Opinion
NO. 2016-CA-000153-MR
04-13-2018
NEPTALI S. JUAREZ APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Samuel N. Potter Assistant Public Advocate Department of Public Advocacy Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky James C. Shackelford Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM LYON CIRCUIT COURT
HONORABLE CLARENCE A. WOODALL, III, JUDGE
ACTION NO. 15-CR-00004 OPINION
AFFIRMING
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BEFORE: JONES, D. LAMBERT AND THOMPSON, JUDGES. THOMPSON, JUDGE: Neptali S. Juarez appeals from his conviction and sentence after a jury trial by the Lyon Circuit Court. Juarez argues his motion to suppress should have been granted because his traffic stop was unduly extended to wait for a dog to drug sniff his vehicle, and he should have received a directed verdict because the Commonwealth failed to prove Juarez knew a cooler in his vehicle, that his passenger admitted owning, contained drugs.
On January 15, 2015, Juarez was driving a vehicle in which Francisco Ortiz was a passenger. Trooper T. J. Williams and Trooper Brad Ramsey were patrolling I-24 in separate vehicles. Trooper Williams stopped Juarez's vehicle after he failed to signal a lane change. Trooper Ramsey arrived in his vehicle a minute or two later.
When Trooper Williams asked for his driver's license, Juarez produced a Mexican identification card. Trooper Williams had Juarez come and sit in the front seat of his police cruiser while he radioed for information on Juarez and questioned him.
Meanwhile, Trooper Ramsey began questioning Ortiz about his identity. Trooper Ramsey then walked his dog around Juarez's car, and the dog alerted to the presence of drugs.
After Trooper Williams issued the citation, Juarez granted consent for a search of his vehicle. Trooper Williams found what appeared to be marijuana when he pried apart the side panel of the outer shell of a very large cooler in the back seat of the vehicle. The troopers arrested Juarez and Ortiz. After further disassembling the cooler, the troopers also found what appeared to be a bag of methamphetamine and a bag of cocaine.
Juarez was indicted for trafficking in cocaine, first-degree, first-offense; trafficking in methamphetamine, first-degree, first-offense; trafficking in marijuana, first-offense; and the traffic violations of failing to give an appropriate turn signal and operating a motor vehicle without a valid operator's license.
Juarez filed a motion to suppress. At the suppression hearing, Troopers Williams and Ramsey testified based on their memory and from reviewing a video of the stop. The video of the stop was also played for the trial court.
Trooper Williams testified he was still investigating and working on the traffic citation at the time Trooper Ramsey deployed the dog. Trooper Williams testified he was not past the second page of the four-page citation at that time. He continued working on the citation and, when finished, he printed it; the citation printing could be seen on the video. He testified the stop for the traffic infractions was not concluded until the citation was printed and explained to Juarez.
Trooper Williams testified there was a delay between when he finished typing the citation and when he printed it, because he was waiting for post to answer whether it found any additional information on Juarez based on his name and birthdate and would have amended the form if he received additional information. He testified it takes him about ten minutes to complete a citation when the driver does not have a driver's license.
Trooper Ramsey testified Trooper Williams was getting information from Juarez at the time he deployed the dog to sniff the vehicle. His dog alerted as could be seen on the video through the behavior change of the dog including searching slow, jumping on the vehicle and coming back to sniff again. He testified he knew the stop was not concluded when he deployed the dog because after he put the dog away and approached Trooper Williams's vehicle, Trooper Williams asked him how to charge something.
The video of the stop, which shows the view from the front of Trooper Williams's vehicle and the view inside his vehicle shows that at 12:24 p.m., Trooper Williams stopped the vehicle. At 12:27 p.m., Trooper Ramsey was at the window of Trooper Williams's vehicle. At 12:32 p.m., Trooper Williams was typing. At 12:33 p.m., Trooper Williams walked his dog around Juarez's vehicle and the dog alerted to the presence of drugs by jumping on the vehicle. At this time, Trooper Williams was explaining the reason he stopped Juarez. At 12:35 p.m., Trooper Ramsey was at Trooper Williams's window again and Trooper Williams can be heard asking what the number is for an improper signal. The video shows that at 12:38 p.m., the papers for the citation began printing out in Trooper Williams's vehicle.
The trial court denied the suppression motion, concluding that "under the circumstances, since the canine alert and the traffic stop process occurred concurrently, the traffic stop was not unreasonably extended."
Juarez argues that his motion to suppress should have been granted because his stop was unduly extended to wait for the dog to drug sniff his vehicle. We disagree.
On appellate review of the denial of a motion to suppress evidence, we review the trial court's findings of fact under the clearly erroneous standard and review its application of the law to the facts de novo. Davis v. Commonwealth, 484 S.W.3d 288, 290 (Ky. 2016). "[T]he trial court's findings of fact will be conclusive if they are supported by substantial evidence." Id.
As explained in Rodriguez v. United States, 135 S.Ct. 1609, 1614, 191 L.Ed.2d 492 (2015) (quoting Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 1325, 75 L.Ed.2d 229 (1983)) (internal citations omitted):
Like a Terry [v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)),] stop, the tolerable duration of police inquiries in the traffic-stop context is determined by the seizure's "mission"—to address the traffic violation that warranted the stop and attend to related safety concerns. Because addressing the infraction is the purpose of the stop, it may "last no longer than is necessary to effectuate th[at] purpose." Authority for the seizure thus ends when tasks tied to the traffic infraction are—or reasonably should have been—completed.
Recently, the United States Supreme Court and the Kentucky Supreme Court have held that it is unreasonable to delay a traffic stop beyond its original purpose to forward an unrelated investigation for drugs conducted through a dog sniff. Id. at 1615-16; Davis, 484 S.W.3d at 292-94. "Thus, an officer cannot detain a vehicle's occupants beyond completion of the purpose of the initial traffic stop 'unless something happened during the stop to cause the officer to have a reasonable and articulable suspicion that criminal activity [is] afoot.'" Turley v. Commonwealth, 399 S.W.3d 412, 421 (Ky. 2013) (quoting United States v. Davis, 430 F.3d 345, 353 (6th Cir. 2005) (internal quotations omitted)).
"[T]here is no de minimis time exception to the rule that a traffic stop may not be extended beyond its original purpose without, an additional reasonable suspicion to do so." Davis, 484 S.W.3d at 293. "The critical question . . . is not whether the dog sniff occurs before or after the officer issues a ticket . . . , but whether conducting the sniff "prolongs"—i.e., adds time to—"the stop[.]" Rodriguez, 135 S.Ct. at 1616.
There is no evidence to support Juarez's contention that the stop was prolonged to wait for a drug sniffing dog to inspect Juarez's vehicle, thus delaying the issuance of Juarez's citation. Trooper Williams was questioning Juarez when Trooper Ramsey arrived and proceeded to question Ortiz. The troopers' testimony and the video of the stop were consistent that Trooper Williams was still investigating Juarez's traffic violations, gathering routine information about Juarez and completing his citation when the dog sniff occurred.
Once the dog alerted to the vehicle, there was a reasonable basis for the extension of the stop to investigate whether there were drugs in the vehicle and probable cause for a warrantless search of the vehicle. Meghoo v. Commonwealth, 245 S.W.3d 752, 756 (Ky. 2008); Morton v. Commonwealth, 232 S.W.3d 566, 569-70 (Ky.App. 2007). However, even after the dog alerted Trooper Williams continued to be diligent in completing his investigation of the traffic infractions.
The video of the traffic stop shows that five minutes after the dog alerted to the car, Trooper Williams printed out the citation for Juarez. During this time, Trooper Williams conversed with Trooper Ramsey about what Ortiz said and asked him what number was associated with one of the traffic violations that Juarez was ultimately cited for committing, explained to Juarez why he was stopped, was waiting to hear from dispatch about Juarez, and was entering information into the form for completing the citation. Therefore, the trial court did not err in denying the motion to suppress and proceeding to trial.
On November 23, 2015, Juarez and Ortiz received a joint jury trial. Juarez's defense was that he was acting as a taxi service for Ortiz and had no knowledge of the drugs. Ortiz's defense was that, although he knew the cooler contained marijuana, he had no knowledge of the other drugs.
Trooper Williams, Trooper Ramsey, Jailer Hank O'Bryan, Juarez and Ortiz testified. The jury was also played the video from Trooper Williams's patrol vehicle during the stop and video recorded at the substation of the cooler being disassembled and drugs removed from it. We only summarize those portions of the evidence that are relevant to the issues on appeal.
Trooper Williams testified Juarez appeared nervous when he approached his car and there were various indications that Juarez was nervous when he questioned Juarez in his patrol vehicle. Juarez was breathing hard and rubbing his face, avoiding eye contact and, at one point, closed his eyes. Trooper Williams testified Juarez told him he was driving Ortiz from Sikeston, Missouri, to Nashville, Tennessee, to work in a Chinese restaurant, he had only known Ortiz for a few months and the trip had been arranged by a lady on Facebook in exchange for $200. Trooper Williams testified he was suspicious because this was inconsistent with the statement Ortiz made to Trooper Ramsey. Trooper Ramsey testified Ortiz told him that he had known Juarez for four years and was going to Nashville to visit relatives.
Trooper Williams testified after he was given consent to search, he asked Juarez if everything in the vehicle belonged to him and Juarez said yes.
Trooper Williams testified he was suspicious of a large cooler that was on the back seat of Juarez's vehicle because it was a large size for the relatively short trip and full of perishable items including milk, yogurt and lunch meat, but its contents were hot. Although the cooler had a cooling fan designed to be plugged into a vehicle, it was unplugged and the cooler did not contain any ice.
Trooper Williams testified when he asked Ortiz whose cooler it was, at first Ortiz did not say anything, but eventually said it was his. Trooper Williams went back to Juarez and asked if it was his cooler and Juarez denied it was his.
Trooper Williams testified he noticed a gouge in the handle of what looked like a new cooler, so he used his knife to pry the outer shell apart and saw that it was hot glued together. He pried a side apart and saw vacuum sealed bags of marijuana inside where the cooler's insulation should be.
Trooper Williams testified when he told Juarez about finding marijuana inside the cooler, Juarez acted surprised. Trooper Williams testified after taking apart other portions of the cooler at the substation, he and Trooper Ramsey found what appeared to be seven vacuum sealed bags of marijuana, one bag of methamphetamine and one bag of powder cocaine. A laboratory examination determined there was approximately 1,807 grams of marijuana, 448 grams of methamphetamine and 242 grams of cocaine. Trooper Williams testified the drugs found in the cooler had a street value of approximately $90,000.
The parties stipulated that the laboratory report be admitted.
Jailer O'Bryan testified Ortiz said it was his cooler and he was paid $5,000 to transport it, while Juarez consistently denied the cooler was his.
Both Juarez and Ortiz testified through interpreters. Juarez testified he understood English but did not always answer correctly. He admitted he never told Trooper Williams he couldn't understand him, but noted he was never asked if he understood English.
Juarez testified he ran a taxi-type service transporting people for money and advertised by posting his cell phone number in places that Hispanic people frequented and received jobs via Facebook. He did not tell Trooper Williams he was a taxi driver because he did not have a taxi license. He told him he gave rides to people and worked in a cotton field.
Juarez testified as to how it was arranged that he would transport Ortiz from a hotel in Sikeston, Missouri, to Nashville, Tennessee. Juarez testified he received phone calls from first a woman, Isadora, and then a man, Ortiz, about transporting Ortiz and they negotiated the price, finally arriving at $200 plus gas and food. Juarez was sent a text with the hotel address to pick up Ortiz. Juarez admitted he told Trooper Williams he was contacted through Facebook to pick up Ortiz, but stated both methods of contacting him were the same.
Juarez testified the message was still on his phone, but when shown the printed-out messages that had been taken from his phone after it was searched, could not find the message. A search warrant was granted for Juarez's phone and the phone messages were both transcribed and translated.
Juarez testified he only met Ortiz two or three weeks before the trip over the phone and did not know anything about Ortiz except that he was going to work in a Chinese restaurant. He did not tell Trooper Williams he also worked at the same Chinese restaurant; he told him he had worked at a Chinese restaurant in the past. He recently moved from North Carolina to Nashville and had no connection to Arizona.
Juarez testified when he picked up Ortiz, Ortiz brought the cooler. Although Juarez made three stops on the trip back to Nashville, Ortiz only got out once to get gas, did not get any food out of the cooler during the trip and was nervous when Juarez parked near troopers.
Juarez testified he did not know what was in the cooler. Juarez denied saying everything in the car was his to Trooper Williams. He testified he said the accordion, backpack, teddy bear and tools were his and the vehicle was his. He testified he told the trooper the cooler was not his and if he said everything in the vehicle was his, he did not understand the question.
Ortiz testified he was from Arizona, came to Missouri with his sister and was planning on moving to Nashville. Ortiz testified he was hired by a person he did not know to take a cooler containing marijuana to Nashville and was to be paid $600 when it arrived. He was given the cooler in his hotel in Springfield, Missouri, and it was filled with food when he received it. He was not aware the cooler contained drugs other than marijuana and he never told Juarez the cooler contained marijuana.
Ortiz testified he did not hire Juarez to give him a ride, call him or text him. Instead, the person who arranged for him to take the cooler called to set up the ride. Ortiz denied being picked up by Juarez in Sikeston and insisted he was picked up in Springfield and had never been to Sikeston.
Ortiz testified he had coincidentally known Juarez for a few years because Juarez worked for a distant cousin of his driving illegal people in Mesa, Arizona.
Ortiz denied saying the cooler was not his. When asked about an interview the next day in which he purportedly said Juarez showed up and already had the cooler, he testified the interview took less than five minutes and he refused to sign a written statement stating the cooler was from Arizona.
In summarizing the video of the stop, we note that it is easier to understand Trooper Williams's questions than Juarez's answers because Juarez speaks more softly and with an accent. In response to questions, Juarez stated he was coming from Sikeston, Missouri, to pick up his friend. He was picking him up "because we're going to a Chinese restaurant in Nashville, Tennessee." Juarez stated "I don't know [Ortiz] very good. I don't know him." He picked him up because a friend called and told him to and he knew Ortiz "because I work with the Chinese man." Juarez said he knew Ortiz by being "sometimes friends on Facebook."
We summarize and group the conversations captured on video by topic with the understanding that members of the jury may have had different interpretations from their viewing of it. --------
Trooper Ramsey asked Juarez if he was getting paid to drive Ortiz and he said, "not much" but he was getting gas and "the Chinese man, he pays." Then he stated, "two weeks ago call, he needs to pay some money."
Trooper Williams asked: "Do you have anything in the car that doesn't belong to you?" Juarez responded: "No, no, I have some clothes." The word "clothes" might be "tools." Trooper Williams asked: "Everything belongs to you?" Juarez responded "Nah." Juarez denied having anything illegal in his car and consented to a search.
While the troopers were searching the vehicle, Trooper Williams questioned Ortiz. Ortiz acknowledged to Trooper Williams that he knew Juarez for two years. Trooper Williams repeatedly asked Ortiz "is this your cooler?" At first, Ortiz did not respond, but later he admitted it was his and stated he bought it new at a store.
When Juarez was asked by Trooper Williams if he could look in the cooler Juarez said: "Yes, it's not mine, I don't know nothing."
On the video, Trooper Williams can be heard asking Trooper Ramsey if the cooler has been hot glued and then saying it's been all scratched up and then "looks like it's got weed in it." After they checked it again, they arrested Juarez and Ortiz for trafficking in marijuana. Juarez can be heard saying "I don't know him. Oh my God! He never told me nothing!"
At the close of the Commonwealth's case and at the close of the case, Juarez asked for a directed verdict based on insufficient evidence. Juarez did not specify what was insufficient about the evidence.
The jury instruction on each trafficking offense was that Juarez, "either individually or in complicity with Francisco Ortiz, had in his possession [the requisite statutory amount of the controlled substance]" and "knew the substance so possessed by him was [that type of controlled substance]" and "he had [that type of controlled substance] in his possession with the intent of selling it to another person."
The jury convicted Juarez of first-degree trafficking in cocaine, first-degree trafficking in methamphetamine, trafficking in marijuana and the traffic violations. The jury recommended concurrent sentences of ten years on the trafficking in cocaine, ten years on the trafficking in methamphetamine, one year on the trafficking in marijuana and fines for the traffic violations. Juarez was sentenced to ten years and the fine was waived.
Juarez appealed. He argues the Commonwealth failed to meet its burden by proving that Juarez knew that the cooler contained drugs. Juarez argues his only connection to Ortiz and the cooler was that he had been hired to drive Ortiz to a restaurant job. Juarez argues under the circumstances the circuit court should have granted his motion for a directed verdict where it is undisputed that the cooler belonged to Ortiz: Ortiz admitted it was his; Ortiz testified that while he knew there was marijuana in the cooler he did not tell Juarez; Juarez testified he did not know what was in Ortiz's cooler; and Trooper Williams admitted that Juarez appeared surprised when he told Juarez he had discovered marijuana in the cooler.
"[T]he Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368 (1970).
In deciding whether to grant a motion for a directed verdict, "the trial court must draw all fair and reasonable inferences from the evidence in favor of the Commonwealth." Gullett v. Commonwealth, 514 S.W.3d 518, 527 (Ky. 2017). "[T]he trial court is expressly authorized to direct a verdict for the defendant if the prosecution produces no more than a mere scintilla of evidence" rather than evidence of substance. Commonwealth v. Benham, 816 S.W.2d 186, 187-88 (Ky. 1991).
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 reserve for the jury questions as to the credibility and weight to be given to such testimony.Gullett, 514 S.W.3d at 527-28 (internal citation omitted). "The testimony of a single witness is enough to support a conviction . . . [and] a jury is free to believe the testimony of one witness over the testimony of others." King v. Commonwealth, 472 S.W.3d 523, 526 (Ky. 2015).
"This standard [for evaluating whether a directed verdict should be granted] applies whether the evidence is direct or circumstantial." Brewer v. Commonwealth, 206 S.W.3d 313, 318 (Ky. 2006). Complicity and intent can be proven by circumstantial evidence. Rogers v. Commonwealth, 315 S.W.3d 303, 310-311 (Ky. 2010). The circumstantial evidence sufficient to establish intent "includes the defendant's 'actions preceding and following the charged offense' . . . as well as the defendant's knowledge and the surrounding circumstances." Quisenberry v. Commonwealth, 336 S.W.3d 19, 36 (Ky. 2011) (quoting Commonwealth v. Suttles, 80 S.W.3d 424, 426 (Ky. 2002)).
"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." Benham, 816 S.W.2d at 187.
Kentucky Rules of Civil Procedure (CR) 50.01, which applies to criminal cases, states that "[a] motion for a directed verdict shall state the specific grounds therefor." As explained in Gulf Oil Corp. v. Vance, 431 S.W.2d 864, 865 (Ky. 1968):
The purpose of the rule is to apprise fairly the trial judge as to the movant's position and also to afford opposing counsel an opportunity to argue each ground before the judge makes his ruling. The attention of the trial judge can thus be focused on possible reversible errors which might otherwise be obscure with only a general motion for a directed verdict.When a defendant fails to state "specific grounds" in a motion for directed verdict, the defendant fails to preserve the denial of such motion for appellate review except for palpable error review pursuant to the Kentucky Rules of Criminal Procedure (RCr) 10.26. Murphy v. Commonwealth, 509 S.W.3d 34, 42 (Ky. 2017). "[M]erely stat[ing] that the evidence was insufficient to sustain a conviction[,]" as Juarez did here, is insufficient specificity. Jones v. Commonwealth, 331 S.W.3d 249, 252 (Ky. 2011).
However, even if we review the denial of Juarez's motion for directed verdict under palpable error review, we disagree that any error occurred. Juarez's convictions for trafficking in cocaine, methamphetamine and marijuana required that he either individually or in complicity with Ortiz "knowingly and unlawfully traffics" in the requisite amount of those substances. KRS 218A.1412(1)(a), (b); KRS 218A.1421(1). "Traffic" is defined as including "possess[ion] with intent to . . . sell a controlled substance[.]" KRS 218A.010(55). Under complicity, Juarez can be guilty of Ortiz's offense if Juarez "with the intention of promoting or facilitating the commission of the offense" solicited, commanded or engaged in a conspiracy with Ortiz to commit the offense; or aided, counseled, or attempted to aid Ortiz in planning or committing the offense. KRS 502.020(1)(a), (b).
The evidence about ownership and knowledge of the cooler's contents was not as favorable to Juarez as he implied with his selected recitation of favorable evidence if all the evidence is considered in the light most favorable to the Commonwealth. Trooper Williams testified Juarez and Ortiz gave inconsistent statements on the scene about how they knew each other and the purpose of their trip. Trooper Williams testified Juarez was nervous and admitted everything in the vehicle belonged to him. It was the jury's responsibility to determine whether this testimony was in accordance with the traffic-stop video. The testimony at trial from Juarez and Ortiz was also inconsistent about how long they had known each other, under what circumstances, how the ride was arranged and in which city Juarez picked up Ortiz.
The jury could properly convict Juarez for the trafficking charges based on circumstantial evidence. The jury could reasonably conclude that inconsistencies in the defendants' statements at the scene and at the trial were an attempt to conceal their guilt and the true nature of their trip, relationship and knowledge about the contents of the cooler. Therefore, the trial court did not err in failing to grant Juarez's motion for a directed verdict.
Accordingly, we affirm the Lyon Circuit Court's conviction and sentence of Juarez.
ALL CONCUR. BRIEFS FOR APPELLANT: Samuel N. Potter
Assistant Public Advocate
Department of Public Advocacy
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky James C. Shackelford
Assistant Attorney General
Frankfort, Kentucky