The Full-Text Opening Brief [Frog Gravy Legal Case]

Posted: December 24, 2011 in criminal justice system, Frog Gravy legal case, law, legal definitions and issues

COMMONWEALTH OF KENTUCKY

COURT OF APPEALS OF KENTUCKY

FILE NO. 2008-CA-849

RACHEL LEATHERMAN

APPELLANT

v.

APPEAL FROM MCCRACKEN CIRCUIT COURT
HON. CRAIG Z. CLYMER, JUDGE
INDICTMENT NO. 06-CR-00408

COMMONWEALTH OF KENTUCKY APPELLEE

BRIEF FOR APPELLANT

JULIA K. PEARSON
Assistant Public Advocate Department of Public Advocacy
100 Fair Oaks Lane Suite 302
Frankfort, Kentucky 40601
(502) 564-8006

Counsel for Appellant

CERTIFICATE REQUIRED BY CR 76.12(b)

The undersigned does hereby certify that copies of this Brief for Appellant were served upon the following named individuals by United States Mail, postage prepaid, on this 4th day of March 2009: Hon. Craig Z. Clymer, Judge, McCracken Circuit Court, 301 S. 6th Street, Paducah, Kentucky 42003; Hon. James A. Harris, Asst. Commonwealth’s Attorney, McCracken County Courthouse, 301 S. 6th Street, Paducah, Kentucky 42003; Hon. Chris McNeill, Assistant Public Advocate, Department of Public Advocacy, 400 Park Avenue, Suite B, Paducah, Kentucky 42001; and served by messenger mail to Hon. Jack Conway, Attorney General, 1024 Capital Center Drive, Frankfort, Kentucky 40601. I hereby further certify that the record on appeal was returned to the custody of the Clerk of the Court of Appeals of Kentucky.

INTRODUCTION

Rachel Leatherman appeals from a final judgment imposing an eight-year sentence for Possession of a Controlled Substance (cocaine), Tampering with Evidence and Driving under the Influence (drugs). In this appeal, she challenges the validity of the investigatory stop and arrest, as well as several evidentiary rulings which prevented her from cross-examining the witnesses against her and presenting a defense.

STATEMENT AS TO ORAL ARGUMENT

Rachel Leatherman welcomes oral argument if this Court believes it necessary to resolve the issues in this case.

STATEMENT CONCERNING CITATIONS

The record in this case consists of two volumes of Transcript of Record, three videotapes and one supplemental videotape. The Transcript of Record shall be cited as TR page number. The videotapes in the original record were labeled Tape 1 of 3, Tape 2 of 3 and Tape 3 of 3, respectively. Citations to those tapes shall be VR 1 (VR 2 or VR 3); date; time stamp. The supplemental videotape shall be cited as VR 4; date; time stamp.

STATEMENT OF POINTS AND AUTHORITIES

INTRODUCTION i

STATEMENT AS TO ORAL ARGUMENT i

STATEMENT CONCERNING CITATIONS i

STATEMENT OF POINTS AND AUTHORITIES i

STATEMENT OF THE CASE 1

The 911 call 1

Deputy Eddie McGuire stops a vehicle with Washington license plates 1

I. The trial court erred when it failed to suppress the evidence. 3

Preservation 3

Standard of review 3

RCr 9.87 3

Ornelas v. United States, 517 U.S. 690 (1996) 3

Commonwealth v. Neal, 84 S.W.3d 920 (Ky.App. 2002). 3

The information in the 911 call did not constitute reasonable suspicion 3

Florida v. J.L, 529 U.S. 266 (2000) 5

United States v. Hensley, 469 U.S. 221 (1985) 7

U.S. Const. Amend. IV 7, 10, 15

Joshua v. DeWitt, 341 F.3d 430 (6th Cir. 2003) 7

Terry v. Ohio, 392 U.S. 1 (1968) 7

Collins v. Commonwealth, 142 S.W.3d 113 (Ky. 2004) 7

Rachel Leatherman’s actions on US 60 did not provide reasonable suspicion 8

KRS 189.380 9

Garcia v. Commonwealth, 185 S.W.3d 658 (Ky. App. 2006) 9, 13

A stop of at least one hour and fifteen minutes exceeds that permitted for a Terry stop 9

Terry v. Ohio, 392 U.S. 1 (1968) 10

Brown v. Texas, 443 U.S. 47 (1979) 10

U.S. Const. Amend. XIV passim

Ky. Const. § 10 10, 15

Florida v. Royer, 460 U.S. 491 (1983) 10

Baker v. Commonwealth, 5 S.W.3d 142 (Ky. 1999). 11

Deputy McGuire’s “hunch” that Rachel Leatherman possessed a controlled substance was not supported by objective facts and circumstances and did not constitute probable cause for arrest 12
Her eyes appeared glassy and she seemed fidgety or nervous 13

She exhibited nystagmus during the HGN field sobriety test 13

Horizontal Gaze Nystagmus: The Science and the Law, A Resource Guide for Judges, Prosecutors and Law Enforcement. 14

http://www.nhtsa.dot.gov/people/injury/enforce/nystagmus/hgntxt.html#three ………..14

http://www.nhtsa.dot.gov/people/injury/enforce/nystagmus/hgntxt.html#three ………..14

Conclusion 15

II. The trial court erred when it granted the government’s motion in limine which prohibited defense counsel from mentioning that Rachel Leatherman asked Deputy McGuire to retrieve her watch from the backseat. 15

Preservation 15

Schrimsher v. Commonwealth, 190 S.W.3d 318 (Ky. 2006) 16

Rachel Leatherman was unable to present a crucial piece of her defense 16

Crane v. Kentucky, 476 U.S. 683 (1986) 16

Chambers v. Mississippi, 410 U.S. 284 (1973) 16

Beaty v. Commonwealth, 125 S.W.3d 196 (Ky. 2003) 16

United States v. Scheffer, 523 U.S. 303 (1998) 16

Sanborn v. Commonwealth, 754 S.W.2d 534 (Ky. 1988) 17

Manz v. Commonwealth, 257 S.W.2d 581 (Ky. 1953) 18

Davis v. Alaska, 415 U.S. 308 (1974). 18

Williams v. Commonwealth, 569 S.W.2d 139 (Ky. 1978) 18

Even if the statement was hearsay, the right to present a defense trumps a state evidentiary rule 19

Davis v. Alaska, 415 U.S. 308 (1974) 19

Delaware v. Van Arsdall,475 U.S. 673 (1986) 19

The government’s closing argument added to the prejudice 19

RCr 10.26. 19

Doyle v. Ohio, 426 U.S. 610 (1976) 20

Miranda v. Arizona, 384 U.S. 436 (1966) 20

United States v. Williams, 665 F.2d 107 (6th Cir. 1981) 20

Bass v. Nix, 909 F.2d 297 (8th Cir. 1990) 20

Wainwright v. Greenfield, 474 U.S. 284 (1986) 20

Niemeyer v. Commonwealth, 533 S.W.2d 218 (Ky. 1976) 20

Campbell v. Commonwealth, 564 S.W.2d 528 (Ky. 1978) 20

Holland v. Commonwealth, 703 S.W.2d 876 (Ky.1986) 20

Greer v. Miller, 483 U.S. 756 (1987) 20

Eberhardt v. Bordenkircher, 605 F.2d 275 (6th Cir. 1979) 20, 21

Chapman v. California, 386 U.S. 18 (1967) 20

Conclusion 21

Berger v. United States, 295 U.S. 78 (1935) 21

U.S. Const. Amend. V 21

U.S. Const. Amend. VI 21

Ky. Const. § 1 21

Ky. Const. § 2 21, 24

Ky. Const. § 7 21

Ky. Const. § 11 21, 24

III. The trial court erred when it did not grant directed verdict on the Driving under the Influence charge. 21

Preservation 21

KRS 189A.010 22

The evidence does not meet Kentucky’s rules for directed verdict 22

Commonwealth v. Sawhill, 660 S.W.2d 3 (Ky. 1983) 23

Hodges v. Commonwealth, 473 S.W.2d 811 (Ky. 1971) 23

Commonwealth v. Benham, 816 S.W.2d 186 (Ky. 1991) 23

Pengleton v. Commonwealth, 172 S.W.2d 52 (Ky. 1943) 23

Conclusion 24

U.S. Const. Amend. V 24

CONCLUSION 24

APPENDIX 25

STATEMENT OF THE CASE

McCracken County Sheriff’s Deputy Eddie McGuire stopped Appellant, Rachel Leatherman, at 8:19 p.m. on June 28, 2006, as she drove on US 60 eastbound toward Paducah. He suspected that she possessed heroin. His suspicion came as the result of a 911 call that a woman in a neighborhood had asked a man about tar heroin.

McGuire and two backup officers searched Ms. Leatherman’s person and her car for about 1.25 hours. That search yielded no illegal drugs, no drug residue and no paraphernalia. Despite the fact that Leatherman had not committed a traffic violation and a PBT (Portable Breath Test) registered no alcohol, McGuire arrested her for Driving under the Influence and transported her to Lourdes Hospital for a blood draw. VR 4; 11/27/2006; 14:22:30. Subsequent analysis found no alcohol or drugs. VR 1; 1/22/2008; 14:57:46.
The 911 call

Sometime in the evening of June 28, 2006, a man identifying himself as Vernon Wilkey, residing on Queensway Drive, called 911 and said, “there is a lady in a dark blue looks like a Buick LeSabre. I’d say it’s a late 80s, early 90s model. And I’ve got a license plate number. But she’s out here walking around in my neighbor’s yard and everything and writing stuff down and she’d talked to him and mentioned something about tar heroin and all that stuff.” TR 148; emphasis added. Wilkey said the woman driving the car was white and that the vehicle had Washington state plates. TR 149.
Deputy Eddie McGuire stops a vehicle with Washington license plates.

Deputy Eddie McGuire testified at trial that he received a dispatch about a suspicious person on Queensway Drive in McCracken County. He thought it took fifteen to twenty minutes to arrive on scene after the dispatch. After he got to the neighborhood, he looked for a car with Washington state license plates, but was unsuccessful. VR 1; 1/22/2008; 14:09:56.

On the back to Paducah on US 60, the deputy testified that he had just come through the Metropolis Lake intersection when he saw a car with its left turn signal flashing. Id., 14:10:57. According to McGuire, the car was going slower than he was and had that constantly blinking turn signal. Id., 14:12:20. McGuire found unusual the amount of time the turn signal flashed and the amount of time the car stayed in the right lane without moving into the left. Once he overtook the car, McGuire said he noticed a white female driving and a set of Washington state license tags. Id., 14:16:42.

After Deputy McGuire slowed and pulled in behind her car, the woman pulled over to the shoulder. Since McGuire had not put his lights on, he thought that action was as suspicious as the woman driving in the right lane with her left turn signal blinking, so he pulled over to the side and activated his emergency lights. Id., 14:17:14.

McGuire said as he walked up to the vehicle, he noticed that the driver’s pants were unbuttoned and unzipped, but were belted. He asked the driver to step to the back of the vehicle. Sometime after that, Deputy Jason Walters came to the scene. The men searched the car for contraband, but came up with nothing. Later, Officer Gretchen Dawes arrived to search the woman. Id., 14:22:34.

After the search turned up no drugs or contraband, McGuire said he placed Rachel Leatherman in handcuffs and put her in his cruiser. He was certain she was wearing a watch, but only thought it was on her right arm. McGuire then took Leatherman to Lourdes Hospital for a blood draw. McGuire’s story was that as he assisted her out of the car, he noticed that Leatherman had dropped her watch and a small baggie containing a substance consistent with a rock of cocaine. He did not confront Leatherman at that time because she was “cooperative” and he did not want to upset her. McGuire was unsure how long the two remained at Lourdes Hospital for the blood draw. Id., 14:28:21.

Deputy McGuire testified that he confiscated the baggie. Once he arrived at the McCracken County Jail and booked Ms. Leatherman, he ran a field test for heroin. That test came back negative. Id., 14:28:25.

Rachel Leatherman was charged with Possession of a Controlled Substance in the First Degree, Tampering with Physical Evidence and Driving an Automobile under the Influence. TR 1-2. She was convicted of all three charges and sentenced to eight years. TR 75-78.

Further facts will be adduced in the Brief.

I.

The trial court erred when it failed to suppress the evidence.

Preservation

Trial counsel filed a Motion to Suppress the Evidence. TR 17, 23-26. The court held a suppression hearing on November 27, 2006. The court denied the motion on January 11, 2007. TR 72-74. It then entered an order setting aside the first denial and substituting a second on January 18, 2008. TR 220-223.

Standard of review

The standard of review on a motion to suppress consists of two steps. First, the trial court’s fact findings are conclusive if supported by the evidence. RCr 9.87. The second step involves a de novo review to determine whether the court’s decision is correct as a matter of law. Ornelas v. United States, 517 U.S. 690 (1996); Commonwealth v. Neal, 84 S.W.3d 920 (Ky.App. 2002).

The information in the 911 call did not constitute reasonable suspicion

The trial court’s second conclusion of law states

The combination of a report of an unknown person, driving a Washington state licensed vehicle in a Paducah, Kentucky residential area, asking about tar heroin, later observed to signal a left turn but pull off the roadway in the right, constitutes reasonable suspicion to investigate and possibly cite for improper signal.

TR 222. The court’s third conclusion of law was that “[a] report of suspicious activity by a person who identifies himself by name, phone number and address is presumptively reliable.” TR 222. These conclusions are incorrect as a matter of law.

At the suppression hearing, Deputy McGuire testified that he was probably somewhere in downtown Paducah when he was dispatched to investigate the 911 call. VR 4; 11/27/2006; 14:05:04. For a few minutes, he checked the neighborhood, hoping to see the dark blue Buick with the Washington plates. When he did not find it, he cleared the call and headed back toward Paducah. Id. He did not check with Vernon Wilkey, the man who made the 911 call, to obtain any additional information, such as what time Wilkey encountered the woman, whether Wilkey saw her leave in a particular direction, whether Wilkey thought she was under the influence or whether the woman had said where she was going.

Deputy McGuire testified that as he approached the traffic-light controlling the intersection of US 60 and Cairo Road, he suddenly realized he was passing a vehicle matching the description provided by 911. McGuire admitted that he did not know how fast he was driving as he drew alongside Ms. Leatherman’s vehicle.

As I was passing the vehicle, she had her left blinker on as if she was going to turn out in the passing lane, but she never did. And then as I was going to go ahead and go past her, I noticed that the license plate—it was a Washington license plate that was the description that was also given at the time of the call. So when I noticed that, I slowed down and let her go back by me and then when I pulled in behind her, she pulled over.

VR 4; 11/27/2006; 14:07:28.

Rachel Leatherman “promptly” handed her identification and proof of insurance to Deputy McGuire. He ordered her to get out of the car and stand behind it. McGuire said she had no problem getting out of the car. In fact, he said that if she had been unsteady on her feet or slurring her speech, he would have documented it in his citation. Id., 14:19:18, 14:20:36.

McGuire did not have reasonable suspicion to stop the Leatherman vehicle, let alone any sort of reason to “investigate.” McGuire did not find “the woman” in the car in the neighborhood where Vernon Wilkey told the 911 operator his neighbor encountered her. When McGuire was unsuccessful in finding her in the area, he did not attempt to make contact with Wilkey. He did not know what time Wilkey encountered the woman, whether he saw her leave in a certain direction or whether he thought she was under the influence. McGuire did not note—as he said he habitually did when he found such symptoms—that Leatherman was unsteady on her feet, slurring her speech, In Florida v. J.L., the United States Supreme Court stated that reasonable suspicion “requires that a tip be reliable in its assertion of illegality, not just a tendency to identify a determinate person.” 529 U.S. 266, 272 (2000). The tip in this case was not “reliable in its assertion of illegality.”

The deputies searched Ms. Leatherman’s car and found no drug paraphernalia, no drug residue and no drugs, other than Leatherman’s three prescription medications. McGuire testified that after the search, he requested a female officer to search Ms. Leatherman’s person. Officer Gretchen Dawes of the Paducah Police Department arrived at the scene and searched Leatherman. Before she arrived, however, McGuire testified that Leatherman had emptied her two front pockets. He could not remember whether Leatherman had buttoned her pants at any time during the automobile and personal searches. Id., 14:25:36.

Deputy McGuire testified that Officer Dawes searched Rachel Leatherman either just before or just after he arrested her. He agreed that “[u]nder the circumstances, [Dawes] was not only looking for weapons but also looking for possible drugs” and found none. Id., 14:25:40. McGuire did not see Dawes search Leatherman’s back pockets, but assumed she did so as part of that thorough search. Finally, McGuire said that en route to Lourdes Hospital, he did not see Leatherman moving in any sort of fashion to indicate that she was trying to hide something. Id.

Neither Officer Dawes nor Deputy Walters testified at the suppression hearing. However, Dawes’ search was not a simple Terry pat-down for officer protection. Dawes searched the inside rear pockets of Rachel Leatherman’s jeans and made her open the front of her pants so she could search Leatherman’s crotch. Dawes made Leatherman lift her shirt so she could search her breasts for concealed controlled substances. TR 26. Even McGuire conceded at the suppression hearing that Dawes’s search was “thorough.” VR 4; 11/27/2006; 14:25:40.

A thorough search by a trained police officer would presumably “sanitize” a suspect before she is handcuffed and placed into a police car. In other words, how is it possible that Rachel Leatherman held onto a baggie with rock cocaine through a search of her vehicle and her person? Assuming for sake of argument that Leatherman did so, where did she conceal the baggie? McGuire had her open her hands up—she did not hold the baggie in her hands. Dawes opened her jeans zipper—Leatherman could not have concealed the baggie in her crotch. The search also begs the question of how Leatherman retrieved the baggie with her hands in handcuffs without moving enough to make at least one of the officers suspicious.

Officer Dawes offered her speculation at trial. She said she was told only that the deputies wanted a female officer to search a female suspect. The deputies did not tell her anything about the case such as whether she was supposed to conduct a Terry pat-down or the more thorough search incident to arrest. Interestingly, Dawes said that if she had prior knowledge that Leatherman had drugs on her person, she would have done a more thorough search. She did admit, on cross, that one of the reasons why a suspect is searched is because the police do not know whether the suspect has drugs on her person. VR 2; 1/23/2008; 9:20:41.

The trial court could rely only upon the information in the 911 call in order to decide whether Deputy McGuire had reasonable suspicion to stop Rachel Leatherman. United States v. Hensley, 469 U.S. 221 (1985). Moreover, the Fourth Amendment requires that reasonable suspicion comes only when the police believe criminal activity is currently afoot. See Joshua v. DeWitt, 341 F.3d 430, 446 (6th Cir. 2003), citing Terry v. Ohio, 392 U.S. 1, 20 (1968); emphasis in original.

The information in this particular 911 call left a good deal to be desired. Yet, in its supplementary order denying Ms. Leatherman’s suppression motion, the trial court found
“presumptively reliable” “[a] report of suspicious activity by a person who identifies himself by name, telephone number and address.” TR 222.

In Collins v. Commonwealth, 142 S.W.3d 113 (Ky. 2004), the Kentucky Supreme Court held that the police lacked reasonable suspicion to stop a vehicle. In that case, an anonymous informant claimed that a white male driving a white Chevrolet Blazer had thrown alcohol at another vehicle parked at a gas station. The caller said the driver of the Blazer had then entered southbound I-75, which was nearby. The Court held that police lacked reasonable suspicion because:
[n]othing in the content of the tip indicates that the tipster either had witnessed or could predict any illegal activity. The pouring of an unidentified liquid from a bottle toward another person may signal a dispute, but it is neither criminal conduct nor a reliable indication that criminal conduct is about to occur.

The Court also found that even though the tipster told the authorities that the Blazer headed south on I-75, nothing about that fact “ma[de] it any more reliable because it did not reveal that the tipster was privy to any illegal conduct.” Id., at 116-117; emphasis added.

The caller said “a lady” was walking around in his neighbor’s yard and talked to him. TR 149. The police had no way of knowing—at the time of the call or the investigation—whether the caller was present when “the lady” spoke to the neighbor. Deputy McGuire testified that he had no idea when the woman had made contact with the neighbor (or Wilkey). VR 4; 11/27/2006; 14:05:04.

Vernon Wilkey did not tell the 911 operator that he had seen heroin or any other drug, for that matter, on the driver’s person or in the seat next to her. He did not say Leatherman had drug paraphernalia on her person, in the seat next to her or in the ashtray. He did not say Leatherman had attempted to sell him or the neighbor heroin (or any other controlled substance). He did not tell the 911 operator that she appeared to be under the influence of drugs or alcohol.

Did the caller simply repeat a conversation he had with his neighbor? Did the caller repeat a conversation with someone who had a conversation with the neighbor about “the lady” walking around and talking to people? That the caller identified himself is of no moment—nothing in the call informed the police about whether he had been a witness to the conversation or was simply repeating a story of a story someone had told him.

Rachel Leatherman’s actions on US 60 did not provide reasonable suspicion

Deputy McGuire testified at the suppression hearing that after he left Queensway Drive, he drove back toward Paducah on US 60. He came upon what he later identified as the Leatherman car while he drove in the left lane. Ms. Leatherman was in the right lane with her left turn signal blinking. VR 4; 11/27/2006; 14:14:46. 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.

McGuire’s argument—the government’s argument—that by acting responsibly and pulling over, Rachel Leatherman’s actions gave reasonable suspicion that something was afoot is nonsensical. Leatherman complied with KRS 189.380, which states that before “turn[ing] a vehicle or mov[ing] right or left on a roadway,” the driver must signal “indicating the intention to turn right or left” “continuously for not less than the last one hundred (100) feet traveled by the motor vehicle before the turn.”

A driver who travels down a highway with her turn signal flashing does not commit a traffic violation. She may aggravate the drivers behind her or in the other lanes, but she does not commit a traffic violation. In fact, the action has become so ubiquitous in American culture that the late comedian George Carlin created a routine centered around people who drove “around the world to the left.” Moreover, that sort of driving does not provide reasonable suspicion to support an investigatory stop. See Garcia v. Commonwealth, 185 S.W.3d 658 (Ky. App. 2006).

A stop of at least one hour and fifteen minutes exceeds that permitted for a Terry stop

The trial court’s first conclusion of law was that “[t]he deputy did not conduct a stop of Defendant’s vehicle. Defendant pulled off the roadway and stopped. The deputy then pulled in behind her and activated his emergency lights so as to investigate.” TR 222. This is incorrect as a matter of law and is unsupported by the evidence.

Deputy McGuire admitted that he did not know how fast he was driving as he drew alongside Ms. Leatherman’s vehicle. He said he was going to pass her car when he noticed the license plate. “[I was going to let] her pass me back, and then I got behind her, and then that’s when she started to pull over. So I went ahead and activated my lights” before she made a complete stop. McGuire himself said he stopped the vehicle. “I was going to, anyway, yes. When she started to pull over, I just went ahead and turned my lights on.” VR 4; 11/27/2006; 14:07:28.

“Whenever a police officer accosts an individual and restrains his freedom to walk away, he has seized that person.” Terry v. Ohio, 392 U.S. 1 (1968); Brown v. Texas, 443 U.S. 47 (1979). When Deputy McGuire stopped Ms. Leatherman and refused to permit her to drive away, he “seized” her “within the meaning of the Fourth and Fourteenth Amendments to the United States Constitution and §10 of the Kentucky Constitution.” Nichols v. Commonwealth, 186 S.W.3d 761, 763 (Ky. App. 2005).

When seizing an individual for purposes of the Fourth Amendment, a police officer must have a reasonable suspicion based upon specific and articulable facts which leads him to believe that a crime has been, is being, or is about to be committed. Then the officer may ask the person a limited number of questions to confirm or dispel the suspicion that led to the stop. “The scope of the detention must be carefully tailored to its underlying justification . . . must be temporary and last no longer than necessary to effectuate the purpose of the stop.” Florida v. Royer, 460 U.S. 491, 500 (1983). If a detention continues for too long a period of time, it becomes an arrest requiring probable cause.

The one hour and fifteen minutes Rachel Leatherman spent on the side of US 60 was anything but a brief investigatory stop. McGuire said he asked Leatherman about what the caller had said. She denied attempting to buy heroin. McGuire did not testify that he saw heroin and/or drug paraphernalia (syringe, “cooker”) in plain view in the car. Once McGuire received a negative answer, his investigation should have ended.
“Whether a seizure is reasonable requires a review of the totality of the circumstances, taking into consideration the level of police intrusion into the private matters of citizens and balancing it against the justification for such action.” Baker v. Commonwealth, 5 S.W.3d 142, 145 (Ky. 1999). Assuming for argument sake that the corked bottle of wine and the cup of beer McGuire saw in plain view and Ms. Leatherman’s failed HGN test may have warranted reasonable suspicion that she was under the influence, the totality of the circumstances leads to the contrary conclusion.

Ms. Leatherman passed the PBT. McGuire admitted that she was not weaving all over the road or using any sort of driving mannerism which would lead to a suspicion that she was under the influence. Leatherman gave him her identification and proof of insurance very quickly after he asked for it. She did not fumble around trying to retrieve either document. She was able to get out of her car without falling all over the road or needing help. She was steady on her feet. McGuire said he always noted obvious signs of impairment on his citations. He did not note that he smelled alcohol on her breath or her person. She did not seem mentally confused. He and Walker did not find illegal drugs, drug residue or paraphernalia when they searched the car. Finally, Leatherman’s blood tests showed the presence of no alcohol. This evidence conclusively establishes that Rachel Leatherman did not commit a crime. She was not committing a crime. She was not about to commit a crime.

So why stop Rachel Leatherman for one hour and fifteen minutes? To see what was afoot. In the face of all the evidence otherwise, McGuire was determined to find something. In spite of an illegal blood draw, in spite of a search conducted on the side of a busy roadway, the police uncovered nothing from a search not supported by reasonable suspicion

Deputy McGuire’s “hunch” that Rachel Leatherman possessed a controlled substance was not supported by objective facts and circumstances and did not constitute probable cause for arrest

The trial court’s fourth finding of fact states: “Defendant’s inquiring about heroin, failing a HGN test, signaling a left turn and pulling off the road to the right, and stating that she was taking medication that would cause her to fail the test, constitutes probable cause to arrest for DUI.” TR 222. This conclusion of law is not supported by the facts and is incorrect as a matter of law.

Deputy McGuire testified that Rachel Leatherman was driving properly when he came upon her vehicle traveling eastbound on US 60. He did not know when the alleged conversation the 911 caller recounted had taken place. Yet, he testified at the preliminary hearing that when he saw a dark blue Buick with Washington state plates, he “stopped her with suspicion that she possibly had some [heroin] on her.” TPH 8.

Deputy Walters administered the PBT and then McGuire administered the Horizontal Gaze Nystagmus test (HGN). At the suppression hearing, he admitted that a law enforcement officer does not have probable cause to arrest a DUI suspect unless the HGN result is corroborated with other evidence. Id., 14:21:45.
At the preliminary hearing , the deputy testified that he had ruled out alcohol intoxication because the PBT had showed no alcohol. Transcript of Preliminary Hearing (hereinafter TPH) 8. He arrested Ms. Leatherman for suspicion DUI (drugs) because she had a distinct nystagmus and was fidgety and nervous. Id. At the suppression hearing, McGuire testified that he always included in his reports any evidence he observed which could indicate a suspect’s impairment. VR 4; 11/27/2006; 14:20:36. McGuire said his suspicions that Leatherman was impaired were the allegedly failed HGN test and glassy eyes, along with his preliminary hearing testimony that Leatherman was “just very nervous.” Id., 14:20:45.

Her eyes appeared glassy and she seemed fidgety or nervous

This characterization is of no legal import and certainly does not provide reasonable suspicion to stop or probable cause to arrest. This Court has held that perfectly innocent people often exhibit the same characteristics when stopped by police. Garcia v. Commonwealth, 185 S.W.3d 658, 665 (Ky. App. 2006).
She exhibited nystagmus during the HGN field sobriety test

McGuire should not have administered the test in the first place. McGuire did not testify to any clue Rachel Leatherman gave that she was impaired. She drove in compliance with traffic laws. She 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 was not scratching as some persons who inject drugs might. 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.

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. Unfortunately, even assuming arguendo that other indicators had been present, McGuire improperly administered the test.

The National Highway Traffic Safety Administration (NHTSA) is an administrative agency housed within the United States Department of Transportation. NHTSA oversees and regulates all matter related to traffic safety. Since 1977, NHTSA has studied various field sobriety tests in order to develop a standardized set of field sobriety tests. As a result of those tests, NHTSA 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). Horizontal Gaze Nystagmus: The Science and the Law, A Resource Guide for Judges, Prosecutors and Law Enforcement.

The field video shows that McGuire positioned Rachel Leatherman facing the blinking cruiser lights and oncoming traffic. The test was neither administered properly nor documented.

McGuire testified that Leatherman told him she had a prescription for Metoprolol because she had hypertension. Documentation for Metoprolol shows that a side effect can be nystagmus. Under those circumstances, McGuire finding “all six clues” should be found legally meaningless.

As part of its reasoning that Deputy McGuire had probable cause to arrest Ms. Leatherman, the trial court 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. McGuire testified that Leatherman told him she was taking Adderall, Clonazepam and Metoprolol. VR 4; 11/27/2006; 14:10:56. However, neither McGuire nor any other government witness testified at about the effects of any of those drugs, let alone Clonazepam. The Physicians’ Prescribing Information describes Clonazepam (Klonopin) as a benzodiazepine used to treat seizure or panic disorder. The insert also tells physicians: “[b]ecause benzodiazepines have the potential to impair judgment, thinking or motor skills, patients should be cautioned about operating hazardous machinery, including automobiles, until they are reasonably certain that Klonopin does not affect them adversely.” See Appendix C.

There is no evidence that Rachel Leatherman admitted taking medication that would cause her to fail any test. McGuire testified that she told him she could not perform the physical dexterity field sobriety tests because she had surgery on her ankle. VR 4; 11/27/2006; 14:10:35. He said Leatherman told him she had taken her prescribed medication. No government witness testified about how taking Klonopin affected Leatherman. The court’s conclusion not borne out by the evidence and is entitled to no legal significance.

Conclusion

None of the evidence Deputy McGuire cited added up to reasonable suspicion or probable cause. The 911 call did not contain enough reliable information to form reasonable suspicion. Rachel Leatherman was driving in accordance with the law. She was going slowly enough that McGuire nearly passed her. She passed a PBT in the field. The “failed” HGN is of no significance. A blood draw showed Leatherman had no alcohol or drugs in her system. Leatherman’s “glassy eyes” could not constitute probable cause. The court erred when it denied Rachel Leatherman’s motion to suppress. Her rights under the Fourth and Fourteenth Amendments to the United States Constitution and §10 of the Kentucky Constitution were violated. She requests relief.
II.

The trial court erred when it granted the government’s motion in limine which prohibited defense counsel from mentioning that Rachel Leatherman asked Deputy McGuire to retrieve her watch from the backseat.

Preservation

Just before trial began, the government moved in limine to prevent the defense from referring to statements Rachel Leatherman made after Deputy McGuire told her he found what looked like drugs next to her watch. The defense argued that the statement was admissible under Schrimsher v. Commonwealth, 190 S.W.3d 318 (Ky. 2006), in which the Kentucky Supreme Court held that hearsay statements were admissible if needed to explain or further expose other statements introduced by the government. The government’s response to that was the defense “still [did not] get [Schrimsher] right.” The court said the statement was hearsay unless Leatherman testified. VR 1; 1/22/2008; 8:56:24.

Despite the ruling, defense counsel attempted to cross-examine Deputy McGuire about the watch:

DC: How is it that you came to find the watch?

DM: Whenever she got out of the backseat, that’s when I found it.

DC: She actually asked you about the watch, didn’t she?

VR 2; 1/22/2008; 5:40:32. The government immediately objected. Defense counsel’s explanation that he did not believe the ruling applied to cross-examining McGuire regarding his direct examination answers fell upon deaf ears. The court sustained the objection. Id.

Rachel Leatherman was unable to present a crucial piece of her defense

The due process clause of the Fourteenth affords every criminal defendant the fundamental right to present a defense. Crane v. Kentucky, 476 U.S. 683, 690-91 (1986); Chambers v. Mississippi, 410 U.S. 284, 294 (1973); Beaty v. Commonwealth, 125 S.W.3d 196, 206 (Ky. 2003). Exclusion of evidence violates that constitutional right when it “significantly undermine[s] fundamental elements of the defendant’s defense.” United States v. Scheffer, 523 U.S. 303, 315 (1998).

Deputy 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.

What the jury did not know was McGuire’s story had changed as the case progressed. 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, McGuire’s testimony changed. Now 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.

In any event, the jury heard McGuire say he noticed she had dropped her watch when he found the cocaine. Thus, the jury heard two admissions, only one of which was true. Rachel Leatherman admitted the watch was hers. The other alleged (unvocalized) admission was the guilt by association that if the watch belonged to Leatherman, the cocaine was hers also.

What the jury did not hear was that Rachel Leatherman told him she had dropped her watch and where. The court’s ruling was incorrect.

Ms. Leatherman’s request for McGuire to retrieve her watch was not hearsay. It was not offered to proof the truth of the matter asserted: that she lost her watch. McGuire said Leatherman “admitted” the watch was hers. It was admissible non-hearsay to do what Schrimsher said is permissible: “guard against any likely misperception that would be created by an opponent’s presentation of a fragmented version of the statement.” 190 S.W.3d 318, 331 (Ky. 2006). It was admissible non-hearsay to show the effect on McGuire: she told him to look behind the seat when she told him she had lost her watch and where. Sanborn v. Commonwealth, 754 S.W.2d 534, 541 (Ky. 1988), quoting Manz v. Commonwealth, 257 S.W.2d 581 (Ky. 1953). It was admissible non-hearsay to show McGuire’s inconsistent statements: that at the preliminary hearing, McGuire testified that the baggie and watch were not in plain view because he did not find them until he pulled the seat back.

There is simply no way to 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 four and one-half years. VR 1; 1/22/2008; 14:08:45. Presumably, he was familiar with the meaning of the phrase “plain view.” At the suppression hearing and at the trial, he testified that the baggie and watch were in plain view. Yet, at the preliminary hearing, he testified that he saw the baggie only after he pulled the seat back.

Cross-examination is the principal method to test the believability of a witness and the truth of his testimony. Davis v. Alaska, 415 U.S. 308, 316 (1974). “[T]he right to cross-examine a witness to impeach his credibility or show motive or prejudice is fundamental to a fair trial.” Williams v. Commonwealth, 569 S.W.2d 139, 145 (Ky. 1978). The trial court’s ruling prevented Rachel Leatherman from exercising her right to confrontation by testing the believability of McGuire’s testimony and his changing story.
Did McGuire, a trained sheriff’s deputy, simply forget his testimony at the preliminary hearing? Given the two irreconcilable versions of how he discovered the baggie and Officer Dawes’s speculative testimony about how she failed to find the baggie during a “thorough” search , a juror could have questioned McGuire’s certainty that the baggie was not in his cruiser the day before. In order to test the truth of a witness’s testimony, however, the jury has to have heard that the witness told two stories. In this case, after the court’s erroneous ruling, the jury did not.

Even if the statement was hearsay, the right to present a defense trumps a state evidentiary rule

Even if the government was correct that Schrimsher disallowed a full exposition about how Rachel Leatherman’s watch was found—which she does not concede—here Smith’s constitutional right to confront witnesses and present a defense outweighs the effect of a state evidence rule. In Davis v. Alaska, the United States Supreme Court held that confrontation rights were violated when the defendant was denied the right to cross-examine a state witness concerning the latter’s probationary status as a juvenile offender despite the fact there existed a statute guarding against use of such information. The High Court made clear that in situations where a witness has little or nothing at stake, the federal constitutional right to confrontation is stronger than a state rule enacted to protect the witness. 415 U.S. 308 (1974). And the Court said in another case, Delaware v. Van Arsdall, confrontation rights are denied when an accused is prevented from “engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness.” 475 U.S. 673 (1986).

The government’s closing argument added to the prejudice

This prong of the argument is not preserved. Ms. Leatherman requests review under RCr 10.26.

The government took full advantage of the court’s incorrect ruling when it referred to Ms. Leatherman’s watch as her “autograph” on the rock of cocaine. Then the government ended its argument with the following:

The simple issue under this case is whether a jury is going to hold her accountable or give her a pass for reasons that have not been presented, no justifications, no excuses, no contradictions of the facts and the testimony you heard.VR 2; 1/23/2008; 2:38:30.

The government knew—because it had moved in limine to prevent it—that the jury was not going to hear the whole story of how McGuire’s story changed from a preliminary hearing statement that Rachel Leatherman told him she had dropped her watch to a suppression hearing/trial statement that he found her watch after she got out of the car at Lourdes Hospital. And the government took full advantage when it commented on Leatherman’s “silence” when it said the jury had not heard “reasons,” “justifications,” “excuses” or “contradictions of the facts.” Id., emphasis added.

In Doyle v. Ohio, 426 U.S. 610, 618 (1976), the United State Supreme Court concluded the use of a defendant’s post-arrest, post-Miranda silence violated fundamental fairness and the due process clause of the Fourteenth Amendment. See also United States v. Williams, 665 F.2d 107 (6th Cir. 1981); Bass v. Nix, 909 F.2d 297 (8th Cir. 1990). “What is impermissible is the evidentiary use of an individual’s exercise of his constitutional rights after the State’s [implied] assurance that the invocation of these rights will not be penalized.” Wainwright v. Greenfield, 474 U.S. 284, 295 (1986). Kentucky has long recognized this principle. Niemeyer v. Commonwealth, 533 S.W.2d 218 (Ky. 1976); Campbell v. Commonwealth, 564 S.W.2d 528 (Ky. 1978); Holland v. Commonwealth, 703 S.W.2d 876,880 (Ky.1986).

Even a single comment on silence can constitute a Doyle violation. Greer v. Miller, 483 U.S. 756, 764, n. 5 (1987); Eberhardt v. Bordenkircher, 605 F.2d 275, 279 (6th Cir. 1979).

“Harmless error, in the context of a violation of a constitutional right of a defendant, is an extremely narrow standard, permitting the State to avoid the retrial of a defendant only when it can demonstrate beyond a reasonable doubt that the error did not contribute in any way to the conviction of the defendant. Chapman v. California, 386 U.S. 18 (1967).” Eberhardt, supra. Harm is presumed to flow from constitutional error. The burden is on the government to conclusively demonstrate to the contrary. Id.
Here, the prosecution cannot meet its burden. Deputy McGuire told fundamentally divergent stories of how he came to find Rachel Leatherman’s watch. Whether the jury believed him depended on its assessment of his credibility, yet, it heard only one story.

Conclusion

Prosecutors have an affirmative duty to conduct trials in a fair manner. The United States Supreme Court stated:

The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor–indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.

Berger v. United States, 295 U.S. 78, 88 (1935). The government’s motion in limine violated Rachel Leatherman’s right to present a defense, to confront the witnesses against her and to be free from comments on her constitutional right to remain silent under the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and §§ 1, 2, 7 and 11 of the Kentucky Constitution. Reversal is required.

III.

The trial court erred when it did not grant directed verdict on the Driving under the Influence charge.

Preservation

Defense counsel moved for directed verdict of acquittal at the close of the government’s case and again at the close of all the evidence. VR 3; 1/23/2008; .
KRS 189A.010 provides in part: “a person shall not operate or be in physical control of a motor vehicle. . . .[h]aving an alcohol concentration of 0.08 or more,” “while under the influence of alcohol. . . .or any other substance or combination of substances which impairs one’s driving ability.” The instructions mirrored the statute. TR 237.

At first blush, it may appear that the evidence showed Rachel Leatherman was driving while impaired. After all, Deputy McGuire testified that she showed “all six clues” on the HGN. VR 1; 1/22/20008; 14:51:12. Clinical testing did not bear this out. Ryan Johnson, a forensic science specialist at the KSP Lab in Frankfort, told the jury that Leatherman’s blood test showed no or drugs present in her system. Id., 15:07:23. The only means for the government to make out its case, then, was for Johnson to testify about the effects of Klonopin. There was just one problem: Johnson said the KSP lab did not have the proper equipment to examine blood for Klonopin. Id., 14:57:46.

That little fact did not prevent him from speculating about what might have been in Rachel Leatherman’s system and how that drug might have impaired her functioning. Johnson admitted on cross that even if he had found Clonazepam in Rachel Leatherman’s blood sample, it was still not an indicator that she was under the influence. He said the literature showed effects of Clonazepam lasted six to eight hours. VR 1; 1/22/2008; 15:03:36. Yet, no one testified about when Leatherman took her last dose or what the dosage was, perhaps because McGuire did not seize her prescription bottles.

The evidence does not meet Kentucky’s rules for directed verdict

In Commonwealth v. Sawhill, the Kentucky Supreme Court discussed circumstantial evidence and declared that “the trial court is certainly authorized to direct a verdict for the defendant if the prosecution produces no more than a mere scintilla of evidence.” 660 S.W.2d 3, 5 (Ky. 1983). The Sawhill case also requires that a person must be convicted upon “evidence of substance.” Id.

In Sawhill, the Court relied in part on Hodges v. Commonwealth, 473 S.W.2d 811 (Ky. 1971). Language in the Hodges case states that when evidence is circumstantial, all circumstances must “point unerringly” to guilt. Id. at 814. Both the Sawhill and Hodges cases require evidence such that based upon it, “reasonable minds might fairly find guilt beyond a reasonable doubt.”

In Commonwealth v. Benham, 816 S.W.2d 186 (Ky. 1991), the Supreme Court reaffirmed the Sawhill scintilla rule and the requirement that there be “evidence of substance” and added a reference to “fair and reasonable inferences.” Id., at 187.

The third Kentucky standard for evaluating sufficiency of the evidence, particularly in circumstantial evidence cases, is the no-inference-upon-inference standard, also a pure rule of reasonableness. Pengleton v. Commonwealth, 172 S.W.2d 52 (Ky. 1943). An inference is less than a scintilla, it cannot stand alone as the basis for a finding of guilt, or else is becomes unreasonable. Inferences, with no solid foundation, are not reasonable.

It is unreasonable, as occurred in Ms. Leatherman’s case, for unsupported inferences to provide solitary proof on an element. That is precisely what this jury was asked to do—pile inferences upon inferences: that because Ryan Johnson said Clonazepam could cause intoxication, that because Rachel Leatherman had taken Clonazepam, she was intoxicated and that because she was driving, she was therefore driving while impaired.

Those inferences ignore the evidence. Johnson admitted on cross that even if he had found Clonazepam in Rachel Leatherman’s blood sample, it was still not an indicator that she was under the influence. VR 1; 1/22/2008; 15:03:36. No one testified about when Rachel Leatherman took her last dose. No one testified about the effects of the drug on Leatherman. Rather, the jury simply inferred its way to a guilty verdict.

Conclusion

Rachel Leatherman’s rights to due process of law under the Fifth and Fourteenth Amendments to the United States Constitution and §§2 and 11 of the Kentucky Constitution were violated. She requests reversal.

CONCLUSION

The government presented a case based upon speculation. The trial court prevented Rachel Leatherman from confronting the witnesses against her and presenting a defense. The government then used that ruling to its advantage when it commented on her silence. The court’s rulings on the suppression motion deserve no legal legitimacy. Rachel Leatherman requests relief.

Respectfully submitted,

Julia K. Pearson
Attorney for Appellant

APPENDIX

Tab Number Item Description Record Location

1 (A1 – A4) Final Judgment TR 275 – 278

2 (A5 – A7) Indictment TR 1 – 3

3 (A8 – A14) Physician’s information for Clonazepam

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