Opinion
NO. 2012-CA-000245-MR
02-01-2013
DAVID ANTHONY INGRAM APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Emily Holt Rhorer Assistant Public Advocate Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Perry T. Ryan Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE THOMAS L. CLARK, JUDGE
ACTION NO. 11-CR-00638
OPINION
AFFIRMING
BEFORE: DIXON, LAMBERT, AND TAYLOR, JUDGES. LAMBERT, JUDGE: David Anthony Ingram has appealed from a judgment of the Fayette Circuit Court entered pursuant to a conditional guilty plea in which he pled guilty to driving on a DUI-suspended license, third offense. In his appeal, Ingram contests the denial of his motion to suppress evidence, arguing that the officers did not have a reasonable and articulable suspicion to support the traffic stop. We disagree with Ingram's argument and affirm the circuit court's ruling and judgment of conviction.
During the late evening hours of April 2, 2011, Officer Jennifer Ockerman of the University of Kentucky Police Department stopped a 2003 Pontiac driven by Ingram due to lack of taillights. Her investigation of Ingram, who presented only an identification card, revealed that he did not have car insurance and that he was operating the vehicle on a DUI-suspended license. Officer Ockerman arrested Ingram for driving on a DUI-suspended license, having no insurance, and for not having his taillights illuminated.
In June 2011, the Fayette County grand jury indicted Ingram on charges of driving on a DUI-suspended license, third offense, pursuant to Kentucky Revised Statutes (KRS) 189A.090, a Class D felony; failure of owner to maintain required insurance pursuant to KRS 304.39-080, a Class B misdemeanor; and no taillights pursuant to KRS 189.050(1), which is a violation. Ingram entered a not guilty plea during his arraignment, and he later moved to suppress the stop of his vehicle and the fruits of the stop.
The circuit court held a suppression hearing on Ingram's motion on October 23, 2011. The first witness to testify was Officer Ockerman, a patrol officer with the UK Police Department. During her patrol on April 2, 2010, at about 10:00 p.m., she encountered Ingram on South Limestone and saw that his vehicle did not have the taillights illuminated. Based upon this observation, Officer Ockerman initiated a traffic stop, exited her cruiser, and went to Ingram's vehicle to ask for his documents (driver's license, registration, and proof of insurance), but Ingram only provided her with an identification card. After she ran his information, Officer Ockerman learned that Ingram's license had been suspended for driving on a DUI-suspended license, second offense. She cited him for having no insurance and no taillights.
On cross-examination, Officer Ockerman provided additional details regarding her observation of Ingram's vehicle, noting that she did not see the lack of taillights until Ingram was driving ahead of her in the lane to the right. She indicated that Ingram's headlights were illuminated and that his brake lights were working when he stopped at a red light, but she could see that neither taillight was working as he took his foot off the brakes and accelerated. She stated that Corporal David Thompson, her training officer, was in the vehicle with her, and Ingram had one passenger in his car. She and Corporal Thompson approached the vehicle; she went to the driver's side, while Corporal Thompson went to the passenger's side. During the stop, she and Corporal Thompson gave him the opportunity to turn on the lights, but the taillights did not illuminate. Once she determined that Ingram was driving on a DUI-suspended license, he was asked to exit the vehicle, and the car was towed away, although she could not identify which company was called. She also stated that Ingram's girlfriend was given the opportunity to drive the car away, but she did not have a driver's license. Upon further questioning, Officer Ockerman corrected herself and stated that the car had to be towed because of the lack of taillights; no one would have been permitted to drive it away. Another officer appeared at the scene while the car was still there, and she and Corporal Thompson left the area to transport Ingram to jail. The Commonwealth did not call any other witnesses.
Ingram called three witnesses to testify, the first one being Phyllis Sutton. Ms. Sutton was dating Ingram, and she was with Ingram when he was pulled over the night in question. Ingram was driving while she was the passenger. After they were stopped, she talked to a male officer, and said there were other officers present. The male officer put his head through the door at the window, asked for Ingram's license and registration, and said his lights were broken, or something to that effect. She thought the male officer went to the back of the car, then returned and said the lights were working. But then she added that he might have gone back to his cruiser first to run the check on Ingram, noting that it had been so long she could not remember. Ms. Sutton recalled seeing that the lights were working. She said she knew this because the officer told her they were working; she did not get out of the vehicle to look until "Aunt Tina" arrived. The car was not restarted until she and "Aunt Tina" left. She said she recalled the lights being on after "Aunt Tina" started the car, and she (Ms. Sutton) walked toward the back of the car to talk to Ingram.
The next witness to testify was Kia Ingram. Ms. Ingram is Ingram's sister, and had been at their aunt, Alberta Mason's, house the night Ingram was arrested. She and Ms. Mason received a telephone call from Ms. Sutton to let them know they had been pulled over due to something about the back lights on the car. Ms. Sutton asked them to come to the location of the stop, and they did so. Ms. Ingram and her aunt each showed the male officer a driver's license. Ms. Mason said she would drive Ingram's car to his house. While at the scene, Ms. Ingram said she heard a male officer state that Ingram had been pulled over because his back lights were not working. Ms. Ingram testified that she remembered seeing the back lights on sometime that night, for example when she watched Ms. Mason pull away from the curb in Ingram's car and again when she watched Ms. Mason turn.
The next witness to testify was Alberta Mason. Ms. Mason testified that she went to the scene of the traffic stop and drove Ingram's car to his residence. She did not see Ingram, as he had already been taken away.
The last witness to testify was Ingram. Ingram testified that he had illuminated his headlights on the night of April 2nd. After he was stopped, he spoke to the female officer who asked him for his documentation, and he provided her with his identification card. After she went back to the cruiser, the other officer came around from the passenger side. When the other officer returned, Ingram exited his car, and the officers told him he had been stopped because his taillights were not working. Ingram said he walked to the back of the car, saw that the taillights were working, and told the officers they were on. Ingram said the male officer said that the taillights were on "now."
The circuit court permitted the parties to argue their respective positions at the conclusion of the testimony. The court then made the following oral findings and ruling:
Based upon the testimony that's been offered, the court's going to overrule the motion to suppress. The court's going to find that, sort of, credibility is sort of an issue but also a nonissue. Because realistically I can accept for purposes of the argument the testimony of each witness that testified as being accurate and truthful. And the testimony reveals that at least at the time that Officer Ockerman observed the vehicle, the taillights were not illuminated. The testimony indicates that this occurred on April the 2nd at 10 p.m., and that, I think the court can take judicial notice, that it was dark at that time of the year, and that time of the day or night certainly, and I forget the exact requirements of the statute but I think it's what, thirty minutes before dusk until thirty minutes after dawn, lights are to be illuminated on motor vehicles utilizing the roadways. Certainly it was dark at this point. The officer testified that at least at the time that she observed the vehicle, the taillights were not functioning, the brake lights did function properly when stopped on more than one occasion.On October 25, 2011, the court entered a written order memorializing its oral ruling denying Ingram's motion to suppress, specifically relying on its oral findings to support the ruling.
I hate to say it as a practical matter, my wife's car, I've worked on the left rear taillight five times now and it could very well be that it's an issue where an unfortunate and unlucky situation where there's a short or a loose wire someplace and for the given moment, the instance in time when Officer Ockerman just happened to be behind Mr. Ingram, that a short or a loose wire or whatever occurred, and the taillights did not work, he hit a bump. Whether they worked or not after that, the testimony is a little unclear as to whether the brake lights or the taillights, but even accepting that they were at the time that Officer Ockerman, as the issue is what, were they working or not working at the time of the initial stop, and the court as I say has from a credibility standpoint has no reason from any of the testimony offered to disbelieve any of the witnesses. The testimony is that at the time that Officer Ockerman observed the vehicle, the taillights were not illuminated, which is a violation of the Kentucky Revised Statutes, and the court does believe that she had a reasonable, articulable suspicion of criminal activity, specifically the traffic offense at the time that she initiated the stop of this specific vehicle at
this given time. So on that basis the court is going to overrule the motion to suppress.
After the circuit court denied his motion to suppress, Ingram moved the court to enter a guilty plea conditioned upon his right to appeal the suppression ruling. The court accepted his plea and entered a judgment finding him guilty of driving on a DUI-suspended license, third offense, and dismissed the remaining counts pursuant to the terms of the plea agreement. On January 20, 2012, the circuit court entered a final judgment sentencing Ingram to a one-year sentence, but suspended imposition of the sentence and placed him on probation for three year, subject to several conditions. This appeal now follows.
In his brief, Ingram continues to argue that the circuit erred in denying his motion to suppress because its finding that the taillights were not working was not supported by substantial evidence, and therefore the ruling that Officer Ockerman had reasonable grounds to perform the traffic stop was incorrect as a matter of law. The Commonwealth argues that the circuit court properly denied the motion to suppress because the officer had a reasonable suspicion to stop the car.
Our standard of review of a ruling on a motion to suppress is two-fold. First, a reviewing court must determine whether the lower court's findings of fact are supported by substantial evidence. If so, such findings are conclusive. Kentucky Rules of Criminal Procedure (RCr) 9.78; Adcock v. Commonwealth, 967 S.W.2d 6, 8 (Ky. 1998). Second, the court must perform a de novo review of those factual findings to determine whether the decision is correct as a matter of law. Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 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).
"At a suppression hearing, the ability to assess the credibility of witnesses and to draw reasonable inferences from the testimony is vested in the discretion of the trial court." Pitcock v. Commonwealth, 295 S.W.3d 130, 132 (Ky. App. 2009), citing Commonwealth v. Whitmore, 92 S.W.3d 76, 79 (Ky. 2002). "On review, the appellate court should not reevaluate the evidence or substitute its judgment of the credibility of the witnesses for that of the jury." Commonwealth v. Suttles, 80 S.W.3d 424, 426 (Ky. 2002), citing Commonwealth v. Jones, 880 S.W.2d 544 (Ky. 1994). "In conducting our review, our proper role is to review findings of fact only for clear error while giving due deference to the inferences drawn from those facts by the trial judge." Perkins v. Commonwealth, 237 S.W.3d 215, 218 (Ky. App. 2007).
The motion to suppress in this case addressed an investigatory stop of Ingram's vehicle. In Taylor v. Commonwealth, 987 S.W.2d 302, 305 (Ky. 1998), the Supreme Court of Kentucky addressed this area of the law, holding that:
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).This Court addressed the same issue in Johnson v. Commonwealth, 179 S.W.3d 882, 884 (Ky. App. 2005), 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).
Turning to the matter before us, we first hold that the circuit court's finding that the taillights were not working is supported by substantial evidence of record. Ingram makes much of the fact that only one witness testified for the Commonwealth, while his multiple witnesses testified that the back lights or taillights were working on the night of April 2, 2010. However, the circuit court was exactly correct that even if all of the testimony were assumed to be true, the critical question it had to decide was whether the taillights were working when Officer Ockerman initiated the traffic stop. Officer Ockerman specifically testified that the taillights were not working, noting that she observed the vehicle's brake lights were working while it was stopped at a red light, but that the taillights were not illuminated and that no lights appeared once Ingram accelerated the car when the light turned green. Based upon this testimony from the only witness to testify who saw the lack of taillights just prior to the traffic stop, the circuit court was well within its discretion to find that the taillights were not working when Officer Ockerman initiated the stop. Whether the taillights became operational after the stop has no bearing on whether they were illuminated when Officer Ockerman made her decision to initiate the stop.
We also reject Ingram's attack on Officer Ockerman's testimony that the car would have to be towed because the taillights were not working, in light of further testimony that Ms. Mason was permitted to drive the car away. Officer Ockerman had already left the scene of the traffic stop by time Ms. Mason and Ms. Ingram arrived, and would have had no knowledge of whether the car was towed or whether the taillights had perhaps become operational again. Also, it could be that the taillights were again operational so as to permit Ms. Mason to drive the car.
Next, we hold that based upon the circuit court's finding that the taillights were not working, the circuit court properly held that Officer Ockerman had a reasonable and articulable suspicion of criminal activity to justify her stop of Ingram's vehicle. KRS 189.050(1) provides that "[a]ll motor vehicles shall display at the rear two (2) red lights visible when lighted for at least five hundred (500) feet, unless the motor vehicle was originally equipped with only one (1) such light." Based upon Officer Ockerman's observation while Ingram was driving his vehicle ahead of her, Ingram's vehicle was in violation of this statute because his taillights were not illuminated. Accordingly, Ingram's arguments that the taillights were working and that he was doing nothing wrong are without merit. Therefore, we hold that the circuit court properly denied Ingram's motion to suppress.
For the foregoing reasons, the judgment of conviction entered by the Fayette Circuit Court is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Emily Holt Rhorer
Assistant Public Advocate
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Perry T. Ryan
Assistant Attorney General
Frankfort, Kentucky