LEATHERMAN (RACHEL) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: JANUARY 21, 2011; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2008-CA-000849-MR
RACHEL LEATHERMAN
v.
APPELLANT
APPEAL FROM MCCRACKEN CIRCUIT COURT
HONORABLE CRAIG Z. CLYMER, JUDGE
ACTION NO. 06-CR-00408
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: TAYLOR, CHIEF JUDGE; LAMBERT, JUDGE; HENRY,1 SENIOR
JUDGE.
LAMBERT, JUDGE: Rachel Leatherman directly appeals from the judgment of
the McCracken Circuit Court following a jury trial convicting her of possession of
a controlled substance (cocaine), tampering with physical evidence, and operating
1
Senior Judge Michael L. Henry concurred in this opinion prior to the expiration of his term of
senior judge service. Release of the opinion was delayed by administrative handling.
a motor vehicle under the influence of alcohol or drugs. As a result of those
convictions, the trial court sentenced Leatherman to a total of eight years’
imprisonment. On appeal, Leatherman challenges the trial court’s failure to
suppress evidence obtained in conjunction with the investigatory stop and her
subsequent arrest, the trial court’s granting of the Commonwealth’s motion in
limine that prohibited her from mentioning her statement to Deputy McGuire, and
the trial court’s failure to grant a directed verdict on the DUI charge. Having
thoroughly reviewed the record on appeal and the parties’ briefs, we affirm the
judgment of conviction.
The facts leading up to Leatherman’s arrest and subsequent conviction are as
follows: On June 28, 2006, Vernon Wilkey made an emergency 911 call to report
events in his neighborhood on Queensway Drive. The record contains an
unofficial transcript of his 911 call:
DISPATCHER: Central dispatch. This is Lou.
Could I help you.
MR. WILKEY: Yes, sir. This is Vernon Wilkey.
I live out here on Queensway Drive.
And there is a lady in a dark blue looks like a
Buick LeSabre. I’d say it’s a late ‘80s, early ‘90s model.
And I’ve got a license plate number. But she’s out here
walking around in my neighbor’s yard and everything
and writing stuff down, and she’d talked to him and
mentioned something about tar heroin and all that stuff.
DISPATCHER: Talked to who?
MR. WILKEY: My neighbor next door.
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DISPATCHER: And was talking to him about
heroin?
MR. WILKEY: Yeah, tar heroin.
****
DISPATCHER: . . . . Okay. Do you know what
she was writing down?
MR. WILKEY: No.
DISPATCHER: What address on Queensway
Drive was she last seen at?
MR. WILKEY: She was just here at mine a few
minutes ago at 4015.
DISPATCHER: Is she white or black?
MR. WILKEY: She’s white.
DISPATCHER: Hold on just a moment, please.
****
DISPATCHER: What’s the license plate number
on that vehicle, sir?
MR. WILKEY: [License number omitted.]
****
DISPATCHER: What state is that?
MR. WILKEY: Seattle, Washington.
She said something about her and her husband
staying in a motel and everything.
****
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DISPATCHER: All right. Officers are already on
the way. They’ll be out there to speak with you shortly.
If she leaves before they get out there to check the
area, could you give us a call back and let us know which
way she goes?
MR. WILKEY: Okay.
The following day, Mr. Wilkey completed a written statement detailing what
had happened:
On 6-28-2006 a Lady driven a Buick Lasaber stoped at
my driveway and ask me if I would sell 2 berrlles and i
said they belong to my Naber. She had her paints
unbuttoned & unzipped. She acked like she was under
the Influence of something. She was a dirty Blound
wereing Blue shirt & Blue Jeans. [Spelling and
grammatical errors in original.]
The record also includes an unofficial transcript of the dispatch tape, which
reads in pertinent part as follows:
DIS: 47. 38. Suspicious person complaint, the 4000
block off of Queensway Drive off of Lesser Harris and
Bottom Street. A white female in a dark blue LeSabre
that’s out walking around asking people about 218A.2
***
DIS: 38 and 47, that dark blue LeSabre’s going to have a
Washington tag. [License number omitted.] They don’t
know who she is, but they’re going to call us back if the
vehicle leaves before you arrive.
Deputy Eddie McGuire of the McCracken County Sheriff’s Department
responded to the call and proceeded to the Queensway Drive area. The subject of
2
We assume “218A” refers to Kentucky Revised Statutes (KRS) Chapter 218A, which addresses
controlled substances.
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the complaint was no longer in the area, but on his way back into town, Deputy
McGuire came upon a blue Buick LeSabre with Washington license plates in the
right lane with the left blinker flashing. The dispatch transcript reflects: “I just
passed her. Going to try to find her. See if she’ll pass me again. I think she’s
gonna turn off now. Coming up on Cairo and 60.” When Deputy McGuire pulled
his cruiser behind the LeSabre, the driver turned on the right turn signal and pulled
off to the right side of the road. Deputy McGuire then turned on his lights and
pulled up behind the LeSabre. We note that the record contains a videotape of the
cruiser cam video; unfortunately, there is no audio recording attached to the video.
Deputy McGuire approached the driver’s side of the stopped vehicle and had
the driver step out. The driver was Rachel Leatherman, and a records check
showed that there were no active warrants for her arrest. Deputy McGuire noticed
that Leatherman had glassy eyes, that her pants were unbuttoned and unzipped, and
that a pant leg was rolled up. He also noticed that she was nervous and fidgety.
Deputy McGuire then performed field sobriety tests. On the horizontal gaze
nystagmus (HGN) test, Leatherman showed six clues that indicated impairment. A
breath test and later blood tests revealed that there were no drugs or alcohol in
Leatherman’s system.
When Deputy McGuire asked her about the 911 call, Leatherman referred to
Mr. Wilkey as a snitch. She admitted to having been in the Queensway Drive area
and to asking a man about some barrels. She also stated that she was on several
prescription medications, including Adderall, Metoprolol, and Clonazepam. By
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this time a second deputy, Deputy Jason Walters, had arrived. Leatherman
consented to a search of her car, during which they found a bottle of prescription
medication, a full cup of beer in the console, and a recorked bottle of wine on the
floor of the passenger side. They did not find any illegal drugs during the search.
Deputy McGuire requested that a female officer respond to the scene to
perform a search of Leatherman. Paducah Police Officer Gretchen Dawes
responded, obtained consent to search, and performed a thorough search of
Leatherman, including the front and back pockets of her jeans, the rolled up pants
legs, and under her T-shirt. The search is depicted in the cruiser cam video.
Officer Dawes did not find any weapons or illegal drugs on her person. Following
this search, Deputy McGuire arrested Leatherman for DUI, handcuffed her, and
placed her in the back seat of his cruiser. The three officers then performed
another search of her vehicle, including the trunk. Again, no illegal drugs were
found.
Once the search was concluded, Deputy McGuire drove Leatherman to
Lourdes Hospital where blood was drawn for a blood test. When Deputy McGuire
removed her from the cruiser at the hospital, Leatherman claims that she stated she
had dropped her watch in the back seat. During this period, Deputy McGuire
claims to have noticed a small baggie containing what was later confirmed to be
crack cocaine in the seatbelt crack in the vicinity of Leatherman’s watch. When
confronted with this, Leatherman denied that the drugs were hers.
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Based on the above, the McCracken County grand jury indicted Leatherman
for possession of a controlled substance (cocaine) (KRS 218A.1415), tampering
with physical evidence (KRS 524.100) by concealing the baggie of crack cocaine,
and operating a motor vehicle under the influence of drugs (KRS 189A.010).
Leatherman moved to suppress the evidence discovered as a result of her stop and
arrest, arguing that the stop was based on an uncorroborated tip and that there was
no probable cause to justify the arrest. Following a suppression hearing, the trial
court denied the motion to suppress. It went on to deny subsequent motions to
reconsider that ruling, although it did enter a substitute order. The matter
proceeded to trial, after which the jury found Leatherman guilty as charged in the
indictment. Following the penalty phase and in accordance with the jury’s
recommendation, the trial court sentenced Leatherman to two consecutive fouryear terms of imprisonment for the possession and tampering convictions as well
as to forty-eight hours in jail and a $200.00 fine for the DUI conviction. This
appeal follows.
On appeal, Leatherman raises three issues. First, she argues that the trial
court erred in denying her motion to suppress. Second, she argues that the trial
court improperly granted the Commonwealth’s motion in limine regarding her
statements to Deputy McGuire about her watch. Third, she argues that the trial
court should have granted her motion for a directed verdict on the DUI charge. We
shall address each of these arguments in turn.
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The first issue we shall address is whether the trial court properly denied
Leatherman’s motion to suppress. The trial court entered two orders addressing
this issue, which we shall set forth in full below.
On January 18, 2008, just prior to the trial in the matter, the trial court
entered a substitute order denying Leatherman’s motion to suppress:3
This matter is before the Court on Defendant’s
motion, through counsel, to supplement the record and to
reconsider and set aside an order denying his [sic] motion
to suppress evidence. The record is ORDERED
supplemented with a 911 transcript. The Court now sets
aside its prior order denying Defendant’s motion to
suppress and substitutes this order denying the motion to
suppress.
FINDINGS OF FACT
1. Police dispatch received a telephone call from a
person who gave his name and address, stating that a
white female in a vehicle that looked like a late 80’s or
early 90’s dark blue Buick LaSabre [sic], bearing Seattle
Washington license plate number . . . was “. . . walking
around in [his] neighbors yard and everything and
writing stuff down, and she’d talked to him and
mentioned something about tar heroin and all that stuff.”
2. A Sheriff’s deputy testified that dispatch
radioed the incident and stated that the white female was
attempting to buy heroin.
3. The deputy observed a dark blue LaSabre [sic]
with the . . . Washington plate, driven by a white female
in a right hand traffic lane with her left turn signal
activated. The vehicle did not turn but pulled to the right
side of the roadway and stopped.
3
The original order denying Leatherman’s motion to suppress had been entered on January 11,
2007.
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4. The deputy pulled in behind the stopped vehicle
and activated his emergency lights.
5. When the deputy went to the vehicle he
observed the Defendant with her pants unzipped and
unbuttoned. The deputy observed in plain view an open
container of what he suspected to be beer and an opened
but corked bottle of wine in the car.
6. Defendant failed all six clues of a horizontal
gaze nystagmus test, had very glassy eyes, and appeared
nervous. When the deputy asked her if she was taking
any medication that would explain her condition she
stated that she was on several medications, including
Clonazepam.
7. The maker of Clonazepam warns that it should
not be used when driving a vehicle and that the drug
causes abnormal eye movements.
8. The deputy arrested Defendant for operating a
motor vehicle under the influence of drugs or alcohol and
placed her in the back seat of his patrol car, which he had
searched and found clean of any drugs or other items.
9. When Defendant later exited the patrol car the
officer searched the back seat and found a piece of
cellophane which appeared to contain a controlled
substance. The cellophane was located behind the back
seat adjacent to what Defendant identified as her
wristwatch.
10. The suspected controlled substance lab tested
as cocaine.
CONCLUSIONS OF LAW
1. The deputy did not conduct a stop of
Defendant’s vehicle. Defendant pulled off the roadway
and stopped. The deputy then pulled in behind her and
activated his emergency lights so as to investigate.
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2. The combination of a report of an unknown
person, driving a Washington state licensed vehicle in a
Paducah, Kentucky residential area, asking about tar
heroin, later observed to signal a left turn but pull off the
roadway to the right, constitutes reasonable suspicion to
investigate and possibly cite for improper signal.
3. A report of suspicious activity by a person who
identifies himself by name, telephone number, and
address, is presumptively reliable.
4. Defendant’s inquiring about heroin, failing a
HGN test, signaling a left turn and pulling off the road to
the right, and stating that she was taking medication that
would cause her to fail the test, constitutes probable
cause to arrest for DUI.
5. A police officer may legally search the back
seat of his patrol car where the defendant was placed
incident to arrest.
6. The results of the search and the plain view
discovery of the wine and suspected beer is admissible as
evidence at trial.
IT IS HEREBY ORDERED that Defendant’s
motion to suppress is DENIED.
On January 28, 2008, following the trial, the court entered a supplemental
order denying the motion to suppress:
The defendant has requested the court to consider
additional information and evidence supplementing the
record in this case, based upon which the Court makes
the following supplemental Findings of Fact and
Conclusions of Law in denying defendant’s Motion to
Suppress:
FINDINGS OF FACT
1. The 911 dispatcher received a call from an
identified public citizen, Vernon Wilkey, who reported
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that a white female driving a dark blue LaSabre [sic] with
Washington State license plates made unusual and
disturbing statements about heroin in his neighborhood.
2. 911 called deputies and alerted them to the
woman, her vehicle, and her suspicious drug activity.
3. Within minutes Deputy McGuire observed a
dark blue LaSabre [sic] with Washington State license
plates driven by a white female exactly matching the 911
description. The vehicle was traveling slowly in the right
traffic lane of Highway 60 with the left turn signal
activated for an unusually long time for no apparent
reason. The vehicle did not turn left, but continued on
straight, which all appeared unusual and suspicious to the
deputy.
4. The vehicle then pulled to the right side of the
road and stopped without any signaling to do so by the
deputy. This demonstrated additional unusual behavior
by the defendant. The deputy then pulled in behind the
defendant’s vehicle and activated his roadside stop lights.
By the time the deputy stopped, he had reasonable
grounds and reasonable suspicion to approach the driver.
He exited his cruiser and walked to speak to the driver.
5. The deputy observed in plain view a half empty
but opened container of beer and a half empty but corked
bottle of wine. The defendant’s eyes were glassy. He
then had reasonable grounds to check the driver’s
sobriety. The defendant failed all HGN tests. She also
gave unusual responses to instructions given to her by the
deputy, she appeared somewhat confused; she appeared
nervous; and she appeared to the deputy to be under the
influence of drugs or alcohol.
6. The defendant admitted to the deputy that she
was on a number of medications, including Clonazepam.
Clonazepam is a strong anti-psychotic medication which
interferes with motor performance, including driving a
motor vehicle. Clonazepam also causes abnormal eye
movements.
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7. The deputy had reasonable grounds and
probable cause to arrest the defendant for DUI.
8. The defendant was transported to the hospital
for the taking of a blood test. At the hospital a suspicious
baggie was found next to the defendant’s watch in the
back seat of the deputy’s patrol cruiser. The deputy
knew that the patrol cruiser did not have the suspicious
plastic baggie or a watch before the defendant was placed
into the back seat. The defendant admitted losing her
watch. The deputy had probable cause and exigent
reasons to seize the baggie. The baggie appeared to
contain crack cocaine. The deputy had probable cause to
arrest the defendant for tampering with evidence and
possession of cocaine.
CONCLUSIONS OF LAW
1. The caller who reported the defendant’s
unusual interest in heroin was identified. Such a report is
considered more reliable than an anonymous tip.
2. The deputy had reasonable suspicion and
probable cause to make an investigation stop and search
of the defendant and her vehicle.
3. Discovery of the suspicious plastic baggie in
the back seat of the deputy’s cruiser was based on plain
view discovery. The defendant and her vehicle had
previously been properly detained based on the
circumstances above which proceeded [sic] the discovery
of the baggie.
Our standard of review from a denial of a motion to suppress is twofold.
First, we must determine whether the findings of fact are supported by substantial
evidence. If so, those findings are conclusive. Kentucky Rules of Criminal
Procedure (RCr) 9.78; Adcock v. Commonwealth, 967 S.W.2d 6, 8 (Ky. 1998). If
not, the factual findings must be overturned as clearly erroneous. Farmer v.
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Commonwealth, 169 S.W.3d 50, 53 (Ky. App. 2005). Second, we must perform a
de novo review of those factual findings to determine whether the lower court’s
decision is correct as a matter of law. Ornelas v. United States, 517 U.S. 690, 697,
116 S. Ct. 1657, 1662, 134 L. Ed. 2d 911 (1996); Commonwealth v. Banks, 68
S.W.3d 347, 349 (Ky. 2001); Garcia v. Commonwealth, 185 S.W.3d 658, 661 (Ky.
App. 2006); Stewart v. Commonwealth, 44 S.W.3d 376, 380 (Ky. App. 2000).
Leatherman has not contested the trial court’s factual findings in its orders
denying her motion to suppress. Rather, she has contested the trial court’s
conclusions of law based upon those findings.
Our first consideration is whether Deputy McGuire had sufficient reason to
stop and investigate Leatherman’s automobile. We hold that Deputy McGuire had
sufficient grounds to stop Leatherman and investigate the situation, as well as
probable cause to arrest her.
In Taylor v. Commonwealth, 987 S.W.2d 302, 305 (Ky. 1998), the Supreme
Court of Kentucky addressed the investigatory stop of automobiles and held:
In order to justify an investigatory stop of an
automobile, the police must have a reasonable articulable
suspicion that the persons in the vehicle are, or are about
to become involved in criminal activity. United States v.
Cortez, 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621
(1981); Commonwealth v. Hagan, Ky., 464 S.W.2d 261
(1971). In order to determine whether there was a
reasonable articulable suspicion, the reviewing appellate
court must weigh the totality of the circumstances. See
Alabama v. White, 496 U.S. 325, 110 S.Ct. 2412, 110
L.Ed.2d 301 (1990).
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More recently, in Johnson v. Commonwealth, 179 S.W.3d 882, 884 (Ky. App.
2005), this Court addressed the same issue, setting forth the applicable law as
follows:
It is well settled that an investigative stop of an
automobile is constitutional as long as law enforcement
officials have a reasonable suspicion – supported by
specific and articulable facts – that the occupant of the
vehicle has committed, is committing, or is about to
commit an offense. Delaware v. Prouse, 440 U.S. 648,
99 S.Ct.1391, 59 L.Ed.2d 660 (1979); Collins v.
Commonwealth, 142 S.W.3d 113 (Ky. 2004). In addition
to the requirement that the stop be justified at its
inception, the police officer’s subsequent actions must be
reasonably related in scope to the circumstances that
gave credence to the initial stop. Terry v. Ohio, 392 U.S.
1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). “[A]n
investigative detention must be temporary and last no
longer than is necessary to effectuate the purpose of the
stop.” Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct.
1319, 1325, 75 L.Ed.2d 229, 238 (1983).
Reasonableness “is measured in objective terms by examining the totality of the
circumstances.” Ohio v. Robinette, 519 U.S. 33, 39, 117 S. Ct. 417, 421, 136 L.
Ed. 2d 347 (1996).
Based upon the prior 911 call, during which the caller described a woman
driving a car that displayed Washington state license plates who was committing
criminal activity, and the undisputed fact that Leatherman pulled to the side of the
road and stopped before Deputy McGuire activated his emergency lights, we hold
that there was no constitutional violation in the investigatory stop. However, the
law is clear that a stop may only continue long enough for the officer to determine
whether his suspicions were correct.
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On this issue, the United States Supreme Court has held:
The predicate permitting seizures on suspicion
short of probable cause is that law enforcement interests
warrant a limited intrusion on the personal security of the
suspect. The scope of the intrusion permitted will vary to
some extent with the particular facts and circumstances
of each case. This much, however, is clear: an
investigative detention must be temporary and last no
longer than is necessary to effectuate the purpose of the
stop. Similarly, the investigative methods employed
should be the least intrusive means reasonably available
to verify or dispel the officer’s suspicion in a short period
of time. It is the State’s burden to demonstrate that the
seizure it seeks to justify on the basis of a reasonable
suspicion was sufficiently limited in scope and duration
to satisfy the conditions of an investigative seizure.
Florida v. Royer, 460 U.S. 491, 500, 103 S. Ct. 1319, 1325-26, 75 L. Ed. 2d 229
(1983) (internal citations omitted, emphasis added).
Here, Deputy McGuire noted that Leatherman exhibited glassy eyes and that
she was acting nervous and fidgety. He also noted that she had a cup of beer and
an opened, but recorked, bottle of wine in the vehicle. That certainly provided
Deputy McGuire with grounds to determine whether Leatherman was driving
under the influence by performing field sobriety tests. Leatherman then
demonstrated six clues on the HGN test.4 Accordingly, because of the open
4
“Nystagmus is an involuntary rapid movement of the eyeball, which may be horizontal,
vertical, or rotatory. (The Sloane-Dorland Ann. Medical-Legal Dict. (1987) p. 504.) An
inability of the eyes to maintain visual fixation as they are turned from side to side (in other
words, jerking or bouncing) is known as horizontal gaze nystagmus, or HGN.” People v. Ojeda,
225 Cal. App. 3d 404, 406, 275 Cal. Rptr. 472, 472-73 (1990).
The horizontal gaze nystagmus (HGN) test is one of the tests law
enforcement officers perform either in the field or at the police
station when they suspect an individual is under the influence of
alcohol or some other drug. The prosecution often introduces the
results of the HGN test in DWI prosecutions. This test is based on
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containers of alcohol and the results of the HGN test, the deputies were justified in
performing a breathalyzer test to determine whether Leatherman was under the
influence of alcohol. We note for the record that the test was negative and that
later blood tests were also negative for alcohol or drugs. Finally, consent searches
of her automobile and her person did not reveal any heroin or any other illegal
substance. However, there is no dispute that the deputies discovered a bottle of
prescription medication, and Leatherman admitted that she was on several
medications, including Clonazepam, which did constitute sufficient grounds for her
continued detention. Our conclusion is supported by this admission, as well as
Deputy McGuire’s testimony related to his observations of Leatherman.
We must next consider whether Deputy McGuire had the requisite probable
cause to arrest Leatherman without a warrant.
KRS 431.005(1) permits a peace officer, including a sheriff’s deputy, to
make an arrest in the following situations:
(a) In obedience to a warrant; or
(b) Without a warrant when a felony is committed in his
presence; or
(c) Without a warrant when he has probable cause to
believe that the person being arrested has committed a
felony; or
the theory “that alcohol and drug use increases the frequency and
amplitude of HGN and cause it to occur at a smaller angle of
deviation from forward.” Although alcohol and drug use may
increase the HGN, it can also be produced by other pathological,
chemical or natural causes.” 3 Barbara E. Bergman and Nancy
Hollander, Wharton’s Criminal Evidence §13:49 (15th ed. 2009).
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(d) Without a warrant when a misdemeanor, as defined in
KRS 431.060, has been committed in his presence; or
(e) Without a warrant when a violation of KRS 189.290,
189.393, 189.520, 189.580, 511.080, or 525.070 has been
committed in his presence, except that a violation of KRS
189A.010 or KRS 281A.210 need not be committed in
his presence in order to make an arrest without a warrant
if the officer has probable cause to believe that the person
has violated KRS 189A.010 or KRS 281A.210.
There is no dispute that Deputy McGuire did not have a warrant for Leatherman’s
arrest. Therefore, his authority to arrest Leatherman would fall under subsection
(e).
In Maryland v. Pringle, 540 U.S. 366, 124 S. Ct. 795, 157 L. Ed. 2d 769
(2003), the United States Supreme Court addressed warrantless arrests and the
concept of probable cause. The Court recognized as a general matter that, “[a]
warrantless arrest of an individual in a public place for a felony, or a misdemeanor
committed in the officer’s presence, is consistent with the Fourth Amendment if
the arrest is supported by probable cause[,]” id., 540 U.S. at 370, 124 S. Ct. at 799,
and then addressed the question as to “whether the officer had probable cause to
believe that Pringle committed that crime [possession of cocaine].” Id. It went on
to provide a comprehensive discussion of the probable-cause standard:
The long-prevailing standard of probable cause
protects citizens from rash and unreasonable
interferences with privacy and from unfounded charges
of crime, while giving fair leeway for enforcing the law
in the community’s protection. On many occasions, we
have reiterated that the probable-cause standard is a
practical, nontechnical conception that deals with the
factual and practical considerations of everyday life on
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which reasonable and prudent men, not legal technicians,
act. Probable cause is a fluid concept – turning on the
assessment of probabilities in particular factual contexts
– not readily, or even usefully, reduced to a neat set of
legal rules.
The probable-cause standard is incapable of
precise definition or quantification into percentages
because it deals with probabilities and depends on the
totality of the circumstances. We have stated, however,
that the substance of all the definitions of probable cause
is a reasonable ground for belief of guilt, and that the
belief of guilt must be particularized with respect to the
person to be searched or seized.
Id., 540 U.S. at 370-71, 124 S. Ct. at 799-800 (internal citations, quotations, and
brackets omitted). Finally, the Court instructed that “[t]o determine whether an
officer had probable cause to arrest an individual, we examine the events leading
up to the arrest, and then decide ‘whether these historical facts, viewed from the
standpoint of an objectively reasonable police officer, amount to’ probable cause.”
Id., 540 U.S. at 371, 124 S. Ct. at 800.
Similarly, the Supreme Court of Kentucky has stated:
As the United States Supreme Court has remarked,
probable cause is a flexible, common-sense standard. It
merely requires that the facts available to the officer
would “warrant a man of reasonable caution in the
belief,” that certain items may be contraband or stolen
property or useful as evidence of a crime; it does not
demand any showing that such a belief be correct or
more likely true than false. A “practical, nontechnical”
probability that incriminating evidence is involved is all
that is required.
Williams v. Commonwealth, 147 S.W.3d 1, 7-8 (Ky. 2004).
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In the present case, we hold that Deputy McGuire had probable cause to
arrest Leatherman for DUI. Deputy McGuire testified that Leatherman appeared to
be under the influence of something, despite his observation that she was not
driving erratically or weaving. Furthermore, Leatherman failed the HGN test,
which reveals intoxication by alcohol or some other drug, although she later passed
the breathalyzer test. Finally, the product information for Klonopin (Clonazepam)
attached to Leatherman’s brief states that patients taking that medication “should
be cautioned about operating hazardous machinery, including automobiles, until
they are reasonably certain the Klonopin therapy does not affect them adversely.”
Therefore, the observation of Leatherman’s glassy eyes and odd behavior coupled
with her admission that she was taking prescription medication that included a
warning about driving was sufficient to provide Deputy McGuire with probable
cause to arrest her for DUI. Therefore, Deputy McGuire’s warrantless arrest of
Leatherman did not deprive her of her constitutional rights against illegal search
and seizure.
Next, we shall address Leatherman’s argument that the trial court erred in
granting the Commonwealth’s motion in limine prohibiting her from mentioning
any statement or question she made to Deputy McGuire regarding her watch in the
backseat of the cruiser. Leatherman contends that she should have been permitted
to elicit testimony from Deputy McGuire that she had asked him about her watch
before he actually discovered it or the drugs in the backseat of the cruiser. Because
Deputy McGuire was permitted to testify that Leatherman admitted the watch was
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hers, she argues that the jury was left with the impression that the drugs were also
hers. She goes on to argue that her statement to Deputy McGuire about her watch
did not constitute hearsay because it was not offered to prove the truth of the
matter asserted in the statement – that she had lost her watch. Rather, it was
offered to show the effect it had on Deputy McGuire in that he looked behind the
seat to retrieve the watch (where he found the drugs) and to establish his
inconsistent statements from earlier proceedings. The Commonwealth, in turn,
argues that the trial court did not abuse its discretion in disallowing the
introduction of this statement during Deputy McGuire’s testimony.
In support of this argument, Leatherman cites to Schrimsher v.
Commonwealth, 190 S.W.3d 318 (Ky. 2006). In Schrimsher, the Supreme Court
of Kentucky addressed the application of Kentucky Rules of Evidence (KRE) 106,
also known as the rule of completeness, which provides: “When a writing or
recorded statement or part thereof is introduced by a party, an adverse party may
require the introduction at that time of any other part or any other writing or
recorded statement which ought in fairness to be considered contemporaneously
with it.” Describing the rule, the Schrimsher Court held that,
[A] party purporting to invoke KRE 106 for the
admission of otherwise inadmissible hearsay statements
may only do so to the extent that an opposing party’s
introduction of an incomplete out-of-court statement
would render the statement misleading or alter its
perceived meaning. The issue is whether the meaning of
the included portion is altered by the excluded portion.
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Schrimsher, 190 S.W.3d at 330-31 (footnote, citation, and internal quotation marks
omitted).
Regarding Leatherman’s reliance on Schrimsher, the Commonwealth argues
that she was attempting to explain an earlier statement, not complete an incomplete
out-of-court statement to prevent the jury from being misled. The Commonwealth
also argues that Leatherman is precluded from raising the issue of the discrepancy
in Deputy McGuire’s statements during the course of the proceedings because
there was no foundation in place that would permit her to impeach his prior
statements and because the argument was different from the one presented below,
citing Kennedy v. Commonwealth, 544 S.W.2d 219, 222 (Ky. 1976), overruled on
other grounds by Wilburn v. Commonwealth, 213 S.W.3d 321 (Ky. 2010).
Kentucky law is well settled that a trial court’s decision to admit evidence is
subject to an abuse of discretion standard.
Since the trial court’s unique role as a gatekeeper of
evidence requires on-the-spot rulings on the admissibility
of evidence, we may reverse a trial court’s decision to
admit evidence only if that decision represents an abuse
of discretion. And for a trial court’s decision to be an
abuse of discretion, we must find that the decision was
arbitrary, unreasonable, unfair, or unsupported by sound
legal principles.
Clark v. Commonwealth, 223 S.W.3d 90, 95 (Ky. 2007) (internal quotation marks
and footnotes omitted). Similarly, “[a] trial court’s ruling under KRE 106 (i.e., the
“rule of completeness”) is discretionary.” Schrimsher, 190 S.W.3d 318, 330 (Ky.
2006).
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While we disagree with the Commonwealth’s “can of worms” argument, we
ultimately agree that the trial court did not abuse its discretion in declining to admit
this statement during Deputy McGuire’s testimony. We note that the trial court
indicated that it would permit Leatherman to testify to her statement regarding the
watch had she opted to take the stand in her own defense. Furthermore,
Leatherman did not attempt to impeach Deputy McGuire’s prior statements
regarding the discovery of the watch and drugs through laying a proper foundation.
Even if we were to hold that this ruling was made in error, we must hold that it
constitutes harmless error as the ruling is not “inconsistent with substantial
justice.” RCr 9.24. Permitting the introduction of this out of court would not have
changed the outcome due to the strength of the rest of the testimony that was
introduced, including the close proximity of the watch and the drugs as well as the
search of the area prior to Leatherman’s placement in the cruiser.
Furthermore, we perceive no palpable error under RCr 10.26 in the
Commonwealth Attorney’s statements during closing argument. Leatherman
contends that she established palpable error in the Commonwealth Attorney’s
reference to her watch as an “autograph” on the drugs and as well as in what she
describes as an impermissible comment on her silence in the following passage
from the trial:
The simple issue under this case is whether a jury is
going to hold her accountable or give her a pass for
reasons that have not been presented, no justifications, no
excuses, no contradictions of the facts and the testimony
you heard.
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We disagree with Leatherman’s assertion that such argument violated her
constitutional rights or rose to the level of palpable error justifying any further
review.
Finally, we shall consider Leatherman’s argument that the trial court erred in
denying her motion for a directed verdict on the DUI charge. Leatherman
contends that the Commonwealth failed to introduce sufficient proof to permit the
matter to go to the jury because there was no scientific proof revealing the
presence of a prescription medication in her system.
The Supreme Court of Kentucky succinctly set forth the directed verdict rule
in Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991):
On motion for directed verdict, the trial court must
draw all fair and reasonable inferences from the evidence
in favor of the Commonwealth. If the evidence is
sufficient to induce a reasonable juror to believe beyond
a reasonable doubt that the defendant is guilty, a directed
verdict should not be given. For the purpose of ruling on
the motion, the trial court must assume that the evidence
for the Commonwealth is true, but reserving to the jury
questions as to the credibility and weight to be given to
such testimony.
On appellate review, the test of a directed verdict is,
if under the evidence as a whole, it would be clearly
unreasonable for a jury to find guilt, only then the
defendant is entitled to a directed verdict of acquittal.
See also Wilburn v. Commonwealth, 312 S.W.3d 321 (Ky. 2010).
The applicable statute in this case is KRS 189A.010, which addresses the
crime of driving under the influence. Specifically related to this case, the
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Commonwealth was required to prove that Leatherman was operating her motor
vehicle “[w]hile under the influence of any other substance or combination of
substances which impairs one’s driving ability.” KRS 189A.010(1)(c). The
evidence elicited at trial established that Leatherman admitted to Deputy McGuire
that she was taking three prescription medications, including Clonazepam, which
contains a warning regarding driving while on that medication. Deputy McGuire
also testified as to his observations of Leatherman’s behavior, including the results
of the HGN test showing intoxication. Furthermore, Mr. Wilkey testified at trial
that Leatherman and her husband visited him several months after the incident
regarding his upcoming testimony. He reported that Leatherman told him that she
was unable to remember what they discussed because she was “whacked out.”
This evidence is more than a mere scintilla and is of sufficient substance to permit
the question of guilt to go to the jury. Commonwealth v. Sawhill, 660 S.W.2d 3, 5
(Ky. 1983).
For the foregoing reasons, the judgment of the McCracken Circuit Court is
affirmed.
ALL CONCUR.
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BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Julia K. Pearson
Frankfort, Kentucky
Jack Conway
Attorney General of Kentucky
Gregory C. Fuchs
Assistant Attorney General
Frankfort, Kentucky
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