending the court date two days later.
Additionally, the certified record is completely lacking as to
any appearance by Warick or any court action on the date of the
first scheduled court appearance.
The only information the
certified record contains is the two court dates when Warick was
not present.
This being the only “evidence” in the record, we
believe the Commonwealth failed in its burden of proving Warick’s
absence from trial was intentional, knowing and voluntary.
As to appellant’s remaining two claims of error, we
find no error and affirm the trial court’s ruling on these
matters.
First, appellant moved to suppress all evidence
resulting from his seizure by Trooper Roberts on the ground that
he was illegally detained and arrested.
argument.
We find no merit to this
Appellant was sufficiently described by four witnesses
to the trooper who found appellant matching said description,
staggering, approximately one mile from the accident scene within
a relatively short period after the accident.
The record clearly
establishes evidence from which the trial court could find that
Trooper Roberts relied upon specific and articulable facts that
reasonably warranted the trooper to subject appellant to an
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investigatory stop.
Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20
L.Ed. 898 (1968).
Appellant’s last argument deals with the suppression of his
identification by the witnesses to the accident at the trailer
park.
Warick contends that his constitutional rights were
violated in that the identification process (the trooper bringing
appellant back to the trailer park after his arrest) was
unnecessarily suggestive and conducive to irreparable mistaken
identification.
The Commonwealth counters that the out-of-court
identification procedure was not impermissibly suggestive, but
even if it was the identification was reliable.
Both parties
cite Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d
1199 (1967) and Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34
L.Ed.2d 401 (1972), as the two cases determative on this issue.
However, each party argues when the facts of this case are
applied to the principles set forth in Stovall and Biggers a
different result is reached.
As to the claim that the
confrontation conducted in that case was so unnecessarily
suggestive and conducive to irreparable mistaken identification,
the Stovall Court stated:
The practice of showing suspects singly to
persons for the purpose of identification,
and not as part of a lineup, has been widely
condemned. [footnote omitted]. However, a
claimed violation of due process of law in
the conduct of a confrontation depends on the
totality of the circumstances surrounding
it... .
Stovall, 18 L.Ed.2d at 1206.
The Biggers Court affirmed the “totality of the
circumstances surrounding it(the identification)” standard and
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set forth the factors to be considered in analyzing the
reliability of the identification as follows:
[T]he opportunity of the witness to view the
criminal at the time of the crime, the
witness’ degree of attention, the accuracy of
the witness’ prior description of the
criminal, the level of certainty demonstrated
by the witness at the confrontation, and the
length of time between the crime and the
confrontation.
Biggers, 74 L.Ed.2d at 411.
The criteria set forth above were
adopted as the standard in Kentucky in Wilson v. Commonwealth,
Ky., 695 S.W.2d 854 (1985).
Our Supreme Court stated in Wilson,
at 857:
When examining a pre-trial confrontation,
this court must first determine whether the
confrontation procedures employed by the
police were “suggestive.” If we conclude
that they were suggestive, we must then
assess the possibility that the witness would
make an irreparable misidentification, based
upon the totality to the circumstances and in
light of the five factors enumerated in
Biggers, supra.
In view of the “totality of circumstances” standard and the five
factors test set out in Biggers, it is clear Warick’s due process
rights were not violated.
The witnesses in this case observed an
accident, saw and spoke to the driver of the vehicle who had
caused the accident, observed him to be under the influence, gave
a description to the trooper investigating the accident, and
within an hour and a half they positively identified appellant as
the driver who caused the accident.
As such the trial court
properly denied appellant’s motion to suppress the out-of-court
identification of appellant.
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For the foregoing reasons, we affirm the conviction of
appellant but reverse and remand for sentencing consistent with
this opinion.
ALL CONCUR.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Irvin J. Halbleib
Louisville, KY
A. B. Chandler, III
Attorney General
Anitria M. Franklin
Assistant Attorney General
Frankfort, KY
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