Opinion
NO. 2011-CA-000724-MR NO. 2012-CA-001900-MR
03-21-2014
JOE TAYLOR APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Kathleen K. Schmidt Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Courtney J. Hightower Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEALS FROM FULTON CIRCUIT COURT
HONORABLE TIMOTHY A. LANGFORD, JUDGE
ACTION NO. 10-CR-00063
OPINION
REVERSING AND REMANDING
BEFORE: CLAYTON, MAZE AND NICKELL, JUDGES. CLAYTON, JUDGE: This is an appeal based upon the denial of suppression motions in two cases against the Appellant, Joe Taylor. Based upon the following, we reverse this action and remand to the trial court for a new trial.
BACKGROUND INFORMATION
Taylor was convicted for possession of a handgun by a convicted felon and possession of a controlled substance (cocaine) with intent to traffic. The convictions involved two different trials.
The charges were the result of a search by the police on May 14, 2010. At that time, Taylor was living at 704 Arch Street in Fulton, Kentucky, with his aunt and uncle, Diane and Ronnie Taylor. This was a family home which had been left to Diane and Ronnie as well as their other five siblings. Taylor's sister bought the house from the heirs.
Several law enforcement agents came to the home on May 14 and arrested Taylor who was sitting on the front porch allegedly smoking marijuana. Diane was on parole and probation and parole officers gained her consent to search the home. In Taylor's bedroom, the officers found a pistol and cocaine. Charges were then brought against Taylor.
On August 24, 2010, an evidentiary hearing was held on Taylor's motion to suppress the evidence found in his room. He argued at the hearing that Diane's status as a parolee and her consent did not give officers the right to search his room. The trial court found that the agents had authority to search the premises because Diane was on parole and that Taylor did not have an expectation of privacy because the door was not locked and there was nothing which indicated the room was exclusively his.
A trial was held on November 30, 2010, on the possession of a handgun charge. At trial, Parole Officer Laquetta Johnson testified that she was conducting a home visit for Diane on May 14 and that she observed alcohol in the living room. The alcohol was a violation of Diane's parole and she obtained Diane's consent to search the residence for any evidence of an additional parole violation. Detective Steve Henley testified that Diane had given them permission in the form of a signed consent to search the home and that she had indicated the bedroom was Taylor's. In the room they found Taylor's possessions including the handgun which was in a sock under the bed. Officer Doug Love testified that Taylor's wallet and identification were on top of the dresser in the bedroom.
On February 2, 2011, a second suppression motion was heard. Taylor requested this hearing in order to present supplemental witnesses. The trial court denied this motion as well, noting that Taylor was aware of Diane's parole status and that her residence could be searched by authorities. The trials progressed and Taylor was convicted in both. He then filed these appeals.
STANDARD OF REVIEW
When reviewing the denial of a motion to suppress, we must uphold the trial court's findings if they are supported by substantial evidence. Talbott v. Commonwealth, 968 S.W.2d 76 (Ky. 1998); Canler v. Commonwealth, 870 S.W.2d 219 (Ky. 1994), citing Harper v. Commonwealth, 694 S.W.2d 665 (Ky.1985). Substantial evidence is "evidence of substance and relevant consequence having the fitness to induce conviction in the minds of reasonable men." Kentucky State Racing Comm'n v. Fuller, 481 S.W.2d 298, 308 (Ky. 1972). A trial court's findings of fact must be upheld unless they are clearly erroneous. Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); Roark v. Commonwealth, 90 S.W.3d 24, 28 (Ky. 2002). With this standard in mind, we review the trial court's decision.
DISCUSSION
Taylor first argues that the trial court erred in denying his motion to suppress the seizure of the handgun and cocaine because Diane could not consent to the search of his bedroom. The bedroom in which Taylor stayed was the master bedroom of the house. There was testimony that the door had a lock and that Taylor possessed the key to the lock. The door was not locked, however, on the date of the entry by law enforcement officers. The door was, however, closed.
The trial court found that Taylor had no reasonable expectation of privacy without some showing that the officers had notice that this was Taylor's room rather than a communal living area. We agree with the trial court. Without some specific indication that the room was solely Taylor's the law enforcement officers had the right to enter the room (it was unlocked) and conduct a search. The trial court did not err in denying the suppression motion on this basis.
Taylor also argues that the trial court erred in denying his motion for a mistrial when the Commonwealth offered testimony of an incriminating nature made by Ronnie Taylor without first disclosing the statement to defense counsel. The statement which Taylor has issue with was admitted through Sergeant Buckingham at trial. Buckingham testified that Ronnie Taylor told him that Taylor asked him to take the charge associated with the gun possession. Buckingham also testified that Ronnie told him the gun did not belong to him, but was, in fact, Taylor's.
Taylor's counsel moved for a mistrial following the close of evidence at the trial. There was neither an objection nor request for admonition at the time of the statement. Taylor argues that the Commonwealth violated Kentucky Rules for Criminal Procedure (RCr) 7.24(1) in failing to disclose the intention to use the incriminating statement. In Grant v. Commonwealth, 244 S.W.3d 39 (Ky. 2008), the Kentucky Supreme Court held that "in RCr 7.24 there is no provision that the duty to disclose discovery ends after the Commonwealth's case-in-chief." Id. at 43. It also opined that "RCr 7.24 does not require that the defense rely only on its own information as to the existence of witness statements, but places the burden on other parties to disclose what is in their possession." Id. Thus, the Commonwealth was under an obligation to inform the defense of its knowledge of the incriminating statement. We must, therefore, determine whether there is a reasonable probability that, had the statement been disclosed, the result at trial may have been different. Akers v. Commonwealth, 172 S.W.3d 414 (Ky. 2005). "The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, . . . resulting in a verdict worthy of confidence." Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 1566, 131 L.Ed.2d 490 (1995). In this case, the evidence at trial that Taylor was in possession of the handgun included the handgun being in his bedroom under the bed. We hold this to be substantial evidence on its own and this evidence was not the only thing the jury relied on in making its determination. Thus, we hold the error of allowing in the incriminating evidence by Ronnie Taylor was harmless.
Taylor next contends that his constitutional rights were violated when a detective told the jury, in the Commonwealth's case-in-chief concerning his trafficking charge, about statements he made in a suppression hearing about a key issue. Specifically, Taylor contends that his testimony during the suppression hearings regarding his control of the master bedroom should not have been admitted through Detective Steve Henley's testimony. Taylor contends that Detective Henley's testimony violated his state and federal constitutional right not to incriminate himself and his due process right not to have to forgo one constitutional right in order to exercise another.
Taylor admits that this issue is unpreserved; however, he asks us to grant relief under RCr 10.26, arguing that the error was palpable and affected his substantial rights resulting in manifest injustice. Schoenbachler v. Commonwealth, 95 S.W.3d 830 (Ky. 2003). "When a defendant testifies in support of a motion to suppress, his testimony may not thereafter be admitted against him at the trial on the issue of guilt unless he fails to object." Shull v. Commonwealth, 475 S.W.2d 469, 472 (Ky. 1971).
In the present case, Taylor elected not to testify at the trial. It is clear from the testimony that the Commonwealth used the statements Taylor made at the first suppression hearing against him in violation of that right. Such was palpable error and we reverse this action for a new trial as a result of the error.
As to the remaining issues raised by Taylor in his appeal of the trafficking trial, such are moot given that we are reversing the case and remanding as set forth above.
CLAYTON AND MAZE, JUDGES, CONCUR.
NICKELL, JUDGE, DISSENTS BY SEPARATE OPINION.
NICKELL, JUDGE, DISSENTING.
Respectfully, I dissent. Taylor argues his constitutional rights were violated when Detective Henley testified during the Commonwealth's case-in-chief regarding statements Taylor allegedly made during a suppression hearing about the control he exercised over the bedroom in which the cocaine and handgun were found. As the majority correctly notes, "[W]hen a defendant testifies in support of a motion to suppress, his testimony may not thereafter be admitted against him at the trial on the issue of guilt unless he fails to object." Shull, 475 S.W.3d at 472 (emphasis added). Taylor admits failing to object to Detective Henley's testimony and, therefore, lack of preservation. Still, he seeks relief under RCr 10.26, alleging Detective Henley's trial testimony regarding statements Taylor made during the suppression hearing constituted palpable error.
RCr 10.26 states:
[a] palpable error which affects the substantial rights of a party may be considered by the court on motion for a new trial or by an appellate court on appeal, even though insufficiently raised or preserved for review, and appropriate relief may be granted upon a determination that manifest injustice has resulted from the error.A palpable error has been defined as one that:
affects the substantial rights of a party" and will result in "manifest injustice" if not considered by the court, and "[w]hat it really boils down to is that if upon a consideration of the whole case this court does not believe there is a substantial possibility that the result would have been any different, the irregularity will be held nonprejudicial.Schoenbachler, 95 S.W.3d at 836 (internal citations omitted). Our Supreme Court has determined "manifest injustice" arises when a substantial probability exists that the trial "result would have been different," and the error is "so fundamental as to threaten a defendant's entitlement to due process of law." Graves v. Commonwealth, 17 S.W.3d 858 (Ky. 2000); Martin v. Commonwealth, 207 S.W.3d 1, 3 (Ky. 2006).
I agree the Commonwealth's questions and references concerning Taylor's suppression hearing testimony were unnecessary, ill-advised, and erroneous. However, I am persuaded Taylor would have been convicted without the challenged testimony, given the depth and breadth of damning evidence produced against him. This is particularly true in light of our holding that the trial court correctly denied Taylor's suppression motion because he had no reasonable expectation of privacy regarding the unlocked bedroom in which the cocaine and handgun were found, without some showing that the officers had notice that the bedroom was his alone, and not a communal living area. Thus, despite the error, which I would deem harmless, I would affirm. BRIEF FOR APPELLANT: Kathleen K. Schmidt
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Courtney J. Hightower
Frankfort, Kentucky