JOHN WILLIAM WADE, JR. v. COMMONWEALTH OF KENTUCKY
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RENDERED: April 1, 2005; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-000045-MR
JOHN WILLIAM WADE, JR.
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE GARY D. PAYNE, JUDGE
INDICTMENT NO. 03-CR-00647
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
VACATING AND REMANDING
** ** ** ** **
BEFORE:
BARBER, HENRY, AND JOHNSON, JUDGES.
HENRY, JUDGE:
John William Wade was sentenced to five (5)
years’ imprisonment by the Fayette Circuit Court in a judgment
entered on December 17, 2003 following his conditional guilty
plea to charges of possession of a controlled substance first
degree and being a persistent felony offender second degree.
Wade appeals from the trial court’s July 21, 2003 order denying
his motion to suppress evidence following a July 16, 2003
suppression hearing.
The facts of the case, as testified to in the
suppression hearing at issue, are as follows: On April 18, 2003,
at approximately 8:50 p.m., Officers Richard Rice and William
Persley of the Lexington-Fayette Urban County Police Department
were driving down Race Street in the east end area of Lexington1
when they passed and observed two males sitting in a parked
white vehicle looking at each other face-to-face.
Officer Rice
turned his car around and then pulled behind the white vehicle
for further investigation.
The two officers then stepped out of
their car and approached the white vehicle on foot.
Officer Rice testified that Appellant Wade stepped out
of the white vehicle’s driver’s side, moved to the front of the
vehicle, and opened its hood.
He further testified that a Mr.
Bobbitt stepped out of the passenger’s side of the vehicle,
stumbled and fell, and then attempted to walk away from the
scene.
Officer Persley approached Bobbitt, while Officer Rice
approached Wade.
Officer Rice then testified that he noted a strong
smell of marijuana coming from inside the white vehicle and also
from Wade.
According to Officer Rice, Wade then told him that
he had been smoking marijuana.
Officer Rice further testified
that Wade’s eyes were glassy and that he was evasive and nervous
in his speech and actions.
Officer Rice also indicated that
1
Officer Rice testified at the suppression
Lexington was known as a “high drug area.”
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hearing
that
this
part
of
Wade told him that he had come there to work on his aunt’s car,
but he did not know how the car had gotten there.
The engine of
the car was warm, however, and the keys were in the ignition.
Officer Rice then testified that he did not want Wade to drive
away, so he arrested him for public intoxication.
Officer Rice next testified that, while talking to
Wade, he looked in the white vehicle “for my safety.”
Officer
Rice recalled that the vehicle was parked under a street light,
but he did not believe that it had gotten dark yet.
When asked
if he had used a flashlight to look in the vehicle, Officer Rice
testified that he may have used a flashlight, but he believed
that he did not use one until he began his detailed search of
the vehicle.
When Officer Rice looked in the vehicle, he
noticed a plastic baggie containing a white substance in the
driver’s side floorboard.
Officer Rice removed the baggie from
the vehicle and determined that it contained crack cocaine.
Officer Rice then testified that Mr. Bobbitt told him that he
was there to purchase crack cocaine from Wade, but the
transaction had been interrupted by the police officers.
Wade also testified at the suppression hearing, but
gave a somewhat different account of the events of that evening.
He testified that the white vehicle was broken down, and that he
was waiting in front of it for a tow truck when the police
arrived.
Wade further testified that the vehicle belonged to a
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friend named Brenda Jackson, and that he had not been in it or
driven it.
He also testified that he did not tell Officer Rice
that he had been smoking marijuana and added, “I don’t smoke
marijuana.”
Following his arrest, Wade was indicted on counts of
trafficking in controlled substance first degree,2 public
intoxication, and being a persistent felony offender second
degree.
He entered a plea of not guilty to the indictment.
Counsel for Wade later made an oral motion to suppress evidence
that was heard at the July 16, 2003 suppression hearing.
At the suppression hearing, Officer Rice and Wade
testified as set forth above.
Counsel for Wade then argued that
there was a lack of probable cause to search the white vehicle
because a factual dispute existed as to whether Wade was ever in
the vehicle, as to whether a marijuana odor could have been
coming from the vehicle, and as to whether Officer Rice could
have seen the plastic baggie in the vehicle without the use of a
flashlight.
The Commonwealth argued that Officer Rice was
allowed to search the vehicle incident to Wade’s arrest for
public intoxication and also argued that Officer Rice was
justified in searching the vehicle because he saw the baggie in
plain view.
The trial court then denied the motion to suppress
and entered an order to that effect.
2
This count was later amended to possession of controlled substance first
degree.
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On November 12, 2003, Wade entered a conditional
guilty plea to the possession and persistent felony offender
counts of the indictment, with the public intoxication count
being dismissed.
The ruling on the suppression motion was
preserved for appeal.
The trial court accepted the plea and
entered a judgment sentencing Wade to five (5) years’
imprisonment.
This appeal followed.
Wade makes the following arguments on appeal: (1) the
trial court erred when it failed to make any findings of fact to
support its denying of Wade’s motion to suppress as required by
RCr3 9.78; (2) Officer Rice was not justified in arresting Wade
for public intoxication; (3) the vehicle search by Officer Rice
was not justified under the search incident to arrest exception
to the search warrant requirement; (4) the vehicle search by
Officer Rice was not justified under the plain view exception to
the search warrant requirement; and (5) the vehicle search by
Officer Rice was not justified under the automobile exception to
the search warrant requirement.
As an initial matter, we can find no indication in the
record that Wade ever raised an objection or made a motion to
the trial court relating to a lack of sufficient evidence to
support Wade’s arrest for public intoxication.
This certainly
is an argument that could have been raised at the suppression
3
Kentucky Rules of Criminal Procedure.
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hearing.
“An appellate court will not consider a theory unless
it has been raised before the trial court and that court has
been given an opportunity to consider the merits of the theory.”
Shelton v. Commonwealth, 992 S.W.2d 849, 852 (Ky.App. 1998)
(citing Hopewell v. Commonwealth, 641 S.W.2d 744, 745 (Ky.
1982). "Regardless of the merits of this argument, these
grounds, being different from those asserted in the court below,
are not properly preserved for appellate review." Daugherty v.
Commonwealth, 572 S.W.2d 861, 863 (Ky. 1978).
Accordingly, we
find that this issue is unpreserved for our review.
We can also find no indication in the trial court
record that Wade ever raised an objection or made a motion
relating to any failure of the trial court to provide sufficient
findings of fact in accordance with RCr 9.78.
Precedent also
allows us to consider this issue as unpreserved for our review.
See Cooper v. Commonwealth, 577 S.W.2d 34, 41 (Ky. 1979)
(overruled on other grounds by Mash v. Commonwealth, 769 S.W.2d
42 (Ky. 1989)); see, e.g., Blankenship v. Commonwealth, 554
S.W.2d 898, 903 (Ky.App. 1977).
With this said, however, we are
compelled to consider this contention in light of the
requirements of RCr 9.78 and the standard of review that we must
employ in examining denials of motions to suppress.
“An appellate court's standard of review of the trial
court's decision on a motion to suppress requires that we first
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determine whether the trial court's findings of fact are
supported by substantial evidence. If they are, then they are
conclusive.” Commonwealth v. Neal, 84 S.W.3d 920, 923 (Ky.App.
2002) (citing RCr 9.78); see also Commonwealth v. Banks, 68
S.W.3d 347, 349 (Ky. 2001) (“With regard to the factual findings
of the trial court ‘clearly erroneous’ is the standard of review
for an appeal of an order denying suppression.”) (citing Ornelas
v. United States, 517 U.S. 690, 691, 116 S. Ct. 1657, 1659, 134
L. Ed.2d 911 (1996)).
“Based on those findings of fact, we must
then conduct a de novo review of the trial court's application
of the law to those facts to determine whether its decision is
correct as a matter of law.”
Id. (citing Adcock v.
Commonwealth, 967 S.W.2d 6, 8 (Ky. 1998); Commonwealth v. Opell,
3 S.W.3d 747, 751 (Ky.App. 1999).
The problem with which we are met here is the record’s
lack of any findings of fact made by the trial court as to the
evidence presented at the suppression hearing.
RCr 9.78 clearly
provides that, upon a motion to suppress, “the trial court shall
conduct an evidentiary hearing outside the presence of the jury
and at the conclusion thereof shall enter into the record
findings resolving the essential issues of fact raised by the
motion or objection and necessary to support the ruling.”
The
provisions of this rule are mandatory. Moore v. Commonwealth,
634 S.W.2d 426, 433 (Ky. 1982), cert. denied, 494 U.S. 1060, 110
-7-
S. Ct. 1536, 108 L. Ed.2d 774 (1990); see also Brown v.
Commonwealth, 564 S.W.2d 24, 31 (Ky.App. 1978).
Here, the trial record contains only a general oral
statement from the trial court agreeing with the position of the
Commonwealth following the testimony and arguments made at the
suppression hearing.
The record also contains a written order
denying the motion to suppress, but the order contains no
factual predicate for the ruling.
We are not satisfied that
these items alone comply with the mandatory requirements of RCr
9.78.
Moreover, we are simply incapable of reviewing factual
findings of a trial court for error when no factual findings
have been entered into the record. See Lee v. Commonwealth, 547
S.W.2d 792, 794 (Ky.App. 1977).
Consequently, in the case sub judice, we hold that the
trial court failed to enter into the record the necessary
findings resolving the essential issues of fact presented at the
suppression hearing as required by RCr 9.78.
Accordingly, the
order of the Fayette Circuit Court denying suppression of the
evidence is vacated, and this matter is remanded so that the
trial court can review the record of the suppression hearing
previously conducted and enter into the record specific findings
of fact and conclusions as to whether the evidence taken as a
result of Officer Rice’s search of the white vehicle should be
suppressed. See Neal, 84 S.W.3d at 925; Lee, 547 S.W.2d at 794.
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ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Herbert T. West
Lexington, Kentucky
Gregory D. Stumbo
Attorney General
Todd D. Ferguson
Assistant Attorney General
Frankfort, Kentucky
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