JAMES \"BO\" HACKER v. COMMONWEALTH OF KENTUCKY
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RENDERED: July 23, 1999; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-002376-MR
JAMES "BO" HACKER
APPELLANT
APPEAL FROM OWSLEY CIRCUIT COURT
HONORABLE WILLIAM TRUDE, JUDGE
ACTION NOS. 97-CR-00038 AND 97-CR-00039
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
COMBS, DYCHE, and GARDNER, Judges.
COMBS, JUDGE.
Appellant, James "Bo" Hacker, appeals from the
order of the Owsley Circuit Court entered on July 20, 1998, which
denied his motion to suppress evidence on grounds that his
warrantless arrest was without probable cause.
After reviewing
the record, we affirm.
On April 17, 1997, Barbara Gabbard called Owsley County
Sheriff Tye Hensley to report that several guns and tools had
been stolen from her home.
After hearing about the burglary,
Ricky Wilson and Chad Baker called the Gabbards and informed them
that they had taken Hacker to the residence (at Hacker’s request)
in order for him to pick up some tools, which Hacker said
belonged to him.
The Gabbards immediately relayed the
information to Sheriff Hensley.
Sheriff Hensley, who had been in
contact with Lee County Sheriff William Kilburn, called Sheriff
Kilburn, gave him the identity of Hacker, and reported the
location of Hacker in Lee County.
Sheriff Kilburn testified that when he located Hacker,
he was walking toward a residence with two guns in his hands.
Sheriff Kilburn stopped him, took possession of the two guns, and
placed him in his cruiser.
Appellant disclosed the location of
the remaining guns after Sheriff Kilburn questioned him about the
burglary.
Hacker was taken to the Lee County Sheriff’s office,
and Owsley County Sheriff Hensley was notified that he was in
custody.
Appellant was not read his rights until he was taken
back to Owsley County by Sheriff Hensley.
Appellant then gave a
written statement confessing to the burglary at the Gabbard
residence and to an earlier burglary at the Short residence.
Following a hearing on July 20, 1998, the circuit court
denied appellant’s motion to suppress.
The court found that
Sheriff Kilburn had probable cause to arrest appellant and that
the signed confessions made after appellant was read his rights
were admissible; but the court held that the guns discovered by
Sheriff Kilburn after questioning appellant prior to advising him
of his rights were inadmissible.
On July 29, 1998, appellant
filed a motion to enter a conditional guilty plea to two counts
of first-degree burglary and two counts of first-degree theft by
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unlawful taking.
The circuit court accepted appellant’s motion,
and judgment was entered on September 11, 1998.
On appeal, appellant argues that the circuit court
erred in denying his motion to suppress, that it denied him his
constitutional right to cross-examine witnesses, and that it
prevented him from putting evidence into the record by way of
avowal.
KRS 431.005(1)(c) provides that a peace officer may
make a warrantless arrest when he has probable cause to believe
that the person being arrested has committed a felony.
"Probable
cause" exists when the totality of the evidence known to the
arresting officer at the time of the arrest — which includes the
reliability of an informant and the basis of the informant’s
knowledge — creates a fair probability that the arrested person
committed the felony.
Eldred v. Commonwealth, Ky., 906 S.W.2d
694, 705, cert. denied, 516 U.S. 1154, 116 S. Ct. 1034, 134
L.Ed.2d 111 (1996).
The issue presented in this case is whether Sheriff
Kilburn had probable cause to believe that appellant had
committed a burglary.
The information provided to Sheriff
Hensley from the Gabbards included the following: (1) tools and
guns were stolen from their home earlier that day; (2) a pick-up
truck was spotted by a neighbor in the area; (3) Ricky Wilson and
Chad Baker told them that appellant had taken tools from their
residence; and (4) appellant was in Lee county.
Sheriff Hensley
then gave the following information to Sheriff Kilburn: (1) tools
and guns had been stolen from a residence in Owsley county; (2)
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the suspect (appellant) was seen taking tools from the residence;
(3) the suspect (appellant) was in Lee county.
Based on the
information received by Sheriff Kilburn and his own observation
of appellant at the Lee County location with two guns, Sheriff
Kilburn had probable cause to believe that Hacker very likely had
committed the burglary.
Thus, Hacker’s warrantless arrest was
valid.
Hacker next argues that the circuit court erred when it
refused to allow appellant to cross-examine witnesses.
The crux
of his argument relates to the apparent inability to develop a
time-line for the events leading up to his arrest.
argument is without merit.
Hacker’s
The circuit court’s rulings on
objections made by the Commonwealth to the line of questioning by
Hacker did not detract from or diminish the ability of Hacker to
cross-examine the witnesses on the evidence that established
probable cause.
The circuit court’s failure to allow avowal on
such questions amounts to harmless error -- if indeed any.
The order of the Owsley Circuit Court is hereby
affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Elizabeth Shaw
Richmond, Kentucky
A. B. Chandler III
Attorney General
William L. Daniel II
Assistant Attorney General
Frankfort, Kentucky
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