The Full-Text Petition For Rehearing [Frog Gravy Legal Case]

Posted: December 23, 2011 in criminal justice system, Frog Gravy legal case, law, legal definitions and issues

This post is for readers who are following the case. For those of you who are interested in the incarceration topic, I will be blogging another Frog Gravy today.

This document is a Petition For Rehearing, a request that the Kentucky Court of Appeals correct its errors. The Petition for Rehearing was denied without comment. The Court of Appeals opinion, a precedent-setting, to-be-published 26-page opinion affirming, is available online at the Court of Appeals site.

This document is in the public domain, and is available through an open records request.

Speaking of open records requests, I filed one, with the KY state crime lab (the same lab that produced the exculpatory drug test result), asking for the results of the test they performed for clonazepam, because I did not believe that they did not perform such a test.

The lab director replied and stated that the test had been sent to NMS Labs in Willow Grove, PA for testing. Later, the lab backed away from this claim. All of my subsequent open records requests for this lab result have been summarily denied. When I filed the request with the McCracken County Sheriff, I was directed to the prosecutor’s office. I received no reply from the prosecutor’s office.

PURPOSE OF THE PETITION FOR REHEARING

The purpose of this Petition is to correct this Court’s mistakes of fact and/or law pertinent to Ms. Leatherman’s appeal of her convictions and sentence.

STATEMENT OF POINTS AND AUTHORITIES

PURPOSE OF THE PETITION FOR REHEARING i

STATEMENT OF POINTS AND AUTHORITIES i

Walking around a neighborhood is not a criminal act 1

Leatherman v. Commonwealth, 2011 WL 181251 (Ky.App., January 21, 2011) passim

Florida v. J.L., 529 U.S. 266 (2000) 1, 2, 3

Collins v. Commonwealth, 142 S.W.3d 113 (Ky. 2004) 1, 2

Facts based upon after-acquired information cannot
be used in the calculus 2

United States v. Hensley, 469 U.S. 221 (1985) 3

Florida v. Royer, 460 U.S. 491 (1983) 3

Terry v. Ohio, 392 U.S. 1 (1968) 3, 4

KRS 189.930 5

Garcia v. Commonwealth, 185 S.W.3d 658 (Ky. App. 2006) 5

Exculpatory scientific tests trumped by “glassy eyes”
and an improper HGN 5

Illinois v. Wardlow, 528 U.S. 119 (2000) 6

Joshua v. DeWitt, 341 F.3d 430 (6th Cir. 2003) 6

United States v. Brignoni-Ponce, 422 U.S. 873 (1975) 7

Florida v. Rodriguez, 469 U.S. 1 (1984) 7

United States v. Sokolow, 490 U.S. 1 (1989) 7

Effects of Clonazepam/Klonopin 7

Conclusion 8

Scrimsher issue 8

KRE 801A(b) 8

Walking around a neighborhood is not a criminal act

This Court concludes:

Based upon the 911 call, during which the caller described a woman. . . who was committing criminal activity, and the undisputed fact that Leatherman pulled to the side of the road and stopped before Deputy McGuire activated his emergency lights, we hold that there was no constitutional violation in the investigatory stop.

Leatherman v. Commonwealth, 2011 WL 181251, *7 (Ky.App., January 21, 2011).

This Court ignored United States and Kentucky Supreme Court precedent in finding those facts were enough predictive information with which Deputy McGuire could arrest Ms. Leatherman. In Florida v. J.L., Florida officers received a phone call that a young, black male who was wearing a plaid shirt and standing with two other males at a bus stop was carrying a gun. Based on the tip, officers located and searched the young man wearing a plaid shirt standing at the bus stop. The United States Supreme Court found that the tip gave police no independent reason to suspect that J.L. was up to no good. 529 U.S. 266, 274 (2000).

In Collins v. Commonwealth, 142 S.W.3d 113 (Ky. 2004), the Kentucky Supreme Court found that a tip claiming that a man driving a white Chevrolet Blazer with a certain license plate threw alcohol at another vehicle parked at a gas station was likewise not enough information that something criminal was afoot.
As in J.L., the tip provided in this matter contained no predictive information; rather, it consisted almost entirely of information readily available to a casual bystander, such as Appellant’s license plate number, his direction of travel, and the make and model of his vehicle. Thus, Trooper Oliver was left with no predictive information to corroborate, or other means by which to verify that the tipster had intimate knowledge of any illegal behavior. Id., at 116.

The facts of this case do not create a conclusion that reasonable suspicion existed to stop Rachel Leatherman. Vernon Wilkey did not tell the dispatcher that Leatherman was asking “where may I get black tar heroin” “do you have any black tar heroin” or even “does a drug dealer live in this neighborhood?” He told the dispatcher that she simply “mentioned” tar heroin.

Just as in J.L. and in Collins, all Deputy McGuire had was a dispatch that a woman who was walking around a neighborhood in McCracken County and mentioned tar heroin. McGuire admitted at the suppression hearing that “[a]t the time we responded, the only information that we had was the fact that she had come up to his house and asked about heroin.” TR 155. He admitted at the suppression hearing that he “got the statement” from Wilkey “after the incident had already occurred.” Id., emphasis added. If this Court’s holding remains extant, the simple acts of “walking around” in a neighbor’s yard, “writing stuff down” and simply mentioning tar heroin without any words to indicate intent to buy or sell, then in contravention of federal and state case law, the police are absolutely free to engage in fishing expeditions.

Moreover, this Court is simply incorrect when it states that “Leatherman has not contested the trial court’s factual findings in its orders denying her motion to suppress. Rather, she has contested the trial court’s conclusions of law based upon those findings.” Leatherman, supra, 2011 WL 181251 *6. While the words “Leatherman disputes the court’s findings of fact” may not have been used, Leatherman points this Court to discussions of Findings of Fact 2-4 and Conclusions of Law 1-3 at pages 4, 5 and 7-9 of the Brief for Appellant. She points this Court to discussions of Findings of Fact 6-9 and Conclusions of Law 4-6 at pages 11-15, also in the Brief for Appellant.

Facts based upon after-acquired information cannot be used in the calculus

As part of its factual foundation for the holding described supra, this Court cites the dispatch tape, the transcript of which reads in part, “white female in a dark blue LeSabre that’s out walking around asking people about 218A.” Leatherman, 2011 WL 181251, at *2. This Court also cites Vernon Wilkey’s statement written the next day. Id. Both of these pieces of information are “after-acquired” and are not to be considered when determining whether reasonable suspicion existed.

The dispatch tape did not provide reasonable suspicion for Deputy McGuire to make the stop. The dispatch simply told him a woman was walking around a neighborhood “asking people about 218A.” Id. In United States v. Hensley, the United States Supreme Court held that a police department may rely on a flyer or bulletin issued by another police department in order to check a person’s identification if that flyer or bulletin is issued “on the basis of articulable facts supporting a reasonable suspicion that the wanted person has committed an offense.” 469 U.S. 221, 232 (1985).

If this Court upholds its ruling, any person—axe to grind or not–who gives his name and address may pick up a phone and report some “crime” and have that report be deemed reliable. That analysis flies in the face of J.L., supra; Florida v. Royer, 460 U.S. 491 (1983), Hensley, supra; and Terry v. Ohio, 392 U.S. 1 (1968). The ultimate irony for this case is that after the hour and one-half Deputy McGuire held Rachel Leatherman on the side of the road, he found nothing illegal. This Court stated as much when it said, “consent searches of her automobile and her person did not reveal any heroin or any other illegal substance.” Leatherman, supra, 2011 WL 181251, at *7.

Was the woman “asking about 218A” doing a survey for the local newspaper or television station? Doing surveys for local media is a perfectly legal action. Was she a teacher doing a survey for a local high school civics or social studies class? Doing those sorts of surveys is also a legal act. But McGuire jumped to the conclusion that Rachel Leatherman had to have been committing some sort of crime because she was talking to people in a neighborhood and mentioned tar heroin. Unfortunately for McGuire, in Terry, supra, the United States Supreme Court made clear that the officer’s reasonable suspicion must be made from the facts and the “specific reasonable inferences he is entitled to draw from the facts in light of his experience.” 392 U.S. at 21; emphasis added. McGuire’s suspicion was not based upon reasonable inferences from the facts he had at hand.

This Court adds to that calculus the trial court’s finding that when Deputy McGuire fell in behind Ms. Leatherman’s automobile, she stopped the car. This Court proclaims the fact “undisputed”. Leatherman v. Commonwealth, supra, 2011 WL 181251 at *7. This Court ignores the fact that Leatherman disputed the finding. On page 8 of the Brief for Appellant, Leatherman pointed out:

McGuire conceded that it was possible Leatherman had activated her turn signal, but decided against moving into the left lane when she saw the cruiser come up in her rear view mirror. Id., 14:15:05.

McGuire had already testified that he was driving faster than the Leatherman vehicle. His action—coming close to Ms. Leatherman while in the left lane—effectively prevented her from moving into the left lane. That Leatherman did not move to the left lane and collide with the cruiser is evidence that she noticed him coming up on her side. When McGuire slowed and pulled into the right lane, Leatherman did what any watchful, responsible driver would do: assume that the official meant to pull her over. She signaled her intent to move onto the right shoulder by activating her turn signal, pulling onto the shoulder and braking her vehicle to a stop. Brief for Appellant, id.

McGuire admitted at the suppression hearing that he “was going to” stop Leatherman “anyway” when she pulled to the shoulder. TR 165. He also admitted, “I suppose she assumed I was going to stop her, so she went ahead and pulled over, anyway.” He admitted that Leatherman’s actions “were a safe assumption” that he was going to stop her. TR 166. Yet, McGuire, the trial court and this Court find it suspicious that Leatherman speedily obeyed the demands of KRS 189.930, which mandates that emergency vehicles are to be given the right of way, by the operator of the motor vehicle “driv[ing] to a position parallel to, and as close as possible to, the edge or curb of the highway clear of any intersection. . .”

This Court also ignored Garcia v. Commonwealth, in which a member of this panel found the police did not have reasonable suspicion to stop a driver who “quickly changed to the right lane” as a Kentucky State Police Trooper approached the vehicle. 185 S.W.3d 658, 660-661 (Ky. App. 2006). The panel found that “Garcia’s nervousness, lane change, failure to make eye contact, ‘death grip’ on the steering wheel, and out-of-state license plate. . . . describe a substantial number of drivers on our highways.” Further, the panel said, “[i]f we were to accept the Commonwealth’s argument, ordinary law abiding citizens could be subjected to a stop by police based upon routine driving habits.” Id., at 665.

Contrast Garcia’s behavior with that of Rachel Leatherman in the case at bar. According to the officers in each case, both Leatherman and Garcia appeared nervous and changed lanes and had out-of-state license plates. The difference is that Leatherman driving with a turn signal blinking is somehow seen as suspicious behavior rather than the routine (for some drivers) driving habit that it unfortunately is.

Exculpatory scientific tests trumped by “glassy eyes” and an improper HGN

This Court uses as part of its reasoning for affirming Rachel Leatherman’s convictions that she “failed the HGN test, which reveals intoxication by alcohol or some other drug”. Even assuming arguendo that the other indicators had been present (addressed infra), McGuire improperly administered the test. As Leatherman cited in her brief, The National Highway Traffic Safety Administration warned police officers to position DUI suspects so that they do not face blinking cruiser lights or oncoming traffic because the lights can create a false nystagmus (optokinetic nystagmus). The field video shows McGuire positioned Rachel Leatherman facing the blinking cruiser lights and oncoming traffic. Moreover, this Court ignored the fact that Metoprolol, which Leatherman told McGuire she had been prescribed for hypertension, can cause nystagmus. The test was neither administered properly nor documented. For this Court to rely on this so-called “failed” test in order to affirm Leatherman’s conviction is an arbitrary and incorrect legal analysis.

This Court notes that McGuire’s “observation of [Rachel] Leatherman’s glassy eyes and odd behavior coupled with her admission that she was taking prescription medication” was sufficient to provide Deputy McGuire with probable cause to arrest her for DUI. Leatherman, supra, at *9. This Court ignored McGuire’s admissions that Leatherman drove in compliance with traffic laws. This Court even says as much when it cites McGuire’s testimony that Leatherman was neither driving erratically nor weaving. Id.

Leatherman produced her license and registration quickly after he asked for them. Her eyes were not watery or bloodshot. Her pupils were not pinpoint or dilated. She did not have a runny nose as is common with some cocaine users. She did not have scabs or needle marks, also common with intravenous drug users. She was not coughing or short of breath; she was not sneezing or sweating. She did not complain of nausea or chest pains. Her face was not flushed. She was alert. Moreover, McGuire admitted at the suppression hearing that the HGN result by itself could not provide probable cause. VR 4; 11/27/2006; 14:21:45. Neither does nervous behavior.

This Court ignored United States Supreme Court and Sixth Circuit case law which establishes that nervous, evasive behavior is the standard to justify reasonable suspicion, not simple nervousness or restlessness. Illinois v. Wardlow, 528 U.S. 119, 124 (2000); Joshua v. DeWitt, 341 F.3d 430 (6th Cir. 2003). One need only look at several Supreme Court cases regarding drug smuggling at the United States-Mexico border to determine that evasive behavior is the key. United States v. Brignoni-Ponce, 422 U.S. 873, 885 (1975) (“The driver’s behavior may be relevant, as erratic driving or obvious attempts to evade officers can support a reasonable suspicion.”); Florida v. Rodriguez, 469 U.S. 1, 6 (1984) (“[T]he three confederates … had spoken furtively to one another. One was twice overheard urging the others to ‘get out of here.’ Respondent’s strange movements in his attempt to evade the officers aroused further justifiable suspicion….”); United States v. Sokolow, 490 U.S. 1, 5, 8-9 (1989) (noting that “[Respondent] appeared to be very nervous and was looking all around the waiting area,” but that “one taking an evasive path through an airport might be seeking to avoid a confrontation with an angry acquaintance or with a creditor”).

Effects of Clonazepam/Klonopin

As the final rung of its finding that McGuire had probable cause to arrest Ms. Leatherman for DUI, this Court cites to “the product information for Klonopin. . . .[which] states that patients taking that medication “should be cautioned about operating hazardous machinery, including automobiles, until they are reasonably certain the Klonopin therapy does not affect them adversely.” Leatherman, supra, at *9.

Unfortunately, that information is also after-acquired and not something Deputy McGuire knew at the scene. What McGuire knew were the bare facts that Ms. Leatherman told him she had been prescribed Klonopin and was taking the medication. The trial court made the same error when it noted her statement that “she was taking medication that would cause her to fail the test, constitutes probable cause to arrest for DUI.” TR 222.

Moreover, this Court and the trial court disregarded KSP lab tech Ryan Johnson’s testimony that Klonopin itself could cause “positive” HGN signs. VR 4; 1/22/2008; 2:59:55. This Court (and the trial court) also overlooked Johnson’s testimony that even if he had the equipment to test Rachel Leatherman’s blood for the presence of Klonopin, the simple presence of the medication in her bloodstream was not an indicator that she person was under the influence such that she could be charged with, let alone convicted of, driving under the influence of an intoxicant. Id., 3:03:36.

Conclusion

This Court ignored the facts and law of this case in affirming Rachel Leatherman’s convictions for driving under the influence. She requests a full and fair rehearing.

Scrimsher issue

This Court finds that the trial court did not abuse its discretion when it did not admit Leatherman’s statements to Deputy McGuire from the back of his cruiser. This Court says, “the trial court indicated that it would permit Leatherman to testify to her statement regarding the watch had she opted to take the stand in her own defense.” Leatherman, supra, at *10. This finding is inconsistent with the trial court’s ruling that Leatherman’s statements were inadmissible, self-serving hearsay. VR 1; 1/22/2008; 8:56:24. In light of the government’s announcement that it believed “801A(b)” prevented trial counsel from broaching the subject, this Court cannot conclude that had Leatherman testified, “I asked Deputy McGuire to look for my watch,” the government would not have been strenuously objecting on hearsay grounds. But why should Leatherman be forced to give up her right to remain silent so that an already admissible statement could come into evidence?

This Court next finds “Leatherman did not attempt to impeach Deputy McGuire’s prior statements regarding discovery of the watch and drugs through laying a proper foundation.” Leatherman, supra, at *10. In reaching this conclusion, this Court disregards both testimony and the Brief for Appellant. In his cross-examination, defense counsel asked Deputy McGuire how he “came to find the watch” and whether Leatherman “actually asked [him] about the watch.”VR 2; 1/22/2008; 5:40:32. The government immediately objected. It is hard to fathom what else counsel was attempting to do besides lay a foundation so that he could cross-examine McGuire when he was prevented from doing so. This Court focuses on Leatherman’s alleged failure to impeach McGuire to the exclusion of the impeaching material to be discovered through a proper cross-examination.

This Court overlooked just how Deputy McGuire’s testimony changed in the months between the preliminary hearing, the suppression hearing and trial. At the preliminary hearing, McGuire’s testimony was that the watch and baggie were not in plain view. In fact, he testified that he saw the baggie only when he moved the seat. TPH 11. By the time the suppression hearing came around, the baggie and Ms. Leatherman’s watch were in plain view next to her in the back seat. VR 4; 11/27/2006; 14:25:55. Interestingly, he also said Leatherman had told him before they went into the hospital that she had dropped her watch. Id., 14:28:15. At trial, McGuire testified that as he assisted Ms. Leatherman out of the cruiser at Lourdes Hospital, he saw a baggie with what appeared to be a rock of cocaine lying underneath her watch in the seatbelt crack of the back seat. VR 2; 1/22/2008; 4:06:20.

This Court cannot reconcile McGuire’s conflicting accounts regarding whether he saw the baggie and watch in plain view or not in plain view. McGuire had been a member of the McCracken County Sheriff’s Department for some time. VR 1; 1/22/2008; 14:08:45. Presumably, he was familiar with the meaning of the phrase “plain view.”

Finally, this Court opines that the outcome of the case would not have been changed because of the “strength of the rest of the testimony. . . .including the close proximity of the watch and the drugs as well as the search of the area prior to Leatherman’s placement in the cruiser.” Leatherman, supra, at *10. It is hard to fathom how testimony which changes in material ways from preliminary hearing to trial is “strong”.

This Court also ignored Gretchen Dawes’s testimony about her search of Rachel Leatherman’s person. Prior to Dawes’s arrival, McGuire testified, Leatherman emptied her front pockets. VR 4; 11/27/2006; 14:25:36. Dawes searched the inside rear pockets of Leatherman’s jeans and made her open the front of her pants so she could search Leatherman’s crotch. She made Leatherman lift her shirt so she could search her breasts for concealed controlled substances. TR 26. Even McGuire conceded that Dawes’s search was “thorough.” VR 4; 11/27/2006; 14:25:40.

Yet, this Court has believed the impossibility that Rachel Leatherman held onto a baggie with rock cocaine through a search of her vehicle and her person. Where did she conceal the baggie? As is clearly seen on the dashboard camera, McGuire had her open both her hands at one time—she could not have held the baggie in one hand, then the other. Dawes opened her jeans zipper—Leatherman could not have concealed the baggie in her crotch or the waistband of her jeans. Dawes had her raise her blouse—Leatherman could not have concealed the baggie in her bra. This also begs the question of how Leatherman retrieved the baggie–in handcuffs–without moving enough to make at least one of the officers suspicious.

This Court must reconsider its opinion.

Respectfully submitted,

JULIA K. PEARSON

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