SUGGS (TRAVIS L.) VS. COMMONWEALTH OF KENTUCKYAnnotate this Case
RENDERED: NOVEMBER 7, 2008; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
TRAVIS L. SUGGS
APPEAL FROM SIMPSON CIRCUIT COURT
HONORABLE JANET J. CROCKER, JUDGE
INDICTMENT NO. 01-CR-00184
COMMONWEALTH OF KENTUCKY
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BEFORE: COMBS, CHIEF JUDGE; DIXON AND TAYLOR, JUDGES.
DIXON, JUDGE: Appellant, Travis Suggs, pro se, appeals from an order of the
Simpson Circuit Court denying his motion for post-conviction relief pursuant to
CR 60.02. Finding no error, we affirm.
On August 6, 2001, Franklin Police Officer Scott Wade was patrolling
in the Breckinridge Street area of Franklin, Kentucky, where drug activity was
known to occur. Officer Wade observed Roscoe Clark, a known drug user,
approach 528 Breckinridge Street on his bicycle, enter the residence and reappear
shortly thereafter. Clark failed to observe a traffic signal while riding his bike and
was stopped by Officer Wade. As Officer Wade approached him, Clark placed a
small bag of marijuana in his mouth. When asked about the drugs, Clark stated
that he had purchased the marijuana from a black male at the Breckinridge Street
residence who was wearing a white t-shirt and a blue or black hat. After arresting
Clark, Officer Wade obtained a search warrant for the 528 Breckinridge Street
Around 9:00 p.m. that same evening, Officer Wade and another
officer executed the search warrant. Appellant and five other individuals were in
the house playing pool. The occupants were informed that the officers had a
search warrant and were instructed to lie down on the floor and place both hands in
front of them. Appellant refused to lie down and repeatedly placed his right hand
behind him. The officers then observed Appellant toss a large bag of marijuana
into the corner of the room. At that point, Appellant was arrested and searched.
Police recovered from Appellant another small bag of marijuana, $6,072 in cash,
and a vial containing several Viagra pills.
Following a jury trial in August 2002, Appellant was convicted of
trafficking in marijuana within a thousand (1,000) yards of a school, and for being
a second-degree persistent felony offender. He was sentenced to seven years’
imprisonment. In November 2003, a panel of this Court affirmed the convictions
and sentence in an unpublished opinion. Suggs v. Commonwealth, 2002-CA-
002318 (November 14, 2003). The Kentucky Supreme Court thereafter denied
discretionary review on April 13, 2005.
In the interim, on June 2, 2003, Appellant filed a pro se motion to
vacate judgment pursuant to RCr 11.42. The trial court denied the motion in
October 2004. No appeal was taken from that order. On January 8, 2007,
Appellant filed the instant motion for relief pursuant to CR 60.02, claiming that
Officer Wade made false statements in his affidavit to obtain the search warrant for
the residence where Appellant was arrested. In support of his motion, Appellant
obtained the videotape of Clark’s arrest,1 which he argued proved that Officer
Wade coerced Clark into claiming he purchased the marijuana from Appellant.
The trial court held a hearing on February 14, 2007, during which it
addressed the CR 60.02 motion, as well as a separate forfeiture motion. With
respect to the CR 60.02 motion, the trial court first ruled that the motion was
untimely since Appellant admitted to having obtained the video through an open
records request in 2004. Further, the trial court ruled that based upon its review of
the video, it found no material discrepancies between Officer Wade’s statement in
his affidavit and his testimony at the suppression hearing and trial. The trial court
commented that it specifically heard Clark state on the video that he had purchased
the marijuana at the Breckinridge Street residence. Accordingly, the court
concluded that Appellant was not entitled to a full evidentiary hearing or CR 60.02
relief. In a subsequent written order, the trial court further held that Appellant had
The video was actually the surveillance tape taken on the camera in Officer Wade’s patrol car.
failed to satisfy the requirements of Commonwealth v. Spaulding, 991 S.W.2d 651,
657 (Ky. 1999), to warrant relief. Appellant thereafter appealed to this Court.
Appellant argues that the trial court erred in finding that he did not
prove that Officer Wade perjured himself. Appellant contends that the videotape
clearly shows Clark stating that he did not know Appellant and did not purchase
the drugs from him.
At the outset we note that the videotape of Clark’s arrest is not
contained in the record and thus, not available for our review. Nevertheless, as the
trial court noted, in Commonwealth v. Spaulding, supra, the Kentucky Supreme
Court held that “a criminal conviction based on perjured testimony can be a reason
of an extraordinary nature justifying relief pursuant to CR 60.02 (f) and subject to
the reasonable time limitation of the rule.” Id. at 657. However, the burden is on
Appellant to show that both a reasonable certainty exists as to the falsity of the
challenged testimony and that the conviction probably would not have resulted had
the truth been known. Id. We agree that Appellant has failed to meet either prong.
In the absence of the video, we defer to the trial court’s determination
that it did not reveal any discrepancies between Officer Wade’s statement in his
affidavit and his testimony at the suppression hearing or trial. In fact, Officer
Wade conceded at the suppression hearing that Appellant’s clothing did not match
the description given by Clark. However, Officer Wade explained that Appellant
was not searched incidental to the warrant, but rather incidental to arrest after he
was observed removing a large quantity of marijuana from his person. Clearly, in
light of the fact that both marijuana and a large sum of cash were found during the
search, we cannot conclude that the convictions would not have otherwise resulted.
Nor do we agree with Appellant’s claim that the Commonwealth
withheld exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 83
S.Ct. 1194, 10 L.Ed.2d 215 (1963). As the trial court noted, the video tape of
Clark’s arrest was not produced because the Commonwealth was not aware of its
existence. Notwithstanding, we fail to perceive how the tape would have
exonerated Appellant. Officer Wade acknowledged that Appellant did not fit the
description given by Clark. And Clark testified at trial that he did not know
Appellant. Certainly, the jury had the opportunity to observe both Officer Wade’s
and Clark’s testimony and assess their credibility. See Commonwealth v. Smith, 5
S.W.3d 126, 129 (Ky. 1999).
Without the opportunity to view the video in question, we are bound
by the trial court’s findings that it did not contain any discrepancies and did not
show that Officer Wade committed perjury in obtaining the search warrant. As
such, Appellant was not entitled to the extraordinary relief of CR 60.02. Gross v.
Commonwealth, 648 S.W.2d 853 (Ky. 1983).
Finally, Appellant alleges that the trial court abused its discretion by
denying him the opportunity to introduce evidence that the search warrant had
been erroneously signed by a trial commissioner in another county. However, the
law is clear that CR 60.02 is not a separate avenue of appeal, but is only available
to raise issues which cannot be raised in other proceedings. McQueen v.
Commonwealth, 948 S.W.2d 415 (Ky. 1997), cert. denied, 521 U.S. 1130 (1997).
Because this claim could have and should have been raised on direct appeal, it is
not appropriate for review at this juncture.
The order of the Simpson Circuit Court denying Appellant’s motion
for relief pursuant to CR 60.02 is affirmed.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Travis Suggs, pro se
Attorney General of Kentucky
Susan Roncarti Lenz
Assistant Attorney General