Opinion
NO. 2014-CA-001284-MR
01-15-2016
ROBERT DUDLEY APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Julia K. Pearson Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Gregory C. Fuchs Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM KENTON CIRCUIT COURT
HONORABLE GREGORY M. BARTLETT, JUDGE
ACTION NO. 04-CR-00717 OPINION
AFFIRMING IN PART AND REMANDING BEFORE: CLAYTON, KRAMER, AND STUMBO, JUDGES. CLAYTON, JUDGE: A Kenton County jury found Robert Dudley guilty of being a felon in possession of a handgun and sentenced him to five years' imprisonment. On appeal, he claims the Kenton Circuit Court should have granted his motion to suppress the search of his car; that it should have granted his motion to dismiss for want of a speedy trial; and that it improperly admitted evidence at trial.
FACTS AND PROCEDURAL HISTORY
In September of 2004, Sgt. Holstein, a Covington police officer, received several anonymous complaints indicating that a person driving a white Chevrolet Camero with an Ohio license plate that read "Priest 1" was involved in drug trafficking activity. Based on these complaints, Sgt. Holstein began surveillance on the white Camero. On September 6, 2004, after spotting the white Camero, Sgt. Holstein radioed two other officers, Officer Pennington and Officer Valente, and requested they also follow the suspect. After following the vehicle for a short while, Officer Pennington and Officer Valente observed the vehicle make a turn without signaling. The two officers immediately called for a marked patrol unit to conduct a traffic stop on the Camero for failure to use a turn signal.
Shortly thereafter, Spc. Ernst, along with his K-9 partner, Orry, arrived in a marked patrol unit and conducted the traffic stop. Spc. Ernst, having knowledge that the driver of the vehicle was known to carry a weapon, ordered the driver to exit the Camero and slowly walk backwards towards the police cruiser. Meanwhile, Sgt. Holstein, Officer Pennington, and Officer Valente arrived on the scene. Sgt. Holstein asked the driver to produce his operator's license and he was then identified as Dudley. Dudley was patted down and neither drugs nor weapons were found. A female passenger, later identified as Lisa Garcia, was checked for warrants and released.
While Holstein explained to Dudley why he had been pulled over, Spc. Ernst walked Orry around the Camero. On Orry's second walk around, he alerted on the passenger's side of the vehicle for the presence of drugs. Officers then asked Dudley for permission to search his vehicle, but Dudley refused. After Dudley signed a refusal of consent to search, he was allowed to leave, and the Camero was impounded pending a search warrant. A warrant was obtained the next day, and the ensuing search uncovered cocaine, a digital scale, a black mask, and a handgun.
Dudley was arrested in Kenton County on September 7, 2004. After spending approximately ninety days in custody, Dudley was released because his charges had been pending for more than sixty days and the grand jury had not returned an indictment. Kentucky Rules of Criminal Procedure (RCr) 5.22(3). On December 10, 2004, a Kenton County grand jury returned an indictment against Dudley charging him with possession of a handgun by a convicted felon and possession of a controlled substance in the first degree. Dudley was scheduled to be arraigned on December 13, 2004; however, he failed to appear because he was in custody in Hamilton County, Ohio, on a parole violation. A bench warrant for Dudley's arrest was issued on December 20, 2004.
After his case was reassigned to a different division in the Kenton Circuit Court, a new warrant for Dudley's arrest was executed on January 27, 2011. On December 12, 2012, after Dudley was arrested in Ohio on an unrelated charge, authorities in Ohio notified authorities in Kentucky that Dudley was in custody. Dudley was brought back to Kentucky pursuant to his request for relief under the Interstate Agreement on Detainers on February 14, 2014. Following his return from Ohio, Dudley was arraigned in the Kenton Circuit Court on February 20, 2014. In accordance with the Agreement on Detainers, his trial was held within 180 days.
Prior to trial, Dudley filed numerous motions, including a motion to dismiss the indictment for lack of a speedy trial, and a motion to suppress the evidence produced in the search of his vehicle. Hearings were held, and the court entered a written order denying all of Dudley's pretrial motions. Dudley then moved to sever the counts in the indictment, which the circuit court granted.
A jury trial on Dudley's charge of being a felon in possession of a handgun was held on June 3, 2014. Dudley was found guilty and sentenced to five years' imprisonment. On July 7, 2014, Dudley pleaded guilty to the charge of possession of a controlled substance and received eighteen months to be served consecutively with his five-year sentence in the present case. Dudley appeals his conviction and sentence to this Court as a matter of right. Ky. Const. § 110(2) (b).
ANALYSIS
Dudley first claims that the trial court erred when it failed to suppress the evidence uncovered in the search of his vehicle. Specifically, Dudley argues that his traffic stop was unreasonable because it was predicated on an unreliable anonymous tip. This issue was preserved by Dudley's motion to suppress raised before trial. In denying Dudley's motion, the trial court found that the stop was legal in light of Dudley's traffic violation. We agree.
Appellate review of a trial court's denial of a motion to suppress involves a two-step process. Ornelas v. United States, 517 U.S. 690, 116 S.Ct 1657, 134 L.Ed.2d 911 (1996); Adcock v. Commonwealth, 967 S.W.2d 6 (Ky. 1998). First, we review the trial court's finding of fact under a clearly erroneous standard. Welch v. Commonwealth, 149 S.W.3d 407, 409 (Ky. 2004). Under this standard, the trial court's finding, if supported by substantial evidence, will be deemed conclusive. Drake v. Commonwealth, 222 S.W.3d 254, 256 (Ky. App. 2007). We then conduct a de novo review of the trial court's application of the law to the established facts to determine whether its ruling was correct as a matter of law. Id. Under this standard, we afford no deference to the trial court's application of the law to the facts found. Cinelli v. Ward, 997 S.W.2d 474, 476 (Ky. App. 1998).
It is well-settled that an officer who has probable cause to believe a civil traffic violation has occurred may stop a vehicle regardless of his or her subjective motivation. Wilson v. Commonwealth, 37 S.W.3d 745 (Ky. 2001). Officer Pennington's report indicates that officers stopped Dudley because he made a turn without signaling. Thus, in light of Dudley's traffic violation, the traffic stop was valid. The subjective intent of the officers does not make the otherwise valid stop invalid.
Dudley contends that even if the stop was valid, the detention was unreasonably prolonged into an unlawful Terry stop. He argues that the anonymous tips that the police officers received were insufficient to provide reasonable suspicion to detain him past the time necessary to issue a traffic warning. He believes that after the officers performed a pat down and discovered that he had no weapons or drugs, a citation should have been written and he should have been sent on his way.
We have held that a stop that is justified at its inception must last no longer than is reasonably necessary to effectuate the purpose of the stop. Johnson v. Commonwealth, 179 S.W.3d 882, 884 (Ky. App. 2005). "[A] seizure that is justified solely by the interest in issuing a warning ticket to the driver can become unlawful if it is prolonged beyond the time reasonably required to complete that mission." Epps v. Commonwealth, 295 S.W.3d 807, 811 (Ky. 2009). Absent reasonable suspicion, police extension of a traffic stop in order to conduct a dog-sniff violates the Constitution's shield against unreasonable seizures. Rodriquez v. United States, 135 S.Ct 1609, 191 L.Ed.2d 492 (2015). However, as long as the dog-sniff does not lengthen the roadside detention, the Fourth Amendment is not implicated simply because a drug detecting dog conducts a sniff of a vehicle during a lawful traffic stop. Commonwealth v. Buccalo, 422 S.W.3d 253, 258 (Ky. 2013).
Dudley and the Commonwealth's witnesses offered differing accounts regarding the temporal length of the traffic stop. Dudley claims that the stop occurred at approximately 9:45 p.m. He states that he was repeatedly asked for consent to search his vehicle until 10:45 p.m., when Spc. Ernst walked his K-9 partner around the vehicle. Dudley claims that he was finally allowed to leave at 11:14 p.m., after he signed the refusal to consent to a search of his vehicle.
On the contrary, the officers' testimony at the suppression hearing established that Spc. Ernst, along with his K-9 partner Orry, conducted the traffic stop of Dudley's vehicle at approximately 10:41 p.m. Officers Valente and Pennington and Sgt. Holstein arrived immediately thereafter. While Holstein and the other officers were speaking with Dudley, Spc. Ernst walked Orry around Dudley's vehicle at approximately 10:45 p.m. After Orry alerted on the presence of drugs, police officers asked Dudley for permission to search his vehicle, but Dudley refused. Dudley then signed a refusal of consent at 11:14 p.m. and was allowed to leave. The officers' testimony is corroborated by the Covington Police Department's Full Call Report, Officer Pennington's police report, and the refusal of consent form.
The trial court found that Orry was present when Spc. Ernst stopped Dudley's vehicle and thus there was no undue delay in allowing Orry to check for drugs. In light of the officer's testimony, Officer Pennington's police report, the Covington Police Department's Full Call Report, and the refusal of consent form, the trial court's factual findings are supported by substantial evidence, and are therefore not clearly erroneous. The dog-sniff occurred within minutes of the stop while the officers were performing tasks and making "ordinary inquiries incident to [the traffic] stop." Rodriquez, 135 S.Ct at 1615 (quoting Illinois v. Caballes, 543 U.S. at 408, 125 S.Ct. 834 (2005)).
A dog-sniff that initiates before the lawful purpose of the traffic stop is complete is lawful as long as it does not make the length of the traffic stop unreasonable. Johnson, 179 S.W.3d at 884. While the record is silent on precisely how long it took for Orry to alert on the presence of narcotics, it does indicate that the time between the beginning of the dog sniff and when Dudley was allowed to leave was only twenty-nine minutes. Thus, sometime within those twenty-nine minutes, Orry alerted to the presence of narcotics. Once Orry alerted to the presence of narcotics in Dudley's vehicle, the officers had probable cause to search. Johnson, 179 S.W.3d at 886. Any subsequent detention beyond the time necessary to effectuate the traffic stop was constitutionally permissible because the officers had probable cause. Id. Based on the evidence, we do not believe that as a result of the dog sniff, the duration of Dudley's detention was so prolonged as to be unjustified. Consequently, the trial court did not err when it denied Dudley's motion to suppress the evidence recovered from his vehicle.
Dudley next claims that his constitutional speedy trial rights were violated due to the nearly ten-year delay between his arrest and trial. The issue was preserved for review by Dudley's motion to dismiss made before his trial commenced. The Sixth Amendment to the United States Constitution and Section 11 of the Bill of Rights to the Kentucky Constitution guarantee an accused the right to a speedy trial. In analyzing Sixth Amendment speedy trials claims the United States Supreme Court instructs that courts consider four factors: 1) the length of the delay; 2) the reason for the delay; 3) the defendant's diligence in asserting his Sixth Amendment right; and 4) prejudice to the defendant from the delay. Barker v. Wingo, 407 U.S. 514, 92 S.Ct 2182, 33 L.Ed.2d 101 (1972). The Barker analysis was cited with approval and followed by this Court in Preston v. Commonwealth, 898 S.W.2d 504 (Ky. App. 1995).
A constitutional speedy trial claim involves a mixed question of law and fact. On appeal, appellate courts generally review a trial court's application of constitutional standards to the facts de novo. However, deference is given to a trial court's findings of fact and they are disturbed only for clear error. See, e.g., U.S. v. Young, 657 F.3d 408, 413-14 (6th Cir. 2011). Here, the trial court did not conduct a proper Barker analysis and thus failed to make factual findings on each of the prongs of the required four-factor analysis. We thus find ourselves unable to review adequately Dudley's claim that he was prejudiced by the nearly ten-year delay between his arrest and trial. Without more specific evidence explaining the reason for the delay, and whether or not Dudley knew of the indictment, we cannot make a proper determination whether good cause existed for the delay. Accordingly, we must remand to the trial court to conduct a proper Barker analysis and make specific findings on each of the four Barker factors. We express no opinion of what the result of the Barker analysis should be.
Finally, Dudley alleges that the trial court erred when it allowed testimony that the handgun seized from his vehicle was loaded and cocked. Specifically, Dudley claims that the testimony was evidence of other crimes in violation of Kentucky Rules of Evidence (KRE) 404(b), and that the evidence was irrelevant. He further claims that even if the evidence was relevant, the prejudicial value of the evidence substantially outweighed its probativeness.
A trial court's evidentiary rulings are reviewed for an abuse of discretion. Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999) (citing Partin v. Commonwealth, 918 S.W.2d 219, 222 (Ky. 1996)). Under this standard, a trial court's evidentiary ruling will not be disturbed unless it was "arbitrary, unreasonable, unfair, or unsupported by sound legal principals." Id.
Although not necessary to the question of whether Dudley was a felon in possession of a handgun, we do not believe that evidence that the handgun was loaded and cocked violated KRE 404 (b). KRE 404(b) states that "evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith...." It can be reversible error for the Commonwealth to introduce "proof of another crime unconnected with the crime for which a defendant is being prosecuted..." Manning v. Commonwealth, 328 S.W.2d 421 (Ky. 1959). Here, we are not convinced that the gun being loaded and cocked was evidence of criminal conduct other than that being tried. Dudley was charged with being in possession of the gun being described, and the testimony was related to evidence that was lawfully admitted. There is nothing inherently criminal about a gun being loaded and cocked. Accordingly, we do not agree with Dudley that the evidence should be analyzed as prior-bad-act evidence under the rubric of KRE 404(b).
Dudley also contends that the evidence was irrelevant under KRE 401 and substantially more prejudicial than probative under KRE 403. KRE 401 says that evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." KRE 403 says that relevant evidence may be excluded if, among other things, "its probative value is substantially outweighed by the danger of undue prejudice...."
We agree with Dudley that evidence of the handgun being cocked and loaded was not relevant to the question of whether he was a convicted felon in possession of a handgun. The Commonwealth argues that the evidence helped prove that the firearm was operable. However, in Commonwealth v. Jones, 283 S.W.3d 665, 671-670 (Ky. 2009), our Supreme Court held that in a prosecution of possession of a firearm by a convicted felon, the firearm is presumptively functional. Therefore, the Commonwealth did not have the burden of proving that the gun was operable. Also, Dudley did not raise the defense of justification, thus the evidence was not relevant to the validity of that defense. See Baird v. Commonwealth, 709 S.W.2d 458 (Ky. App. 1986). Accordingly, we do not believe that the evidence made any fact that was of consequence more or less probable.
Although the court should not have permitted the evidence that the gun was loaded and cocked, with respect to Dudley's conviction for being a felon in possession of a handgun, the error was harmless. The jury already learned that Dudley was a felon, and that a handgun was found in his possession. That the handgun was found loaded and cocked was of no consequence to the jury and would not have swayed its determination of guilt or innocence with respect to the crime charged.
The judgment of the Kenton Circuit Court is affirmed in part and the matter is remanded to the trial court for further proceedings consistent with this opinion. The trial court is directed to perform a proper Barker analysis on remand, and to make appropriate factual findings.
ALL CONCUR. BRIEF FOR APPELLANT: Julia K. Pearson
Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky Gregory C. Fuchs
Assistant Attorney General
Frankfort, Kentucky