Written by Masoninblue and reblogged from frederickleatherman.wordpress.com.

Yesterday, in Part 1 of this post, I critiqued the first part of the Court of Appeals decision affirming the trial court’s denial of her pretrial motion to suppress evidence.

I concluded that the Court of Appeals erred because it improperly relied on evidence (1) obtained after the deputy stopped Crane Station and (2) facts invented by the trial court. The Court of Appeals also (3) erroneously claimed that her appellate lawyer had failed to challenge any of the trial court’s findings of fact. I provided links to the decision by the Court of Appeals and Crane’s Opening Brief on Appeal and her Reply Brief.

In a related post today entitled How Could Judge Taylor Forget Garcia v. Commonwealth, I discussed a decision he wrote reaching the opposite conclusion on a set of materially indistinguishable facts. You may find that to be an interesting and helpful follow-up to Part 1 since he is one the three judges who decided her case. I also referenced Crane’s Petition for Rehearing of the decision by the Court of Appeals just so there is no misunderstanding or confusion regarding whether her lawyer challenged the findings of fact.

This first part of the decision by the Court of Appeals stands for the proposition that a motion to suppress based on an argument that a police officer lacked a reasonable suspicion to stop someone can be decided on the basis of information he acquires after the stop. Likewise an argument that a police officer lacked probable cause to arrest can be decided on the basis of evidence that turns up after the arrest. Both principles are contrary to long established federal and state case law and eviscerate the Fourth Amendment.

Therefore, the Kentucky State Supreme Court must grant discretionary review and reverse the Court of Appeals. If it does not, trial courts across the state will create havoc by following the decision by the Court of Appeals and denying motions to suppress in violation of a long line of state and federal cases. Eventually, the Supreme Court would have to grant review in one of those cases and overrule the Court of Appeals in the Leatherman case.

That is why it is necessary to grant discretionary review.

Today, I will critique that part of the decision that deals with Crane’s statement that her watch had fallen behind the seat during the ride to the hospital and her request for the deputy’s assistance to retrieve her watch for her.

Tomorrow in Part 3, I will deal with the final issue; namely, the decision by the Court of Appeals that the trial court properly denied her motion for a directed verdict of acquittal on the DUI charge. Due to the length of today’s article, I have decided that I should discuss the latter issue in a separate post.

When Deputy McGuire assisted Crane to get out of the back seat of his patrol vehicle at the hospital (because she was handcuffed with her hands behind her back), she told him that her watch had fallen off her wrist and dropped behind the rear seat during the ride. She asked him to please retrieve it for her. That is undisputed.

At the preliminary hearing, McGuire testified that, after they returned to his vehicle following the blood draw, he pulled the seat back, saw the watch and the suspected controlled substance near it, and seized both of them. When her lawyer asked him if he could see the two items before he pulled the seat back, he said. “No.” However, at the suppression hearing, he testified that he saw both items in “plain view” sitting at the top of the seatbelt crack next to where she was sitting when he opened the door to assist her to get out of his vehicle at the hospital.

Those two statements are mutually exclusive. They cannot both be true and there is no question that Crane’s lawyer was entitled to challenge the deputy’s credibility at trial by impeaching him with his prior inconsistent statement under oath at the preliminary hearing. Nevertheless, the trial judge sustained an improper objection by the prosecutor to that line of inquiry preventing him from eliciting the inconsistent statement.

Why did the trial judge do that?

Before jury selection, the trial judge granted the prosecutor’s motion in limine (i.e., at the beginning) for an order preventing the defense from introducing Crane’s statement about her watch and her request for his assistance in retrieving it on the ground that her statement was inadmissible hearsay.

I have addressed this issue previously in Hearsay, Part Deaux.

The judge’s ruling was improper because the statement was not hearsay, since it was not offered to prove the truth of the matter asserted in the statement. It was offered to show that, as a result of something she said (and it really does not matter what it was, which is why it was not offered to prove the truth of the matter asserted), he pulled the seat back to look for her watch and found both the watch and the suspected controlled substance in proximity to each other.

There is nothing misleading or improper about allowing the jury to hear that evidence because that is the way it happened, according to the deputy’s testimony at the preliminary hearing.

Instead, the jury only heard the deputy’s trial version of his discovery, which was that he found her watch and the suspected controlled substance in plain view on top of the rear seat in the seatbelt crack right next to where she was sitting. To make matters worse, in his final summation the prosecutor said the proximity of her watch to the suspected controlled substance in plain view amounted to her “autograph” on the controlled substance and she had not offered any explanation for how they happened to be in plain view together in the seatbelt crack right next to her.

It’s not surprising in the least that the jury found her guilty of possession and evidence tampering for attempting to conceal the rock of crack. Would the jury have convicted her if they knew that the deputy found the rock not in plain view, but under his back seat because she asked him to retrieve her watch from under the seat?

I do not believe the jury would have convicted her because who would ask a police officer to retrieve their watch from under the seat, if they had lost the watch while attempting to slough a controlled substance?

That was her defense, but the trial judge took it away from her with his ruling in limine.

The Court of Appeals did not decide whether her statement about her watch and request for his assistance to find her watch was inadmissible hearsay. Instead, it dodged the issue by saying the error, if any, was harmless because she could have testified about her statement and request. Indeed, the Court of Appeals noted that the trial judge told her that she could testify about it.

Why does this not make any sense?

(1) If the statement were hearsay, it is not admissible, whether or not she testifies. That is the law and the trial judge cannot create an exception that does not exist.

(2) She had a constitutional right under the Fifth Amendment not to testify and a right to have the judge instruct the jury that it cannot hold her silence against her. In other words, silence is not evidence of guilt.

(3) The judge’s unlawful exception was a manipulative and coercive effort to force her to testify against her will in violation of her Fifth Amendment right to remain silent and not have her silence held against her.

(4) If she had testified, the jury would have been presented with a classic he-said-she-said controversy in which he said he found her watch and the rock together in plain view at the top of the seatbelt crack on the seat right next to her, and she said he found it under the seat after she asked him to look for her watch. Not even the longest long shot Louie at Hialeah would put a fin on her fate in such a swearing contest.

(5) Who could deny that the odds on the outcome of that he-said-she-said swearing contest would change dramatically, if the jury found out that the deputy had previously testified under oath at the preliminary hearing, about a week after her arrest, confirming her statement. The suppression hearing was five months after her arrest and the trial was 18 months after her arrest, by the way. There can be little doubt that the jury would have believed her and disbelieved his plain-view testimony. Then their whole case falls apart.

(6) That is why her lawyer’s attempt to cross examine the deputy by impeaching him with his prior inconsistent statement under oath at the preliminary hearing was proper and legitimate.

To call this error harmless is disingenuous and absurd. But guess what? That is not even the right test. Why is it not the right test?

The trial judge’s order in limine and his ruling preventing her lawyer from impeaching the deputy with the deputy’s prior inconsistent statement under oath at the preliminary hearing took away her defense.

A defendant in a criminal case has a constitutional right to put on a defense and her right to do that was denied to her by the trial judge’s rulings and aggravated by the prosecutor’s closing argument in which he commented on her silence, which is forbidden by the Fifth Amendment. He also attempted to switch the burden of proof over to her to prove her innocence, which is a denial of due process of law under the Fifth and Fourteenth Amendments.

When the court and a prosecutor violate a defendant’s constitutional rights, the test presumes the error affected the outcome of the trial and the prosecution must rebut that presumption by proof beyond a reasonable doubt that it did not.That is a far different test from the one employed by the Court of Appeals.

There is no way the prosecution can meet its burden in this case. Therefore, the Court of Appeals must be reversed on this issue.

Until tomorrow . . .

Cross posted from my law blog.

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