The Art of Cross Examination (Part 6) The Killer Cross That Never Happened

December 25, 2011

Author’s note: Welcome back to the Killer Cross. If you are a new reader, or you would like to review the previous three portions of this cross examination, go here for:

Part 1,
Part 2
Part 3

I did not know the answers to questions 106-108, so I left them blank and recommended Mr. McNeill check it out. Crane’s first lawyer, Will Kautz, had asked Deputy McGuire if he would be willing to submit the plastic baggie containing the rock to the crime lab for fingerprint analysis, which he agreed to do. These questions were designed to elicit answers relative to his handling the bag. Crane and I knew her fingerprints would not be on the bag and we figured his fingerprints would be.

We found out at trial that no request was made by McGuire or a prosecutor to check for prints on the bag.

Questions 75-81 were supplied by Crane-Station

75. Q: You previously testified under oath in Mrs. Leatherman’s case that the seatbelt crack where Mrs. Leatherman was seated in the back of your cruiser for transport did not have a seatbelt pulled through, is that correct?

A: Yes.

Transcript Suppression, page 25, lines 22-25

76. Q: So, in your thorough, routine weekend maintenance, you forgot to pull the seatbelt through?

A: Yes.

77. Q: So, Mrs. Leatherman was cuffed behind the back for transport without the benefit of even seatbelt safety, correct?

A: Yes.

78. Q:Are you aware that Kentucky has a seatbelt law?

A: Yes.

79. Q: And, as a trained police officer who has seen any number of traumatic injury accidents, you can surmise that the seatbelt law is in place to prevent injury, permanent disability, or death, correct?

A: Yes.

80. Q: But the benefit of added safety does not apply to your suspects that you handcuff and place in the back seat for transport, correct?

A: Yes.

81. Q: And this ‘oversight’ on your part could place not only you but your entire department, in jeopardy for carrying liability for injuries or deaths that could have been prevented, correct?

A: Yes.

82. Stricken.

83. Q: When you filled out the Uniform Citation, you charged Mrs. Leatherman with possession of a controlled substance, but you did not specify or identify the substance, did you?

A: No, I didn’t.

84. Q: Even though you immediately recognized it as crack, correct?

A: Yes.

Transcript Grand Jury, page 7, line 12

85. Q: Crack is a form of cocaine, isn’t it?

A: Yes.

86. Q: Cocaine comes in another form called powder, right?

A: Yes.

87. Q: And isn’t it generally true that white folks prefer powder cocaine while African Americans prefer crack?

A: Yes.

88. Q: Isn’t it also true that crack is smoked?

A: Yes.

89. Q: Crack is a highly addictive drug, isn’t it?

A: Yes.

90. Q: That’s because crack produces an intense high that only lasts a few minutes, correct?

A: Yes.

91. Q: Coming down from that high is so unpleasant that users refer to it as crashing, isn’t that right?

A: Yes.

92. Q: And one reason why crack is so addictive is that users want to feel good again so they’ll smoke another rock, if it’s available, won’t they?

A: Yes.

93. Q: Most users will smoke up all the crack they have and go look for more as soon as they run out, right?

A: Yes.

94. Q: They will keep smoking it sometimes for several days until they run out and then they might sleep for several days, right?

A: Yes.

95. Q: Crack smokers usually carry a glass pipe and a torch with them so they can smoke crack as soon as they purchase it from their dealer, right?

A: Yes.

96. Q: You and Deputy Walters and Officer Dawes did not find a glass pipe in Mrs. Leatherman’s car or on her person, correct?

A: Yes, you’re right.

97. Q: You, Deputy Walters and Officer Dawes did not find a crack torch in her vehicle or on her person, correct?

A: Yes, you’re correct.

98. Q: And the three of you did not find any residue of smoke crack in her vehicle or on her person, right?

A: Correct.

99. Q: It’s not unusual for crack users to have burned lips, right?

A: Correct.

100. Q: It’s not unusual for crack users to have burned fingertips, correct?

A: Correct.

101. Q: And crack users, or people under the influence of crack will have dilated pupils, right?

A: Yes.

102. Q: Since you didn’t document that Mrs. Leatherman had dilated pupils, the ladies and gentlemen of the jury can conclude that she did not have dilated pupils, right?

A: Yes.

103. Q: You picked up the suspected controlled substance with your fingers, didn’t you?

A: Yes.

104. Q: You were not wearing gloves, correct?

A: Correct.

105. Q: You wouldn’t want to risk catching a serious life threatening disease such as AIDS or Hepatitis C by coming in contact with a foreign object or substance that might be infected, right?

A: Of course.

106. Q: I noticed on the video that Deputy Walters wore rubber gloves when he searched the trunk of Mrs. Leatherman’s car. Do all deputies carry rubber gloves with them on patrol?

A:

107. Q: Did you have rubber gloves available in your vehicle?

A:

108. What hand did you use to pickup the suspected controlled substance?

A:

109. When you showed it to Mrs. Leatherman, you said, “It sure looks like heroin to me,” didn’t you?

A: Yes.

in dash audio/video

110. Q: She responded that she didn’t know what it was although it looked like some kind of bread crumb, correct?

A: Yes.

in dash audio/video

111. Q: Then she told you to find out what it was by field testing it and sending it to the crime lab for a confirmatory test, right?

A: Yes.

in dash audio/video

112. Q: After you took her to jail, you field tested substance for heroin, right?

A: Yes.

113. Q: Even though you believed it was crack?

A: Yes.

114. Q: The substance tested negative for heroin, right?

A: Yes.

115. Q: But you didn’t field test it to determine if it was crack, did you?

A: No, I did not.

116. Q: And the reason you didn’t is you knew all along it was crack cocaine, right?

A: Yes.

117. Q: If you had any doubt that it was crack, you could have field tested the substance, correct?

A: Yes.

118. Q: You were trained to field test supected controlled substances to eliminate the possibility that a suspected controlled substance is not a controlled substance, right?

A: Yes.

119. Q: Yet, even though you knew it was crack all along, you did not specify in the Uniform Citation that the controlled substance was crack cocaine, correct?

A: Yes.

To be continued . . .


The Art of Cross Examination (Part 5) The Killer Cross That Never Happened

December 24, 2011

Author’s Note: This is a continuation of the Killer Cross that never happened because Crane Station’s lawyer, Chris McNeill, refused to use it. If you have missed the first two parts of the cross, which are in Part 3 and Part 4 of this series, follow the links. I recommend reading them before reading this post, for the sake of continuity.

All rise. Court is again in session.

Good morning, ladies and gentlemen. You may be seated.

Deputy McGuire, you may return to the witness stand. I remind you that you are still under oath.

Counsel, you may proceed with your cross examination.

Thank you, your Honor.

40. Q: On the way to the hospital, you never detected any movement in the back seat that caused you to believe that Mrs. Leatherman was attempting to hide anything, did you?

A: No.

Transcript Suppression, page 24, lines 15-18

41. Q: But you testified under oath to the grand jury that on the way to Lourdes Hospital “Of course, she’s cuffed behind her back, and she is trying to work it — work it down into the seat, and she dropped her watch with it,” didn’t you?

A: Yes.

Transcript Grand Jury, pages 4-5, lines 23-1

42. Q: You didn’t see anything that would suggest she did that, did you?

A: No.

43. You told another lie, didn’t you?

A: Yes.

44. Q: You also testified to the grand jury that the Kentucky State Crime Laboratory result of the alcohol content in Mrs. Leatherman’s blood wasn’t back yet, didn’t you?

A: Yes.

Transcript Grand Jury, page 5, lines 17-18.

45. Q: Please take a look at Defendant’s Exhibit A. It has been identified as a copy of the laboratory analysis of the alcohol content in Mrs. Leatherman’s blood by Examiner Neil K. Vowels. Do you recognize it?

A: Yes.

46. Q: He did not detect any alcohol in her blood, did he?

A: No, he didn’t.

47. Q: Please take a look at the bottom left corner of the exhibit. There is a notation that reads, “Date Completed.” What date appears next to these words?

A: 7/14/2006.

48. Q: You testified before the grand jury on July 28, 2006, didn’t you?

A: Yes.

49. Q: So, you testified 14 days after Examiner Vowels completed his report, correct?

A: Yes.

50. Q: Now take a look at the top line. It indicates that the report was faxed to the prosecutor’s office at 12:32 PM on July 24, 2006, doesn’t it?

A: Yes.

51. Q: That was 4 days before you testified before the grand jury, correct?

A: Yes.

52. Q: Now at the grand jury when the Commonwealth’s Attorney said, “We don’t have the blood results back?” and you answered, “I don’t believe so, blood or lab, yeah,” can you explain why you and the Commonwealth Attorney did not know the result of the alcohol analysis of Mrs. Leatherman’s blood sample — a test completed two weeks before and faxed to the Commonwealth’s Attorney four days before you testified before the grand jury?

A: No.

53. Q: You have testified that Mrs. Leatherman failed all six clues on the HGN test. You did not document the basis for your conclusion in your narrative report, did you?

A: No.

54. Q: We only have your word for that, don’t we? Just as only have your word that she told you that she was on all of her prescription medication?

A: Yes.

55. Q: For the sake of argument, let’s assume you did tell the truth when you testified that she failed all six clues. As a police officer certified to give the HGN test, you must know that NHTSA, the National Highway Traffic and Safety Administration, recommends that the test be administered to a suspect facing away from the police cruiser because the strobing lights will cause a false nystagmus, don’t you?

A: Yes.

Link.

Q: Yet, you positioned her facing your strobing police cruiser when you administered the HGN, didn’t you?

A: Yes.

in-dash video

56. Q: Metoprolol is one of the prescription drugs that Mrs. Leatherman had in her car when you pulled her over, correct?

A: Yes.

57. Q: Metoprolol is a drug used to control hypertension, or high blood pressure, correct?

A: Yes.

58. Q: As a police officer certified to administer the HGN test, you know that hypertension can cause nystagmus, don’t you?

A: Yes.

59. Q: You, Deputy Walters, and Officer Dawes thoroughly searched Mrs. Leatherman’s vehicle, including the trunk, her purse, and her personal belongings, correct?

A: Yes.

60. Q: Other than the three prescription drugs, you didn’t find any drugs, drug residue, or paraphernalia, did you?

A: No.

61. And Officer Dawes thoroughly searched Mrs. Leatherman by the side of the road before you placed her in the back seat of your police cruiser, didn’t she?

A: Yes.

62. Q: The search included a visual examination of her genital area, correct?

A: Yes.

63. Q: She also reached into Mrs. Leatherman’s back pockets, correct?

A: Yes.

64. Q: And before the search, you ordered Mrs. Leatherman to empty her front pockets by turning them inside out, didn’t you?

A: Yes.

65. Q: And Officer Dawes checked Mrs. Leatherman’s breasts to see if she might have hidden something in her bra, didn’t she?

A: Yes.

66. Q: She also checked around Mrs. Leatherman’s waist to see if she might have hidden something there, correct? And shoes?

A: Yes.

67. Q: No drugs, drug residue, or paraphernalia were found, right?

A: Correct.

The answers to questions 59-67 can be verified by the in-dash video.

68. Q: You didn’t arrest her for DUI Alcohol, did you?

A: No, I did not arrest her for DUI alcohol.

69. Q: You didn’t arrest her for possession of a controlled substance at that point either, correct?

A: Yes.

70. Q: You arrested her for DUI Drugs, didn’t you?

A: Yes.

Transcript Preliminary Hearing, page 8, lines 4-6.

71. Q: You didn’t advise Mrs. Leatherman that she was under arrest, did you?

A: No, I didn’t.

72. Q: You told her that you were taking her to Lourdes Hospital for a blood test, didn’t you?

A: Yes.

73. Q: A blood test that she offered to take, correct?

A: Yes.

74. Q: You didn’t tell her you were taking her to jail, did you?

A: Correct, I didn’t tell her I was taking her to jail.

Author’s Note: Questions 71-74 set up a point to be made during final argument; namely, that Crane-Station had no reason to attempt to slough a rock of crack behind his seat during the ride to the hospital. Assuming for the sake of argument that she had somehow hidden it so well that Officer Dawes could not find it and, given that we know that Crane-Station knew her blood test would come back negative for alcohol and drugs, we can reasonably conclude that she would have had no reason to think she would be searched again. Therefore, why risk attracting attention attempting to slough drug?

This illustrates another important point about cross examining effectively. Use it to set-up your final arguments during summation.

Judge: Excuse me Counsel. Let’s break for the day. Court will be in recess.

To be continued . . .


The Full-Text Opening Brief [Frog Gravy Legal Case]

December 24, 2011

COMMONWEALTH OF KENTUCKY

Note: This is the Appellant’s Opening Brief filed on behalf of Rachel Leatherman (Crane-Station) in the Kentucky Court of Appeals in the Frog Gravy Legal Case.

COURT OF APPEALS OF KENTUCKY
FILE NO. 2008-CA-849

RACHEL LEATHERMAN
APPELLANT

v.

COMMONWEALTH OF KENTUCKY
APPELLEE

APPEAL FROM MCCRACKEN CIRCUIT COURT
HON. CRAIG Z. CLYMER, JUDGE
INDICTMENT NO. 06-CR-00408

BRIEF FOR APPELLANT

JULIA K. PEARSON
Assistant Public Advocate Department of Public Advocacy
100 Fair Oaks Lane Suite 302
Frankfort, Kentucky 40601
(502) 564-8006

Counsel for Appellant

CERTIFICATE REQUIRED BY CR 76.12(b)

The undersigned does hereby certify that copies of this Brief for Appellant were served upon the following named individuals by United States Mail, postage prepaid, on this 4th day of March 2009: Hon. Craig Z. Clymer, Judge, McCracken Circuit Court, 301 S. 6th Street, Paducah, Kentucky 42003; Hon. James A. Harris, Asst. Commonwealth’s Attorney, McCracken County Courthouse, 301 S. 6th Street, Paducah, Kentucky 42003; Hon. Chris McNeill, Assistant Public Advocate, Department of Public Advocacy, 400 Park Avenue, Suite B, Paducah, Kentucky 42001; and served by messenger mail to Hon. Jack Conway, Attorney General, 1024 Capital Center Drive, Frankfort, Kentucky 40601. I hereby further certify that the record on appeal was returned to the custody of the Clerk of the Court of Appeals of Kentucky.

INTRODUCTION

Rachel Leatherman appeals from a final judgment imposing an eight-year sentence for Possession of a Controlled Substance (cocaine), Tampering with Evidence and Driving under the Influence (drugs). In this appeal, she challenges the validity of the investigatory stop and arrest, as well as several evidentiary rulings which prevented her from cross-examining the witnesses against her and presenting a defense.

STATEMENT AS TO ORAL ARGUMENT

Rachel Leatherman welcomes oral argument if this Court believes it necessary to resolve the issues in this case.

STATEMENT CONCERNING CITATIONS

The record in this case consists of two volumes of Transcript of Record, three videotapes and one supplemental videotape. The Transcript of Record shall be cited as TR page number. The videotapes in the original record were labeled Tape 1 of 3, Tape 2 of 3 and Tape 3 of 3, respectively. Citations to those tapes shall be VR 1 (VR 2 or VR 3); date; time stamp. The supplemental videotape shall be cited as VR 4; date; time stamp.

STATEMENT OF POINTS AND AUTHORITIES

INTRODUCTION i

STATEMENT AS TO ORAL ARGUMENT i

STATEMENT CONCERNING CITATIONS i

STATEMENT OF POINTS AND AUTHORITIES i

STATEMENT OF THE CASE 1

The 911 call 1

Deputy Eddie McGuire stops a vehicle with Washington license plates 1

I. The trial court erred when it failed to suppress the evidence. 3

Preservation 3

Standard of review 3

RCr 9.87 3

Ornelas v. United States, 517 U.S. 690 (1996) 3

Commonwealth v. Neal, 84 S.W.3d 920 (Ky.App. 2002). 3

The information in the 911 call did not constitute reasonable suspicion 3

Florida v. J.L, 529 U.S. 266 (2000) 5

United States v. Hensley, 469 U.S. 221 (1985) 7

U.S. Const. Amend. IV 7, 10, 15

Joshua v. DeWitt, 341 F.3d 430 (6th Cir. 2003) 7

Terry v. Ohio, 392 U.S. 1 (1968) 7

Collins v. Commonwealth, 142 S.W.3d 113 (Ky. 2004) 7

Rachel Leatherman’s actions on US 60 did not provide reasonable suspicion 8

KRS 189.380 9

Garcia v. Commonwealth, 185 S.W.3d 658 (Ky. App. 2006) 9, 13

A stop of at least one hour and fifteen minutes exceeds that permitted for a Terry stop 9

Terry v. Ohio, 392 U.S. 1 (1968) 10

Brown v. Texas, 443 U.S. 47 (1979) 10

U.S. Const. Amend. XIV passim

Ky. Const. § 10 10, 15

Florida v. Royer, 460 U.S. 491 (1983) 10

Baker v. Commonwealth, 5 S.W.3d 142 (Ky. 1999). 11

Deputy McGuire’s “hunch” that Rachel Leatherman possessed a controlled substance was not supported by objective facts and circumstances and did not constitute probable cause for arrest 12
Her eyes appeared glassy and she seemed fidgety or nervous 13

She exhibited nystagmus during the HGN field sobriety test 13

Horizontal Gaze Nystagmus: The Science and the Law, A Resource Guide for Judges, Prosecutors and Law Enforcement. 14

http://www.nhtsa.dot.gov/people/injury/enforce/nystagmus/hgntxt.html#three ………..14

http://www.nhtsa.dot.gov/people/injury/enforce/nystagmus/hgntxt.html#three ………..14

Conclusion 15

II. The trial court erred when it granted the government’s motion in limine which prohibited defense counsel from mentioning that Rachel Leatherman asked Deputy McGuire to retrieve her watch from the backseat. 15

Preservation 15

Schrimsher v. Commonwealth, 190 S.W.3d 318 (Ky. 2006) 16

Rachel Leatherman was unable to present a crucial piece of her defense 16

Crane v. Kentucky, 476 U.S. 683 (1986) 16

Chambers v. Mississippi, 410 U.S. 284 (1973) 16

Beaty v. Commonwealth, 125 S.W.3d 196 (Ky. 2003) 16

United States v. Scheffer, 523 U.S. 303 (1998) 16

Sanborn v. Commonwealth, 754 S.W.2d 534 (Ky. 1988) 17

Manz v. Commonwealth, 257 S.W.2d 581 (Ky. 1953) 18

Davis v. Alaska, 415 U.S. 308 (1974). 18

Williams v. Commonwealth, 569 S.W.2d 139 (Ky. 1978) 18

Even if the statement was hearsay, the right to present a defense trumps a state evidentiary rule 19

Davis v. Alaska, 415 U.S. 308 (1974) 19

Delaware v. Van Arsdall,475 U.S. 673 (1986) 19

The government’s closing argument added to the prejudice 19

RCr 10.26. 19

Doyle v. Ohio, 426 U.S. 610 (1976) 20

Miranda v. Arizona, 384 U.S. 436 (1966) 20

United States v. Williams, 665 F.2d 107 (6th Cir. 1981) 20

Bass v. Nix, 909 F.2d 297 (8th Cir. 1990) 20

Wainwright v. Greenfield, 474 U.S. 284 (1986) 20

Niemeyer v. Commonwealth, 533 S.W.2d 218 (Ky. 1976) 20

Campbell v. Commonwealth, 564 S.W.2d 528 (Ky. 1978) 20

Holland v. Commonwealth, 703 S.W.2d 876 (Ky.1986) 20

Greer v. Miller, 483 U.S. 756 (1987) 20

Eberhardt v. Bordenkircher, 605 F.2d 275 (6th Cir. 1979) 20, 21

Chapman v. California, 386 U.S. 18 (1967) 20

Conclusion 21

Berger v. United States, 295 U.S. 78 (1935) 21

U.S. Const. Amend. V 21

U.S. Const. Amend. VI 21

Ky. Const. § 1 21

Ky. Const. § 2 21, 24

Ky. Const. § 7 21

Ky. Const. § 11 21, 24

III. The trial court erred when it did not grant directed verdict on the Driving under the Influence charge. 21

Preservation 21

KRS 189A.010 22

The evidence does not meet Kentucky’s rules for directed verdict 22

Commonwealth v. Sawhill, 660 S.W.2d 3 (Ky. 1983) 23

Hodges v. Commonwealth, 473 S.W.2d 811 (Ky. 1971) 23

Commonwealth v. Benham, 816 S.W.2d 186 (Ky. 1991) 23

Pengleton v. Commonwealth, 172 S.W.2d 52 (Ky. 1943) 23

Conclusion 24

U.S. Const. Amend. V 24

CONCLUSION 24

APPENDIX 25

STATEMENT OF THE CASE

McCracken County Sheriff’s Deputy Eddie McGuire stopped Appellant, Rachel Leatherman, at 8:19 p.m. on June 28, 2006, as she drove on US 60 eastbound toward Paducah. He suspected that she possessed heroin. His suspicion came as the result of a 911 call that a woman in a neighborhood had asked a man about tar heroin.

McGuire and two backup officers searched Ms. Leatherman’s person and her car for about 1.25 hours. That search yielded no illegal drugs, no drug residue and no paraphernalia. Despite the fact that Leatherman had not committed a traffic violation and a PBT (Portable Breath Test) registered no alcohol, McGuire arrested her for Driving under the Influence and transported her to Lourdes Hospital for a blood draw. VR 4; 11/27/2006; 14:22:30. Subsequent analysis found no alcohol or drugs. VR 1; 1/22/2008; 14:57:46.
The 911 call

Sometime in the evening of June 28, 2006, a man identifying himself as Vernon Wilkey, residing on Queensway Drive, called 911 and said, “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.” TR 148; emphasis added. Wilkey said the woman driving the car was white and that the vehicle had Washington state plates. TR 149.
Deputy Eddie McGuire stops a vehicle with Washington license plates.

Deputy Eddie McGuire testified at trial that he received a dispatch about a suspicious person on Queensway Drive in McCracken County. He thought it took fifteen to twenty minutes to arrive on scene after the dispatch. After he got to the neighborhood, he looked for a car with Washington state license plates, but was unsuccessful. VR 1; 1/22/2008; 14:09:56.

On the back to Paducah on US 60, the deputy testified that he had just come through the Metropolis Lake intersection when he saw a car with its left turn signal flashing. Id., 14:10:57. According to McGuire, the car was going slower than he was and had that constantly blinking turn signal. Id., 14:12:20. McGuire found unusual the amount of time the turn signal flashed and the amount of time the car stayed in the right lane without moving into the left. Once he overtook the car, McGuire said he noticed a white female driving and a set of Washington state license tags. Id., 14:16:42.

After Deputy McGuire slowed and pulled in behind her car, the woman pulled over to the shoulder. Since McGuire had not put his lights on, he thought that action was as suspicious as the woman driving in the right lane with her left turn signal blinking, so he pulled over to the side and activated his emergency lights. Id., 14:17:14.

McGuire said as he walked up to the vehicle, he noticed that the driver’s pants were unbuttoned and unzipped, but were belted. He asked the driver to step to the back of the vehicle. Sometime after that, Deputy Jason Walters came to the scene. The men searched the car for contraband, but came up with nothing. Later, Officer Gretchen Dawes arrived to search the woman. Id., 14:22:34.

After the search turned up no drugs or contraband, McGuire said he placed Rachel Leatherman in handcuffs and put her in his cruiser. He was certain she was wearing a watch, but only thought it was on her right arm. McGuire then took Leatherman to Lourdes Hospital for a blood draw. McGuire’s story was that as he assisted her out of the car, he noticed that Leatherman had dropped her watch and a small baggie containing a substance consistent with a rock of cocaine. He did not confront Leatherman at that time because she was “cooperative” and he did not want to upset her. McGuire was unsure how long the two remained at Lourdes Hospital for the blood draw. Id., 14:28:21.

Deputy McGuire testified that he confiscated the baggie. Once he arrived at the McCracken County Jail and booked Ms. Leatherman, he ran a field test for heroin. That test came back negative. Id., 14:28:25.

Rachel Leatherman was charged with Possession of a Controlled Substance in the First Degree, Tampering with Physical Evidence and Driving an Automobile under the Influence. TR 1-2. She was convicted of all three charges and sentenced to eight years. TR 75-78.

Further facts will be adduced in the Brief.

I.

The trial court erred when it failed to suppress the evidence.

Preservation

Trial counsel filed a Motion to Suppress the Evidence. TR 17, 23-26. The court held a suppression hearing on November 27, 2006. The court denied the motion on January 11, 2007. TR 72-74. It then entered an order setting aside the first denial and substituting a second on January 18, 2008. TR 220-223.

Standard of review

The standard of review on a motion to suppress consists of two steps. First, the trial court’s fact findings are conclusive if supported by the evidence. RCr 9.87. The second step involves a de novo review to determine whether the court’s decision is correct as a matter of law. Ornelas v. United States, 517 U.S. 690 (1996); Commonwealth v. Neal, 84 S.W.3d 920 (Ky.App. 2002).

The information in the 911 call did not constitute reasonable suspicion

The trial court’s second conclusion of law states

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 in the right, constitutes reasonable suspicion to investigate and possibly cite for improper signal.

TR 222. The court’s third conclusion of law was that “[a] report of suspicious activity by a person who identifies himself by name, phone number and address is presumptively reliable.” TR 222. These conclusions are incorrect as a matter of law.

At the suppression hearing, Deputy McGuire testified that he was probably somewhere in downtown Paducah when he was dispatched to investigate the 911 call. VR 4; 11/27/2006; 14:05:04. For a few minutes, he checked the neighborhood, hoping to see the dark blue Buick with the Washington plates. When he did not find it, he cleared the call and headed back toward Paducah. Id. He did not check with Vernon Wilkey, the man who made the 911 call, to obtain any additional information, such as what time Wilkey encountered the woman, whether Wilkey saw her leave in a particular direction, whether Wilkey thought she was under the influence or whether the woman had said where she was going.

Deputy McGuire testified that as he approached the traffic-light controlling the intersection of US 60 and Cairo Road, he suddenly realized he was passing a vehicle matching the description provided by 911. McGuire admitted that he did not know how fast he was driving as he drew alongside Ms. Leatherman’s vehicle.

As I was passing the vehicle, she had her left blinker on as if she was going to turn out in the passing lane, but she never did. And then as I was going to go ahead and go past her, I noticed that the license plate—it was a Washington license plate that was the description that was also given at the time of the call. So when I noticed that, I slowed down and let her go back by me and then when I pulled in behind her, she pulled over.

VR 4; 11/27/2006; 14:07:28.

Rachel Leatherman “promptly” handed her identification and proof of insurance to Deputy McGuire. He ordered her to get out of the car and stand behind it. McGuire said she had no problem getting out of the car. In fact, he said that if she had been unsteady on her feet or slurring her speech, he would have documented it in his citation. Id., 14:19:18, 14:20:36.

McGuire did not have reasonable suspicion to stop the Leatherman vehicle, let alone any sort of reason to “investigate.” McGuire did not find “the woman” in the car in the neighborhood where Vernon Wilkey told the 911 operator his neighbor encountered her. When McGuire was unsuccessful in finding her in the area, he did not attempt to make contact with Wilkey. He did not know what time Wilkey encountered the woman, whether he saw her leave in a certain direction or whether he thought she was under the influence. McGuire did not note—as he said he habitually did when he found such symptoms—that Leatherman was unsteady on her feet, slurring her speech, In Florida v. J.L., the United States Supreme Court stated that reasonable suspicion “requires that a tip be reliable in its assertion of illegality, not just a tendency to identify a determinate person.” 529 U.S. 266, 272 (2000). The tip in this case was not “reliable in its assertion of illegality.”

The deputies searched Ms. Leatherman’s car and found no drug paraphernalia, no drug residue and no drugs, other than Leatherman’s three prescription medications. McGuire testified that after the search, he requested a female officer to search Ms. Leatherman’s person. Officer Gretchen Dawes of the Paducah Police Department arrived at the scene and searched Leatherman. Before she arrived, however, McGuire testified that Leatherman had emptied her two front pockets. He could not remember whether Leatherman had buttoned her pants at any time during the automobile and personal searches. Id., 14:25:36.

Deputy McGuire testified that Officer Dawes searched Rachel Leatherman either just before or just after he arrested her. He agreed that “[u]nder the circumstances, [Dawes] was not only looking for weapons but also looking for possible drugs” and found none. Id., 14:25:40. McGuire did not see Dawes search Leatherman’s back pockets, but assumed she did so as part of that thorough search. Finally, McGuire said that en route to Lourdes Hospital, he did not see Leatherman moving in any sort of fashion to indicate that she was trying to hide something. Id.

Neither Officer Dawes nor Deputy Walters testified at the suppression hearing. However, Dawes’ search was not a simple Terry pat-down for officer protection. Dawes searched the inside rear pockets of Rachel Leatherman’s jeans and made her open the front of her pants so she could search Leatherman’s crotch. Dawes made Leatherman lift her shirt so she could search her breasts for concealed controlled substances. TR 26. Even McGuire conceded at the suppression hearing that Dawes’s search was “thorough.” VR 4; 11/27/2006; 14:25:40.

A thorough search by a trained police officer would presumably “sanitize” a suspect before she is handcuffed and placed into a police car. In other words, how is it possible that Rachel Leatherman held onto a baggie with rock cocaine through a search of her vehicle and her person? Assuming for sake of argument that Leatherman did so, where did she conceal the baggie? McGuire had her open her hands up—she did not hold the baggie in her hands. Dawes opened her jeans zipper—Leatherman could not have concealed the baggie in her crotch. The search also begs the question of how Leatherman retrieved the baggie with her hands in handcuffs without moving enough to make at least one of the officers suspicious.

Officer Dawes offered her speculation at trial. She said she was told only that the deputies wanted a female officer to search a female suspect. The deputies did not tell her anything about the case such as whether she was supposed to conduct a Terry pat-down or the more thorough search incident to arrest. Interestingly, Dawes said that if she had prior knowledge that Leatherman had drugs on her person, she would have done a more thorough search. She did admit, on cross, that one of the reasons why a suspect is searched is because the police do not know whether the suspect has drugs on her person. VR 2; 1/23/2008; 9:20:41.

The trial court could rely only upon the information in the 911 call in order to decide whether Deputy McGuire had reasonable suspicion to stop Rachel Leatherman. United States v. Hensley, 469 U.S. 221 (1985). Moreover, the Fourth Amendment requires that reasonable suspicion comes only when the police believe criminal activity is currently afoot. See Joshua v. DeWitt, 341 F.3d 430, 446 (6th Cir. 2003), citing Terry v. Ohio, 392 U.S. 1, 20 (1968); emphasis in original.

The information in this particular 911 call left a good deal to be desired. Yet, in its supplementary order denying Ms. Leatherman’s suppression motion, the trial court found
“presumptively reliable” “[a] report of suspicious activity by a person who identifies himself by name, telephone number and address.” TR 222.

In Collins v. Commonwealth, 142 S.W.3d 113 (Ky. 2004), the Kentucky Supreme Court held that the police lacked reasonable suspicion to stop a vehicle. In that case, an anonymous informant claimed that a white male driving a white Chevrolet Blazer had thrown alcohol at another vehicle parked at a gas station. The caller said the driver of the Blazer had then entered southbound I-75, which was nearby. The Court held that police lacked reasonable suspicion because:
[n]othing in the content of the tip indicates that the tipster either had witnessed or could predict any illegal activity. The pouring of an unidentified liquid from a bottle toward another person may signal a dispute, but it is neither criminal conduct nor a reliable indication that criminal conduct is about to occur.

The Court also found that even though the tipster told the authorities that the Blazer headed south on I-75, nothing about that fact “ma[de] it any more reliable because it did not reveal that the tipster was privy to any illegal conduct.” Id., at 116-117; emphasis added.

The caller said “a lady” was walking around in his neighbor’s yard and talked to him. TR 149. The police had no way of knowing—at the time of the call or the investigation—whether the caller was present when “the lady” spoke to the neighbor. Deputy McGuire testified that he had no idea when the woman had made contact with the neighbor (or Wilkey). VR 4; 11/27/2006; 14:05:04.

Vernon Wilkey did not tell the 911 operator that he had seen heroin or any other drug, for that matter, on the driver’s person or in the seat next to her. He did not say Leatherman had drug paraphernalia on her person, in the seat next to her or in the ashtray. He did not say Leatherman had attempted to sell him or the neighbor heroin (or any other controlled substance). He did not tell the 911 operator that she appeared to be under the influence of drugs or alcohol.

Did the caller simply repeat a conversation he had with his neighbor? Did the caller repeat a conversation with someone who had a conversation with the neighbor about “the lady” walking around and talking to people? That the caller identified himself is of no moment—nothing in the call informed the police about whether he had been a witness to the conversation or was simply repeating a story of a story someone had told him.

Rachel Leatherman’s actions on US 60 did not provide reasonable suspicion

Deputy McGuire testified at the suppression hearing that after he left Queensway Drive, he drove back toward Paducah on US 60. He came upon what he later identified as the Leatherman car while he drove in the left lane. Ms. Leatherman was in the right lane with her left turn signal blinking. VR 4; 11/27/2006; 14:14:46. McGuire conceded that it was possible Leatherman had activated her turn signal, but decided against moving into the left lane when she saw the cruiser come up in her rear view mirror. Id., 14:15:05.
McGuire had already testified that he was driving faster than the Leatherman vehicle.

His action—coming close to Ms. Leatherman while in the left lane—effectively prevented her from moving into the left lane. That Leatherman did not move to the left lane and collide with the cruiser is evidence that she noticed him coming up on her side. When McGuire slowed and pulled into the right lane, Leatherman did what any watchful, responsible driver would do: assume that the official meant to pull her over. She signaled her intent to move onto the right shoulder by activating her turn signal, pulling onto the shoulder and braking her vehicle to a stop.

McGuire’s argument—the government’s argument—that by acting responsibly and pulling over, Rachel Leatherman’s actions gave reasonable suspicion that something was afoot is nonsensical. Leatherman complied with KRS 189.380, which states that before “turn[ing] a vehicle or mov[ing] right or left on a roadway,” the driver must signal “indicating the intention to turn right or left” “continuously for not less than the last one hundred (100) feet traveled by the motor vehicle before the turn.”

A driver who travels down a highway with her turn signal flashing does not commit a traffic violation. She may aggravate the drivers behind her or in the other lanes, but she does not commit a traffic violation. In fact, the action has become so ubiquitous in American culture that the late comedian George Carlin created a routine centered around people who drove “around the world to the left.” Moreover, that sort of driving does not provide reasonable suspicion to support an investigatory stop. See Garcia v. Commonwealth, 185 S.W.3d 658 (Ky. App. 2006).

A stop of at least one hour and fifteen minutes exceeds that permitted for a Terry stop

The trial court’s first conclusion of law was that “[t]he 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.” TR 222. This is incorrect as a matter of law and is unsupported by the evidence.

Deputy McGuire admitted that he did not know how fast he was driving as he drew alongside Ms. Leatherman’s vehicle. He said he was going to pass her car when he noticed the license plate. “[I was going to let] her pass me back, and then I got behind her, and then that’s when she started to pull over. So I went ahead and activated my lights” before she made a complete stop. McGuire himself said he stopped the vehicle. “I was going to, anyway, yes. When she started to pull over, I just went ahead and turned my lights on.” VR 4; 11/27/2006; 14:07:28.

“Whenever a police officer accosts an individual and restrains his freedom to walk away, he has seized that person.” Terry v. Ohio, 392 U.S. 1 (1968); Brown v. Texas, 443 U.S. 47 (1979). When Deputy McGuire stopped Ms. Leatherman and refused to permit her to drive away, he “seized” her “within the meaning of the Fourth and Fourteenth Amendments to the United States Constitution and §10 of the Kentucky Constitution.” Nichols v. Commonwealth, 186 S.W.3d 761, 763 (Ky. App. 2005).

When seizing an individual for purposes of the Fourth Amendment, a police officer must have a reasonable suspicion based upon specific and articulable facts which leads him to believe that a crime has been, is being, or is about to be committed. Then the officer may ask the person a limited number of questions to confirm or dispel the suspicion that led to the stop. “The scope of the detention must be carefully tailored to its underlying justification . . . must be temporary and last no longer than necessary to effectuate the purpose of the stop.” Florida v. Royer, 460 U.S. 491, 500 (1983). If a detention continues for too long a period of time, it becomes an arrest requiring probable cause.

The one hour and fifteen minutes Rachel Leatherman spent on the side of US 60 was anything but a brief investigatory stop. McGuire said he asked Leatherman about what the caller had said. She denied attempting to buy heroin. McGuire did not testify that he saw heroin and/or drug paraphernalia (syringe, “cooker”) in plain view in the car. Once McGuire received a negative answer, his investigation should have ended.
“Whether a seizure is reasonable requires a review of the totality of the circumstances, taking into consideration the level of police intrusion into the private matters of citizens and balancing it against the justification for such action.” Baker v. Commonwealth, 5 S.W.3d 142, 145 (Ky. 1999). Assuming for argument sake that the corked bottle of wine and the cup of beer McGuire saw in plain view and Ms. Leatherman’s failed HGN test may have warranted reasonable suspicion that she was under the influence, the totality of the circumstances leads to the contrary conclusion.

Ms. Leatherman passed the PBT. McGuire admitted that she was not weaving all over the road or using any sort of driving mannerism which would lead to a suspicion that she was under the influence. Leatherman gave him her identification and proof of insurance very quickly after he asked for it. She did not fumble around trying to retrieve either document. She was able to get out of her car without falling all over the road or needing help. She was steady on her feet. McGuire said he always noted obvious signs of impairment on his citations. He did not note that he smelled alcohol on her breath or her person. She did not seem mentally confused. He and Walker did not find illegal drugs, drug residue or paraphernalia when they searched the car. Finally, Leatherman’s blood tests showed the presence of no alcohol. This evidence conclusively establishes that Rachel Leatherman did not commit a crime. She was not committing a crime. She was not about to commit a crime.

So why stop Rachel Leatherman for one hour and fifteen minutes? To see what was afoot. In the face of all the evidence otherwise, McGuire was determined to find something. In spite of an illegal blood draw, in spite of a search conducted on the side of a busy roadway, the police uncovered nothing from a search not supported by reasonable suspicion

Deputy McGuire’s “hunch” that Rachel Leatherman possessed a controlled substance was not supported by objective facts and circumstances and did not constitute probable cause for arrest

The trial court’s fourth finding of fact states: “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.” TR 222. This conclusion of law is not supported by the facts and is incorrect as a matter of law.

Deputy McGuire testified that Rachel Leatherman was driving properly when he came upon her vehicle traveling eastbound on US 60. He did not know when the alleged conversation the 911 caller recounted had taken place. Yet, he testified at the preliminary hearing that when he saw a dark blue Buick with Washington state plates, he “stopped her with suspicion that she possibly had some [heroin] on her.” TPH 8.

Deputy Walters administered the PBT and then McGuire administered the Horizontal Gaze Nystagmus test (HGN). At the suppression hearing, he admitted that a law enforcement officer does not have probable cause to arrest a DUI suspect unless the HGN result is corroborated with other evidence. Id., 14:21:45.
At the preliminary hearing , the deputy testified that he had ruled out alcohol intoxication because the PBT had showed no alcohol. Transcript of Preliminary Hearing (hereinafter TPH) 8. He arrested Ms. Leatherman for suspicion DUI (drugs) because she had a distinct nystagmus and was fidgety and nervous. Id. At the suppression hearing, McGuire testified that he always included in his reports any evidence he observed which could indicate a suspect’s impairment. VR 4; 11/27/2006; 14:20:36. McGuire said his suspicions that Leatherman was impaired were the allegedly failed HGN test and glassy eyes, along with his preliminary hearing testimony that Leatherman was “just very nervous.” Id., 14:20:45.

Her eyes appeared glassy and she seemed fidgety or nervous

This characterization is of no legal import and certainly does not provide reasonable suspicion to stop or probable cause to arrest. This Court has held that perfectly innocent people often exhibit the same characteristics when stopped by police. Garcia v. Commonwealth, 185 S.W.3d 658, 665 (Ky. App. 2006).
She exhibited nystagmus during the HGN field sobriety test

McGuire should not have administered the test in the first place. McGuire did not testify to any clue Rachel Leatherman gave that she was impaired. She drove in compliance with traffic laws. She produced her license and registration quickly after he asked for them. Her eyes were not watery or bloodshot. Her pupils were not pinpoint or dilated. She was not scratching as some persons who inject drugs might. She did not have a runny nose as is common with some cocaine users. She did not have scabs or needle marks, also common with intravenous drug users. She was not coughing or short of breath; she was not sneezing or sweating. She did not complain of nausea or chest pains. Her face was not flushed. She was alert.

McGuire admitted at the suppression hearing that the HGN result by itself could not provide probable cause. VR 4; 11/27/2006; 14:21:45. Unfortunately, even assuming arguendo that other indicators had been present, McGuire improperly administered the test.

The National Highway Traffic Safety Administration (NHTSA) is an administrative agency housed within the United States Department of Transportation. NHTSA oversees and regulates all matter related to traffic safety. Since 1977, NHTSA has studied various field sobriety tests in order to develop a standardized set of field sobriety tests. As a result of those tests, NHTSA warned police officers to position DUI suspects so that they do not face blinking cruiser lights or oncoming traffic because the lights can create a false nystagmus (optokinetic nystagmus). Horizontal Gaze Nystagmus: The Science and the Law, A Resource Guide for Judges, Prosecutors and Law Enforcement.

The field video shows that McGuire positioned Rachel Leatherman facing the blinking cruiser lights and oncoming traffic. The test was neither administered properly nor documented.

McGuire testified that Leatherman told him she had a prescription for Metoprolol because she had hypertension. Documentation for Metoprolol shows that a side effect can be nystagmus. Under those circumstances, McGuire finding “all six clues” should be found legally meaningless.

As part of its reasoning that Deputy McGuire had probable cause to arrest Ms. Leatherman, the trial court noted her statement that “she was taking medication that would cause her to fail the test, constitutes probable cause to arrest for DUI.” TR 222. McGuire testified that Leatherman told him she was taking Adderall, Clonazepam and Metoprolol. VR 4; 11/27/2006; 14:10:56. However, neither McGuire nor any other government witness testified at about the effects of any of those drugs, let alone Clonazepam. The Physicians’ Prescribing Information describes Clonazepam (Klonopin) as a benzodiazepine used to treat seizure or panic disorder. The insert also tells physicians: “[b]ecause benzodiazepines have the potential to impair judgment, thinking or motor skills, patients should be cautioned about operating hazardous machinery, including automobiles, until they are reasonably certain that Klonopin does not affect them adversely.” See Appendix C.

There is no evidence that Rachel Leatherman admitted taking medication that would cause her to fail any test. McGuire testified that she told him she could not perform the physical dexterity field sobriety tests because she had surgery on her ankle. VR 4; 11/27/2006; 14:10:35. He said Leatherman told him she had taken her prescribed medication. No government witness testified about how taking Klonopin affected Leatherman. The court’s conclusion not borne out by the evidence and is entitled to no legal significance.

Conclusion

None of the evidence Deputy McGuire cited added up to reasonable suspicion or probable cause. The 911 call did not contain enough reliable information to form reasonable suspicion. Rachel Leatherman was driving in accordance with the law. She was going slowly enough that McGuire nearly passed her. She passed a PBT in the field. The “failed” HGN is of no significance. A blood draw showed Leatherman had no alcohol or drugs in her system. Leatherman’s “glassy eyes” could not constitute probable cause. The court erred when it denied Rachel Leatherman’s motion to suppress. Her rights under the Fourth and Fourteenth Amendments to the United States Constitution and §10 of the Kentucky Constitution were violated. She requests relief.
II.

The trial court erred when it granted the government’s motion in limine which prohibited defense counsel from mentioning that Rachel Leatherman asked Deputy McGuire to retrieve her watch from the backseat.

Preservation

Just before trial began, the government moved in limine to prevent the defense from referring to statements Rachel Leatherman made after Deputy McGuire told her he found what looked like drugs next to her watch. The defense argued that the statement was admissible under Schrimsher v. Commonwealth, 190 S.W.3d 318 (Ky. 2006), in which the Kentucky Supreme Court held that hearsay statements were admissible if needed to explain or further expose other statements introduced by the government. The government’s response to that was the defense “still [did not] get [Schrimsher] right.” The court said the statement was hearsay unless Leatherman testified. VR 1; 1/22/2008; 8:56:24.

Despite the ruling, defense counsel attempted to cross-examine Deputy McGuire about the watch:

DC: How is it that you came to find the watch?

DM: Whenever she got out of the backseat, that’s when I found it.

DC: She actually asked you about the watch, didn’t she?

VR 2; 1/22/2008; 5:40:32. The government immediately objected. Defense counsel’s explanation that he did not believe the ruling applied to cross-examining McGuire regarding his direct examination answers fell upon deaf ears. The court sustained the objection. Id.

Rachel Leatherman was unable to present a crucial piece of her defense

The due process clause of the Fourteenth affords every criminal defendant the fundamental right to present a defense. Crane v. Kentucky, 476 U.S. 683, 690-91 (1986); Chambers v. Mississippi, 410 U.S. 284, 294 (1973); Beaty v. Commonwealth, 125 S.W.3d 196, 206 (Ky. 2003). Exclusion of evidence violates that constitutional right when it “significantly undermine[s] fundamental elements of the defendant’s defense.” United States v. Scheffer, 523 U.S. 303, 315 (1998).

Deputy McGuire testified that as he assisted Ms. Leatherman out of the cruiser at Lourdes Hospital, he saw a baggie with what appeared to be a rock of cocaine lying underneath her watch in the seatbelt crack of the back seat. VR 2; 1/22/2008; 4:06:20.

What the jury did not know was McGuire’s story had changed as the case progressed. At the preliminary hearing, McGuire’s testimony was that the watch and baggie were not in plain view. In fact, he testified that he saw the baggie only when he moved the seat. TPH 11.

By the time the suppression hearing came around, McGuire’s testimony changed. Now the baggie and Ms. Leatherman’s watch were in plain view next to her in the back seat. VR 4; 11/27/2006; 14:25:55. Interestingly, he also said Leatherman had told him before they went into the hospital that she had dropped her watch. Id., 14:28:15.

In any event, the jury heard McGuire say he noticed she had dropped her watch when he found the cocaine. Thus, the jury heard two admissions, only one of which was true. Rachel Leatherman admitted the watch was hers. The other alleged (unvocalized) admission was the guilt by association that if the watch belonged to Leatherman, the cocaine was hers also.

What the jury did not hear was that Rachel Leatherman told him she had dropped her watch and where. The court’s ruling was incorrect.

Ms. Leatherman’s request for McGuire to retrieve her watch was not hearsay. It was not offered to proof the truth of the matter asserted: that she lost her watch. McGuire said Leatherman “admitted” the watch was hers. It was admissible non-hearsay to do what Schrimsher said is permissible: “guard against any likely misperception that would be created by an opponent’s presentation of a fragmented version of the statement.” 190 S.W.3d 318, 331 (Ky. 2006). It was admissible non-hearsay to show the effect on McGuire: she told him to look behind the seat when she told him she had lost her watch and where. Sanborn v. Commonwealth, 754 S.W.2d 534, 541 (Ky. 1988), quoting Manz v. Commonwealth, 257 S.W.2d 581 (Ky. 1953). It was admissible non-hearsay to show McGuire’s inconsistent statements: that at the preliminary hearing, McGuire testified that the baggie and watch were not in plain view because he did not find them until he pulled the seat back.

There is simply no way to reconcile McGuire’s conflicting accounts regarding whether he saw the baggie and watch in plain view or not in plain view. McGuire had been a member of the McCracken County Sheriff’s Department for four and one-half years. VR 1; 1/22/2008; 14:08:45. Presumably, he was familiar with the meaning of the phrase “plain view.” At the suppression hearing and at the trial, he testified that the baggie and watch were in plain view. Yet, at the preliminary hearing, he testified that he saw the baggie only after he pulled the seat back.

Cross-examination is the principal method to test the believability of a witness and the truth of his testimony. Davis v. Alaska, 415 U.S. 308, 316 (1974). “[T]he right to cross-examine a witness to impeach his credibility or show motive or prejudice is fundamental to a fair trial.” Williams v. Commonwealth, 569 S.W.2d 139, 145 (Ky. 1978). The trial court’s ruling prevented Rachel Leatherman from exercising her right to confrontation by testing the believability of McGuire’s testimony and his changing story.
Did McGuire, a trained sheriff’s deputy, simply forget his testimony at the preliminary hearing? Given the two irreconcilable versions of how he discovered the baggie and Officer Dawes’s speculative testimony about how she failed to find the baggie during a “thorough” search , a juror could have questioned McGuire’s certainty that the baggie was not in his cruiser the day before. In order to test the truth of a witness’s testimony, however, the jury has to have heard that the witness told two stories. In this case, after the court’s erroneous ruling, the jury did not.

Even if the statement was hearsay, the right to present a defense trumps a state evidentiary rule

Even if the government was correct that Schrimsher disallowed a full exposition about how Rachel Leatherman’s watch was found—which she does not concede—here Smith’s constitutional right to confront witnesses and present a defense outweighs the effect of a state evidence rule. In Davis v. Alaska, the United States Supreme Court held that confrontation rights were violated when the defendant was denied the right to cross-examine a state witness concerning the latter’s probationary status as a juvenile offender despite the fact there existed a statute guarding against use of such information. The High Court made clear that in situations where a witness has little or nothing at stake, the federal constitutional right to confrontation is stronger than a state rule enacted to protect the witness. 415 U.S. 308 (1974). And the Court said in another case, Delaware v. Van Arsdall, confrontation rights are denied when an accused is prevented from “engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness.” 475 U.S. 673 (1986).

The government’s closing argument added to the prejudice

This prong of the argument is not preserved. Ms. Leatherman requests review under RCr 10.26.

The government took full advantage of the court’s incorrect ruling when it referred to Ms. Leatherman’s watch as her “autograph” on the rock of cocaine. Then the government ended its argument with the following:

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.VR 2; 1/23/2008; 2:38:30.

The government knew—because it had moved in limine to prevent it—that the jury was not going to hear the whole story of how McGuire’s story changed from a preliminary hearing statement that Rachel Leatherman told him she had dropped her watch to a suppression hearing/trial statement that he found her watch after she got out of the car at Lourdes Hospital. And the government took full advantage when it commented on Leatherman’s “silence” when it said the jury had not heard “reasons,” “justifications,” “excuses” or “contradictions of the facts.” Id., emphasis added.

In Doyle v. Ohio, 426 U.S. 610, 618 (1976), the United State Supreme Court concluded the use of a defendant’s post-arrest, post-Miranda silence violated fundamental fairness and the due process clause of the Fourteenth Amendment. See also United States v. Williams, 665 F.2d 107 (6th Cir. 1981); Bass v. Nix, 909 F.2d 297 (8th Cir. 1990). “What is impermissible is the evidentiary use of an individual’s exercise of his constitutional rights after the State’s [implied] assurance that the invocation of these rights will not be penalized.” Wainwright v. Greenfield, 474 U.S. 284, 295 (1986). Kentucky has long recognized this principle. Niemeyer v. Commonwealth, 533 S.W.2d 218 (Ky. 1976); Campbell v. Commonwealth, 564 S.W.2d 528 (Ky. 1978); Holland v. Commonwealth, 703 S.W.2d 876,880 (Ky.1986).

Even a single comment on silence can constitute a Doyle violation. Greer v. Miller, 483 U.S. 756, 764, n. 5 (1987); Eberhardt v. Bordenkircher, 605 F.2d 275, 279 (6th Cir. 1979).

“Harmless error, in the context of a violation of a constitutional right of a defendant, is an extremely narrow standard, permitting the State to avoid the retrial of a defendant only when it can demonstrate beyond a reasonable doubt that the error did not contribute in any way to the conviction of the defendant. Chapman v. California, 386 U.S. 18 (1967).” Eberhardt, supra. Harm is presumed to flow from constitutional error. The burden is on the government to conclusively demonstrate to the contrary. Id.
Here, the prosecution cannot meet its burden. Deputy McGuire told fundamentally divergent stories of how he came to find Rachel Leatherman’s watch. Whether the jury believed him depended on its assessment of his credibility, yet, it heard only one story.

Conclusion

Prosecutors have an affirmative duty to conduct trials in a fair manner. The United States Supreme Court stated:

The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor–indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.

Berger v. United States, 295 U.S. 78, 88 (1935). The government’s motion in limine violated Rachel Leatherman’s right to present a defense, to confront the witnesses against her and to be free from comments on her constitutional right to remain silent under the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and §§ 1, 2, 7 and 11 of the Kentucky Constitution. Reversal is required.

III.

The trial court erred when it did not grant directed verdict on the Driving under the Influence charge.

Preservation

Defense counsel moved for directed verdict of acquittal at the close of the government’s case and again at the close of all the evidence. VR 3; 1/23/2008; .
KRS 189A.010 provides in part: “a person shall not operate or be in physical control of a motor vehicle. . . .[h]aving an alcohol concentration of 0.08 or more,” “while under the influence of alcohol. . . .or any other substance or combination of substances which impairs one’s driving ability.” The instructions mirrored the statute. TR 237.

At first blush, it may appear that the evidence showed Rachel Leatherman was driving while impaired. After all, Deputy McGuire testified that she showed “all six clues” on the HGN. VR 1; 1/22/20008; 14:51:12. Clinical testing did not bear this out. Ryan Johnson, a forensic science specialist at the KSP Lab in Frankfort, told the jury that Leatherman’s blood test showed no or drugs present in her system. Id., 15:07:23. The only means for the government to make out its case, then, was for Johnson to testify about the effects of Klonopin. There was just one problem: Johnson said the KSP lab did not have the proper equipment to examine blood for Klonopin. Id., 14:57:46.

That little fact did not prevent him from speculating about what might have been in Rachel Leatherman’s system and how that drug might have impaired her functioning. Johnson admitted on cross that even if he had found Clonazepam in Rachel Leatherman’s blood sample, it was still not an indicator that she was under the influence. He said the literature showed effects of Clonazepam lasted six to eight hours. VR 1; 1/22/2008; 15:03:36. Yet, no one testified about when Leatherman took her last dose or what the dosage was, perhaps because McGuire did not seize her prescription bottles.

The evidence does not meet Kentucky’s rules for directed verdict

In Commonwealth v. Sawhill, the Kentucky Supreme Court discussed circumstantial evidence and declared that “the trial court is certainly authorized to direct a verdict for the defendant if the prosecution produces no more than a mere scintilla of evidence.” 660 S.W.2d 3, 5 (Ky. 1983). The Sawhill case also requires that a person must be convicted upon “evidence of substance.” Id.

In Sawhill, the Court relied in part on Hodges v. Commonwealth, 473 S.W.2d 811 (Ky. 1971). Language in the Hodges case states that when evidence is circumstantial, all circumstances must “point unerringly” to guilt. Id. at 814. Both the Sawhill and Hodges cases require evidence such that based upon it, “reasonable minds might fairly find guilt beyond a reasonable doubt.”

In Commonwealth v. Benham, 816 S.W.2d 186 (Ky. 1991), the Supreme Court reaffirmed the Sawhill scintilla rule and the requirement that there be “evidence of substance” and added a reference to “fair and reasonable inferences.” Id., at 187.

The third Kentucky standard for evaluating sufficiency of the evidence, particularly in circumstantial evidence cases, is the no-inference-upon-inference standard, also a pure rule of reasonableness. Pengleton v. Commonwealth, 172 S.W.2d 52 (Ky. 1943). An inference is less than a scintilla, it cannot stand alone as the basis for a finding of guilt, or else is becomes unreasonable. Inferences, with no solid foundation, are not reasonable.

It is unreasonable, as occurred in Ms. Leatherman’s case, for unsupported inferences to provide solitary proof on an element. That is precisely what this jury was asked to do—pile inferences upon inferences: that because Ryan Johnson said Clonazepam could cause intoxication, that because Rachel Leatherman had taken Clonazepam, she was intoxicated and that because she was driving, she was therefore driving while impaired.

Those inferences ignore the evidence. Johnson admitted on cross that even if he had found Clonazepam in Rachel Leatherman’s blood sample, it was still not an indicator that she was under the influence. VR 1; 1/22/2008; 15:03:36. No one testified about when Rachel Leatherman took her last dose. No one testified about the effects of the drug on Leatherman. Rather, the jury simply inferred its way to a guilty verdict.

Conclusion

Rachel Leatherman’s rights to due process of law under the Fifth and Fourteenth Amendments to the United States Constitution and §§2 and 11 of the Kentucky Constitution were violated. She requests reversal.

CONCLUSION

The government presented a case based upon speculation. The trial court prevented Rachel Leatherman from confronting the witnesses against her and presenting a defense. The government then used that ruling to its advantage when it commented on her silence. The court’s rulings on the suppression motion deserve no legal legitimacy. Rachel Leatherman requests relief.

Respectfully submitted,

Julia K. Pearson
Attorney for Appellant

APPENDIX

Tab Number Item Description Record Location

1 (A1 – A4) Final Judgment TR 275 – 278

2 (A5 – A7) Indictment TR 1 – 3

3 (A8 – A14) Physician’s information for Clonazepam


The Art of Cross Examination (Part 4) The Killer Cross That Never Happened

December 23, 2011

Author’s Note: This is a continuation of the Killer Cross. If you have not read the first part, please go here to read it, as it is important for the sake of continuity.

Notice that each question is a leading question. That is, the questioner, in this case the defense attorney, makes a statement and asks the witness, Deputy Eddie McGuire of the McCracken County Sheriff’s Department, to agree or disagree with it. With the exception of a few questions to which the answer is common knowledge or otherwise apparent, the statement in each question is a prior statement that the witness made in his report or a prior statement that he made under oath while testifying at the preliminary hearing, grand jury, or suppression hearing.

After the question that contains the witness’s prior statement, I provide an answer that confirms the prior statement that he made. Below the answer in italics, I provide the source for the statement.

For example, in the first question below (#25 in the sequence that started yesterday), Deputy McGuire testified at the preliminary hearing that he pulled Crane Station over because he thought she possibly had some heroin. If he had answered the question below with a “No,” the lawyer would have impeached him with his prior inconsistent statement under oath by following the formula that I presented in Part 2 of this series. Please review that procedure, if you have not read it or are uncertain about it.

As I have said previously, impeachment by prior inconsistent statement is one of the most powerful and effective tools to cross examine and destroy the credibility of a witness and your opponent’s case.

Unfortunately, Crane Station’s lawyer, Chris McNeill, refused to use this cross examination and he lost the case. However, in the strange manner that the universe works, his refusal ended up giving me this opportunity to educate all of you about something only a few of you know anything about, which is the art of cross examination.

In a subsequent post, I will discuss why I think he declined to use it.

I love teaching! and I hope you enjoy reading the Killer Cross that never happened.

All rise. Court is back in session. You may be seated.

25. Deputy McGuire, you pulled Mrs. Leatherman over because you thought she possibly had some heroin, correct?

A: Yes.

Transcript Preliminary Hearing, page 8, lines 14-15

26. Q: You have testified that you thought she possibly had some heroin on her because Mr. Wilkey called 911 and reported that she asked him if he knew where she could purchase some tar heroin, correct?

A: Yes.

Transcript Preliminary Hearing, page 7 lines 1-3

27. Q: That’s what you told the members of the grand jury on July 28, 2006, isn’t it?

A: Yes.

Transcript Grand Jury, page 1, lines 17-23

28. Q: The grand jury is a group of citizens who decide whether to indict a suspect whom a law enforcement officer, such as yourself, has arrested for a felony crime, right?

A: Yes.

29. Q: The grand jury decides whether there is probable cause, or reasonable grounds to believe that a suspect has committed a felony crime, correct?

A: Yes.

30. Q: You would agree with me that it is extremely important for a witness testifying before the grand jury to tell the truth, isn’t it?

A: Yes

31. Q: You promised to tell the truth, the whole truth, and nothing but the truth when you testified, didn’t you?

A: Yes.

32. And that is the same promise that you made to this court and this jury today, isn’t it?

A: Yes.

33. Q: Mr. Wilkey told the 911 operator that Mrs. Leatherman had a conversation with his neighbor in the neighbor’s yard in which she “mentioned something about tar heroin and all that stuff,” isn’t that correct?

A: Yes.

Transcript 911 Call, page 2, lines 8-9

34. Mr. Wilkey did not tell the 911 Operator that Mrs. Leatherman asked him if he knew where she could purchase some heroin, did he?

A: No he didn’t.

35. Q: And the 911 Dispatcher did not tell you that Mr. Wilkey had reported that Mrs. Leatherman had asked him if he knew where she could purchase some heroin, did he?

A: No, he didn’t.

Transcript of Dispatcher Tape, page 1. This transcript was first made available by the prosecution during the trial. I did not have it or include a reference to it in my proposed cross. Nevertheless, I included this question because I believed the dispatcher never would have said what the deputy claimed he said in view of what the 911 caller had said. I also knew we could request and obtain a copy of the dispatcher tape and transcribe it before the deputy testified. Both the 911 call and the 911 dispatch could have been played to complete the impeachment.

36. Q: Despite promising to tell the truth to the grand jury, you did not tell the truth when you told the grand jury that Mr. Wilkey called 911 and reported that she asked him where she could buy heroin, correct?

A: Yes.

37. Q: You also told the grand jury under oath that Mrs. Leatherman was “very unsteady on her feet,” when she got out of her vehicle after you stopped her, didn’t you?

A: Yes.

Transcript Grand Jury, page 3, lines 6-7

38. Q: That was a lie too, wasn’t it?

A: Yes.

39. Q: Lying under oath to a grand jury is a felony called perjury that is punishable by up to 5 years in prison, isn’t it?

A: Yes.

Author’s Note: If the deputy said he did not know that what he did was perjury, the lawyer could simply hand him the statute and have him read it out loud. I did not put this in the document that I prepared for Chris McNeill because any lawyer should know this.

This is called playing hardball. I designed this part of the cross to provoke the judge into interrupting and advising the deputy of his Fifth Amendment right to remain silent and refuse to answer on the ground that his answer might have incriminated him. An honest judge also would have offered to recess the trial long enough for the deputy to consult with a lawyer and decide whether to continue answering questions.

At this point, an honorable prosecutor would have, in effect, tossed a white handkerchief over counsel table into the middle of the courtroom as a symbolic gesture of surrender.

None of this happened, however, because Chris McNeill refused to do the cross because, as he put it, “the deputy was a nice young man and the jury would have been offended,” if he used my proposed cross examination.

But, let us continue. Now that we have established that the deputy is a perjurer, let’s take him all the way down. Until tomorrow, Court will be in recess.

To be continued . . .

Cross posted from my law blog.


Petition For Rehearing In Frog Gravy Legal Case (Full Text)

December 23, 2011

Author’s Note: This is a full text copy of the Petition for Rehearing filed on behalf of Crane Station by her lawyer, Julia Pearson, in the Kentucky Court of Appeals.

PURPOSE OF THE PETITION FOR REHEARING

The purpose of this Petition is to correct this Court’s mistakes of fact and/or law pertinent to Ms. Leatherman’s appeal of her convictions and sentence.

STATEMENT OF POINTS AND AUTHORITIES

PURPOSE OF THE PETITION FOR REHEARING i

STATEMENT OF POINTS AND AUTHORITIES i

Walking around a neighborhood is not a criminal act 1

Leatherman v. Commonwealth, 2011 WL 181251 (Ky.App., January 21, 2011) passim

Florida v. J.L., 529 U.S. 266 (2000) 1, 2, 3

Collins v. Commonwealth, 142 S.W.3d 113 (Ky. 2004) 1, 2

Facts based upon after-acquired information cannot
be used in the calculus 2

United States v. Hensley, 469 U.S. 221 (1985) 3

Florida v. Royer, 460 U.S. 491 (1983) 3

Terry v. Ohio, 392 U.S. 1 (1968) 3, 4

KRS 189.930 5

Garcia v. Commonwealth, 185 S.W.3d 658 (Ky. App. 2006) 5

Exculpatory scientific tests trumped by “glassy eyes”
and an improper HGN 5

Illinois v. Wardlow, 528 U.S. 119 (2000) 6

Joshua v. DeWitt, 341 F.3d 430 (6th Cir. 2003) 6

United States v. Brignoni-Ponce, 422 U.S. 873 (1975) 7

Florida v. Rodriguez, 469 U.S. 1 (1984) 7

United States v. Sokolow, 490 U.S. 1 (1989) 7

Effects of Clonazepam/Klonopin 7

Conclusion 8

Scrimsher issue 8

KRE 801A(b) 8

Walking around a neighborhood is not a criminal act

This Court concludes:

Based upon the 911 call, during which the caller described a woman. . . 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.

Leatherman v. Commonwealth, 2011 WL 181251, *7 (Ky.App., January 21, 2011).

This Court ignored United States and Kentucky Supreme Court precedent in finding those facts were enough predictive information with which Deputy McGuire could arrest Ms. Leatherman. In Florida v. J.L., Florida officers received a phone call that a young, black male who was wearing a plaid shirt and standing with two other males at a bus stop was carrying a gun. Based on the tip, officers located and searched the young man wearing a plaid shirt standing at the bus stop. The United States Supreme Court found that the tip gave police no independent reason to suspect that J.L. was up to no good. 529 U.S. 266, 274 (2000).

In Collins v. Commonwealth, 142 S.W.3d 113 (Ky. 2004), the Kentucky Supreme Court found that a tip claiming that a man driving a white Chevrolet Blazer with a certain license plate threw alcohol at another vehicle parked at a gas station was likewise not enough information that something criminal was afoot.
As in J.L., the tip provided in this matter contained no predictive information; rather, it consisted almost entirely of information readily available to a casual bystander, such as Appellant’s license plate number, his direction of travel, and the make and model of his vehicle. Thus, Trooper Oliver was left with no predictive information to corroborate, or other means by which to verify that the tipster had intimate knowledge of any illegal behavior. Id., at 116.

The facts of this case do not create a conclusion that reasonable suspicion existed to stop Rachel Leatherman. Vernon Wilkey did not tell the dispatcher that Leatherman was asking “where may I get black tar heroin” “do you have any black tar heroin” or even “does a drug dealer live in this neighborhood?” He told the dispatcher that she simply “mentioned” tar heroin.

Just as in J.L. and in Collins, all Deputy McGuire had was a dispatch that a woman who was walking around a neighborhood in McCracken County and mentioned tar heroin. McGuire admitted at the suppression hearing that “[a]t the time we responded, the only information that we had was the fact that she had come up to his house and asked about heroin.” TR 155. He admitted at the suppression hearing that he “got the statement” from Wilkey “after the incident had already occurred.” Id., emphasis added. If this Court’s holding remains extant, the simple acts of “walking around” in a neighbor’s yard, “writing stuff down” and simply mentioning tar heroin without any words to indicate intent to buy or sell, then in contravention of federal and state case law, the police are absolutely free to engage in fishing expeditions.

Moreover, this Court is simply incorrect when it states that “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.” Leatherman, supra, 2011 WL 181251 *6. While the words “Leatherman disputes the court’s findings of fact” may not have been used, Leatherman points this Court to discussions of Findings of Fact 2-4 and Conclusions of Law 1-3 at pages 4, 5 and 7-9 of the Brief for Appellant. She points this Court to discussions of Findings of Fact 6-9 and Conclusions of Law 4-6 at pages 11-15, also in the Brief for Appellant.

Facts based upon after-acquired information cannot be used in the calculus

As part of its factual foundation for the holding described supra, this Court cites the dispatch tape, the transcript of which reads in part, “white female in a dark blue LeSabre that’s out walking around asking people about 218A.” Leatherman, 2011 WL 181251, at *2. This Court also cites Vernon Wilkey’s statement written the next day. Id. Both of these pieces of information are “after-acquired” and are not to be considered when determining whether reasonable suspicion existed.

The dispatch tape did not provide reasonable suspicion for Deputy McGuire to make the stop. The dispatch simply told him a woman was walking around a neighborhood “asking people about 218A.” Id. In United States v. Hensley, the United States Supreme Court held that a police department may rely on a flyer or bulletin issued by another police department in order to check a person’s identification if that flyer or bulletin is issued “on the basis of articulable facts supporting a reasonable suspicion that the wanted person has committed an offense.” 469 U.S. 221, 232 (1985).

If this Court upholds its ruling, any person—axe to grind or not–who gives his name and address may pick up a phone and report some “crime” and have that report be deemed reliable. That analysis flies in the face of J.L., supra; Florida v. Royer, 460 U.S. 491 (1983), Hensley, supra; and Terry v. Ohio, 392 U.S. 1 (1968). The ultimate irony for this case is that after the hour and one-half Deputy McGuire held Rachel Leatherman on the side of the road, he found nothing illegal. This Court stated as much when it said, “consent searches of her automobile and her person did not reveal any heroin or any other illegal substance.” Leatherman, supra, 2011 WL 181251, at *7.

Was the woman “asking about 218A” doing a survey for the local newspaper or television station? Doing surveys for local media is a perfectly legal action. Was she a teacher doing a survey for a local high school civics or social studies class? Doing those sorts of surveys is also a legal act. But McGuire jumped to the conclusion that Rachel Leatherman had to have been committing some sort of crime because she was talking to people in a neighborhood and mentioned tar heroin. Unfortunately for McGuire, in Terry, supra, the United States Supreme Court made clear that the officer’s reasonable suspicion must be made from the facts and the “specific reasonable inferences he is entitled to draw from the facts in light of his experience.” 392 U.S. at 21; emphasis added. McGuire’s suspicion was not based upon reasonable inferences from the facts he had at hand.

This Court adds to that calculus the trial court’s finding that when Deputy McGuire fell in behind Ms. Leatherman’s automobile, she stopped the car. This Court proclaims the fact “undisputed”. Leatherman v. Commonwealth, supra, 2011 WL 181251 at *7. This Court ignores the fact that Leatherman disputed the finding. On page 8 of the Brief for Appellant, Leatherman pointed out:

McGuire conceded that it was possible Leatherman had activated her turn signal, but decided against moving into the left lane when she saw the cruiser come up in her rear view mirror. Id., 14:15:05.

McGuire had already testified that he was driving faster than the Leatherman vehicle. His action—coming close to Ms. Leatherman while in the left lane—effectively prevented her from moving into the left lane. That Leatherman did not move to the left lane and collide with the cruiser is evidence that she noticed him coming up on her side. When McGuire slowed and pulled into the right lane, Leatherman did what any watchful, responsible driver would do: assume that the official meant to pull her over. She signaled her intent to move onto the right shoulder by activating her turn signal, pulling onto the shoulder and braking her vehicle to a stop. Brief for Appellant, id.

McGuire admitted at the suppression hearing that he “was going to” stop Leatherman “anyway” when she pulled to the shoulder. TR 165. He also admitted, “I suppose she assumed I was going to stop her, so she went ahead and pulled over, anyway.” He admitted that Leatherman’s actions “were a safe assumption” that he was going to stop her. TR 166. Yet, McGuire, the trial court and this Court find it suspicious that Leatherman speedily obeyed the demands of KRS 189.930, which mandates that emergency vehicles are to be given the right of way, by the operator of the motor vehicle “driv[ing] to a position parallel to, and as close as possible to, the edge or curb of the highway clear of any intersection. . .”

This Court also ignored Garcia v. Commonwealth, in which a member of this panel found the police did not have reasonable suspicion to stop a driver who “quickly changed to the right lane” as a Kentucky State Police Trooper approached the vehicle. 185 S.W.3d 658, 660-661 (Ky. App. 2006). The panel found that “Garcia’s nervousness, lane change, failure to make eye contact, ‘death grip’ on the steering wheel, and out-of-state license plate. . . . describe a substantial number of drivers on our highways.” Further, the panel said, “[i]f we were to accept the Commonwealth’s argument, ordinary law abiding citizens could be subjected to a stop by police based upon routine driving habits.” Id., at 665.

Contrast Garcia’s behavior with that of Rachel Leatherman in the case at bar. According to the officers in each case, both Leatherman and Garcia appeared nervous and changed lanes and had out-of-state license plates. The difference is that Leatherman driving with a turn signal blinking is somehow seen as suspicious behavior rather than the routine (for some drivers) driving habit that it unfortunately is.

Exculpatory scientific tests trumped by “glassy eyes” and an improper HGN

This Court uses as part of its reasoning for affirming Rachel Leatherman’s convictions that she “failed the HGN test, which reveals intoxication by alcohol or some other drug”. Even assuming arguendo that the other indicators had been present (addressed infra), McGuire improperly administered the test. As Leatherman cited in her brief, The National Highway Traffic Safety Administration warned police officers to position DUI suspects so that they do not face blinking cruiser lights or oncoming traffic because the lights can create a false nystagmus (optokinetic nystagmus). The field video shows McGuire positioned Rachel Leatherman facing the blinking cruiser lights and oncoming traffic. Moreover, this Court ignored the fact that Metoprolol, which Leatherman told McGuire she had been prescribed for hypertension, can cause nystagmus. The test was neither administered properly nor documented. For this Court to rely on this so-called “failed” test in order to affirm Leatherman’s conviction is an arbitrary and incorrect legal analysis.

This Court notes that McGuire’s “observation of [Rachel] Leatherman’s glassy eyes and odd behavior coupled with her admission that she was taking prescription medication” was sufficient to provide Deputy McGuire with probable cause to arrest her for DUI. Leatherman, supra, at *9. This Court ignored McGuire’s admissions that Leatherman drove in compliance with traffic laws. This Court even says as much when it cites McGuire’s testimony that Leatherman was neither driving erratically nor weaving. Id.

Leatherman produced her license and registration quickly after he asked for them. Her eyes were not watery or bloodshot. Her pupils were not pinpoint or dilated. She did not have a runny nose as is common with some cocaine users. She did not have scabs or needle marks, also common with intravenous drug users. She was not coughing or short of breath; she was not sneezing or sweating. She did not complain of nausea or chest pains. Her face was not flushed. She was alert. Moreover, McGuire admitted at the suppression hearing that the HGN result by itself could not provide probable cause. VR 4; 11/27/2006; 14:21:45. Neither does nervous behavior.

This Court ignored United States Supreme Court and Sixth Circuit case law which establishes that nervous, evasive behavior is the standard to justify reasonable suspicion, not simple nervousness or restlessness. Illinois v. Wardlow, 528 U.S. 119, 124 (2000); Joshua v. DeWitt, 341 F.3d 430 (6th Cir. 2003). One need only look at several Supreme Court cases regarding drug smuggling at the United States-Mexico border to determine that evasive behavior is the key. United States v. Brignoni-Ponce, 422 U.S. 873, 885 (1975) (“The driver’s behavior may be relevant, as erratic driving or obvious attempts to evade officers can support a reasonable suspicion.”); Florida v. Rodriguez, 469 U.S. 1, 6 (1984) (“[T]he three confederates … had spoken furtively to one another. One was twice overheard urging the others to ‘get out of here.’ Respondent’s strange movements in his attempt to evade the officers aroused further justifiable suspicion….”); United States v. Sokolow, 490 U.S. 1, 5, 8-9 (1989) (noting that “[Respondent] appeared to be very nervous and was looking all around the waiting area,” but that “one taking an evasive path through an airport might be seeking to avoid a confrontation with an angry acquaintance or with a creditor”).

Effects of Clonazepam/Klonopin

As the final rung of its finding that McGuire had probable cause to arrest Ms. Leatherman for DUI, this Court cites to “the product information for Klonopin. . . .[which] 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.” Leatherman, supra, at *9.

Unfortunately, that information is also after-acquired and not something Deputy McGuire knew at the scene. What McGuire knew were the bare facts that Ms. Leatherman told him she had been prescribed Klonopin and was taking the medication. The trial court made the same error when it noted her statement that “she was taking medication that would cause her to fail the test, constitutes probable cause to arrest for DUI.” TR 222.

Moreover, this Court and the trial court disregarded KSP lab tech Ryan Johnson’s testimony that Klonopin itself could cause “positive” HGN signs. VR 4; 1/22/2008; 2:59:55. This Court (and the trial court) also overlooked Johnson’s testimony that even if he had the equipment to test Rachel Leatherman’s blood for the presence of Klonopin, the simple presence of the medication in her bloodstream was not an indicator that she person was under the influence such that she could be charged with, let alone convicted of, driving under the influence of an intoxicant. Id., 3:03:36.

Conclusion

This Court ignored the facts and law of this case in affirming Rachel Leatherman’s convictions for driving under the influence. She requests a full and fair rehearing.

Scrimsher issue

This Court finds that the trial court did not abuse its discretion when it did not admit Leatherman’s statements to Deputy McGuire from the back of his cruiser. This Court says, “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.” Leatherman, supra, at *10. This finding is inconsistent with the trial court’s ruling that Leatherman’s statements were inadmissible, self-serving hearsay. VR 1; 1/22/2008; 8:56:24. In light of the government’s announcement that it believed “801A(b)” prevented trial counsel from broaching the subject, this Court cannot conclude that had Leatherman testified, “I asked Deputy McGuire to look for my watch,” the government would not have been strenuously objecting on hearsay grounds. But why should Leatherman be forced to give up her right to remain silent so that an already admissible statement could come into evidence?

This Court next finds “Leatherman did not attempt to impeach Deputy McGuire’s prior statements regarding discovery of the watch and drugs through laying a proper foundation.” Leatherman, supra, at *10. In reaching this conclusion, this Court disregards both testimony and the Brief for Appellant. In his cross-examination, defense counsel asked Deputy McGuire how he “came to find the watch” and whether Leatherman “actually asked [him] about the watch.”VR 2; 1/22/2008; 5:40:32. The government immediately objected. It is hard to fathom what else counsel was attempting to do besides lay a foundation so that he could cross-examine McGuire when he was prevented from doing so. This Court focuses on Leatherman’s alleged failure to impeach McGuire to the exclusion of the impeaching material to be discovered through a proper cross-examination.

This Court overlooked just how Deputy McGuire’s testimony changed in the months between the preliminary hearing, the suppression hearing and trial. At the preliminary hearing, McGuire’s testimony was that the watch and baggie were not in plain view. In fact, he testified that he saw the baggie only when he moved the seat. TPH 11. By the time the suppression hearing came around, the baggie and Ms. Leatherman’s watch were in plain view next to her in the back seat. VR 4; 11/27/2006; 14:25:55. Interestingly, he also said Leatherman had told him before they went into the hospital that she had dropped her watch. Id., 14:28:15. At trial, McGuire testified that as he assisted Ms. Leatherman out of the cruiser at Lourdes Hospital, he saw a baggie with what appeared to be a rock of cocaine lying underneath her watch in the seatbelt crack of the back seat. VR 2; 1/22/2008; 4:06:20.

This Court cannot reconcile McGuire’s conflicting accounts regarding whether he saw the baggie and watch in plain view or not in plain view. McGuire had been a member of the McCracken County Sheriff’s Department for some time. VR 1; 1/22/2008; 14:08:45. Presumably, he was familiar with the meaning of the phrase “plain view.”

Finally, this Court opines that the outcome of the case would not have been changed because of the “strength of the rest of the testimony. . . .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.” Leatherman, supra, at *10. It is hard to fathom how testimony which changes in material ways from preliminary hearing to trial is “strong”.

This Court also ignored Gretchen Dawes’s testimony about her search of Rachel Leatherman’s person. Prior to Dawes’s arrival, McGuire testified, Leatherman emptied her front pockets. VR 4; 11/27/2006; 14:25:36. Dawes searched the inside rear pockets of Leatherman’s jeans and made her open the front of her pants so she could search Leatherman’s crotch. She made Leatherman lift her shirt so she could search her breasts for concealed controlled substances. TR 26. Even McGuire conceded that Dawes’s search was “thorough.” VR 4; 11/27/2006; 14:25:40.

Yet, this Court has believed the impossibility that Rachel Leatherman held onto a baggie with rock cocaine through a search of her vehicle and her person. Where did she conceal the baggie? As is clearly seen on the dashboard camera, McGuire had her open both her hands at one time—she could not have held the baggie in one hand, then the other. Dawes opened her jeans zipper—Leatherman could not have concealed the baggie in her crotch or the waistband of her jeans. Dawes had her raise her blouse—Leatherman could not have concealed the baggie in her bra. This also begs the question of how Leatherman retrieved the baggie–in handcuffs–without moving enough to make at least one of the officers suspicious.

This Court must reconsider its opinion.

Respectfully submitted,

JULIA K. PEARSON


The Full-Text Motion For Discretionary Review [Frog Gravy Legal Case]

December 22, 2011

For those of you following the legal case, the 26-page Kentucky Court of Appeals Published Opinion Affirming is available online at the Kentucky Court of Appeals site. Other documents, such as this one, while they are in the public domain, are not readily available. (One must file an open records request)

I am also going to make the opening brief and response available here, online, for the public. This first document is a Motion For Discretionary Review. It was filed with the Supreme Court in June of this year (2011). The attorney is The Honorable Julia K. Pearson.

COMMONWEALTH OF KENTUCKY
SUPREME COURT OF KENTUCKY
FILE NO.2011-SC-000272

RACHEL LEATHERMAN MOVANT

v.

COMMONWEALTH OF KENTUCKY RESPONDENT

MOTION FOR DISCRETIONARY REVIEW

The Movant, Rachel Leatherman, comes by counsel and pursuant to CR 76.20, requests this Court to grant discretionary review of the decision of the Kentucky Court of Appeals in Leatherman v. Commonwealth, 2008-CA-0849, which was decided on January 21, 2011. The Petition for Rehearing was denied on April 12, 2011. Ms. Leatherman explains the grounds for this motion below.

THE JURISDICTIONAL FACTS

1. The Movant’s name is Rachel Leatherman. Counsel for Movant is Hon. Julia K. Pearson, Assistant Public Advocate, Department of Public Advocacy, 100 Fair Oaks Lane, Suite 302, Frankfort, Kentucky 40601.

2. The Respondent is the Commonwealth of Kentucky. Counsel for Respondent is Hon. Jack Conway, Attorney General, Commonwealth of Kentucky, Criminal Appellate Division, 1024 Capital Center Drive, Frankfort, Kentucky 40601.

3. The Court of Appeals finally disposed of Movant’s case on April 12, 2011.

4. Neither Movant nor Respondent has a Petition for Rehearing or a Motion for Reconsideration pending in the Court of Appeals. The Petition for Rehearing filed in this case was denied on April 12, 2011.

THE MATERIAL FACTS

Sometime in the evening of June 28, 2006, a man identifying himself as Vernon Wilkey, residing on Queensway Drive in Paducah, called 911 and said, “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 writing stuff down and she’d talked to him and mentioned something about tar heroin and all that stuff.” Wilkey said the woman driving the car was white and that the vehicle had Washington state plates. Wilkey testified at trial that she “didn’t seem like she was really all together there.” He did not give the 911 operator that piece of information.

McCracken County Deputy Sheriff Eddie McGuire testified at trial that he received a dispatch about a suspicious person on Queensway Drive. He thought it took fifteen to twenty minutes to arrive on scene, where he looked for a car with Washington state license plates, but was unsuccessful. At the suppression hearing, McGuire testified when he entered the Queensway Drive neighborhood, he did not check with Vernon Wilkey to obtain any additional information, such as what time Wilkey encountered the woman, whether Wilkey saw her leave in a particular direction, whether Wilkey thought she was under the influence or whether the woman had said where she was going. McGuire testified that he spoke with Wilkey and took his written statement the next day, after he had arrested Ms. Leatherman.

At trial, the deputy testified that he had just come through the Metropolis Lake intersection when he saw a car with its left turn signal flashing. McGuire admitted that he did not know how fast he was driving as he drew alongside the vehicle.

“As I was passing the vehicle, she had her left blinker on as if she was going to turn out in the passing lane, but she never did. And then as I was going to go ahead and go past her, I noticed that the license plate—it was a Washington license plate that was the description that was also given at the time of the call. So when I noticed that, I slowed down and let her go back by me and then when I pulled in behind her, she pulled over.”

After McGuire pulled in behind her, the woman pulled over to the shoulder. He thought that action was as suspicious as the woman leaving her left turn signal blinking, so he pulled over to the side and activated his emergency lights. McGuire said as he walked up to the vehicle, he noticed that the driver’s pants were unbuttoned and unzipped, but belted. Even so, Rachel Leatherman “promptly” handed her identification and proof of insurance to Deputy McGuire. He ordered her to get out of the car and stand behind it. McGuire said she had no problem getting out of the car. In fact, he said that if she had been unsteady on her feet or slurring her speech, he would have documented it in his citation.

Sometime after that, Deputy Jason Walters came to the scene. The men searched the car for contraband, but came up with nothing. Later, Officer Gretchen Dawes arrived and searched Leatherman. Before she arrived, however, McGuire testified that Leatherman had emptied her two front pockets. He could not remember whether Leatherman had buttoned her pants at any time during the automobile and personal searches.

Neither Officer Dawes nor Deputy Walters testified at the suppression hearing. However, as her testimony at trial showed, Dawes’ search was not a simple Terry pat-down. Dawes searched the inside rear pockets of Rachel Leatherman’s jeans and made her open the front of her pants so she could search Leatherman’s crotch. Dawes made Leatherman lift her shirt so she could search her breasts for concealed controlled substances. Even McGuire conceded that Dawes’s search was “thorough.”

Deputy McGuire agreed that “[u]nder the circumstances, [Dawes] was not only looking for weapons but also looking for possible drugs,” but found none. McGuire did not see Dawes search Leatherman’s back pockets, but he assumed she did so as part of that thorough search. Finally, McGuire said that en route to Lourdes Hospital, he did not see Leatherman moving in any sort of fashion to indicate that she was trying to hide something.

A thorough search by a trained police officer would presumably “sanitize” a suspect before she is handcuffed and placed into a police car. In other words, how is it possible that Rachel Leatherman held onto a baggie with rock cocaine through a search of her vehicle and her person? Officer Dawes offered her speculation at trial. She said she was told only that the deputies wanted a female officer to search a female suspect. The deputies did not tell her anything about the case such as whether she was supposed to conduct a Terry pat-down or the more thorough search incident to arrest. Interestingly, Dawes said that if she had prior knowledge that Leatherman had drugs on her person, she would have done an even more thorough search.

Deputy McGuire and the two backup officers searched Ms. Leatherman’s person and her car for about 1.25 hours. That search yielded no illegal drugs, no drug residue and no paraphernalia. Despite the fact that Leatherman had not committed a traffic violation and a PBT (Portable Breath Test) registered no alcohol, McGuire arrested her for Driving under the Influence and transported her to Lourdes Hospital for a blood draw.

Subsequent analysis found no alcohol or drugs in Leatherman’s blood.

McGuire was certain Leatherman was wearing a watch, but only thought it was on her right arm. McGuire’s story was that as he assisted her out of the car at the hospital, he noticed that Leatherman had dropped her watch and a small baggie containing a substance consistent with a rock of cocaine. He did not confront Leatherman at that time. McGuire was unsure how long the two remained at the hospital. Once he arrived at the McCracken County Jail and booked Ms. Leatherman, he ran a field test for heroin. That test came back negative.

Rachel Leatherman was charged with Possession of a Controlled Substance in the First Degree, Tampering with Physical Evidence and Driving an Automobile under the Influence. She was convicted on all three charges and sentenced to eight years.

QUESTIONS PRESENTED

1. A trial court shall make written findings of fact and conclusions of law after holding a suppression hearing. RCr 9.78. Is it appropriate for a trial court to render findings of fact and conclusions of law after trial, using information gained at the trial, but not the suppression hearing?

The panel concluded:

Based upon the 911 call, during which the caller described a woman. . . 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.

Leatherman v. Commonwealth, 2011 WL 181251, *7 (Ky. App., January 21, 2011).

Walking around a neighborhood and saying the word “heroin” are not criminal acts.

The trial court’s second conclusion of law was that: “[t]he 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 in the right, constitutes reasonable suspicion to investigate and possibly cite for improper signal. TR 222.

The court’s third conclusion was that “[a] report of suspicious activity by a person who identifies himself by name, phone number and address is presumptively reliable.” TR 222. These conclusions came not after the suppression hearing, but after the trial.

The court should have relied only upon the information in the 911 call, not evidence it heard at trial, in order to decide whether Deputy McGuire had reasonable suspicion to stop Rachel Leatherman. United States v. Hensley, 469 U.S. 221 (1985).

The information in the particular 911 call left a good deal to be desired. Vernon Wilkey did not tell the dispatcher that Leatherman was asking “where may I get black tar heroin” “do you have any black tar heroin” or even “does a drug dealer live in this neighborhood”? He simply told the dispatcher that she “mentioned” tar heroin. All Deputy McGuire had was a dispatch that a woman was walking around a neighborhood in McCracken County and mentioned tar heroin. McGuire admitted at the suppression hearing: “[a]t the time we responded, the only information that we had was the fact that she had come up to his house and asked about heroin.” TR 155. He admitted that he talked to Wilkey after he arrested Leatherman. Id., emphasis added. He admitted at trial that he had no idea when the woman had made contact with the neighbor (or Wilkey, for that matter). VR 4; 11/27/2006; 14:05:04.

The Fourth Amendment requires that reasonable suspicion comes only when the police believe criminal activity is currently afoot. See Joshua v. DeWitt, 341 F.3d 430, 446 (6th Cir. 2003), citing Terry v. Ohio, 392 U.S. 1, 20 (1968); emphasis in original. Was the woman “asking about 218A” doing a survey for the local newspaper or television station? Doing surveys for local media is a perfectly legal action. Was she a teacher doing a survey for a local high school civics or social studies class? Doing those sorts of surveys is also a legal act. But McGuire jumped to the conclusion that Rachel Leatherman had to be committing some sort of crime because she was talking to people in a neighborhood and mentioned tar heroin. Unfortunately for McGuire, in Terry, supra, the Supreme Court made clear that the officer’s reasonable suspicion must be made from the facts and the “specific reasonable inferences he is entitled to draw from the facts in light of his experience.” 392 U.S. at 21; emphasis added. McGuire’s suspicion was not based upon reasonable inferences from the facts he had at hand.

The panel ignored United States and Kentucky Supreme Court precedent in finding those facts were enough predictive information with which Deputy McGuire could arrest Ms. Leatherman. In Florida v. J.L., Florida officers received a phone call that a young, black male who was wearing a plaid shirt and standing with two other males at a bus stop was carrying a gun. Officers arrived and found the young man wearing a plaid shirt standing at the bus stop and arrested him. The United States Supreme Court found that the tip gave police no independent reason to suspect that J.L. was up to a nefarious act. 529 U.S. 266, 274 (2000).
In Collins v. Commonwealth, this Court found that a tip claiming that a man driving a white Chevrolet Blazer with a certain license plate threw alcohol at another vehicle parked at a gas station was likewise not enough information that something criminal was afoot.

As in J.L., the tip provided in this matter contained no predictive information; rather, it consisted almost entirely of information readily available to a casual bystander, such as Appellant’s license plate number, his direction of travel, and the make and model of his vehicle. Thus, Trooper Oliver was left with no predictive information to corroborate, or other means by which to verify that the tipster had intimate knowledge of any illegal behavior. 142 S.W.3d 113, 116 (Ky. 2004).

If the panel’s Orwellian holding remains valid, the simple acts of “walking around” in a neighbor’s yard, “writing stuff down” and merely uttering the words tar and heroin, without any further indication of intent to buy or sell, then, in contravention of federal and state case law, the police are absolutely free to engage in fishing expeditions.

Moreover, any person—axe to grind or not–who gives his name and address may pick up a phone and report some “crime” and have that report be deemed reliable. That analysis flies in the face of J.L., supra; Florida v. Royer, 460 U.S. 491 (1983), Hensley, supra; and Terry v. Ohio, 392 U.S. 1 (1968).

“Hunch” that Rachel Leatherman possessed a controlled substance did not constitute suspicion for a stop or reasonable cause for an arrest

The trial court’s first conclusion of law was that “[t]he 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.” TR 222. This is incorrect as a matter of law and is unsupported by the evidence.

Deputy McGuire admitted at the suppression hearing that he “was going to” stop Leatherman “anyway” when she pulled to the shoulder. TR 165. He admitted, “I suppose she assumed I was going to stop her, so she went ahead and pulled over, anyway.” He admitted that Leatherman’s actions “were a safe assumption” that he was going to stop her. TR 166; emphasis added. McGuire conceded that it was possible Leatherman had activated her turn signal, but decided against moving into the left lane when she saw the cruiser come up in her rear view mirror. VR 4; 11/27/2006; 14:15:05. McGuire had already testified that he was driving faster than the Leatherman vehicle. That Leatherman did not move to the left lane and collide with the cruiser is evidence that she noticed him coming up on her side.

Yet, McGuire, the trial court and the panel found it suspicious that Leatherman speedily obeyed the demands of KRS 189.930, which mandates that emergency vehicles are to be given the right of way, by the operator of the motor vehicle “driv[ing] to a position parallel to, and as close as possible to, the edge or curb of the highway clear of any intersection. . .”

The panel absolutely ignored Garcia v. Commonwealth, in which a member of the panel had found that the police did not have reasonable suspicion to stop a driver who “quickly changed to the right lane” as a Kentucky State Police Trooper approached the vehicle. 185 S.W.3d 658, 660-661 (Ky. App. 2006). The panel found that “Garcia’s nervousness, lane change, failure to make eye contact, ‘death grip’ on the steering wheel, and out-of-state license plate. . . . describe a substantial number of drivers on our highways.” Further, the panel said, “[i]f we were to accept the Commonwealth’s argument, ordinary law abiding citizens could be subjected to a stop by police based upon routine driving habits.” Id., at 665.

Contrast the behavior in Garcia with that in the case at bar. According to the officers in each case, both Leatherman and Garcia appeared nervous and changed lanes and had out-of-state license plates. The difference is that Leatherman driving with a turn signal blinking was somehow seen as suspicious behavior, rather than the routine (for some drivers) driving habit that it is.

Exculpatory scientific tests trumped by “glassy eyes” and an improper HGN

As a result of the panel’s opinion, exculpatory blood test results are no longer good evidence. The panel used as part of its reasoning for affirming Rachel Leatherman’s convictions that she “failed the HGN test, which reveals intoxication by alcohol or some other drug”. Even assuming arguendo that the other indicators had been present (addressed infra), McGuire improperly administered the test.

The National Highway Traffic Safety Administration warned police officers to position DUI suspects so that they do not face blinking cruiser lights or oncoming traffic because the lights can create a false nystagmus (optokinetic nystagmus). The field video shows McGuire positioned Rachel Leatherman facing the blinking cruiser lights and oncoming traffic. Moreover, the panel ignored the fact that Metoprolol, which Leatherman told McGuire she was taking for hypertension, can cause nystagmus. The test was neither administered properly nor documented. For the panel to rely on this so-called “failed” test in order to affirm Leatherman’s conviction is the height of arbitrariness and incorrect legal analysis.

The panel noted that his “observation of [Rachel] Leatherman’s glassy eyes and odd behavior coupled with her admission that she was taking prescription medication” was sufficient to provide Deputy McGuire with probable cause to arrest her for DUI. Leatherman, supra, at *9.

The panel absolutely ignored McGuire’s admissions that Leatherman drove in compliance with traffic laws. It even cited McGuire’s testimony that Leatherman was neither driving erratically nor weaving! Id. Leatherman produced her license and registration quickly after he asked for them. Her eyes were not watery or bloodshot. Her pupils were not pinpoint or dilated. She did not have a runny nose as is common with some cocaine users. She did not have scabs or needle marks, also common with intravenous drug users. She was not coughing or short of breath; she was not sneezing or sweating. She did not complain of nausea or chest pains. Her face was not flushed. She was alert.

Moreover, McGuire admitted at the suppression hearing that the HGN result by itself could not provide probable cause. VR 4; 11/27/2006; 14:21:45. Neither does nervous behavior.

The panel also absolutely ignored United States Supreme Court and Sixth Circuit case law which establishes that nervous, evasive behavior is the standard to justify reasonable suspicion, not simple nervousness or restlessness. Illinois v. Wardlow, 528 U.S. 119, 124, (2000); Joshua v. DeWitt, 341 F.3d 430 (6th Cir. 2003).

One need only look at several Supreme Court cases regarding drug smuggling at the United States-Mexico border to determine that evasive behavior is the key. United States v. Brignoni-Ponce, 422 U.S. 873, 885 (1975) (“The driver’s behavior may be relevant, as erratic driving or obvious attempts to evade officers can support a reasonable suspicion.”); Florida v. Rodriguez, 469 U.S. 1, 6 (1984) (“[T]he three confederates … had spoken furtively to one another. One was twice overheard urging the others to ‘get out of here.’ Respondent’s strange movements in his attempt to evade the officers aroused further justifiable suspicion….”); United States v. Sokolow, 490 U.S.1, 5, 8-9, (1989) (noting that “[Respondent] appeared to be very nervous and was looking all around the waiting area,” but that “one taking an evasive path through an airport might be seeking to avoid a confrontation with an angry acquaintance or with a creditor”).

The ultimate irony for this case is that after the hour and one-half Deputy McGuire held Rachel Leatherman on the side of the road, he found nothing illegal. The panel stated as much when it said, “consent searches of her automobile and her person did not reveal any heroin or any other illegal substance.” Leatherman, supra, 2011 WL 181251, at *7.

Effects of Clonazepam/Klonopin

As the final rung of its finding that McGuire had probable cause to arrest Ms. Leatherman for DUI, the panel cited to “the product information for Klonopin. . . .[which] 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.” Leatherman, supra, at *9.

Unfortunately, that information is also after-acquired and not something Deputy McGuire knew at the scene. The trial court made the same error when it noted her statement that “she was taking medication that would cause her to fail the test, constitutes probable cause to arrest for DUI.” TR 222.

Moreover, the panel and the trial court absolutely ignored KSP lab tech Ryan Johnson’s testimony that Klonopin itself could cause “positive” HGN signs. VR 4; 1/22/2008; 2:59:55. The panel (and the trial court) also absolutely ignored Johnson’s testimony that even if he had the equipment to test Rachel Leatherman’s blood for the presence of Klonopin, the simple presence of the drug was not an indicator that the person was under the influence such that she could be charged with, let alone convicted of, driving under the influence of an intoxicant. Id., 3:03:36.

Conclusion

The panel ignored the facts and law of this case in affirming Rachel Leatherman’s convictions for driving under the influence. Moreover, the trial court ignored the facts and the law, including the dictates of RCr 9.38, when it used information gained from trial testimony to concoct a third set of findings of fact and conclusions of law. This Court must grant discretionary review.

2. The panel erred when it found the trial court properly granted the government’s motion in limine which prohibited defense counsel from mentioning that Rachel Leatherman asked Deputy McGuire to retrieve her watch from the backseat.

The panel found that the trial court did not abuse its discretion when it did not admit Leatherman’s statements to Deputy McGuire from the back of his cruiser. The panel said, “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.” Leatherman, supra, at *10. That finding is inconsistent with the trial court’s ruling that Leatherman’s statements were inadmissible, self-serving hearsay. VR 1; 1/22/2008; 8:56:24.

In light of the government’s announcement that it believed “801A(b)” prevented trial counsel from broaching the subject, this Court cannot seriously believe that had Leatherman testified, “I asked Deputy McGuire to look for my watch,” the government would not have been strenuously objecting on hearsay grounds. But why should Leatherman be forced to give up her right to remain silent to an admissible statement?

The panel next found, “Leatherman did not attempt to impeach Deputy McGuire’s prior statements regarding discovery of the watch and drugs through laying a proper foundation.” Leatherman, supra, at *10. The panel ignored trial testimony. In his cross-examination, defense counsel asked Deputy McGuire:

DC: How is it that you came to find the watch?

DM: Whenever she got out of the backseat, that’s when I found it.

DC: She actually asked you about the watch, didn’t she?

VR 2; 1/22/2008; 5:40:32. The government immediately objected.

It is hard to fathom what else counsel was doing besides beginning to lay a foundation so that he could cross-examine McGuire when he was prevented from doing so by the government’s objection and the trial court sustaining it. The panel focused on Leatherman’s alleged failure to impeach McGuire to the exclusion of the impeaching material to be discovered.

It absolutely ignored just how Deputy McGuire’s testimony changed in the months between the preliminary hearing, the suppression hearing and trial. At the preliminary hearing, McGuire’s testimony was that the watch and baggie were not in plain view. In fact, he testified that he saw the baggie only when he moved the seat. TPH 11.

By the time the suppression hearing came around, the baggie and Ms. Leatherman’s watch were in plain view next to her in the back seat. VR 4; 11/27/2006; 14:25:55. Interestingly, he also said Leatherman had told him before they went into the hospital that she had dropped her watch. Id., 14:28:15. At trial, McGuire testified that as he assisted Ms. Leatherman out of the cruiser at Lourdes Hospital, he saw a baggie with what appeared to be a rock of cocaine lying underneath her watch in the seatbelt crack of the back seat. VR 2; 1/22/2008; 4:06:20.

The panel could not then—this Court cannot now—reconcile McGuire’s conflicting accounts regarding whether he saw the baggie and watch in plain view or not in plain view. McGuire had been a member of the McCracken County Sheriff’s Department for four and one-half years. VR 1; 1/22/2008; 14:08:45. Presumably, he was familiar with the meaning of the phrase “plain view.” Yet, his story about plain view progressed over the months.

Finally, the panel opined that the outcome of the case would not have been changed because of 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.” Leatherman, supra, at *10. It is hard to fathom how testimony which changes in material ways from preliminary hearing to trial is “strong”.

The panel absolutely ignored Gretchen Dawes’s testimony about how she searched Rachel Leatherman’s person. Prior to Dawes’s arrival, McGuire testified, Rachel Leatherman emptied her front pockets. VR 4; 11/27/2006; 14:25:36.

Dawes searched the inside rear pockets of Leatherman’s jeans and made her open the front of her pants so she could search Leatherman’s crotch. She made Leatherman lift her shirt so she could search her breasts for concealed controlled substances. TR 26. Even McGuire conceded at the suppression hearing that Dawes’s search was “thorough.” VR 4; 11/27/2006; 14:25:40.

Yet, the panel believed the impossibility that Rachel Leatherman held onto a baggie with rock cocaine through a search of her vehicle and her person. Assuming for sake of argument that Leatherman did so, where did she conceal the baggie? As was clearly seen on the dashboard camera (the recording is a part of the exhibits in the file housed with the Clerk of the Kentucky Court of Appeals), McGuire had her open her hands up together, at one time—she could not have held the baggie in one hand, then the other. Dawes opened her jeans zipper—Leatherman could not have concealed the baggie in her crotch. Dawes had her raise her blouse—Leatherman could not have concealed the baggie in her bra. The search also begs the question of how Leatherman retrieved the baggie–in handcuffs–without moving enough to make at least one of the officers suspicious.

Conclusion

The panel ignored the facts and law of this case. This Court must grant discretionary review.

CONCLUSION

The panel ignored clear precedent and the facts of this case in affirming Rachel Leatherman’s convictions. Moreover, the panel also ignored the fact that the trial court’s findings of fact and conclusions of law changed over three iterations, one coming after it had heard all the trial testimony. Just as Deputy McGuire used after-acquired information, so, too, did the trial court. This Court must grant discretionary review.

Respectfully submitted,

JULIA K. PEARSON

NOTICE

Please take notice that the foregoing Motion for Discretionary Review will be filed in the Office of the Clerk of the Supreme Court on this 17th day of June 2011.

CERTIFICATE OF SERVICE

I hereby certify that a true and accurate copy of the foregoing Motion for Discretionary Review has been mailed, postage paid, to Hon. Jack Conway, Attorney General, 1024 Capital Center Drive, Frankfort, Kentucky 40601 and Hon. Samuel Givens, Jr., Clerk of the Court of Appeals, 360 Democrat Drive, Frankfort, Kentucky 40601, this 17th day of June 2011.

Julia K. Pearson


The Art of Cross Examination (Part 3): The Killer Cross That Never Happened

December 22, 2011

Author’s Note: I have reproduced below the cross examination that I prepared for Crane-Station’s public defender, Chris McNeill. He told me that he decided not to use it because the jury “would be offended.” He said the deputy was “young and innocent and just doing his job.” I will leave it to you to decide if that explanation is credible and reasonable.

Keep in mind, as you read this proposed cross examination, that Rule 3.130(1.1) of the Kentucky Rules of Professional Conduct provides:

A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

Rule 1.130(1.3) of the Kentucky Rules of Professional Conduct provides:

(1) A lawyer should pursue a matter on behalf of a client despite opposition, obstruction or personal inconvenience to the lawyer, and take whatever lawful and ethical measures are required to vindicate a client’s cause or endeavor. A lawyer must also act with commitment and
dedication to the interests of the client and with zeal in advocacy upon the client’s behalf. A lawyer is not bound, however, to press for every advantage that might be realized for a client. For example, a lawyer may have authority to exercise professional discretion in determining the
means by which a matter should be pursued. See Rule 1.2. The lawyer’s duty to act with reasonable diligence does not require the use of offensive tactics or preclude the treating of all persons involved in the legal process with courtesy and respect.

When a defense lawyer impeaches a critical prosecution witness with a prior inconsistent statement, he can take the soft approach and argue that the prosecution failed to prove its case beyond a reasonable doubt because its witness is not credible.

He can say, for example, “I don’t know whether the witness lied to you under oath or innocently forgot, but there is absolutely no question that his inconsistencies and contradictions add up to a reasonable doubt.”

The hard approach would be to use the dreaded ‘L’ word and argue that there is a reasonable doubt because the deputy is a liar. This approach, particularly when it involves attacking the police, can anger a jury and backfire unless the inconsistencies were egregious.

I have tried it both ways successfully. I opted for the hard approach in my proposed cross, but it easily could have been adapted to the soft approach.

When McNeill made the comment to me about the deputy being young and innocent, I assumed he meant that he would opt for the soft approach. I did not consider the possibility that he was opting for no approach.

When I began to type the proposed cross to reproduce it here, I discovered that it is much too long to enter in one post, so I am going to present it in a series of posts. Each post will deal with a separate topic or set of topics. This post will cover what the deputy witnessed prior to the investigatory stop.

The cross examination is organized in a question-answer format. A reference to the document or transcript containing the deputy’s previous statement is incorporated in a leading question asking for a ‘yes’ or ‘no’ answer with the source of the statement provided below the answer. If the deputy were to give an answer that was inconsistent with his previous statement in the document or transcript, the lawyer would then proceed to impeach him with that statement. I illustrated how to do that in Part 2.

I hope you enjoy the Killer Cross.

1. Q: Whenever you are considering whether to charge a suspect with DUI, you document everything you observe that would be consistent with drug or alcohol impairment, isn’t that correct?

A: Yes.

Source: Transcript Suppression lines 2-6, page 19

2. Q: Staggering or stumbling would be signs of alcohol or drug intoxication, right?

A: Yes.

Q: You did not document any staggering or stumbling in your report, did you?

A: No.

Transcript Suppression, lines 14-17, page 17

3. Q: In fact, you previously testified under oath in this case that Mrs. Leatherman had no problem getting out of her car, didn’t you?

A: Yes.

Transcript Suppression, lines 11-13, page 17.

4. Q: Difficulty producing identification and proof of insurance are signs of alcohol or drug intoxication, aren’t they?

A: Yes.

Q: You did not document in your report in the Uniform Citation that you filled out the night that you arrested her that she had any difficulty producing her identification and proof of insurance, when you asked her to produce them, did you?

A: No.

Uniform Citation

5. Q: In fact, you previously testified under oath in this case that she had no problem producing her identification and proof of insurance, didn’t you?

A: Yes.

Transcript Suppression, lines 18-22, page 15.

6. Q: You did not document that she had any difficulty speaking, did you?

A: No.

Uniform Citation

7. Q: At no time during your encounter with Mrs. Leatherman did she exhibit slurred speech, did she?

A: No.

Q: Slurred speech is another sign of alcohol or drug intoxication, isn’t it?

A: Yes

Transcript Suppression, lines 18-19, page 17.

8. Q: You did not document in your report that Mrs. Leatherman exhibited any sign of mental confusion or disorientation, did you?

A: No.

Uniform Citation

9. Q: In fact, you did not notice any signs of mental confusion or disorientation, did you?

A: No.

Uniform Citation

10. Q: Mental confusion or disorientation is another sign of alcohol or drug intoxication, isn’t it?

A: Yes.

11. Q: An odor of alcohol is another sign of intoxication, isn’t it?

A: Yes.

12. Q: You did not document in your report that you noticed an odor of alcohol emanating from Mrs. Leatherman, did you?

A: No.

13. But you did document that she passed the portable breath test (PBT) ruling out alcohol intoxication at the roadside after you stopped her, didn’t you?

A: Yes.

14. Q: Yet, two weeks later when you testified before the grand jury in this matter, you told them that she stumbled getting out of her car, was very unsteady on her feet, and was smelling of alcohol, didn’t you?

A: Yes

Transcript Grand Jury

15. Q: Inattentive driving is another sign of drug or alcohol intoxication, isn’t it?

A: Yes.

16. Q: You have previously testified under oath in Mrs. Leatherman’s case that you first noticed that her left turn signal was blinking as you passed her, isn’t that correct?

A: Yes.

Transcript Suppression, lines 4-6, page 5.

17. Q: Both of you were approaching the Cairo Road intersection, weren’t you?

A: Yes.

18. Q: The Cairo Road intersection is a traffic light controlled intersection where motorists can turn left or right, isn’t it?

A: Yes.

19. Q: If Mrs. Leatherman had moved into the left lane as you started to pass her, she would have collided with your vehicle, wouldn’t she?

A: Yes.

Transcript Suppression, lines 21-25, page 12.

20. Q: The fact that she did not move into the left lane and collide with your vehicle indicates that she was attentive, doesn’t it?

A: Yes.

Transcript Suppression, lines 21-25, page 12

21. Q: You slowed down and fell in directly behind her as soon as you realized that her vehicle, Washington plates, and the blonde hair matched the description provided by the 911 caller, didn’t you?

A: Yes.

Uniform Citation, Transcript Grand Jury, Suppression Transcript

22. Q: As soon as you fell in behind her, she activated her right-turn signal, moved over onto the shoulder of the road, and slowed down to a stop, correct?

A: Yes.

Transcript Suppression, lines 3-5, page 15.

23. Q: That would be another example of attentive rather than inattentive driving, wouldn’t it?

A: Yes.

24. Q: In conclusion, she was driving appropriately, she wasn’t weaving, and her speed wasn’t a factor when you decided to pull her over, isn’t that correct?

A: Yes.

To be continued . . .


The Art of Cross Examination (Part 2): Impeachment By Prior Inconsistent Statement

December 21, 2011

Please watch the attached clip from Witness For The Prosecution (1957), starring the incomparable Charles Laughton, Marlene Dietrich, and Tyrone Power. Billy Wilder directed the film and wrote the screenplay from a novel by Agatha Christie.

Now back to the real world.

Here is an example of how to effectively impeach a witness with a prior inconsistent statement. This is one of the most effective ways to cross examine a witness. More than once, I have demolished an opponent’s case using this method. It is relative easy to do after you have assembled all of a witnesses’s prior statements, sorted them by topic, and prepared your cross examination. As usual, there is no substitute for hard work and preparation. The end product in court is extremely dramatic, deeply humiliating and disorienting to the dishonest witness, frightening to opposing counsel, and immensely satisfying to the lawyer who pulls it off.

Author’s Note: I never got a witness to say, “Damn you. Damn you,” but I did get a witness to say, “As God is my witness, I am telling the truth,” which is almost as good. She was not as beautiful, elegant, and aristocratic as Marlene Dietrich, but hey, nobody is.

Here, I illustrate the method by using the first question of a lengthy proposed cross examination of Deputy Eddie McGuire of the McCracken County Sheriff’s Department. He arrested Crane-Station and I have previously mentioned him in several posts relative to her case.

I prepared the cross examination for Chris McNeill, the lawyer who represented Crane-Station and I delivered it to him in person the week before the trial. I respectfully asked him to please consider using it.

I said, “I respect you. I am not trying to tell you how to do your job. I love my wife and I am just trying to help out any way that I can. This is one area where I can help because I have a lot of experience in these matters. Please review it and consider using it, or some of it, as you deem appropriate.”

He never used any of it.

He later told me that the deputy was a nice young man and the jury would have been offended, if he used my proposed cross examination. I will leave it for you to decide whether that makes any sense.

Each proposed question is followed by the correct answer with a reference below the answer to the document or transcript in which the deputy made the original statement.

If the deputy gave the wrong answer to any question, the proper way to impeach him would have been to direct his attention to the source document or transcript and confront him with his prior inconsistent statement.

In tomorrow’s post, I will present the entire cross examination that did not happen. It is an engaging and easy-to-follow-story that I believe you will enjoy.

In today’s post, I will present the first question, answer, and reference to the source in order to illustrate how to effectively cross examine a witness by impeaching the witness with a prior inconsistent statement. The procedure is formulaic and would be repeated whenever the deputy gave an answer that was inconsistent with an earlier statement.

Okay, students. With that introduction, let us begin.

Q: Deputy McGuire, whenever you are considering whether to charge a suspect with DUI, you document everything you observe that would be consistent with drug or alcohol impairment, isn’t that correct?

A: Yes.

The proper answer is “yes” because that is the answer that he gave under oath at the suppression hearing. Now, let us suppose that he answered, “No.” This is how you impeach him with his prior inconsistent statement.

May I approach the witness, your Honor?

You may.

You now approach the witness and hand him a copy of the transcript of the suppression hearing that you will use to impeach him and you also hand two copies to the clerk. One is for the court file and the other is a courtesy copy for the judge. On your way back to the podium, you hand the prosecutor a courtesy copy. Resuming your position at the podium, you proceed as follows:

Q: Deputy McGuire, please take a moment to review the document that I just handed to you and let me know when you are ready to answer some questions about it.

A: Okay, I’m ready.

Q: What is the document you are holding, which Madame Clerk has marked as Defendant’s Exhibit 1?

A: It looks like a transcript of the suppression hearing in this case.

Q: Did you testify at that hearing?

A: Yes, I did.

Q: Did you swear to tell the truth, the whole truth, and nothing but the truth, before you testified?

A: Yes.

Q: Did you tell the truth?

A: Of course I did.

Q: Does that document appear to be a true and correct copy of your testimony at the suppression hearing?

A: Appears to be.

Q: Please answer the question “Yes” or “No.” Take all the time you need.

A: Yes, it’s correct.

Q: Thank you. Your Honor, I move Defendant’s Exhibit 1 into evidence for illustrative purposes.

This is the proper way to identify and authenticate an exhibit prior to moving it into evidence. Judges and lawyers call it “laying the foundation.”

Notice how the lawyer firmly, but respectfully refuses to accept the equivocal answer. This is how a lawyer asserts control over a waffling witness.

Exhibits admitted into evidence for illustrative purposes become a part of the official record of the case. They can be used by counsel to illustrate a point, but they do not go into the jury room with the rest of the exhibits during deliberations.

Should a question come up during deliberations, the foreperson can send out a note asking to see a particular exhibit that was admitted for illustrative purposes. If the judge grants the request after conferring with counsel, court will reconvene with counsel and the defendant present. The jury returns to the box and the Clerk shows the exhibit to the jury. The jury then returns to the jury room to continue deliberations and the judge declares a recess pending further notice from the jury that it has another question, or it has reached a verdict.

No talking is permitted while the jury views the exhibit. If the jurors have any questions about the exhibit after viewing it, the foreman has to submit the question(s) in writing after the jury returns to the jury room.

Judge: Mr. Prosecutor, do you have any objection to admitting the exhibit for illustrative purposes?

Prosecutor: No objection, your Honor.

Judge: Very well. Defendant’s Exhibit 1 is admitted for illustrative purposes.

Q: Deputy McGuire, directing your attention to page 19, lines 2-6 of the transcript of the suppression hearing on November 26, 2006, were you asked the following question by defense counsel and did you give the following answer under oath?

Question by defense counsel:

“So, pretty much it’s your practice, if considering DUI, is to document all of those things that would be consistent with drug or alcohol impairment?”

You answered: “Yes.”

A: Uhm, well, Yes, I guess I did.

Q: You answered “Yes,” didn’t you?

A: Yes.

Q: Thank you.

When faced with an equivocating witness, and cops and experts do like to equivocate at times, I often used the technique, which I illustrated here, of repeating the question until the witness answered it. Defensive prosecutors often rise to the bait and attempt to defend their witness by objecting on the basis that the question was “asked and answered.”

I would respond to the objection by stating, “The witness is being evasive. The question calls for a simple “yes,” or “no,” and I intend to keep asking it until he answers it.”

Usually, the judge would turn to the witness and ask him, if he could answer the question “yes,” or “no.” Every time I used this technique and got the judge to intercede, the witness answered “Yes.” Then the judge overruled the prosecutor’s improper objection and allowed me to continue and cement the answer in the jury’s collective memory accompanied by the impression that the cop or the expert was attempting to hide something and the prosecutor was attempting to assist the witness to do it.

Sharp and experienced trial lawyers can devastate their opponent’s case by impeaching their witnesses with prior inconsistent statements.

Until tomorrow then . . .