MATLOCK (BARRIE LESLIE) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: FEBRUARY 18, 2011; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-000929-MR
BARRIE LESLIE MATLOCK
v.
APPELLANT
APPEAL FROM CHRISTIAN CIRCUIT COURT
HONORABLE ANDREW SELF, JUDGE
ACTION NO. 08-CR-00325
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
REMANDING
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BEFORE: ACREE AND STUMBO, JUDGES; LAMBERT, SENIOR JUDGE.
ACREE, JUDGE: Appellant Barrie Matlock seeks reversal of the Christian Circuit
Court’s order denying his motion to suppress without an evidentiary hearing.
Matlock claims the circuit court erred in refusing to grant him an evidentiary
hearing as required by Kentucky Rule of Criminal Procedure (RCr) 9.78. We
agree and remand for a hearing on Matlock’s motion to suppress.
Matlock was arrested on April 25, 2008, when an officer discovered illegal
drugs in his possession. At trial, the Commonwealth called Chief Mark Goforth of
the Pembroke Police Department as its first witness. Goforth testified to the events
leading up to Matlock’s arrest, including that Matlock voluntarily handed over
marijuana. According to Goforth’s testimony, after arresting Matlock for
possession of marijuana, he searched the vehicle Matlock occupied and discovered
crack cocaine. At the conclusion of Goforth’s testimony, the Commonwealth
sought to introduce the physical evidence obtained as a result of the search and
seizure. Matlock’s attorney objected and sought to suppress the evidence. The
circuit court denied the objection and attempt to suppress the evidence but without
holding a hearing.
At trial, Matlock testified in his own defense, disputing the officer’s
testimony regarding the encounter and claiming that the drugs were planted.
However, Matlock was subsequently convicted of trafficking in a controlled
substance and possession of marijuana.
The Commonwealth acknowledges that the circuit court erred by failing to
conduct a hearing on Matlock’s motion to suppress, but argues that any error was
harmless for two reasons. First, the motion to suppress was untimely; second, that
the error in not conducting a hearing was harmless.
It is clear that if the objection was timely, then the circuit court was
obligated to hold an evidentiary hearing. See Mills v. Commonwealth, 996 S.W.2d
473, 481 (Ky. 1999); RCr 9.78. However, the failure to do so may amount to
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harmless error if there are no material or substantial factual disputes regarding the
search and seizure. Mills, 996 S.W.2d at 481.
The Commonwealth acknowledges that Shanks v. Commonwealth stands
squarely opposed to their timeliness argument. Shanks v. Commonwealth, 504
S.W.2d 709, 710 (Ky. 1974). Therefore, they ask us to reconsider the holding in
Shanks. However, Shanks was decided by the predecessor court to our current
Supreme Court and we are powerless to change its precedent. Rules of the
Supreme Court (SCR), Rule 1.030(8)(a) (“The Court of Appeals is bound by and
shall follow applicable precedents established in the opinions of the Supreme Court
and its predecessor court.”) (Emphasis supplied).
In Shanks, “[a]t the conclusion of the cross examination of a police officer
who was the first witness for the Commonwealth, the appellant unsuccessfully
sought to suppress the ‘* * * fruits of an illegal search * * *.’ It was at that time
that the Commonwealth first offered the seized items into evidence.” 504 S.W.2d
at 711. The Commonwealth argued that the motion was untimely. Id. at 710.
However, the court disagreed. Id. Relying on Higdon v. Commonwealth, the court
found that the motion to suppress was timely because it was made when the seized
items were first offered into evidence. Id. at 710-11 (citing Higdon v.
Commonwealth, 473 S.W.2d 110 (Ky. 1971)).
In Higdon, a motion to suppress was made during the testimony of the
Commonwealth’s fourth witness. 473 S.W.2d at 111. The court found that the
objection came too late. Id. The court reasoned that the motion should have been
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made during the testimony of the Commonwealth’s first witness – a police chief
who testified at length regarding the warrant and search. Id.
Shanks and Higdon rely on two different triggering events that indicate the
timeliness of such an objection. In Shanks, the court focused on the evidence and
the point during trial when it was proffered. In Higdon, the court looked to the
witnesses and found that an objection is timely when made during the testimony of
the first witness who testifies regarding the circumstances of the search and
seizure. It is plausible that several witnesses might testify regarding the
circumstances of the search and seizure before the actual items are offered into
evidence. In such a case, Higdon would control and require the objection be made
during the first such witness’s testimony. Shanks adds an additional requirement,
that the objection occur before or at the same time the seized items are first offered
into evidence.
It is clear that this case complies both with Shanks and with Higdon. The
objection was made prior to cross-examination of Chief Goforth, the
Commonwealth’s first witness, when the seized items were first offered into
evidence. Therefore, the objection was timely.
Next, we must determine if the circuit court’s error in denying the motion to
suppress without an evidentiary hearing was harmless. RCr 9.78 requires that:
[i]f at any time before trial a defendant moves to
suppress, or during trial makes timely objection to the
admission of evidence consisting of . . . the fruits of a
search . . . 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
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resolving the essential issues of fact raised by the motion
or objection and necessary to support the ruling.
RCr 9.78 (emphasis added). “RCr 9.78 places affirmative duties upon the trial
court. The rule does not require that the defendant move for an evidentiary
hearing. Instead, the rule mandates that a trial court shall hold an evidentiary
hearing outside of the presence of the jury . . . .” Mills, 996 S.W.2d at 481.
In Mills, the Supreme Court of Kentucky found that an evidentiary hearing
was required when the defendant made a motion to suppress his confession. Id.
However, the court indicated that failure to hold a hearing is harmless error when
there is no dispute as to the material or substantial facts involving the evidence for
which suppression is sought. Id. In Mills, the evidence was the defendant’s
confession. The confession itself and the surrounding circumstances were all on
video. Id. Consequently, there were no factual disputes and failure to hold a
hearing was deemed harmless error. Id.
Unlike Mills, in this case material and substantial facts are in dispute and no
tape of the interaction exists. The officer’s testimony regarding the search and
seizure differed greatly from the testimony offered by Matlock at trial. Thus, there
are material factual disputes and the failure to grant the hearing was not harmless
error.
Despite the Commonwealth’s suggestion, this Court cannot determine
whether, “[h]ad the trial court held a hearing[, it] would not have suppressed the
evidence . . . .” The circuit court is in a better position to judge the credibility of
the witnesses and make such a determination for itself. Therefore, we remand to
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the circuit court for a hearing on the motion to suppress. Should the motion to
suppress be granted, the conviction must be vacated and a new trial conducted. If,
however, such motion is denied after a hearing the conviction will stand.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Karen Shuff Maurer
Assistant Public Advocate
Frankfort, Kentucky
Jack Conway
Attorney General of Kentucky
Joshua D. Farley
Assistant Attorney General
Frankfort, Kentucky
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