HLN reenactment falsely portrays shooting

June 4, 2013

June 4, 2013

Good afternnoon:

Vinnie Politano and his “expert” death investigator, Joseph Scott Morgan, stumbled badly out of the HLN starting gate with a false reenactment of the shooting that is inexcusable hall-of-shame material. Here’s the video of the reenactment:

Come on, son.

Reenactments are supposed to exactly reproduce the event being reenacted. They are misleading and worthless, if they do not.

This reenactment did not come close to reproducing the defendant’s description of the shooting because he told the police that, after Trayvon sucker-punched him in the nose to prevent him from calling the police and he fell down on his back, Trayvon mounted him in a seated position straddling his body and began raining down blows to his nose and face MMA style before switching to grab the sides of the defendant’s head and repeatedly slam the back of the defendant’s head against the concrete sidewalk. Then, as the defendant began crying out for help, Trayvon attempted to silence and smother the defendant by placing one hand over the defendant’s mouth and the other over the nose. That is when the defendant claims that he felt Trayvon’s hand on his chest sliding toward the gun that the defendant had concealed from view in a holster inside his pants against the back of his right hip. The defendant said he pinned Trayvon’s hand against his chest with the upper part of his right arm and then grabbed the gun with his right hand and fired the fatal shot taking care not to shoot his left hand.

According to the defendant, Trayvon was never standing over him leaning forward in the position taken by Politano. Indeed none of the hitting, slamming and smothering events described by the defendant would have been possible, if Trayvon were in a standing position.

So much for the defendant’s claim that he reasonably believed he was in imminent danger of death or serious injury such that he had to use deadly force to survive the encounter. Call me psychic, but somehow I do not think that is what Politano intended to demonstrate.

According to the defendant, they were in this position with Trayvon on top.

Here’s LLMPapa’s video:

Of course, it would not have been possible for Trayvon to have seen much less reached the gun from this position.

Therefore, we know the defendant was lying.

Since he and his expert ignored the defendant’s statement, what were they attempting to demonstrate?

I believe they were attempting to account for a straight-on shot front to back where the muzzle of the gun was in contact with the hoodie and shirt underneath it, but the fabric was 2 to 12 inches from the entry wound.

May I have a drum roll, please. Time to pull out ye olde trusty sledgehammer and pound a square peg into a round hole.

Yup, Trayvon must have been leaning forward and the fabric was hanging straight down.

Nice try, but no cigar.

The crime lab analyst who examined the sweatshirt and shirt beneath it found that the cloth was stretched at the time the fatal shot was fired and we have independently verified that the holes in the fabric do not align with the entry wound. They are displaced from the vertical in a diagonal direction toward Trayvon’s right hip.

Mere gravity does not account for this displacement.

I will tell you what does, however. The defendant had a grip on the sweatshirt and shirt with his left hand restraining Trayvon from getting away as he took careful aim and fired.

Not coincidentally, this also explains why the defendant said he “aimed” before he squeezed off the fatal shot in order to avoid shooting his left hand.

Politano’s clueless expert reenacted the shooting by holding his fake red gun with both hands, which is contrary to the defendant’s narrative.

Finally, we know the defendant was on top because W18 witnessed the shooting and said he was on top.

Clean heels with wet grass and mud on the toes of the defendant’s boots are not consistent with the defendant’s claim that he shimmied in an atttempt to get out from under Trayvon.

The back of the defendant’s jacket was wet because it was raining, not because he was lying on his back in the grass. A photograph of the back of his jacket taken at the police station did not show any mud or grass present.

Two conclusions can be reached from the evidence. The defendant lied and he was not in imminent danger of death or serious injury when he fired the fatal shot. In fact, he was in control of Trayvon when he killed him.

That is not self-defense.

It is second degree murder.

(H/T to LLMPapa for the video and Ay2Z for the inspiration to write this post)

Forensic Fraud (Part 2)

January 13, 2012

As I said yesterday in Part 1,

One of the biggest problems we’ve seen in crime labs is people testifying as experts regarding matters beyond their expertise.

This happened in Crane-Station’s case when a lab tech with a bachelor’s degree from Transylvania University in Lexington, KY, who routinely analyzes human blood samples for controlled substances in the Central Lab of the Kentucky State Crime Laboratory using gas chromatography and mass spectrometry (GCMC), testified as an expert toxicologist regarding the probable effects of Clonazepam on her. He was permitted to do this without objection from her lawyer, even though,

(1) he had not detected Clonazepam, or any other drugs in her blood when he analyzed her sample;

(2) he had no formal training in drug toxicology;

(3) he never had published a peer reviewed article in a professional journal on any subject;

(4) he did not know what constituted a toxic level of Clonazepam in human blood, as opposed to a safe level;

(5) the prosecutor told him that she had admitted taking her prescribed medication when she was arrested, which included Clonazepam, but he had no information regarding what dosage she had taken and when she had taken it.

Nevertheless, he was permitted to express his opinion as an ‘expert’ that she was probably under the influence of and impaired by Clonazepam when the deputy stopped her.

This was a travesty of speculative nonsense and never should have happened.

Now, how is it possible that she could have been under the influence of and impaired by Clonazepam, if he did not detect it in her blood sample?

Well, he testified that it is difficult to detect using gas chromatography and he might have been able to detect it using liquid chromatography, but the Kentucky State Crime Lab cannot afford the equipment to perform that analysis.

Could some other lab have performed the analysis?

Well, as a matter of fact, NMS Labs in Philadelphia can do it and the Kentucky State Crime Laboratory has a contract with NMS to do the test.

Did that happen in Crane’s case?

According to the Director of the Kentucky State Crime Laboratory, the lab sent her blood sample to NMS.

But Ryan Johnson claims that he did not send her blood sample to another lab and the prosecution denies that another lab tested her sample, or that there is an exculpatory lab result from NMS.

However, there is a 2-month gap between the date that Ryan Johnson completed his analysis and the date that it was approved by his supervisor.

Sure looks like he completed his analysis and sent her sample to NMS. They tested it and sent it back reporting an exculpatory result confirming his analysis without generating a written report, so his supervisor reviewed and signed off on his exculpatory result. Then the prosecution turned over his report without mentioning the NMS report.

NMS has referred all inquiries to the prosecutor and, as I said, the prosecutor claims there is no NMS Report or analysis.

This is the kind of bullshit that we are dealing with.

Forensic Fraud (Part 1)

January 12, 2012

Forensic fraud is an ongoing serious problem in our courts.

For example, in State v. Kunze, 97 Wn.App. 832, 988 P.2d 977 (1999), the Washington State Court of Appeals reversed David Kunze’s conviction for killing James McCann, a man who had informed him four days earlier that he was going to marry Kunze’s ex-wife. Kunze and his ex-wife had divorced 8 months earlier after 18 years of marriage and Kunze was reportedly upset when he heard the news. The court related the pertinent facts as follows.

In the early morning hours of December 16, 1994, an intruder entered the Clark County home of James McCann. McCann was asleep in the master bedroom. His son Tyler, age 13, was asleep in another bedroom. The intruder bludgeoned McCann in the head with a blunt object, causing his death. The intruder also bludgeoned Tyler in the head, causing a fractured skull. When the intruder left, Tyler crawled out to the front porch, where he was found after daylight by a passerby.

While awaiting surgery at the hospital, Tyler told the police that he had been afraid to look at his attacker closely. He thought, however, that the attacker was a darkly complected male, possibly Puerto Rican, about six feet tall with medium build, dark or black hair to mid-ear, 25 to 30 years of age, and a deep voice. Tyler later recalled that the attacker wore gloves but not glasses, and had a flashlight in his mouth. Kunze is in his mid-forties, wears glasses, and has reddish-blond hair.

Back at the house, the police observed that the intruder had opened drawers and cabinets without disturbing the contents. They also found that the intruder had taken a TV, a VCR, stereo speakers, a “boom box,” McCann’s wallet containing identification and credit cards, McCann’s truck, and various other items.

George Millar, a fingerprint technician with the Washington State Crime Laboratory, processed the home for evidence. He discovered a partial latent earprint on the hallway-side surface of McCann’s bedroom door. He “dusted” the print by applying black fingerprint powder with a fiberglass brush. He “lifted” the print by applying palm-print tape first to the door and then to a palm-print card. The resulting print showed the antitragus and portions of the tragus, helix, helix rim, and antihelix. The external features of a complete ear are shown in the following diagram.

(diagram omitted)

On or about March 28, 1995, Michael Grubb, a criminologist with the Washington State Crime Laboratory, compared the latent print from McCann’s bedroom door with photos of the left side of Kunze’s face. He concluded that the latent print “could have been made by Dave Kunze.” He also thought that “[i]t may be possible to obtain additional information by comparing the [latent print] to exemplar impressions.”

On September 21, 1995, Millar and Grubb met with Kunze to obtain earprint exemplars. Neither had taken an earprint exemplar before, although each had practiced on laboratory staff in preparation for meeting with Kunze. For each of the seven exemplars they took, they had Kunze put hand lotion on his ear and press the ear against a glass surface with a different degree of pressure (“light,” “medium,” or “hard”). They then dusted the glass with fingerprint powder and used palm-print tape to transfer the resulting impression onto a transparent plastic overlay.

The reason Millar and Grubb took multiple exemplars is that they were consciously trying to produce one that would match (i.e., “duplicate” the latent print from McCann’s door. They knew that earprints of the same ear vary according to the angle and rotation of the head, and also according to the degree of pressure with which the head is pressed against the receiving surface. They did not know the angle and rotation of the head that made the latent print, or the degree of pressure with which that head had been pressed against McCann’s door. Hoping to compensate for these difficulties, they told Kunze to use a different degree of pressure each time (“light,” “medium” or “hard”), and they looked at the latent print as they worked.

After Millar and Grubb took the exemplars, they were asked to compare them to the latent print. Millar declined because his laboratory supervisor thought that earprint identification was “out of the expertise of the [crime lab’s] latent unit.” Grubb went ahead, concluding that “David Kunze is a likely source for the earprint and cheekprint which were lifted from the outside of the bedroom door at the homicide scene.”

After reviewing the testimony of 3 forensic scientists, who testified for the prosecution, and 12 forensic scientists, who testified for the defense, the court held that earprint-identification evidence should not have been admitted at trial because it is not generally accepted in the forensic science community.

I had known Mike Grubb professionally for many years because he was often involved in cases that I handled. I was shocked when I read the Kunze case and found out that he had testified that earprint-identification evidence is generally accepted in the community of forensic scientists because that is absolutely false. At the time, he was the acting supervisor of the Washington State Patrol Crime Lab in Seattle and one of the state’s most experienced and respected forensic scientists. I believe he must have known that earprint-identification evidence is not generally accepted by forensic scientists when he testified that it was.

Why did he testify that it was?

I suspect he did because he viewed himself to be a member of the prosecution team, rather than an independent forensic scientist doing his job and letting the chips fall wherever they may.

Most, and probably all publicly owned and operated forensic crime laboratories, including the FBI Crime Lab obviously, are agencies within a law enforcement agency. Over the years, I have known many forensic scientists and many of them have complained privately to me that, as a quasi law enforcement agency, they occasionally have felt pressured to assist the prosecution by rendering improper opinions that will convict a defendant. The feel like it is too easy to get caught up by the fever to build a case that convicts a prime suspect and they wish they could be an independent agency.

On the other hand, there are many forensic scientists who see themselves as a modern day Sherlock Holmes, a crime solver who helps law enforcement nail the perpetrator. In other words, the ultimate team player. This is the mentality, for example, that you see when you watch a show like CSI.

Apparently, Mike Grubb falls into this latter category.

BTW, he moved on after the Kunze case to become the head of the San Diego Crime Lab.

The Innocence Project in New York City, which has freed 284 wrongfully convicted innocent people by post-conviction DNA testing, has identified forensic fraud as one of the 7 causes of wrongful convictions. This is what they say about forensic fraud.

The risk of misconduct starts at the crime scene, where evidence can be planted, destroyed or mishandled. Evidence is later sent to a forensic lab or independent contractor, where it can be contaminated, poorly tested, consumed unnecessarily or mislabeled. Then, in the reporting of test results, technicians and their superiors sometimes have misrepresented their findings. DNA exonerations have even revealed instances of “drylabbing” evidence – reporting results when no test was actually performed.

All over the map

The Innocence Project has seen forensic misconduct by scientists, experts and prosecutors lead to wrongful conviction in many states. The following are among the more notorious:

• A former director of the West Virginia state crime lab, Fred Zain, testified for the prosecution in 12 states over his career, including dozens of cases in West Virginia and Texas. DNA exonerations and new evidence in other cases have shown that Zain fabricated results, lied on the stand about results and willfully omitted evidence from his reports.

• Pamela Fish, a Chicago lab technician, testified for the prosecution about false matches and suspicious results in the trials of at least eight defendants who were convicted, then proven innocent years later by DNA testing.

• A two-year investigation of the Houston crime lab, completed in 2007, showed that evidence in that lab was mishandled and results were misreported.

Tomorrow in Part 2, I will review some forensic butchery in Crane-Station’s case.

The Wenatchee Sex Ring Case: UPDATED

January 7, 2012

Before I accepted an offer to teach at the American Justice School of Law (AJSL), a start-up law school in Paducah, Kentucky, as well as organize and manage the school’s innocence project, I warned the dean and assistant dean that I wanted their assurance that they would support me, if I questioned and attempted to change the criminal justice system in Paducah. I had previously done that in Wenatchee, Washington with Innocence Project Northwest, an organization that I had cofounded at the University of Washington School of Law in Seattle. The legal and political turmoil that we caused in Wenatchee was still ongoing and I wanted them to know that I would do everything within my power to root out injustice in Paducah, if I found it, no matter how that might impact the school. Both men promised me they would have my back and I accepted their offer of employment.

When Crane-Station and I arrived in Paducah in June, 2006, I discovered that the deans had been recruiting students to enroll at AJSL by using my name and national reputation from our work in the Wenatchee case. I had more or less expected them to do this, so I was not surprised. In fact, I was rather pleased, as I have always viewed myself as a revolutionary and derived considerable pride from instigating change. Nevertheless, I soon found myself checkmated after Crane-Station was arrested because I feared what might happen to her, if I pushed too hard. We have often wondered if the prosecution’s determination to get a conviction and send her to prison for as long as possible, even if it had to withhold evidence, cheat, and suborn perjury to do so, was a reaction to my presence here and the threat that I represented to the conduct of business as usual in this immensely corrupt river town.

I will be writing more about that corruption in the future. Before I do, however, I want to tell y’all a little bit about the Wenatchee Sex Ring case, so that you might better understand why we believe Crane-Station was railroaded into prison to neutralize me. After all, that is an extraordinary claim to make and we believe y’all deserve to know why we believe that is what happened.

The first thing y’all have to understand is that the Wenatchee Sex Ring never existed. It was the product of the prejudiced mind and fevered sexual imagination of a Wenatchee police officer named Bob Perez and several child welfare social workers. The defendants and their children were poor white folks living on welfare and social security disability payments. They belonged to the same church and stood out in an otherwise economically well off community. Many of the parents and their children were developmentally disabled and viewed by many in the community with suspicion and distrust, if not outright hostility. Despite an absence of any evidence, Perez and the social workers also suspected the parents were sexual perverts.

That situation changed when one young girl told her mentally disabled mother, Idella Everett, that several boys in her class at school had jumped her in an alley as she was walking home from school and forcibly touched her privates. The mother reported the matter to a state social worker who suspected the mother and the child were lying in order to protect the child’s father, Harold Everettt, by blaming the boys for bruises in the child’s genital area. When Idella insisted that Harold would never do that to a child, she decided that both parents were sexually abusing the child in the home on an ongoing basis, even though the child persistently denied it. She then persuaded Idella that it was in the best interests of the child to remove her from the home and place her in a loving and nurturing foster home for awhile and put her in therapy to deal with her issues. Not knowing that she had a right to refuse the placement and concerned about her daughter’s welfare, Idella signed a consent form agreeing to the placement.

Well, the loving and nurturing foster home turned out to be the police officer’s home. He and his wife kept repeating that they knew her parents were “very sick and needed help.” They explained the situation to the therapist to make sure that he ‘knew’ that the girl was been sexually abused by her parents over an extended period of time and they decided to work together to convince the girl that her siblings, who were still living in the home, were in danger of being sexually abused by sick parents who needed help to prevent them from victimizing her siblings. They played on her love for her family insisting that unless she told the ‘truth’ (i.e., that her parents had sexually abused her) so that they could provide the help that the parents needed to get better, her siblings would suffer the inevitable unpleasant consequences and it would be her fault because she did not tell the truth. They never told her that getting her parents the help they needed meant convicting them of raping children and sentencing them to prison for more than 20 years.

As ya’ll can imagine, the girl soon buckled under that pressure and told them what they wanted to hear about her parents. Police immediately arrested the parents who immediately protested that they were innocent. The police accused them of lying, separated them, transported them to the police station, and placed them in separate interview rooms. Then they lied telling each of them that the other had confessed that both of them had raped their children and they would spend the rest of their lives in prison, unless they confessed and pled guilty.

Lawyers were not appointed to represent them until after they signed their confessions.

Meanwhile, the police officer continued to tell the girl that he ‘knew’ more adults were involved. When the minister of the church held a public meeting at the church to discuss the arrests and publicly announced that the church membership believed the girl’s parents were innocent victims of a witchhunt investigation and prosecution, the officer and the social worker decided that the minister and everyone who supported him must belong to the sex ring. He told the girl he believed they were involved and sure enough, she agreed.

The police then focused their investigation on interviewing the children of those individuals. They went to the schools that the children attended, pulled them out of their classes and interviewed them individually using the same tactics they used with girl. In most cases, the children buckled under pressure and told them what they wanted to hear.

That led to another wave of arrests with police employing the same tactics they had used with the child’s parents to extract false confessions. Eventually, all of the parents pled guilty and were sentenced to prison terms exceeding 20 years.

Eventually, many of the children recanted their false accusations and there was any physical evidence corroborating the accusations.

I decided to get involved when I read The Power to Harm, an expose of the incredible injustice that had taken place in Wenatchee written by Andrew Schneider and Mike Barber, reporters for the Seattle Post Intelligencer. I recruited 40 lawyers in Seattle to work for free and teamed them up with law students to represent 17 of the innocent men and women who were wrongfully convicted. We succeeded in freeing all of our clients even though all of them had pleaded guilty.

In recognition of our efforts, the National Law Journal awarded Innocence Project Northwest and our teams of lawyers and students its prestigious Indigent Defense Award in 2000.

I do not believe the corrupt legal system in Paducah welcomed my arrival.

EDIT: In the paragraph that begins with the word, ‘eventually’,I corrected a mistake by adding the word never, which is italicized.

Unfortunately, I also inexplicably forgot to mention that all of my innocence project files were in the car when Crane-Station was pulled over and the officers can be seen in the in-dash video reading through them with flashlights using the lid of the trunk as a desk.

This occurred before she was transported to the hospital for the blood draw and before the ‘discovery’ of the controlled substance that started out being heroin and later became crack.

I apologize for the omissions.

How Could Judge Taylor Forget Garcia v. Commonwealth?

December 28, 2011

Note: I am cross posting this article from Crane Station’s site with her permission. In the article, she points out that Judge Taylor, who signed off on the opinion written by Judge Lambert in her case affirming the trial judge’s denial of her motion to suppress evidence, reached the opposite conclusion in an opinion that he wrote in Garcia v. Commonwealth. Judge Taylor was certainly free to change his mind. Judges who change their minds, typically write a concurring opinion explaining why they changed their mind. Usually a judge will change his mind because the Supreme Court has rendered a decision changing the law and the decision is binding precedent. The judge has no choice when that happens. Other times, for one reason or another, the judge will conclude that there is some significant fact in the case that differs from the earlier case causing him to reach an apparently contradictory conclusion. When that happens, the judge will write a concurring opinion distinguishing the two cases.

Judge Taylor, however, has remained silent, even though Crane’s lawyer handling the appeal specifically mentioned the contradiction in her Petition for Rehearing.

I suspect the answer may be due to the panel’s false assumptions (1) to rely on after-acquired and false information to support the trial judge’s clearly erroneous findings of fact and (2) to falsely declare that her lawyer failed to challenge any of the trial court’s findings of fact. I specifically addressed and shot down these false assumptions in The Decision From Hell (Part 1).

Judge Taylor’s refusal to explain himself and the panel’s refusal to mention and explain why the United States Supreme Court’s decision in United States v. Hensley does not require reversal is inexcusable and reflects poorly on the judges who decided the case, the Court of Appeals, and the legal system in general.

For those of you following the legal case, bear in mind that the case is no longer about me. The fact that the Kentucky Court of Appeals has designated the opinion in my case “to be published” means that they have deemed the case serious and important enough that it has precedential value for any and all related cases in the future; the Court seeks to make the Leatherman case available for future citation as binding case law.

In the Petition for Rehearing, Hon. Julia Pearson discussed a published Kentucky case, Garcia v. Commonwealth.

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.

The author of the published opinion in Garcia v. Commonwealth is Judge Taylor. Judge Taylor was a member of the panel in Leatherman as well. The Petition for Rehearing in Leatherman v. Commonwealth was denied without comment by judges Taylor, Lambert and Isaacs.

Note the ultimate irony, as stated by Hon. Julia Pearson:

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.

Such was not the case in Garcia.

Judge Taylor wrote the Garcia opinion. How could he sign off on, and seek publication of, the Leatherman opinion, reaching the opposite conclusion that he reached when he wrote Garcia? We do not know the answer to this question. At the vary least, Judge Taylor should have written a concurring opinion explaining why he reached the opposite conclusion, but he did not. His silence is deafening.

Here is the Garcia opinion that Judge Taylor wrote:

Garcia v. Commonwealth


February 24, 2006



The opinion of the court was delivered by: Taylor, Judge




(2) AFFIRMING APPEAL NO. 2004-CA-002283-MR


Francisco Garcia brings Appeal No. 2004-CA-002271-MR from an October 4, 2004, judgment of the Franklin Circuit Court entered upon a conditional plea of guilty to trafficking in marijuana. Heinrich Letkeman brings Appeal No. 2004-CA-002283-MR from an October 4, 2004, judgment of the Franklin Circuit Court entered upon a conditional plea of guilty to trafficking in marijuana. We reverse and remand Appeal No. 2004-CA-002271-MR. We affirm Appeal No. 2004-CA-002283-MR.

On March 6, 2004, Garcia and his passenger, Letkeman, were traveling upon Interstate 64 in a 1993 Dodge Caravan. Kentucky State Trooper Jeremy Devasher approached the vehicle and noticed the vehicle quickly changed to the right lane. The trooper testified that he pulled his cruiser alongside the vehicle. Trooper Devasher thought that the driver, Garcia, looked nervous because he avoided making eye contact with the trooper and kept a “death grip” on the steering wheel of the vehicle. The trooper then observed cracks in the windshield of Garcia’s vehicle and thought the cracks impaired Garcia’s forward vision. At this point, Trooper Devasher stopped the vehicle for a traffic violation.

Trooper Devasher testified that he asked Garcia a series of questions in both English and Spanish; consequently, the trooper believed Garcia spoke English very well. Trooper Devasher testified that Garcia and Letkeman’s stories concerning their travel plans fell apart upon further questioning. The trooper also noted that neither had any luggage for a purported trip to Virginia.

The trooper issued a citation for a cracked windshield pursuant to Kentucky Revised Statutes (KRS) 189.110. After issuing the citation, the trooper informed Garcia the traffic stop was complete and he was free to leave. Trooper Devasher then asked Garcia for permission to search the vehicle. The trooper testified that Garcia nodded affirmatively and pointed to the vehicle. A search was commenced, and ten bricks of marijuana were seized from the vehicle.

Garcia and Letkeman were indicted by the Franklin County Grand Jury upon the offense of trafficking in marijuana over five pounds (KRS 218A.1421(4)). Thereafter, Garcia and Letkeman filed motions to suppress the evidence seized (marijuana) from the search of the vehicle. After an evidentiary hearing, the circuit court denied both motions to suppress.

Garcia and Letkeman entered conditional pleas of guilty to the offenses of trafficking in marijuana. Pursuant to the conditional pleas, Garcia and Letkeman preserved the issue of whether the circuit court properly denied their motions to suppress. See Ky. R. Crim. P. 8.09. On October 4, 2004, Garcia and Letkeman were each sentenced to seven years’ imprisonment with one year to serve and the remaining sentence probated for a period of five years. These appeals follow.

Appeal No. 2004-CA-002271-MR

Garcia contends the circuit court erroneously denied the motion to suppress evidence seized from his vehicle. Specifically, Garcia contends the stop of his vehicle based upon the cracked windshield was improper. Garcia argues that the cracked windshield was not a violation of KRS 189.110. Thus, he contends the initial stop of the vehicle was without reasonable suspicion of criminal activity and the circuit court erred by denying his motion to suppress evidence.

Our standard of review of a suppression determination is succinctly set forth in Stewart v. Commonwealth, 44 S.W.3d 376, 380 (Ky.App. 2000)(footnote omitted):

First, the factual findings of the court are conclusive if they are supported by substantial evidence. The second prong involves a de novo review to determine whether the court’s decision is correct as a matter of law.

We observe that resolution of this appeal involves issues of both fact and law.

It is well-established that the stopping of a vehicle and detaining of its occupants amounts to a seizure under the Fourth Amendment of the United States Constitution and under Section 10 of the Kentucky Constitution. It is equally axiomatic that a police officer may stop a motor vehicle if that officer possesses reasonable suspicion that criminal activity has occurred or is imminent. Delaware v. Prouse, 440 U.S. 648 (1979). The occurrence of a traffic violation is recognized as sufficient justification to warrant a stop of a motor vehicle.

The initial stop of Garcia’s vehicle was originally premised upon Trooper Devasher’s belief that the cracked windshield constituted a violation of KRS 189.110. This statute provides as follows:

(1) A windshield in a fixed and upright position, that is equipped with safety glazing as required by federal safety-glazing material standards, is required on every motor vehicle which is operated on the public highways, roads, and streets, except on a motorcycle or implement of husbandry.

(2) A person shall not operate a motor vehicle on a public highway, road, or street with any sign, sunscreening material, product, or covering attached to, or located in or upon the windshield, except the following:

(a) A certificate or other paper required to be displayed by law;

(b) Sunscreening material along a strip at the top of the windshield, if the material is transparent and does not encroach upon the driver’s direct forward viewing area as defined in Federal Motor Vehicle Safety Standards No. 205 as the AS/1 portion of the windshield.

(3) A person shall not operate a motor vehicle required to be registered in the Commonwealth, on a public highway, road, or street on which vehicle the side wings and side windows on either side forward of or adjacent to the operator’s seat are composed of, covered by, or treated with any sunscreening material or other product or covering which has the effect of making the window nontransparent or which would alter the window’s color, increase its reflectivity, or reduce its light transmittance, except as expressly permitted by this section. A sunscreening material may be applied to the windows if, when tested on one-eighth (1/8) inch clear glass, the material has a total solar reflectance of visible light of not more than twenty-five percent (25%) as measured on the nonfilm side and a light transmittance of at least thirty-five percent (35%) in the visible light range.

(4) A person shall not operate a motor vehicle required to be registered in the Commonwealth, on a public highway, road, or street on which vehicle any windows behind the driver are composed of, covered by, or treated with any sunscreening material, or other product or material which has the effect of making the window nontransparent or which would alter the window’s color, increase its reflectivity, or reduce its light transmittance, except as specified below:

(a) Sunscreen material consisting of film which, when tested on one-eighth (1/8) inch clear glass, has a total solar reflectance of visible light of not more than thirty-five percent (35%) as measured on the nonfilm side and a light transmittance of at least eighteen percent (18%) in the visible light range; however, sunscreen material which, when tested on one-eighth (1/8) inch clear glass, has a total solar reflectance of visible light of not more than thirty-five percent (35%) as measured on the nonfilm side and a light transmittance of at least eight percent (8%) in the visible light range may be used on multipurpose passenger vehicles;

(b) Perforated sunscreening material which, when tested in conjunction with existing glazing or film material, has a total reflectance of visible light of not more than thirty-five percent (35%) and a light transmittance of no less than thirty percent (30%). For those products or materials having different levels of reflectance, the highest reflectance from the product or material will be measured by dividing the area into sixteen (16) equal sections and averaging the overall reflectance. The measured reflectance of any of those sections may not exceed fifty percent (50%).

(5) A person shall not operate a motor vehicle required to be registered in the Commonwealth, upon a public highway, road, or street, on which vehicle the rear window is composed of, covered by, or treated with any material which has the effect of making the window nontransparent, unless the vehicle is equipped with side mirrors on both sides.

(6) Each installer or seller of sunscreening material shall provide a pressure-sensitive, self-destructive, nonremovable, vinyl-type film label to the purchaser stating that the material complies with the provisions of KRS 189.010(20) to (23) and subsections (1) to (5) of this section. Each installer shall affix the required label to the inside left door jamb of the motor vehicle. In addition, the label shall state the trade name of the material and the installer’s or seller’s business name. Labeling is not required for factory glazing which complies with Federal Motor Vehicle Safety Standard No. 205.

(7) Every percentage measurement required by subsections (3) and (4) of this section is subject to a tolerance of plus or minus three percent (3%).

(8) A person shall not install window tinting materials on a vehicle that fails to meet the minimum standards for light transmission pursuant to subsections (3) and (4) of this section. Tinted material that fails to meet the minimum standards for light transmission pursuant to subsections (3) and (4) of this section shall be removed immediately.

(9) A person who applies sunscreening materials in violation of this section shall be guilty upon conviction of a Class B misdemeanor.

(10) Nothing in this section shall prevent the display of a representation of the American flag on the rear window of any motor vehicle, including any vehicle owned by a local or state government, provided that the representation does not exceed a size of five (5) inches by eight (8) inches and is placed in a lower corner of the rear window.

(11) The windshield on every motor vehicle shall be equipped with a device for cleaning rain, snow or other moisture from the windshield. The device shall be so constructed as to be controlled by the operator of the vehicle.

(12) Nothing in this section shall be construed to prevent the use of any window which is composed of, covered by, or treated with any material or component in a manner approved by federal statute or regulation if the window was a component part of a vehicle at the time of the vehicle manufacture, or the replacement of any window by a covering which meets these requirements.

KRS 189.110.

A reading of KRS 189.110 reveals that it provides requirements for window sunscreening and tinting. It also sets forth mandatory safety glazing of glass and windshield wiper requirements. It, however, does not set forth any express or implied proscriptions against cracks in a vehicle’s windshield. Based upon the plain language of KRS 189.110, a cracked windshield simply does not constitute a violation of its provisions. As a cracked windshield is not a violation of KRS 189.110, we believe the Commonwealth cannot justify the stop of Garcia’s vehicle upon same.

Alternatively, the Commonwealth argues the traffic stop was lawful because the cracked windshield was a violation of KRS 189.020, which states as follows:

Every vehicle when on a highway shall be so equipped as to make a minimum of noise, smoke or other nuisance, to protect the rights of other traffic, and to promote the public safety.

The interpretation of a statute is a matter of law for the court. City of Worthington Hills v. Worthington Fire Prot. Dist., 140 S.W.3d 584 (Ky.App. 2004). When interpreting a statute, a word is to be afforded its ordinary meaning unless it has acquired a technical meaning. Id. Upon examination of KRS 189.020, we must initially decide whether a cracked windshield constitutes an “other nuisance” within its meaning. When interpreting the term “other nuisance” in KRS 189.020, we are guided by the rule of statutory interpretation called ejusdem generis:

[W]here, in a statute, general words follow or precede a designation of particular subjects or classes of persons, the meaning of the general words ordinarily will be presumed to be restricted by the particular designation, and to include only things or persons of the same kind, class, or nature as those specifically enumerated, unless there is a clear manifestation of a contrary purpose.

Steinfeld v. Jefferson County Fiscal Court, 312 Ky. 614, 229 S.W.2d 319, 320 (1950)(citations omitted). Applying the rule of ejusdem generis to KRS 189.020, the term “other nuisance” is preceded by the particular designation of “noise” and “smoke.” To effectuate legislative intent, we believe “other nuisance” should be interpreted as including only those nuisances of a similar kind as noise and smoke. Accordingly, we do not interpret the term “other nuisance” in KRS 189.020 as encompassing a cracked windshield.

KRS 189.020 also requires a vehicle to be equipped so as “to protect the rights of other traffic, and to promote the public safety.” A cracked windshield that unreasonably impairs the vision of a driver certainly increases the risk and likelihood of an accident. The increased risk would undoubtedly present a significant threat to public safety and would adversely affect the rights of other traffic. Therefore, we hold that a cracked windshield must unreasonably impair the vision of a vehicle’s driver to constitute a violation of KRS 189.020. We emphasize that a cracked windshield is a violation of KRS 189.020 only if it is of sufficient severity to unreasonably reduce the driver’s visibility.

In the case at hand, Trooper Devasher testified that he believed the cracked windshield impaired Garcia’s forward vision. The circuit court concluded:

Courts hold that stopping a vehicle for a traffic law violation is constitutionally permissible under the Terry test. Whren v. United States, 517 U.S. 806 (1996); Commonwealth v. Fox, Ky., 48 S.W.3d 24 (2001). That is the situation here. Before stopping the Defendants’ vehicle, the officer observed two cracks in the vehicle’s windshield. The officer believed the cracks impaired the driver’s vision and violated KRS 189.110. The officer subsequently stopped the vehicle and issued Defendant Garcia a citation for this violation. The vehicle stop, therefore, did not contravene the Constitution.

In the record, there exists a photograph of Garcia’s vehicle, which provides a full view of the windshield. Upon examination of the photograph, the cracks do not appear to be of sufficient severity to unreasonably impair Garcia’s forward vision. We observe that mere hairline cracks of a vehicle’s windshield are not typically of sufficient severity to constitute a violation of KRS 189.020. Hence, we are of the opinion that the cracks in the windshield of Garcia’s vehicle were not of sufficient severity to constitute a violation of KRS 189.020.

We also reject the Commonwealth’s attempt to justify the stop as an investigatory stop based upon reasonable suspicion of criminal activity under Terry v. Ohio, 392 U.S. 1 (1968). The Commonwealth particularly argues:

Furthermore, given the training and experience of this officer, other indicia were present that suggested criminal activity might be afoot. The nervousness displayed by the driver, the erratic lane change upon observing that the officer was near, the failure to make eye contact, the “death grip” on the steering wheel, and the foreign license plate (knowing that the drug interdiction training indicated that illegal drugs typically travel east to west) led to further suspicion.

Commonwealth’s Brief at 12.

In Commonwealth v. Banks, 68 S.W.3d 347, 350-351 (Ky. 2001), the Supreme Court emphasized:

[T]he test for a Terry stop . . . is not whether an officer can conclude that an individual is engaging in criminal activity, but rather whether the officer can articulate reasonable facts to suspect that criminal activity may be afoot . . . . The totality of the circumstances must be evaluated to determine the probability of criminal conduct, rather than the certainty.

In the case sub judice, the articulated facts set forth by Trooper Devasher were Garcia’s nervousness, lane change, failure to make eye contact, “death grip” on the steering wheel, and out-of-state license plate. We believe these facts describe a substantial number of drivers on our highways and constitute an innocuous mirage created in an attempt to retrospectively justify the stop. If 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. Simply put, such routine driving habits do not warrant a police stop under Terry. As such, we do not believe that Trooper Devasher possessed the requisite reasonable suspicion to justify an investigatory stop of Garcia’s vehicle.

In sum, we hold the initial stop of Garcia’s vehicle was improper and the circuit court erred by denying Garcia’s motion to suppress the marijuana subsequently seized from the vehicle.

We view Garcia’s remaining contentions as moot.

Appeal No. 2004-CA-002283-MR

Letkeman argues that the circuit court improperly denied his motion to suppress the evidence seized from the vehicle.*fn1 Specifically, Letkeman contends that a cracked windshield is not a violation of KRS 189.110; thus, the initial stop was invalid. Letkeman further maintains that Garcia did not voluntarily consent to the search of the vehicle.

It has been recognized that the protection of the Fourth Amendment against unreasonable search and seizure is a personal right and cannot be vicariously asserted. Rakas v. Illinois, 439 U.S. 128 (1978)(citing Alderman v. United States, 394 U.S. 165 (1969)). To have standing to contest a search and seizure, an individual must possess a legitimate expectation of privacy in the area searched or property seized. Rakas, 439 U.S. 128. The United States Supreme Court has developed a two-step analysis for determining whether a legitimate expectation of privacy exists:

[W]hether the individual has exhibited a subjective expectation; and whether such subjective expectation, viewed objectively, is justifiable under the circumstances.

United States v. Thornley, 707 F.2d 622, 624 (1st Cir. 1983) (citing Smith v. Maryland, 442 U.S. 735 (1979)).

In the case at hand, we cannot say that Letkeman possessed a reasonable expectation of privacy in the vehicle. The record indicates that Letkeman was a passenger in the vehicle and did not assert an ownership or possessory interest in the vehicle. A mere passenger in a vehicle generally does not have the requisite expectation of privacy to raise the issue of the legality of the vehicle’s search. Rakas v. Illinois, 439 U.S. 128 (1978).

Letkeman also claims ownership of the marijuana seized from the vehicle and believes that such ownership in the property seized confers standing. The ownership and possession of seized property is not dispositive upon the issue of expectation of privacy; rather, such are simply factors to be considered. United States v. Salvucci, 448 U.S. 83 (1980).

In this case, the seized property was wrapped bricks of marijuana. These bricks were hidden in the vehicle’s rear storage compartments. Applying the two-part analysis for determining whether an expectation of privacy existed, we believe Letkeman satisfied the first part because it is uncontroverted he possessed a subjective expectation of privacy in the marijuana. However, the second part of the test requires that the subjective expectation of privacy be objectively reasonable under the circumstances.

The facts reveal that Letkeman was only a passenger in the vehicle and did not have control over its contents. Specifically, it appears that Letkeman did not possess the legal right to exclude third parties from exercising possession or control over the vehicle or its contents. Moreover, the marijuana bricks were not concealed by Letkeman in luggage or other baggage. Rather, the bricks were simply hidden in the vehicle’s rear storage compartments. Considering the unique circumstances of this case, we cannot say Letkeman possessed an objectively reasonable expectation of privacy in the seized marijuana.

In sum, we are of the opinion that Letkeman did not possess the requisite expectation of privacy to establish standing to contest the legality of the vehicle’s stop or of the marijuana’s seizure.

Letkeman also argues that his detention following the vehicle’s stop was unreasonably long and constituted a violation of the Fourth Amendment of the United States Constitution and Section 10 of the Kentucky Constitution. Letkeman particularly maintains he was detained by Trooper Devasher for some thirty minutes while waiting for another trooper to arrive. Letkeman contends that Trooper Devasher lacked reasonable suspicion of criminal activity to warrant the thirty-minute detention and that the citation took only a few minutes to issue.

In Ohio v. Robinette, 519 U.S. 33 (1996), the Supreme Court recognized that the legality of a continued detention following a stop for a traffic violation is a question of reasonableness. It has been held:

Questions that hold potential for detecting crime, yet create little or no inconvenience, do not turn reasonable detention into unreasonable detention. They do not signal or facilitate oppressive police tactics that may burden the public-for all suspects (even the guilty ones) may protect themselves fully by declining to answer. Nor do the questions forcibly invade any privacy interest or extract information without the suspects’ consent.

United States v. Burton, 334 F.3d 514, 518 (6th Cir. 2003).

In the case sub judice, the record indicates that Trooper Devasher questioned Letkeman and Garcia, checked the vehicle’s registration and license plate, and checked Garcia’s out-of-state driver’s license. Upon the whole, we believe the continued detention of Letkeman for some thirty minutes after the initial traffic stop was reasonable.

Letkeman additionally maintains the statement he made to police following his arrest should be suppressed.*fn2

Specifically, Letkeman alleges he did not voluntarily and knowingly waive his rights under Miranda v. Arizona, 384 U.S. 436 (1966). Letkeman contends he was advised of his Miranda rights in English but that he “did not understand English sufficiently to make a valid waiver of these important rights.” Letkeman Brief at 19. Letkeman claims his primary language is Spanish.

In its order denying Letkeman’s motion to suppress, the circuit court found:

Detective Brennan testified that Letkeman spoke English to him, answered everything asked of him, and he and Letkeman could communicate with each other.” (Comm. Br. at 13). Trooper Devasher testified that Letkeman answered “yes” when Devasher asked him if he understood his Miranda rights. Devasher also testified that Letkeman knew English better than he originally led the trooper to believe. Though Letkeman testified that he does not speak English and did not understand everything that Trooper Devasher said, the Court finds in favor of the Commonwealth based on the testimony by Brennan and Devasher.

Based upon the testimony of Detective Brennan and Trooper Devasher, we conclude the circuit court’s findings that Letkeman understood English and understood he was waiving his rights under Miranda were not clearly erroneous. See Stewart, 44 S.W.3d 376.

For the foregoing reasons, Appeal No. 2004-CA-002271-MR is reversed and this cause remanded for proceedings not inconsistent with this opinion, and Appeal No. 2004-CA-002283-MR is affirmed.


The Decision From Hell (Part 1)

December 27, 2011

The Kentucky State Court of Appeals issued its decision affirming Crane Station’s conviction on January 21, 2011. Her motion for reconsideration was summarily denied without an explanation. Her motion for discretionary review is pending in the Kentucky State Supreme Court.

I call the 3-0 opinion written by written by Judge Lambert and joined by judges Henry and Taylor the decision from hell and will now take it apart. First, here is a link to the decision.

The Court begins by making two fundamental errors that invalidate the conclusion it reached affirming the circuit court’s denial of the motion to suppress evidence. The two errors are:

(1) It relied on after-acquired information, including trial testimony and the dispatcher’s tape, which is prohibited by the United States Supreme Court and the Kentucky Supreme Court; and

(2) It stated that the appellant had failed to challenge any of the findings of fact in the three suppression orders, which is absolutely false.

In United States v. Hensley, the Supreme Court held that trial courts must decide the constitutional validity of investigatory stops of civilians by police officers (i.e., whether there was reasonable suspicion or probable cause to justify the stop) based on the information available to the police officer before the stop. Information acquired after the stop cannot be used to justify a stop that was not supported by reasonable suspicion or probable cause because that would eliminate the rule.

The Supreme Court also held in Hensley that, even if a police officer stops a suspect acting in good faith on mistaken information provided by a dispatcher, the stop nevertheless violates the Fourth Amendment, if the correct information did not constitute a reasonable suspicion.

Therefore, the proper legal analysis under Hensley is to determine whether the information supplied by the 911 caller constituted a reasonable suspicion to justify the stop. The caller said,

And there is a lady in a dark blue looks like a Buick LeSabre. I’d say it’s a late 80s, early ’90s model. And I’ve got a license plate number. But she’s out here walking around in my neighbor’s yard and everything and writing stuff down, and she’d talked to him and mentioned something about tar heroin and all that stuff.

The caller did not describe suspicious activity, much less criminal activity. He described a conversation between his neighbor and a stranger in which the stranger mentioned the word heroin. So what?

This is not complicated. Absent information that the caller witnessed a purchase or sale of a controlled substance, or possibly a request to purchase or sell a controlled substance, there is nothing to investigate.

A reasonable suspicion is more than a mere hunch or suspicion. The hunch or suspicion must be reasonable. That is, it must be supported by articulable objective facts and circumstances that would warrant a reasonable person to conclude that a crime has been committed, is being committed, or is about to be committed. That did not happen.

Now, the stop would violate the Fourth Amendment, even if the dispatcher had innocently altered what the caller said and told the deputy that the caller had reported witnessing a drug transaction between his neighbor and a stranger and the officer stopped the stranger to investigate.

Why? Because the dispatcher cannot create a reasonable suspicion that did not already exist, even if the dispatcher does so by committing an innocent mistake. In other words, good faith reliance on mistaken information provided innocently by a dispatcher cannot create a reasonable suspicion where none existed. Therefore, the dispatcher’s information is irrelevant under Hensley.

But even if we consider what the dispatcher said, there still is no reasonable suspicion. He said,

Suspicious person complaint, the 4000 block of Queensway Drive off of Lester Harris and Bottom Street. A white female in a dark blue LeSabre that’s out walking around asking people about 218A.

(218A is a reference to the Kentucky State Uniform Controlled Substances Act)

Again, so what? A person walking around asking people about a drug statute is not illegal activity.

I am not saying that the caller’s tip should not have been investigated. I am saying that the proper procedure would have been to contact and interview the caller to obtain additional information regarding what he observed, which the deputy did the following day. However, even if the caller provided additional information such as, “I saw the woman buy some heroin from my neighbor,” the information could not be considered for the purpose of determining whether the deputy had a reasonable suspicion to stop Crane Station because he acquired that information after he stopped her. Therefore, it is irrelevant.

But the caller did not say anything like that. He said,

On 6-28-2006, a Lady driven a Buick LeSabre stoped at my driveway and ask me if I would sell 2 berrlles and i said they belong to my Naber. She had her painst unbuttoned and unzipped. She acted like she was under the Influence of something. She was a dirty Blonde wereing Blue shirt and Blue Jeans. (Spelling and grammatical errors in the original)

(incidentally, her jeans were not unbuttoned and unzipped in the in-dash video)

Asking someone if they are willing to sell two barrels is not criminal activity. (The barrels were made out of oak and split in half across the middle so they could be placed on a deck and used as planters) In addition, the statement does not mention heroin or any other drug. Finally, the description he provided and the conclusion that she appeared to be high on something falls far short of “sufficient articulable objective facts and circumstances that would warrant a reasonable person in concluding that the person had committed, was committing, or was about to commit a crime.”

Also, since the caller provided the statement after he knew about the arrest, his perspective would have necessarily changed and we cannot know whether he would have said the same thing, if he had been interviewed before the stop. The bottom line is this information should not have been considered.

Additional information that came to light at subsequent pretrial hearings or the trial itself would, of course, also be irrelevant on the issue of reasonable suspicion because it would have been after-acquired. Therefore, to the extent that the Circuit Court and later the Court of Appeals relied on such information to enter findings of fact, such findings are necessarily invalid, as a matter of law under Hensley.

A consideration of the deputy’s observations of Crane Station’s driving prior to the stop is not prohibited by Hensley. To find out what he observed, the Circuit Court should have watched and listened to the deputy testify at the suppression hearing and the Court of Appeals should have watched the video and read the transcript of his testimony at the suppression hearing. Evidently the judges did not do this because the deputy testified that her driving was exemplary, she violated no laws, and he pulled her over as soon as he realized that she and her vehicle matched the description provided by the caller. He did not pull her over because of her driving; he admitted that he pulled her over because he suspected she possessed heroin.

The deputy was the only witness at the suppression hearing. Therefore, there were no disputed facts. No he-said-she-said differences for the trial judge to resolve. He merely had to enter findings of fact based on what the witness said, but he did not do that.

Instead, he made-up some facts, such as Crane Station initiated a voluntary citizen-police contact that is not subject to the Fourth Amendment, when the deputy testified that he pulled her over. He also relied on trial testimony, which was after-acquired information, including testimony by the deputy that directly and materially contradicted his testimony at the suppression hearing.

It is difficult to know what the hell was going on when the deputy and the trial judge were making stuff up.

The Court of Appeals added to the mess by ruling that the appellant is stuck with the invalid findings of fact because she did not challenge them on appeal. That is absurd because her lawyer challenged all of the materially false facts. There is no doubt. Read her opening and reply briefs, if you do not want to take my word for it.

Finally, the Court of Appeals ignored Hensley. Ignored Crane’s argument that the HGN should not have been considered because it was improperly administered. Concluded that despite “not driving erratically or weaving” and passing a portable breath test, the invalid HGN, when considered together with nervousness, glassy eyes, her admission that she was taking prescribed Clonazepam, and other unspecified “odd behavior,” the deputy had probable cause to arrest. Apparently, despite quoting the product insert warning for Conazepam, which does not say that people who take the drug should never operate machinery or a motor vehicle the Court of Appeals believes that, as a matter of law, a police officer has probable cause to arrest anyone who takes the drug and operates a motor vehicle whether they drive properly or not. The Court also ignored federal and state cases cited by Crane’s lawyer, which hold that nervousness is not a valid or reliable indicator of impairment because people who are not under the influence of drugs or alcohol typically also exhibit nervousness when stopped. They require additional evidence of evasive behavior to establish probable cause to arrest and there was no evidence of that in Crane’s case.

So, did the judges on the Court of Appeals read her briefs?

Difficult to conclude that they did, because I do not see how they could honestly claim that her lawyer failed to challenge any findings of fact, if they had read it.

On the other hand, if they wrote an opinion affirming the conviction without having read her briefs, they should be defrocked and disbarred.

Either way, they have a lot of splainin’ to do.

I will deal with the rest of the Decision From Hell in Part 2 tomorrow.

Until then, Court will be in recess.

The Full-Text Published Opinion Affirming [Frog Gravy Legal Case]

December 26, 2011




No. 2008-CA-000849-MR.

Court of Appeals of Kentucky.

January 21, 2011.

Julia K. Pearson , Frankfort, Kentucky, Briefs for Appellant.

Jack Conway , Attorney General of Kentucky, Gregory C. Fuchs, Assistant Attorney General, Frankfort, Kentucky, Brief for Appellee.




Rachel Leatherman directly appeals from the judgment of the McCracken Circuit Court following a jury trial convicting her of possession of a controlled substance (cocaine), tampering with physical evidence, and operating a motor vehicle under the influence of alcohol or drugs. As a result of those convictions, the trial court sentenced Leatherman to a total of eight years’ imprisonment. On appeal, Leatherman challenges the trial court’s failure to suppress evidence obtained in conjunction with the investigatory stop and her subsequent arrest, the trial court’s granting of the Commonwealth’s motion in limine that prohibited her from mentioning her statement to Deputy McGuire, and the trial court’s failure to grant a directed verdict on the DUI charge. Having thoroughly reviewed the record on appeal and the parties’ briefs, we affirm the judgment of conviction.

The facts leading up to Leatherman’s arrest and subsequent conviction are as follows: On June 28, 2006, Vernon Wilkey made an emergency 911 call to report events in his neighborhood on Queensway Drive. The record contains an unofficial transcript of his 911 call:

DISPATCHER: Central dispatch. This is Lou. Could I help you.

MR. WILKEY: Yes, sir. This is Vernon Wilkey. I live out here on Queensway Drive.

And there is a lady in a dark blue looks like a Buick LeSabre. I’d say it’s a late ’80s, early ’90s model. And I’ve got a license plate number. But she’s out here walking around in my neighbor’s yard and everything and writing stuff down, and she’d talked to him and mentioned something about tar heroin and all that stuff.

DISPATCHER: Talked to who?

MR. WILKEY: My neighbor next door.

DISPATCHER: And was talking to him about heroin?

MR. WILKEY: Yeah, tar heroin.

* * * *

DISPATCHER: …. Okay. Do you know what she was writing down?


DISPATCHER: What address on Queensway Drive was she last seen at?

MR. WILKEY: She was just here at mine a few minutes ago at 4015.

DISPATCHER: Is she white or black?

MR. WILKEY: She’s white.

DISPATCHER: Hold on just a moment, please.

* * * *

DISPATCHER: What’s the license plate number on that vehicle, sir?

MR. WILKEY: [License number omitted.]

* * * *

DISPATCHER: What state is that?

MR. WILKEY: Seattle, Washington.

She said something about her and her husband staying in a motel and everything.

* * * *

DISPATCHER: All right. Officers are already on the way. They’ll be out there to speak with you shortly.
If she leaves before they get out there to check the area, could you give us a call back and let us know which way she goes?


The following day, Mr. Wilkey completed a written statement detailing what had happened:

On 6-28-2006 a Lady driven a Buick Lasaber stoped at my driveway and ask me if I would sell 2 berrlles and i said they belong to my Naber. She had her paints unbuttoned & unzipped. She acked like she was under the Influence of something. She was a dirty Blound wereing Blue shirt & Blue Jeans. [Spelling and grammatical errors in original.]

The record also includes an unofficial transcript of the dispatch tape, which reads in pertinent part as follows:

DIS: 47. 38. Suspicious person complaint, the 4000 block off of Queensway Drive off of Lesser Harris and Bottom Street. A white female in a dark blue LeSabre that’s out walking around asking people about 218A.2

* * *

DIS: 38 and 47, that dark blue LeSabre’s going to have a Washington tag. [License number omitted.] They don’t know who she is, but they’re going to call us back if the vehicle leaves before you arrive.

Deputy Eddie McGuire of the McCracken County Sheriff’s Department responded to the call and proceeded to the Queensway Drive area. The subject of the complaint was no longer in the area, but on his way back into town, Deputy McGuire came upon a blue Buick LeSabre with Washington license plates in the right lane with the left blinker flashing. The dispatch transcript reflects: “I just passed her. Going to try to find her. See if she’ll pass me again. I think she’s gonna turn off now. Coming up on Cairo and 60.” When Deputy McGuire pulled his cruiser behind the LeSabre, the driver turned on the right turn signal and pulled off to the right side of the road. Deputy McGuire then turned on his lights and pulled up behind the LeSabre. We note that the record contains a videotape of the cruiser cam video; unfortunately, there is no audio recording attached to the video.

Deputy McGuire approached the driver’s side of the stopped vehicle and had the driver step out. The driver was Rachel Leatherman, and a records check showed that there were no active warrants for her arrest. Deputy McGuire noticed that Leatherman had glassy eyes, that her pants were unbuttoned and unzipped, and that a pant leg was rolled up. He also noticed that she was nervous and fidgety. Deputy McGuire then performed field sobriety tests. On the horizontal gaze nystagmus (HGN) test, Leatherman showed six clues that indicated impairment. A breath test and later blood tests revealed that there were no drugs or alcohol in Leatherman’s system.

When Deputy McGuire asked her about the 911 call, Leatherman referred to Mr. Wilkey as a snitch. She admitted to having been in the Queensway Drive area and to asking a man about some barrels. She also stated that she was on several prescription medications, including Adderall, Metoprolol, and Clonazepam. By this time a second deputy, Deputy Jason Walters, had arrived. Leatherman consented to a search of her car, during which they found a bottle of prescription medication, a full cup of beer in the console, and a recorked bottle of wine on the floor of the passenger side. They did not find any illegal drugs during the search.

Deputy McGuire requested that a female officer respond to the scene to perform a search of Leatherman. Paducah Police Officer Gretchen Dawes responded, obtained consent to search, and performed a thorough search of Leatherman, including the front and back pockets of her jeans, the rolled up pants legs, and under her T-shirt. The search is depicted in the cruiser cam video. Officer Dawes did not find any weapons or illegal drugs on her person. Following this search, Deputy McGuire arrested Leatherman for DUI, handcuffed her, and placed her in the back seat of his cruiser. The three officers then performed another search of her vehicle, including the trunk. Again, no illegal drugs were found.

Once the search was concluded, Deputy McGuire drove Leatherman to Lourdes Hospital where blood was drawn for a blood test. When Deputy McGuire removed her from the cruiser at the hospital, Leatherman claims that she stated she had dropped her watch in the back seat. During this period, Deputy McGuire claims to have noticed a small baggie containing what was later confirmed to be crack cocaine in the seatbelt crack in the vicinity of Leatherman’s watch. When confronted with this, Leatherman denied that the drugs were hers.
Based on the above, the McCracken County grand jury indicted Leatherman for possession of a controlled substance (cocaine) (KRS 218A.1415), tampering with physical evidence (KRS 524.100) by concealing the baggie of crack cocaine, and operating a motor vehicle under the influence of drugs (KRS 189A.010).

Leatherman moved to suppress the evidence discovered as a result of her stop and arrest, arguing that the stop was based on an uncorroborated tip and that there was no probable cause to justify the arrest.

Following a suppression hearing, the trial court denied the motion to suppress. It went on to deny subsequent motions to reconsider that ruling, although it did enter a substitute order. The matter proceeded to trial, after which the jury found Leatherman guilty as charged in the indictment. Following the penalty phase and in accordance with the jury’s recommendation, the trial court sentenced Leatherman to two consecutive four-year terms of imprisonment for the possession and tampering convictions as well as to forty-eight hours in jail and a $200.00 fine for the DUI conviction. This appeal follows.

On appeal, Leatherman raises three issues. First, she argues that the trial court erred in denying her motion to suppress. Second, she argues that the trial court improperly granted the Commonwealth’s motion in limine regarding her statements to Deputy McGuire about her watch. Third, she argues that the trial court should have granted her motion for a directed verdict on the DUI charge. We shall address each of these arguments in turn.

The first issue we shall address is whether the trial court properly denied Leatherman’s motion to suppress. The trial court entered two orders addressing this issue, which we shall set forth in full below.

On January 18, 2008, just prior to the trial in the matter, the trial court entered a substitute order denying Leatherman’s motion to suppress:3

This matter is before the Court on Defendant’s motion, through counsel, to supplement the record and to reconsider and set aside an order denying his [sic] motion to suppress evidence. The record is ORDERED supplemented with a 911 transcript. The Court now sets aside its prior order denying Defendant’s motion to suppress and substitutes this order denying the motion to suppress.


1. Police dispatch received a telephone call from a person who gave his name and address, stating that a white female in a vehicle that looked like a late 80’s or early 90’s dark blue Buick LaSabre [sic], bearing Seattle Washington license plate number . . . was . . . walking around in [his] neighbors yard and everything and writing stuff down, and she’d talked to him and mentioned something about tar heroin and all that stuff.”

2. A Sheriff’s deputy testified that dispatch radioed the incident and stated that the white female was attempting to buy heroin.

3. The deputy observed a dark blue LaSabre [sic] with the . . . Washington plate, driven by a white female in a right hand traffic lane with her left turn signal activated. The vehicle did not turn but pulled to the right side of the roadway and stopped.

4. The deputy pulled in behind the stopped vehicle and activated his emergency lights.

5. When the deputy went to the vehicle he observed the Defendant with her pants unzipped and unbuttoned. The deputy observed in plain view an open container of what he suspected to be beer and an opened but corked bottle of wine in the car.

6. Defendant failed all six clues of a horizontal gaze nystagmus test, had very glassy eyes, and appeared nervous. When the deputy asked her if she was taking any medication that would explain her condition she stated that she was on several medications, including Clonazepam.

7. The maker of Clonazepam warns that it should not be used when driving a vehicle and that the drug causes abnormal eye movements.

8. The deputy arrested Defendant for operating a motor vehicle under the influence of drugs or alcohol and placed her in the back seat of his patrol car, which he had searched and found clean of any drugs or other items.

9. When Defendant later exited the patrol car the officer searched the back seat and found a piece of cellophane which appeared to contain a controlled substance. The cellophane was located behind the back seat adjacent to what Defendant identified as her wristwatch.

10. The suspected controlled substance lab tested as cocaine.


1. The deputy did not conduct a stop of Defendant’s vehicle. Defendant pulled off the roadway and stopped. The deputy then pulled in behind her and activated his emergency lights so as to investigate.

2. The combination of a report of an unknown person, driving a Washington state licensed vehicle in a Paducah, Kentucky residential area, asking about tar heroin, later observed to signal a left turn but pull off the roadway to the right, constitutes reasonable suspicion to investigate and possibly cite for improper signal.

3. A report of suspicious activity by a person who identifies himself by name, telephone number, and address, is presumptively reliable.

4. Defendant’s inquiring about heroin, failing a HGN test, signaling a left turn and pulling off the road to the right, and stating that she was taking medication that would cause her to fail the test, constitutes probable cause to arrest for DUI.

5. A police officer may legally search the back seat of his patrol car where the defendant was placed incident to arrest.

6. The results of the search and the plain view discovery of the wine and suspected beer is admissible as evidence at trial.

IT IS HEREBY ORDERED that Defendant’s motion to suppress is DENIED.

On January 28, 2008, following the trial, the court entered a supplemental order denying the motion to suppress:

The defendant has requested the court to consider additional information and evidence supplementing the record in this case, based upon which the Court makes the following supplemental Findings of Fact and Conclusions of Law in denying defendant’s Motion to Suppress:


1. The 911 dispatcher received a call from an identified public citizen, Vernon Wilkey, who reported that a white female driving a dark blue LaSabre [sic] with Washington State license plates made unusual and disturbing statements about heroin in his neighborhood.

2. 911 called deputies and alerted them to the woman, her vehicle, and her suspicious drug activity.

3. Within minutes Deputy McGuire observed a dark blue LaSabre [sic] with Washington State license plates driven by a white female exactly matching the 911 description. The vehicle was traveling slowly in the right traffic lane of Highway 60 with the left turn signal activated for an unusually long time for no apparent reason. The vehicle did not turn left, but continued on straight, which all appeared unusual and suspicious to the deputy.

4. The vehicle then pulled to the right side of the road and stopped without any signaling to do so by the deputy. This demonstrated additional unusual behavior by the defendant. The deputy then pulled in behind the defendant’s vehicle and activated his roadside stop lights. By the time the deputy stopped, he had reasonable grounds and reasonable suspicion to approach the driver. He exited his cruiser and walked to speak to the driver.

5. The deputy observed in plain view a half empty but opened container of beer and a half empty but corked bottle of wine. The defendant’s eyes were glassy. He then had reasonable grounds to check the driver’s sobriety. The defendant failed all HGN tests. She also gave unusual responses to instructions given to her by the deputy, she appeared somewhat confused; she appeared nervous; and she appeared to the deputy to be under the influence of drugs or alcohol.

6. The defendant admitted to the deputy that she was on a number of medications, including Clonazepam. Clonazepam is a strong anti-psychotic medication which interferes with motor performance, including driving a motor vehicle. Clonazepam also causes abnormal eye movements.

7. The deputy had reasonable grounds and probable cause to arrest the defendant for DUI.

8. The defendant was transported to the hospital for the taking of a blood test. At the hospital a suspicious baggie was found next to the defendant’s watch in the back seat of the deputy’s patrol cruiser. The deputy knew that the patrol cruiser did not have the suspicious plastic baggie or a watch before the defendant was placed into the back seat. The defendant admitted losing her watch. The deputy had probable cause and exigent reasons to seize the baggie. The baggie appeared to contain crack cocaine. The deputy had probable cause to arrest the defendant for tampering with evidence and possession of cocaine.


1. The caller who reported the defendant’s unusual interest in heroin was identified. Such a report is considered more reliable than an anonymous tip.

2. The deputy had reasonable suspicion and probable cause to make an investigation stop and search of the defendant and her vehicle.

3. Discovery of the suspicious plastic baggie in the back seat of the deputy’s cruiser was based on plain view discovery. The defendant and her vehicle had previously been properly detained based on the circumstances above which proceeded [sic] the discovery of the baggie.

Our standard of review from a denial of a motion to suppress is twofold. First, we must determine whether the findings of fact are supported by substantial evidence. If so, those findings are conclusive. Kentucky Rules of Criminal Procedure (RCr) 9.78; Adcock v. Commonwealth,967 S.W.2d 6, 8 (Ky. 1998). If not, the factual findings must be overturned as clearly erroneous. Farmer v.Commonwealth,169 S.W.3d 50, 53 (Ky. App. 2005). Second, we must perform a de novo review of those factual findings to determine whether the lower court’s decision is correct as a matter of law. Ornelas v. United States,517 U.S. 690, 697, 116 S.Ct. 1657, 1662, 134 L. Ed. 2d 911 (1996); Commonwealth v. Banks,68 S.W.3d 347, 349 (Ky. 2001); Garcia v. Commonwealth,185 S.W.3d 658, 661 (Ky. App. 2006); Stewart v. Commonwealth,44 S.W.3d 376, 380 (Ky. App. 2000).

Leatherman has not contested the trial court’s factual findings in its orders denying her motion to suppress. Rather, she has contested the trial court’s conclusions of law based upon those findings.
Our first consideration is whether Deputy McGuire had sufficient reason to stop and investigate Leatherman’s automobile. We hold that Deputy McGuire had sufficient grounds to stop Leatherman and investigate the situation, as well as probable cause to arrest her.

In Taylor v. Commonwealth,987 S.W.2d 302, 305 (Ky. 1998), the Supreme Court of Kentucky addressed the investigatory stop of automobiles and held:

In order to justify an investigatory stop of an automobile, the police must have a reasonable articulable suspicion that the persons in the vehicle are, or are about to become involved in criminal activity. United States v. Cortez,449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981); Commonwealth v. Hagan, Ky., 464 S.W.2d 261 (1971). In order to determine whether there was a reasonable articulable suspicion, the reviewing appellate court must weigh the totality of the circumstances. See Alabama v. White,496 U.S. 325, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990).

More recently, in Johnson v. Commonwealth,179 S.W.3d 882, 884 (Ky. App. 2005), this Court addressed the same issue, setting forth the applicable law as follows:

It is well settled that an investigative stop of an automobile is constitutional as long as law enforcement officials have a reasonable suspicion — supported by specific and articulable facts — that the occupant of the vehicle has committed, is committing, or is about to commit an offense. Delaware v. Prouse,440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979); Collins v. Commonwealth,142 S.W.3d 113 (Ky. 2004). In addition to the requirement that the stop be justified at its inception, the police officer’s subsequent actions must be reasonably related in scope to the circumstances that gave credence to the initial stop. Terry v. Ohio,392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). “[A]n investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop.” Florida v. Royer,460 U.S. 491, 500, 103 S.Ct. 1319, 1325, 75 L.Ed.2d 229, 238 (1983).

Reasonableness “is measured in objective terms by examining the totality of the circumstances.” Ohio v. Robinette,519 U.S. 33, 39, 117 S.Ct. 417, 421, 136 L. Ed. 2d 347 (1996).

Based upon the prior 911 call, during which the caller described a woman driving a car that displayed Washington state license plates who was committing criminal activity, and the undisputed fact that Leatherman pulled to the side of the road and stopped before Deputy McGuire activated his emergency lights, we hold that there was no constitutional violation in the investigatory stop. However, the law is clear that a stop may only continue long enough for the officer to determine whether his suspicions were correct.

On this issue, the United States Supreme Court has held:

The predicate permitting seizures on suspicion short of probable cause is that law enforcement interests warrant a limited intrusion on the personal security of the suspect. The scope of the intrusion permitted will vary to some extent with the particular facts and circumstances of each case. This much, however, is clear: an investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop. Similarly, the investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer’s suspicion in a short period of time. It is the State’s burden to demonstrate that the seizure it seeks to justify on the basis of a reasonable suspicion was sufficiently limited in scope and duration to satisfy the conditions of an investigative seizure.
Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 1325-26, 75 L. Ed. 2d 229 (1983) (internal citations omitted, emphasis added).

Here, Deputy McGuire noted that Leatherman exhibited glassy eyes and that she was acting nervous and fidgety. He also noted that she had a cup of beer and an opened, but recorked, bottle of wine in the vehicle. That certainly provided Deputy McGuire with grounds to determine whether Leatherman was driving under the influence by performing field sobriety tests. Leatherman then demonstrated six clues on the HGN test.4 Accordingly, because of the open containers of alcohol and the results of the HGN test, the deputies were justified in performing a breathalyzer test to determine whether Leatherman was under the influence of alcohol.

We note for the record that the test was negative and that later blood tests were also negative for alcohol or drugs.

Finally, consent searches of her automobile and her person did not reveal any heroin or any other illegal substance. However, there is no dispute that the deputies discovered a bottle of prescription medication, and Leatherman admitted that she was on several medications, including Clonazepam, which did constitute sufficient grounds for her continued detention. Our conclusion is supported by this admission, as well as Deputy McGuire’s testimony related to his observations of Leatherman.

We must next consider whether Deputy McGuire had the requisite probable cause to arrest Leatherman without a warrant.

KRS 431.005(1) permits a peace officer, including a sheriff’s deputy, to make an arrest in the following situations:

(a) In obedience to a warrant; or

(b) Without a warrant when a felony is committed in his presence; or

(c) Without a warrant when he has probable cause to believe that the person being arrested has committed a felony; or

(d) Without a warrant when a misdemeanor, as defined in KRS 431.060, has been committed in his presence; or

(e) Without a warrant when a violation of KRS 189.290, 189.393, 189.520, 189.580, 511.080, or 525.070 has been committed in his presence, except that a violation of KRS 189A.010 or KRS 281A.210 need not be committed in his presence in order to make an arrest without a warrant if the officer has probable cause to believe that the person has violated KRS 189A.010 or KRS 281A.210.

There is no dispute that Deputy McGuire did not have a warrant for Leatherman’s arrest. Therefore, his authority to arrest Leatherman would fall under subsection (e).

In Maryland v. Pringle,540 U.S. 366, 124 S.Ct. 795, 157 L. Ed. 2d 769 (2003), the United States Supreme Court addressed warrantless arrests and the concept of probable cause. The Court recognized as a general matter that, “[a] warrantless arrest of an individual in a public place for a felony, or a misdemeanor committed in the officer’s presence, is consistent with the Fourth Amendment if the arrest is supported by probable cause[,]” id., 540 U.S. at 370, 124 S. Ct. at 799, and then addressed the question as to “whether the officer had probable cause to believe that Pringle committed that crime [possession of cocaine].” Id. It went on to provide a comprehensive discussion of the probable-cause standard:

The long-prevailing standard of probable cause protects citizens from rash and unreasonable interferences with privacy and from unfounded charges of crime, while giving fair leeway for enforcing the law in the community’s protection. On many occasions, we have reiterated that the probable-cause standard is a practical, nontechnical conception that deals with the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. Probable cause is a fluid concept — turning on the assessment of probabilities in particular factual contexts — not readily, or even usefully, reduced to a neat set of legal rules.

The probable-cause standard is incapable of precise definition or quantification into percentages because it deals with probabilities and depends on the totality of the circumstances. We have stated, however, that the substance of all the definitions of probable cause is a reasonable ground for belief of guilt, and that the belief of guilt must be particularized with respect to the person to be searched or seized.
Id., 540 U.S. at 370-71, 124 S. Ct. at 799-800 (internal citations, quotations, and brackets omitted). Finally, the Court instructed that “[t]o determine whether an officer had probable cause to arrest an individual, we examine the events leading up to the arrest, and then decide `whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to’ probable cause.” Id., 540 U.S. at 371, 124 S. Ct. at 800.

Similarly, the Supreme Court of Kentucky has stated:

As the United States Supreme Court has remarked, probable cause is a flexible, common-sense standard. It merely requires that the facts available to the officer would “warrant a man of reasonable caution in the belief,” that certain items may be contraband or stolen property or useful as evidence of a crime; it does not demand any showing that such a belief be correct or more likely true than false. A “practical, nontechnical” probability that incriminating evidence is involved is all that is required.
Williams v. Commonwealth, 147 S.W.3d 1, 7-8 (Ky. 2004).

In the present case, we hold that Deputy McGuire had probable cause to arrest Leatherman for DUI. Deputy McGuire testified that Leatherman appeared to be under the influence of something, despite his observation that she was not driving erratically or weaving.

Furthermore, Leatherman failed the HGN test, which reveals intoxication by alcohol or some other drug, although she later passed the breathalyzer test. Finally, the product information for Klonopin (Clonazepam) attached to Leatherman’s brief states that patients taking that medication “should be cautioned about operating hazardous machinery, including automobiles, until they are reasonably certain the Klonopin therapy does not affect them adversely.”

Therefore, the observation of Leatherman’s glassy eyes and odd behavior coupled with her admission that she was taking prescription medication that included a warning about driving was sufficient to provide Deputy McGuire with probable cause to arrest her for DUI. Therefore, Deputy McGuire’s warrantless arrest of Leatherman did not deprive her of her constitutional rights against illegal search and seizure.

Next, we shall address Leatherman’s argument that the trial court erred in granting the Commonwealth’s motion in limine prohibiting her from mentioning any statement or question she made to Deputy McGuire regarding her watch in the backseat of the cruiser. Leatherman contends that she should have been permitted to elicit testimony from Deputy McGuire that she had asked him about her watch before he actually discovered it or the drugs in the backseat of the cruiser.

Because Deputy McGuire was permitted to testify that Leatherman admitted the watch was hers, she argues that the jury was left with the impression that the drugs were also hers. She goes on to argue that her statement to Deputy McGuire about her watch did not constitute hearsay because it was not offered to prove the truth of the matter asserted in the statement — that she had lost her watch. Rather, it was offered to show the effect it had on Deputy McGuire in that he looked behind the seat to retrieve the watch (where he found the drugs) and to establish his inconsistent statements from earlier proceedings. The Commonwealth, in turn, argues that the trial court did not abuse its discretion in disallowing the introduction of this statement during Deputy McGuire’s testimony.

In support of this argument, Leatherman cites to Schrimsher v. Commonwealth,190 S.W.3d 318 (Ky. 2006). In Schrimsher, the Supreme Court of Kentucky addressed the application of Kentucky Rules of Evidence (KRE) 106, also known as the rule of completeness, which provides: “When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.”

Describing the rule, the Schrimsher Court held that,
[A] party purporting to invoke KRE 106 for the admission of otherwise inadmissible hearsay statements may only do so to the extent that an opposing party’s introduction of an incomplete out-of-court statement would render the statement misleading or alter its perceived meaning. The issue is whether the meaning of the included portion is altered by the excluded portion.
Schrimsher, 190 S.W.3d at 330-31 (footnote, citation, and internal quotation marks omitted).

Regarding Leatherman’s reliance on Schrimsher, the Commonwealth argues that she was attempting to explain an earlier statement, not complete an incomplete out-of-court statement to prevent the jury from being misled. The Commonwealth also argues that Leatherman is precluded from raising the issue of the discrepancy in Deputy McGuire’s statements during the course of the proceedings because there was no foundation in place that would permit her to impeach his prior statements and because the argument was different from the one presented below, citing Kennedy v. Commonwealth,544 S.W.2d 219, 222 (Ky. 1976), overruled on other grounds by Wilburn v. Commonwealth, 213 S.W.3d 321 (Ky. 2010).

Kentucky law is well settled that a trial court’s decision to admit evidence is subject to an abuse of discretion standard.

Since the trial court’s unique role as a gatekeeper of evidence requires on-the-spot rulings on the admissibility of evidence, we may reverse a trial court’s decision to admit evidence only if that decision represents an abuse of discretion. And for a trial court’s decision to be an abuse of discretion, we must find that the decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.
Clark v. Commonwealth, 223 S.W.3d 90, 95 (Ky. 2007) (internal quotation marks and footnotes omitted). Similarly, “[a] trial court’s ruling under KRE 106 (i.e., the “rule of completeness”) is discretionary.” Schrimsher,190 S.W.3d 318, 330 (Ky. 2006).

While we disagree with the Commonwealth’s “can of worms” argument, we ultimately agree that the trial court did not abuse its discretion in declining to admit this statement during Deputy McGuire’s testimony. We note that the trial court indicated that it would permit Leatherman to testify to her statement regarding the watch had she opted to take the stand in her own defense. Furthermore, Leatherman did not attempt to impeach Deputy McGuire’s prior statements regarding the discovery of the watch and drugs through laying a proper foundation. Even if we were to hold that this ruling was made in error, we must hold that it constitutes harmless error as the ruling is not “inconsistent with substantial justice.” RCr 9.24. Permitting the introduction of this out of court would not have changed the outcome due to the strength of the rest of the testimony that was introduced, including the close proximity of the watch and the drugs as well as the search of the area prior to Leatherman’s placement in the cruiser.

Furthermore, we perceive no palpable error under RCr 10.26 in the Commonwealth Attorney’s statements during closing argument. Leatherman contends that she established palpable error in the Commonwealth Attorney’s reference to her watch as an “autograph” on the drugs and as well as in what she describes as an impermissible comment on her silence in the following passage from the trial:

The simple issue under this case is whether a jury is going to hold her accountable or give her a pass for reasons that have not been presented, no justifications, no excuses, no contradictions of the facts and the testimony you heard.

We disagree with Leatherman’s assertion that such argument violated her constitutional rights or rose to the level of palpable error justifying any further review.

Finally, we shall consider Leatherman’s argument that the trial court erred in denying her motion for a directed verdict on the DUI charge. Leatherman contends that the Commonwealth failed to introduce sufficient proof to permit the matter to go to the jury because there was no scientific proof revealing the presence of a prescription medication in her system.

The Supreme Court of Kentucky succinctly set forth the directed verdict rule in Commonwealth v. Benham,816 S.W.2d 186, 187 (Ky. 1991):

On motion for directed verdict, the trial court must draw all fair and reasonable inferences from the evidence in favor of the Commonwealth. If the evidence is sufficient to induce a reasonable juror to believe beyond a reasonable doubt that the defendant is guilty, a directed verdict should not be given. For the purpose of ruling on the motion, the trial court must assume that the evidence for the Commonwealth is true, but reserving to the jury questions as to the credibility and weight to be given to such testimony.

On appellate review, the test of a directed verdict is, if under the evidence as a whole, it would be clearly unreasonable for a jury to find guilt, only then the defendant is entitled to a directed verdict of acquittal. See also Wilburn v. Commonwealth, 312 S.W.3d 321 (Ky. 2010).

The applicable statute in this case is KRS 189A.010, which addresses the crime of driving under the influence. Specifically related to this case, the Commonwealth was required to prove that Leatherman was operating her motor vehicle “[w]hile under the influence of any other substance or combination of substances which impairs one’s driving ability.” KRS 189A.010(1)(c).

The evidence elicited at trial established that Leatherman admitted to Deputy McGuire that she was taking three prescription medications, including Clonazepam, which contains a warning regarding driving while on that medication. Deputy McGuire also testified as to his observations of Leatherman’s behavior, including the results of the HGN test showing intoxication.

Furthermore, Mr. Wilkey testified at trial that Leatherman and her husband visited him several months after the incident regarding his upcoming testimony. He reported that Leatherman told him that she was unable to remember what they discussed because she was “whacked out.” This evidence is more than a mere scintilla and is of sufficient substance to permit the question of guilt to go to the jury. Commonwealth v. Sawhill,660 S.W.2d 3, 5 (Ky. 1983).

For the foregoing reasons, the judgment of the McCracken Circuit Court is affirmed.



1. Senior Judge Michael L. Henry concurred in this opinion prior to the expiration of his term of senior judge service. Release of the opinion was delayed by administrative handling.

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2. We assume “218A” refers to Kentucky Revised Statutes (KRS) Chapter 218A, which addresses controlled substances.

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3. The original order denying Leatherman’s motion to suppress had been entered on January 11, 2007.

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4. “Nystagmus is an involuntary rapid movement of the eyeball, which may be horizontal, vertical, or rotatory. (The Sloane-Dorland Ann. Medical-Legal Dict. (1987) p. 504.) An inability of the eyes to maintain visual fixation as they are turned from side to side (in other words, jerking or bouncing) is known as horizontal gaze nystagmus, or HGN.” People v. Ojeda,225 Cal.App.3d 404, 406, 275 Cal.Rptr. 472, 472-73 (1990).

The horizontal gaze nystagmus (HGN) test is one of the tests law enforcement officers perform either in the field or at the police station when they suspect an individual is under the influence of alcohol or some other drug. The prosecution often introduces the results of the HGN test in DWI prosecutions. This test is based on the theory “that alcohol and drug use increases the frequency and amplitude of HGN and cause it to occur at a smaller angle of deviation from forward.” Although alcohol and drug use may increase the HGN, it can also be produced by other pathological, chemical or natural causes.” 3 Barbara E. Bergman and Nancy Hollander, Wharton’s Criminal Evidence § 13:49 (15th ed. 2009).

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