LYNN (CHARLES C.) VS. COMMONWEALTH OF KENTUCKYAnnotate this Case
RENDERED: OCTOBER 10, 2008; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
CHARLES C. LYNN, SR.
APPEAL FROM HENDERSON CIRCUIT COURT
HONORABLE STEPHEN A. HAYDEN, JUDGE
ACTION NO. 06-CR-00281
COMMONWEALTH OF KENTUCKY
AFFIRMING IN PART& REVERSING IN PART & REMANDING
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BEFORE: ACREE, CAPERTON, JUDGES; ROSENBLUM,1 SPECIAL JUDGE.
ROSENBLUM, SPECIAL JUDGE: Charles C. Lynn, Sr. appeals from a
Henderson Circuit Court conviction of first-degree possession of a controlled
substance (second offense); possession of drug paraphernalia (second offense);
possession of marijuana; and being a second-degree persistent felony offender.
Retired Judge Paul W. Rosenblum presiding as Special Judge by assignment of the Chief
Justice pursuant to Section 110(5) (b) of the Kentucky Constitution.
Lynn claims that the court erred by (1) admitting evidence seized in a search
resulting from an anonymous uncorroborated tip; (2) failing to grant a mistrial
when the prosecutor stated an intent to call Lynn’s defense attorney as a witness;
and (3) admitting a statement that was not provided in discovery. We will discuss
each argument in turn.
On September 25, 2006, the Henderson Police Department received an
anonymous tip from someone who claimed to have seen drugs at a residence
located at 1612 Garfield Avenue. Officers went to the residence and found Lynn
standing outside. The officers approached Lynn and told him about the tip. After
talking with the officers and reading a consent form, Lynn gave oral and written
consent to search the residence. A search of the home revealed methamphetamine,
marijuana, and drug paraphernalia. As police investigated the scene and collected
evidence, Lynn stated to his wife, “Tell them everything is yours. I can’t take
On November 14, 2006, Lynn was indicted by the Henderson County
Grand Jury for first-degree possession of a controlled substance (second defense),
possession of drug paraphernalia (second offense), possession of marijuana, and
being a second-degree persistent felony offender. On February 27, 2007,
following a trial by a jury, Lynn was convicted of all charges.
First, Lynn claims that the trial court erred by admitting evidence
seized during the September 25, 2006 search of his home. Lynn claims that the
officers lacked probable cause to search his home because the search was based on
an anonymous tip that was uncorroborated by the police. Lynn further claims that
his initial contact with the police and subsequent search with or without consent
An appellate court's standard of review of the trial court's decision on
a motion to suppress requires that we determine whether the trial court's findings of
fact are supported by substantial evidence. We must review the court’s findings of
fact only for clear error while giving deference to the inferences drawn from those
facts by the trial judge. Commonwealth v. Whitmore, 92 S.W.3d 76, 79 (Ky.2002),
quoting Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 1663, 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. Commonwealth v. Neal, 84
S.W.3d 920, 923 (Ky.App.2002).
Following a suppression hearing conducted on February 27, 2007, the
trial court entered findings of fact and conclusions of law denying Lynn's motion to
suppress the evidence seized from his residence. The court found that Lynn
voluntarily consented to the search of his home.
We agree that probable cause does not exist merely from an
uncorroborated anonymous tip. Illinois v. Gates, 462 U.S. 213, 242, 103 S.Ct.
2317, 76 L.Ed.2d 527 (1983). In order to effectuate a stop, police must have
reasonable suspicion that criminal activity is occurring. Terry v. Ohio, 392 U.S. 1,
30, 88 S.Ct. 1868, 20 L.Ed.2d 229 (1968). Fourth Amendment protections are
only invoked when by show of police force or authority a reasonable person would
believe that they are not free to leave. Terry, 392 U.S. at 19, footnote 16. Fourth
Amendment protections do not extend to individuals who are merely approached
by police and questioned about criminal actions. Florida v. Royer, 460 U.S. 491,
497, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983). When officers have not seized or
detained a person and that person is free to leave, no constitutional rights have
The act of police walking up to a person outside a residence and
asking questions pertaining to an investigation is often referred to as a “knock-andtalk.” During a knock-and-talk, the person being questioned has the ability to
leave and is in no way being detained by the police. Many courts, including the
United States Court of Appeals for the Sixth Circuit, have recognized the
legitimacy of knock-and-talk encounters at the home of a suspect or another person
who is believed to possess information about an investigation. United States v.
Thomas, 430 F.3d 274, 277 (6th Cir.2005). This Court, in Perkins v.
Commonwealth, 237 S.W.3d 215, 219 (Ky.App. 2007) noted, “[w]e agree that
there is nothing inherently unconstitutional or even inappropriate about the use of
the knock-and-talk technique as an investigatory tool.”
Lynn does not provide any information describing why he felt
detained or that his liberty was being restricted. As previously noted, courts must
determine whether a stop has occurred by a reasonable person standard.
Testimony elicited at the suppression hearing indicated that Lynn was standing on
the sidewalk and actually walked toward the officers as they approached. A
review of the record does not indicate that weapons were drawn. Furthermore,
there is no indication that Lynn was told not to leave. The police were free to
speak to Lynn without corroborating the anonymous tip.
Although this Court, in Perkins, supra, upheld knock-and-talk
techniques as an investigatory tool free of constitutional ramifications, the Court
noted the constitutional implications when subsequent consent is obtained under
duress during a knock-and-talk. Here, Lynn argues that his consent was a product
The Fourth Amendment of the United States Constitution generally
prohibits a warrantless entry into a person's home. All searches without a valid
search warrant are unreasonable unless shown to be within one of the exceptions to
the rule that a search must rest upon a valid warrant. The burden is on the
prosecution to show the search comes within an exception. Gallman v.
Commonwealth, 578 S.W.2d 47, 48 (Ky.1979) (citing City of Danville v. Dawson,
528 S.W.2d 687 (Ky.1975)). “Consent to search is an exception to the warrant
requirement.” Farmer v. Commonwealth, 169 S.W.3d 50, 52 (Ky.App.2005)
(citation omitted). “The Commonwealth has the burden of showing by a
preponderance of the evidence, through clear and positive testimony, that valid
consent to search was obtained.” Id. (citation omitted).
Lynn argues that the presence of two police cars and two uniformed
officers at his home created a coercive and confrontational atmosphere whereby he
did not voluntarily consent to the search of his home. In Krause v.
Commonwealth, 206 S.W.3d 922, 924 (Ky. 2006), the Kentucky Supreme Court
“the Fourth and Fourteenth Amendments require
that a consent not be coerced, by explicit or implicit
means . . . [f]or, no matter how subtly the coercion
was applied, the resulting ‘consent’ would be no
more than a pretext for the unjustified police
intrusion against which the Fourth Amendment
is directed.” (quoting Schneckloth v.Bustamonte,
412 U.S. 218, 228 (1973)). Whether consent is the
result of express or implied coercion is a question
of fact and thus, we must defer to the trial court's
finding if it is supported by substantial evidence.
The trial court found Lynn’s consent to be voluntary. The record
reflects that the officers arrived at his home and that Lynn voluntarily approached
the officers. Not only did Lynn verbally consent to the search, he also signed a
consent to search form. The presence of uniformed law enforcement officers and
two patrol cars alone does not create a coercive environment. We find that
substantial evidence exists which permitted the trial court to determine that Lynn’s
consent was voluntary.
Lynn next claims that the trial court erred by refusing to grant a
mistrial in light of the prosecutor’s statement in voir dire that defense counsel was
a potential witness. The Commonwealth claimed defense counsel was a potential
witness because defense counsel also represented Lynn’s wife. Lynn’s brief makes
the following statement, “The argument from the Commonwealth was that
[defense counsel] was a potential material witness because he had gone to the
prison to get Mr. Lynn’s wife to sign an affidavit that she in fact had possessed the
[evidence] seized at the house.” Prior to trial the Commonwealth made a motion to
call defense counsel as a witness and a motion to disqualify defense counsel based
on a conflict of interest. Both motions were denied. Lynn argues that by then
naming defense counsel as a potential witness during voir dire allowed the
Commonwealth to gain a competitive advantage and encouraged jurors to
speculate as to defense counsel’s veracity. We agree that the Commonwealth
should not have mentioned defense counsel as a potential witness during voir dire
when the motion to call defense counsel as a witness was previously denied.
However, it appears from the record that the trial court’s denial of Lynn’s motion
for a mistrial does not constitute an abuse of discretion.
A trial court’s decision to deny a mistrial is reviewable based on an
abuse of discretion standard. Martin v. Commonwealth, 170 S.W.3d 374, 381(Ky.
2005). “A manifest necessity for a mistrial must exist before it will be granted.”
Id. Further, in Bray v. Commonwealth, 177 S.W.3d 741 (Ky. 2005), the Kentucky
Supreme Court provided:
[w]hether to grant a mistrial is within the sound
discretion of the trial court, and such a ruling will
not be disturbed absent an abuse of that discretion.
A mistrial is an extreme remedy and should be
resorted to only when there appears in the record a
manifest necessity for such an action or an urgent
or real necessity. The error must be of such
character and magnitude that a litigant will be
denied a fair and impartial trial and the prejudicial
effect can be removed in no other way . . . .
Bray at 752.
When the Commonwealth mentioned defense counsel as a potential
witness during voir dire, defense counsel moved for a mistrial. The trial court
denied the motion for a mistrial but offered to admonish the jury. Defense counsel
refused an admonition by maintaining that an admonition would not sufficiently
cure the harm. However, juries are presumed to follow an admonition. Mills v.
Commonwealth, 996 S.W.2d 473, 485 (Ky. 1999). In Combs v. Commonwealth,
198 S.W.3d 574, 581-582 (Ky. 2006), the Court provided:
[t]here are only two circumstances in which the
presumptive efficacy of an admonition falters:
(1) when there is an overwhelming probability
that the jury will be unable to follow the court’s
admonition and there is a strong likelihood that
the effect would be devastating to the defendant;
or (2) when the question was asked without a
factual basis and was “inflammatory” or “highly
Combs at 581-582.
We find neither circumstance present in this case. An admonition
could have cured any harm caused by the Commonwealth’s statements. The trial
court did not abuse its discretion by refusing to grant a mistrial.
Lynn finally contends that the trial court erred by admitting a
statement allegedly made by Lynn, “Tell them everything is yours. I can’t take
another charge.” Lynn argues that the second portion of the statement was not
provided to the defense until the day of trial, in violation of Brady v. Maryland,
373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).2 The Commonwealth argues
that the statement does not constitute a Brady violation because the statement is not
exculpatory. Furthermore the Commonwealth alleges that even if the statement
does constitute a discovery violation, it is not reversible error. We disagree.
Brady, supra, involves the prosecution’s duty to disclose exculpatory
statements to the defense. While the statement at hand is not a Brady violation per
se, because it is not exculpatory, the Commonwealth has a duty to disclose all
inculpatory statements that it plans to use against the defendant. RCr3 7.24 (1)4
requires the Commonwealth, upon motion by the defense, to provide “any oral
incriminating statement known by the attorney for the Commonwealth to have
been made by a defendant to any witness.” In addition, RCr 7.26 (1)5 provides
We note that no Kentucky Rules of Evidence 404(b) argument has been preserved. However,
in the event that the second portion of this statement is sought to be introduced upon remand, the
trial court should determine whether the second portion of this statement may have such
Kentucky Rules of Criminal Procedure.
RCr 7.24 (1) provides: Upon written request by the defense, the attorney for the
Commonwealth shall disclose the substance, including time, date, and place, of any oral
incriminating statement known by the attorney for the Commonwealth to have been made by a
defendant to any witness, and to permit the defendant to inspect and copy or photograph any
relevant (a) written or recorded statements or confessions made by the defendant, or copies
thereof, that are known by the attorney for the Commonwealth to be in the possession, custody,
or control of the Commonwealth, and (b) results or reports of physical or mental examinations,
and of scientific tests or experiments made in connection with the particular case, or copies
thereof, that are known by the attorney for the Commonwealth to be in the possession, custody or
control of the Commonwealth.
RCr 7.26 (1) provides: Except for good cause shown, not later than forty-eight (48) hours prior
to trial, the attorney for the Commonwealth shall produce all statements of any witness in the
form of a document or recording in its possession which relates to the subject matter of the
witness's testimony and which (a) has been signed or initialed by the witness or (b) is or purports
to be a substantially verbatim statement made by the witness. Such statement shall be made
available for examination and use by the defendant.
“except for good cause shown, not later than forty-eight (48) hours prior to trial,
the attorney for the Commonwealth shall produce all statements of any witness in
the form of a document or recording in its possession which relates to the subject
matter of the witness's testimony[.]”
The Commonwealth relies on Mathews v. Commonwealth, 997
S.W.2d 449 (Ky. 1999) and argues that the statement is neither inculpatory nor
exculpatory but rather is ambiguous. We find nothing ambiguous about the second
portion of the statement. The second portion of the statement suggests prior
criminal conduct on Lynn’s part and a request that his wife take the fall for him.
We also note that Mathews was overruled by Chestnut v. Commonwealth, 250
S.W.3d 288 (Ky. 2008). The Kentucky Supreme Court stated, “The
Commonwealth's ability to withhold an incriminating oral statement through
oversight, or otherwise, should not permit a surprise attack on an unsuspecting
defense counsel's entire defense strategy. Such a result would run afoul of the clear
intent of RCr 7.24(1).” Chestnut, supra at 296.
A review of the record indicates that the statement was only provided
to the defense on the day of trial just minutes before the testimony of the police
officer who told the jury about this statement. The prosecutor stated that he did not
interview the officer until the day of trial and therefore did not know about the
complete statement. The trial court reasoned that the statement was admissible
because the prosecutor did not have knowledge of the statement prior to trial.
The Commonwealth cannot choose to wait until the day of trial to
interview a witness and then disclose previously unknown evidence. As
previously noted, RCr 7.24 and 7.26 and case law clearly require evidence to be
submitted within a sufficient amount of time to allow defense counsel to review the
evidence and properly adjust its strategy. The admission of the second portion of
the statement created a surprise attack and thus resulted in a denial of Lynn’s due
Accordingly, the judgment and conviction of the Henderson Circuit
Court is affirmed in part, reversed in part and remanded for a new trial in
conformity with this opinion.
ACREE, JUDGE, CONCURS.
CAPERTON, JUDGE, CONCURS BY SEPARATE OPINION.
CAPERTON, JUDGE, CONCURRING: I write separately only to
express my belief that RCr 7.26 has a more narrow application than the majority
The plain reading of RCr 7.26 applies to witness statements in
contrast to RCr 7.24 (1) which specifically applies to incriminating statements of a
defendant. In Hicks v. Commonwealth, 805 S.W.2d 144, 148 (Ky.App.1990), this
Court stated “[t]his rule [referring to RCr 7.26] was enacted for the purpose of
allowing defense counsel a reasonable opportunity to inspect any such previous
statements, before the witness is called, to enable counsel an opportunity to fully
cross-examine the witness concerning any contradictory statements made by him.”
See also Wright v. Commonwealth, 637 S.W.2d 635 (Ky. 1982) and
Commonwealth v. Jackson, 281 S.W.2d 891 (Ky. 1955). Therefore, I would not
apply RCr 7.26 so broadly as to require disclosure of statements made by a
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Donald H. Morehead
Erin Hoffman Yang
Assistant Public Advocates
Gregory C. Fuchs
Assistant Attorney General