Opinion
NO. 2019-CA-000665-MR
02-28-2020
JOHNOTHAN HARRIS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Steven Nathan Goens Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Gregory C. Fuchs Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM MADISON CIRCUIT COURT
HONORABLE BRANDY OLIVER BROWN, JUDGE
ACTION NO. 18-CR-00134 OPINION
VACATING AND REMANDING
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BEFORE: CLAYTON, CHIEF JUDGE; K. THOMPSON AND L. THOMPSON, JUDGES. CLAYTON, CHIEF JUDGE: Johnothan Harris appeals from the Madison Circuit Court's amended final judgment and sentence of imprisonment entered April 22, 2019. More specifically, Harris contends the circuit court erred in denying his motion to suppress. After careful review, we vacate the April 22, 2019 judgment and remand the case to the circuit court for necessary findings of fact.
BACKGROUND
In the wee hours of the morning on December 30, 2017, 911 emergency dispatch received a call concerning suspicious behavior in a Walmart parking lot in Richmond, Kentucky. According to the caller, he was approached by a black man in a white Ford Focus who asked for jumper cables, although it did not appear the Ford Focus needed to be jumped. When the caller informed the man he did not have jumper cables he left and returned to the vehicle. The caller said this behavior was suspicious and he was uncomfortable leaving his car.
Officer Daniel Kirstein of the Richmond Police Department was the first officer to respond to the call. Upon locating the Ford Focus, Officer Kirstein parked behind it, effectively blocking the vehicle from moving. When Officer Kirstein stepped out of his own vehicle and approached the Ford Focus the driver's side passenger opened his door without prompting. At this point, there were three passengers in the car. Officer Kirstein would later testify that when the driver's side passenger opened the door he immediately smelled marijuana.
Officer Kirstein then proceeded to search the vehicle. On the body camera footage, when asked by the passengers why he was searching the vehicle, Officer Kirstein replied he could see a "roach" sitting in the backseat and someone called about suspicious activity. The search yielded a gun and cocaine, both of which were found in the front seat on the passenger side, which is where Harris was sitting prior to the search.
Multiple times throughout the body camera footage, Officer Kirstein can be heard telling the passengers they were detained but not under arrest, even though the passengers were eventually handcuffed and in the presence of at least two officers. At some point, after removing the passengers' handcuffs, Officer Kirstein informs the passengers they are free to leave although the car is still blocked by police vehicles. The passengers are then read their Miranda rights and Officer Kirstein tells them he would like to ask them some questions. He again says the passengers are free to go and that they are not under arrest, just detained.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Afterwards, Officer Kirstein testified he noticed Harris was attempting to swallow something. He asked Harris to open his mouth several times to inspect it and Harris refused. Harris was then placed under arrest and taken to jail. Officer Kirstein testified Harris was arrested because of his proximity to the cocaine found in the car, and because the other passengers told him the cocaine belonged to Harris.
In February 2019, Harris filed a motion to suppress the evidence seized during the December 30th incident. As grounds for his motion, Harris asserted Officer Kirstein's stop and the subsequent search and seizure were unlawful. On March 1, 2019, the circuit court conducted a hearing on Harris's motion to suppress. Officer Kirstein was the only witness called to testify and his body camera footage was introduced as evidence. Harris's counsel concluded by summarizing why he believed Officer Kirstein's search and seizure of the Ford Focus was illegal. The circuit court judge said she disagreed and denied Harris's motion.
The circuit court's denial of the motion was only noted on the docket sheet and no written order followed the court's oral denial. However, Harris never requested the court make additional findings of fact or conclusions of law. After, Harris entered a conditional guilty plea to first-degree possession of a controlled substance, tampering with physical evidence, and being a second-degree persistent felony offender. Harris reserved his right to appeal the circuit court's denial of his motion to suppress. This appeal followed the circuit court's April 22, 2019 amended final judgment and sentence of imprisonment.
STANDARD OF REVIEW
The standard of review for a trial court's denial of a motion to suppress evidence is well established.
Our standard of review of a circuit court ruling concerning suppression issues following a hearing consists of a two-pronged analysis. First, we will affirm the trial court's findings of fact if those findings are
supported by substantial evidence. In this vein, we will only examine the trial court's findings for clear error and give deference to reasonable inferences made from the evidence. Second, if the court's findings of fact are supported by substantial evidence, we then conduct a de novo review of the court's application of the law to the facts.Turley v. Commonwealth, 399 S.W.3d 412, 417 (Ky. 2013) (citations omitted).
ANALYSIS
Harris presents two arguments on appeal: 1) the circuit court's findings of fact denying his motion to suppress were insufficient, and 2) the circuit court erred in denying his motion to suppress because Officer Kirstein "lacked the requisite reasonable, articulable suspicion that criminal activity was afoot to justify his stop and ultimate seizure of the passengers. . . ."
To address Harris's first argument, Kentucky Rule of Civil Procedure (CR) 52.04 states:
A final judgment shall not be reversed or remanded because of the failure of the trial court to make a finding of fact on an issue essential to the judgment unless such failure is brought to the attention of the trial court by a written request for a finding on that issue or by a motion pursuant to Rule 52.02.Typically, when a party fails to alert the trial court it omitted an essential finding of fact we decline to consider the issue because "[a]n appellate court may decide only those issues which were fully presented to the trial court." Commonwealth v. Smith, 542 S.W.3d 276, 285 (Ky. 2018) (citing Combs v. Knott County Fiscal Court, 283 Ky. 456, 141 S.W.2d 859, 860 (1940)).
The distinguishing factor in the case sub judice is the circuit court's failure to make findings of fact on the record as required by the Kentucky Rules of Criminal Procedure (RCr). See Smith, 542 S.W.3d at 285 (the Kentucky Supreme Court refused to consider whether a parolee's status was a determinative factor in his search and seizure case because the trial court failed to include it as part of its essential findings and the omission was not brought to the trial court's attention as was required); Jones v. Commonwealth, No. 2007-SC-000147-MR, 2008 WL 4601237, at *7 (Ky. Sept. 18, 2008) (the trial court erred by not making requisite findings of fact; however, the appellant never sought additional findings as outlined in CR 52.04); and Cooper v. Commonwealth, 577 S.W.2d 34, 41 (Ky. App. 1979), overruled on other grounds by Mash v. Commonwealth, 769 S.W.2d 42 (Ky. 1989) (the trial court erred by not making essential findings of fact, despite the appellant's failure to request such).
RCr 8.20(2) and 8.27 require a trial court to "state its essential findings on the record" when considering a motion to suppress. Smith, 542 S.W.3d at 285. Our standard of review mandates that we review the circuit court's findings and uphold said findings only if there is substantial evidence in the record to support them. Turley, 399 S.W.3d at 417. Without the required findings of fact, we cannot conduct a meaningful review of the issues presented. Commonwealth v. Neal, 84 S.W.3d 920, 925 (Ky. App. 2002).
Here, the circuit court orally denied Harris's motion to suppress. At the end of Harris's argument, the circuit court judge merely said she disagreed with his argument. A notation was made on the docket indicating the motion was denied, and the circuit court did not follow up with a written order. There is nothing in the record, oral or written, to indicate which facts the circuit court believed supported its ruling. By failing to place its findings on the record the circuit court violated RCr 8.20(2), and we cannot address the merits of the appeal.
We pause to remind the circuit court that it "speaks through its 'written orders entered upon the official record.'" Energy and Environment Cabinet v. Concerned Citizens of Estill County, Inc., 576 S.W.3d 173, 175 (Ky. App. 2019) (quoting Oakley v. Oakley, 391 S.W.3d 377, 378 (Ky. App. 2012)). --------
CONCLUSION
For the foregoing reasons, we hereby vacate the circuit court's order and remand this matter for any further proceeding the circuit court deems necessary. On remand, the Madison Circuit Court shall enter factual findings supporting its denial of Harris's motion to suppress.
ALL CONCUR. BRIEFS FOR APPELLANT: Steven Nathan Goens
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Gregory C. Fuchs
Assistant Attorney General
Frankfort, Kentucky