Archive for December, 2011

In case you missed it:

Bird drawing  by Crane-Station
Birds drawn at Ricky’s World by Crane-Station. Sorry if you have seen this. I have more jail art, but am having a temporary camera issue, that will be resolved soon. Thank you for your patience!

When Gregor Samsa woke up one morning from unsettling dreams, he found himself changed in his bed into a monstrous vermin.

Franz Kafka
The Metamorphosis

Frog Gravy is a nonfiction incarceration account.

Inmate names are changed.

Frog Gravy contains graphic language.

McCracken County Jail Cell 107, winter 2008

I am turning into a bat.

I wear a cape to fend off the cold. I am going blind from the fluorescent lighting. I wear a towel on my head. I speak very little. I have hair on my face and on my body that I have no way of controlling and it embarrasses me.

My cape is my greying thin sheet. Sometimes I put the grey square scratchy wool blanket on top of the sheet, but it itches me because I am allergic to wool. When I asked for a cotton blanket, the jail staff refused because I was unable to provide documentation from an outside physician stating that I am allergic to wool.

I am in the toilet trying to brush what is left of a tooth that lost a crown. I have asked to see a dentist for more than a moth now, to no avail.

I have just taken a shower. The cell has no toilet paper, and so, when you have a bowel movement, you have to cup your hand underneath your crotch, and make a run for it, out of the toilet area and through the cell to the shower stall. Someone must stand guard, because the inside of the cell is visible to the hallway occupants. The hallway occupants are usually working Class D men, because Class D women are not allowed to work hallway jobs. No one wants the working men to see them running through the cell naked with shit and piss cupped in one hand, and so we look out for each other. In the shower, you use the other hand to depress the push-button spout that issues a ten-second spray of cold water. Some inmates use rags after they pee, but after a bowel movement, you really have to do the shower thing.

In the cell, YaYa works on a grievance about the lack of toilet paper and we all sign it. It says (picture coming with update- we currently have a nonworking camera):

We have been without tissue paper for 8 hours or more and the 2nd shift is telling us to get it on the 1st shift, they are too busy now. We are without tissue and no guards will bring us any.. We’ve asked and still no tissue. The jail gets money for state, federal and county inmates. There is no reason we should have to drip-dry. We are not animals.

The response reads:

You are given allotted amount of t/p and feminine products. You must use them accordingly.

Meanwhile, in the cell, Meg says to Lea, “I have pinkeye. Isn’t that contagious?”

“It’s incredibly contagious,” says Lea.

Christie says, “I can’t afford to get pinkeye in my eye socket. I can not afford to get pinkeye.”

I say, “Write a note to the doctor.”

Tina says, “Wash your hands.”

“I do wash my hands,” says Meg.

“They won’t do nuthin,'” says Lea. “They want you to get full-blown pinkeye, so everybody in the mutherfucker’ll get it. I’ve been here when everybody in the place had it.”

Down the hall, Harry shouts from his isolation cell, “PLEEEEASE! Somebody,HELP!!”

On the television news, the Amish men, six or seven of them, are in court in neighboring Graves County. Their hats are off and they are quiet. Displaying a large reflective orange triangle on their horse-drawn buggy does not coincide with their religious beliefs, and they are opposing the charges. Graves County is eager to accommodate the Amish in their county jail, and so the jail has pre-ordered dark gray outfits for the men.

I am actually sort of an autistic bat. I speak little, because I want to avoid conflict. It does not help that much. Inmates make fun of me anyway, because I am not from here, and because I took my case to trial. But it is okay that they make fun of me, because everyone is in pain anyway.

I write because there is absolutely nothing else to do but listen, write down what I hear, readjust my towel hat and my cape, and fold cranes out of paper scraps. For breakfast we had applesauce, sausage and cereal; for lunch we had a hamburger patty, corn, an apple and green beans, and for dinner we had a hamburger patty, sweet potatoes, carrots and cake.

I wander to the hallway window and read a new sign that is posted there, regarding a new clergy visitation policy. The letter is from the jailer, and it is lengthy. It says in part:

Clergy Visitation Policy

The staff at McCracken County Jail recognize the importance of one-on-one clergy visits in the rehabilitation of inmates…

However,to ensure the safety of…

The gist of the lengthy letter is that the jail will now limit clergy visits to entombed inmates by narrowing the times that clergy can visit, and increasing the red tape for both clergy and inmates to coordinate such visits.

The new policy is out of grave concern for inmate safety, and it is authored by the same folks who walked the bleeding pregnant woman in premature labor down the hall in handcuffs.

The newer, safer Policy:

-Clergy must now show their theological licensing credentials and documents to the jail staff, and the staff must approve the credentials.

-Hours for clergy visits will be limited to:

8:30-10:30 M-F (no weekends)

(11:30-4:30 M, T, Th,F (no weekends)

-No more than 30 minutes per visit.

-No lay clergy will be allowed. (So much for the laity! ie: nuns and deacons)

-No more than 2 visits per week.

-Clergy must be listed on a visiting list and the visiting list must be approved by the in-house jail chaplain. In other words, if you are not from the area, or if you do not happen to know any clergy in the area, you are shit-out-of-luck.

There are 450-475 inmates warehoused in this jail at any given time. Non-religious texts and educational materials are banned. The only materials allowed are specific types of religious materials. Okay. So now, we agree to get to know God better, and what does the jail do? They limit clergy visits.

To insinuate that clergy, many of whom have ministered in this jail for a long time, somehow compromise inmate safety during brief visits over the phone behind bullet-proof glass is insulting to the clergy who dedicate ministry to this jail.

Meg leaves and vacates her prime real estate and we all rotate our positions in the concrete and steel cell for four, that will soon house six again, as soon as Meg’s replacement arrives. I am in line for a choice spot on a steel bunk next to the cement wall. I started at the beach, between the toilet and the shower on the cement floor. Then I moved to the mountains on a top bunk where the lights were in my face, but now I am hoping for a cave before I lose my eyesight.

In my cave I reflect on the clergy visits and surmise that if I were to ask for a Shaman or a Unitarian, I would be deemed a witch and burned at the stake. Eventually, I dose off.

My dreams become trapped in the walls.

• LEATHERMAN v. COMMONWEALTH…

LEATHERMAN v. COMMONWEALTH

RACHEL LEATHERMAN, APPELLANT,
v.
COMMONWEALTH OF KENTUCKY, APPELLEE.

No. 2008-CA-000849-MR.

Court of Appeals of Kentucky.

January 21, 2011.

Julia K. Pearson , Frankfort, Kentucky, Briefs for Appellant.

Jack Conway , Attorney General of Kentucky, Gregory C. Fuchs, Assistant Attorney General, Frankfort, Kentucky, Brief for Appellee.

BEFORE: TAYLOR, CHIEF JUDGE; LAMBERT, JUDGE; HENRY,1 SENIOR JUDGE.

OPINION

LAMBERT, JUDGE.

Rachel Leatherman directly appeals from the judgment of the McCracken Circuit Court following a jury trial convicting her of possession of a controlled substance (cocaine), tampering with physical evidence, and operating a motor vehicle under the influence of alcohol or drugs. As a result of those convictions, the trial court sentenced Leatherman to a total of eight years’ imprisonment. On appeal, Leatherman challenges the trial court’s failure to suppress evidence obtained in conjunction with the investigatory stop and her subsequent arrest, the trial court’s granting of the Commonwealth’s motion in limine that prohibited her from mentioning her statement to Deputy McGuire, and the trial court’s failure to grant a directed verdict on the DUI charge. Having thoroughly reviewed the record on appeal and the parties’ briefs, we affirm the judgment of conviction.

The facts leading up to Leatherman’s arrest and subsequent conviction are as follows: On June 28, 2006, Vernon Wilkey made an emergency 911 call to report events in his neighborhood on Queensway Drive. The record contains an unofficial transcript of his 911 call:

DISPATCHER: Central dispatch. This is Lou. Could I help you.

MR. WILKEY: Yes, sir. This is Vernon Wilkey. I live out here on Queensway Drive.

And 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.

DISPATCHER: Talked to who?

MR. WILKEY: My neighbor next door.

DISPATCHER: And was talking to him about heroin?

MR. WILKEY: Yeah, tar heroin.

* * * *

DISPATCHER: …. Okay. Do you know what she was writing down?

MR. WILKEY: No.

DISPATCHER: What address on Queensway Drive was she last seen at?

MR. WILKEY: She was just here at mine a few minutes ago at 4015.

DISPATCHER: Is she white or black?

MR. WILKEY: She’s white.

DISPATCHER: Hold on just a moment, please.

* * * *

DISPATCHER: What’s the license plate number on that vehicle, sir?

MR. WILKEY: [License number omitted.]

* * * *

DISPATCHER: What state is that?

MR. WILKEY: Seattle, Washington.

She said something about her and her husband staying in a motel and everything.

* * * *

DISPATCHER: All right. Officers are already on the way. They’ll be out there to speak with you shortly.
If she leaves before they get out there to check the area, could you give us a call back and let us know which way she goes?

MR. WILKEY: Okay.

The following day, Mr. Wilkey completed a written statement detailing what had happened:

On 6-28-2006 a Lady driven a Buick Lasaber stoped at my driveway and ask me if I would sell 2 berrlles and i said they belong to my Naber. She had her paints unbuttoned & unzipped. She acked like she was under the Influence of something. She was a dirty Blound wereing Blue shirt & Blue Jeans. [Spelling and grammatical errors in original.]

The record also includes an unofficial transcript of the dispatch tape, which reads in pertinent part as follows:

DIS: 47. 38. Suspicious person complaint, the 4000 block off of Queensway Drive off of Lesser Harris and Bottom Street. A white female in a dark blue LeSabre that’s out walking around asking people about 218A.2

* * *

DIS: 38 and 47, that dark blue LeSabre’s going to have a Washington tag. [License number omitted.] They don’t know who she is, but they’re going to call us back if the vehicle leaves before you arrive.

Deputy Eddie McGuire of the McCracken County Sheriff’s Department responded to the call and proceeded to the Queensway Drive area. The subject of the complaint was no longer in the area, but on his way back into town, Deputy McGuire came upon a blue Buick LeSabre with Washington license plates in the right lane with the left blinker flashing. The dispatch transcript reflects: “I just passed her. Going to try to find her. See if she’ll pass me again. I think she’s gonna turn off now. Coming up on Cairo and 60.” When Deputy McGuire pulled his cruiser behind the LeSabre, the driver turned on the right turn signal and pulled off to the right side of the road. Deputy McGuire then turned on his lights and pulled up behind the LeSabre. We note that the record contains a videotape of the cruiser cam video; unfortunately, there is no audio recording attached to the video.

Deputy McGuire approached the driver’s side of the stopped vehicle and had the driver step out. The driver was Rachel Leatherman, and a records check showed that there were no active warrants for her arrest. Deputy McGuire noticed that Leatherman had glassy eyes, that her pants were unbuttoned and unzipped, and that a pant leg was rolled up. He also noticed that she was nervous and fidgety. Deputy McGuire then performed field sobriety tests. On the horizontal gaze nystagmus (HGN) test, Leatherman showed six clues that indicated impairment. A breath test and later blood tests revealed that there were no drugs or alcohol in Leatherman’s system.

When Deputy McGuire asked her about the 911 call, Leatherman referred to Mr. Wilkey as a snitch. She admitted to having been in the Queensway Drive area and to asking a man about some barrels. She also stated that she was on several prescription medications, including Adderall, Metoprolol, and Clonazepam. By this time a second deputy, Deputy Jason Walters, had arrived. Leatherman consented to a search of her car, during which they found a bottle of prescription medication, a full cup of beer in the console, and a recorked bottle of wine on the floor of the passenger side. They did not find any illegal drugs during the search.

Deputy McGuire requested that a female officer respond to the scene to perform a search of Leatherman. Paducah Police Officer Gretchen Dawes responded, obtained consent to search, and performed a thorough search of Leatherman, including the front and back pockets of her jeans, the rolled up pants legs, and under her T-shirt. The search is depicted in the cruiser cam video. Officer Dawes did not find any weapons or illegal drugs on her person. Following this search, Deputy McGuire arrested Leatherman for DUI, handcuffed her, and placed her in the back seat of his cruiser. The three officers then performed another search of her vehicle, including the trunk. Again, no illegal drugs were found.

Once the search was concluded, Deputy McGuire drove Leatherman to Lourdes Hospital where blood was drawn for a blood test. When Deputy McGuire removed her from the cruiser at the hospital, Leatherman claims that she stated she had dropped her watch in the back seat. During this period, Deputy McGuire claims to have noticed a small baggie containing what was later confirmed to be crack cocaine in the seatbelt crack in the vicinity of Leatherman’s watch. When confronted with this, Leatherman denied that the drugs were hers.
Based on the above, the McCracken County grand jury indicted Leatherman for possession of a controlled substance (cocaine) (KRS 218A.1415), tampering with physical evidence (KRS 524.100) by concealing the baggie of crack cocaine, and operating a motor vehicle under the influence of drugs (KRS 189A.010).

Leatherman moved to suppress the evidence discovered as a result of her stop and arrest, arguing that the stop was based on an uncorroborated tip and that there was no probable cause to justify the arrest.

Following a suppression hearing, the trial court denied the motion to suppress. It went on to deny subsequent motions to reconsider that ruling, although it did enter a substitute order. The matter proceeded to trial, after which the jury found Leatherman guilty as charged in the indictment. Following the penalty phase and in accordance with the jury’s recommendation, the trial court sentenced Leatherman to two consecutive four-year terms of imprisonment for the possession and tampering convictions as well as to forty-eight hours in jail and a $200.00 fine for the DUI conviction. This appeal follows.

On appeal, Leatherman raises three issues. First, she argues that the trial court erred in denying her motion to suppress. Second, she argues that the trial court improperly granted the Commonwealth’s motion in limine regarding her statements to Deputy McGuire about her watch. Third, she argues that the trial court should have granted her motion for a directed verdict on the DUI charge. We shall address each of these arguments in turn.

The first issue we shall address is whether the trial court properly denied Leatherman’s motion to suppress. The trial court entered two orders addressing this issue, which we shall set forth in full below.

On January 18, 2008, just prior to the trial in the matter, the trial court entered a substitute order denying Leatherman’s motion to suppress:3

This matter is before the Court on Defendant’s motion, through counsel, to supplement the record and to reconsider and set aside an order denying his [sic] motion to suppress evidence. The record is ORDERED supplemented with a 911 transcript. The Court now sets aside its prior order denying Defendant’s motion to suppress and substitutes this order denying the motion to suppress.

FINDINGS OF FACT

1. Police dispatch received a telephone call from a person who gave his name and address, stating that a white female in a vehicle that looked like a late 80’s or early 90’s dark blue Buick LaSabre [sic], bearing Seattle Washington license plate number . . . was . . . walking around in [his] neighbors yard and everything and writing stuff down, and she’d talked to him and mentioned something about tar heroin and all that stuff.”

2. A Sheriff’s deputy testified that dispatch radioed the incident and stated that the white female was attempting to buy heroin.

3. The deputy observed a dark blue LaSabre [sic] with the . . . Washington plate, driven by a white female in a right hand traffic lane with her left turn signal activated. The vehicle did not turn but pulled to the right side of the roadway and stopped.

4. The deputy pulled in behind the stopped vehicle and activated his emergency lights.

5. When the deputy went to the vehicle he observed the Defendant with her pants unzipped and unbuttoned. The deputy observed in plain view an open container of what he suspected to be beer and an opened but corked bottle of wine in the car.

6. Defendant failed all six clues of a horizontal gaze nystagmus test, had very glassy eyes, and appeared nervous. When the deputy asked her if she was taking any medication that would explain her condition she stated that she was on several medications, including Clonazepam.

7. The maker of Clonazepam warns that it should not be used when driving a vehicle and that the drug causes abnormal eye movements.

8. The deputy arrested Defendant for operating a motor vehicle under the influence of drugs or alcohol and placed her in the back seat of his patrol car, which he had searched and found clean of any drugs or other items.

9. When Defendant later exited the patrol car the officer searched the back seat and found a piece of cellophane which appeared to contain a controlled substance. The cellophane was located behind the back seat adjacent to what Defendant identified as her wristwatch.

10. The suspected controlled substance lab tested as cocaine.

CONCLUSIONS OF LAW

1. The 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.

2. 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 to the right, constitutes reasonable suspicion to investigate and possibly cite for improper signal.

3. A report of suspicious activity by a person who identifies himself by name, telephone number, and address, is presumptively reliable.

4. 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.

5. A police officer may legally search the back seat of his patrol car where the defendant was placed incident to arrest.

6. The results of the search and the plain view discovery of the wine and suspected beer is admissible as evidence at trial.

IT IS HEREBY ORDERED that Defendant’s motion to suppress is DENIED.

On January 28, 2008, following the trial, the court entered a supplemental order denying the motion to suppress:

The defendant has requested the court to consider additional information and evidence supplementing the record in this case, based upon which the Court makes the following supplemental Findings of Fact and Conclusions of Law in denying defendant’s Motion to Suppress:

FINDINGS OF FACT

1. The 911 dispatcher received a call from an identified public citizen, Vernon Wilkey, who reported that a white female driving a dark blue LaSabre [sic] with Washington State license plates made unusual and disturbing statements about heroin in his neighborhood.

2. 911 called deputies and alerted them to the woman, her vehicle, and her suspicious drug activity.

3. Within minutes Deputy McGuire observed a dark blue LaSabre [sic] with Washington State license plates driven by a white female exactly matching the 911 description. The vehicle was traveling slowly in the right traffic lane of Highway 60 with the left turn signal activated for an unusually long time for no apparent reason. The vehicle did not turn left, but continued on straight, which all appeared unusual and suspicious to the deputy.

4. The vehicle then pulled to the right side of the road and stopped without any signaling to do so by the deputy. This demonstrated additional unusual behavior by the defendant. The deputy then pulled in behind the defendant’s vehicle and activated his roadside stop lights. By the time the deputy stopped, he had reasonable grounds and reasonable suspicion to approach the driver. He exited his cruiser and walked to speak to the driver.

5. The deputy observed in plain view a half empty but opened container of beer and a half empty but corked bottle of wine. The defendant’s eyes were glassy. He then had reasonable grounds to check the driver’s sobriety. The defendant failed all HGN tests. She also gave unusual responses to instructions given to her by the deputy, she appeared somewhat confused; she appeared nervous; and she appeared to the deputy to be under the influence of drugs or alcohol.

6. The defendant admitted to the deputy that she was on a number of medications, including Clonazepam. Clonazepam is a strong anti-psychotic medication which interferes with motor performance, including driving a motor vehicle. Clonazepam also causes abnormal eye movements.

7. The deputy had reasonable grounds and probable cause to arrest the defendant for DUI.

8. The defendant was transported to the hospital for the taking of a blood test. At the hospital a suspicious baggie was found next to the defendant’s watch in the back seat of the deputy’s patrol cruiser. The deputy knew that the patrol cruiser did not have the suspicious plastic baggie or a watch before the defendant was placed into the back seat. The defendant admitted losing her watch. The deputy had probable cause and exigent reasons to seize the baggie. The baggie appeared to contain crack cocaine. The deputy had probable cause to arrest the defendant for tampering with evidence and possession of cocaine.

CONCLUSIONS OF LAW

1. The caller who reported the defendant’s unusual interest in heroin was identified. Such a report is considered more reliable than an anonymous tip.

2. The deputy had reasonable suspicion and probable cause to make an investigation stop and search of the defendant and her vehicle.

3. Discovery of the suspicious plastic baggie in the back seat of the deputy’s cruiser was based on plain view discovery. The defendant and her vehicle had previously been properly detained based on the circumstances above which proceeded [sic] the discovery of the baggie.

Our standard of review from a denial of a motion to suppress is twofold. First, we must determine whether the findings of fact are supported by substantial evidence. If so, those findings are conclusive. Kentucky Rules of Criminal Procedure (RCr) 9.78; Adcock v. Commonwealth,967 S.W.2d 6, 8 (Ky. 1998). If not, the factual findings must be overturned as clearly erroneous. Farmer v.Commonwealth,169 S.W.3d 50, 53 (Ky. App. 2005). Second, we must perform a de novo review of those factual findings to determine whether the lower court’s decision is correct as a matter of law. Ornelas v. United States,517 U.S. 690, 697, 116 S.Ct. 1657, 1662, 134 L. Ed. 2d 911 (1996); Commonwealth v. Banks,68 S.W.3d 347, 349 (Ky. 2001); Garcia v. Commonwealth,185 S.W.3d 658, 661 (Ky. App. 2006); Stewart v. Commonwealth,44 S.W.3d 376, 380 (Ky. App. 2000).

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.
Our first consideration is whether Deputy McGuire had sufficient reason to stop and investigate Leatherman’s automobile. We hold that Deputy McGuire had sufficient grounds to stop Leatherman and investigate the situation, as well as probable cause to arrest her.

In Taylor v. Commonwealth,987 S.W.2d 302, 305 (Ky. 1998), the Supreme Court of Kentucky addressed the investigatory stop of automobiles and held:

In order to justify an investigatory stop of an automobile, the police must have a reasonable articulable suspicion that the persons in the vehicle are, or are about to become involved in criminal activity. United States v. Cortez,449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981); Commonwealth v. Hagan, Ky., 464 S.W.2d 261 (1971). In order to determine whether there was a reasonable articulable suspicion, the reviewing appellate court must weigh the totality of the circumstances. See Alabama v. White,496 U.S. 325, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990).

More recently, in Johnson v. Commonwealth,179 S.W.3d 882, 884 (Ky. App. 2005), this Court addressed the same issue, setting forth the applicable law as follows:

It is well settled that an investigative stop of an automobile is constitutional as long as law enforcement officials have a reasonable suspicion — supported by specific and articulable facts — that the occupant of the vehicle has committed, is committing, or is about to commit an offense. Delaware v. Prouse,440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979); Collins v. Commonwealth,142 S.W.3d 113 (Ky. 2004). In addition to the requirement that the stop be justified at its inception, the police officer’s subsequent actions must be reasonably related in scope to the circumstances that gave credence to the initial stop. Terry v. Ohio,392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). “[A]n investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop.” Florida v. Royer,460 U.S. 491, 500, 103 S.Ct. 1319, 1325, 75 L.Ed.2d 229, 238 (1983).

Reasonableness “is measured in objective terms by examining the totality of the circumstances.” Ohio v. Robinette,519 U.S. 33, 39, 117 S.Ct. 417, 421, 136 L. Ed. 2d 347 (1996).

Based upon the prior 911 call, during which the caller described a woman driving a car that displayed Washington state license plates 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. However, the law is clear that a stop may only continue long enough for the officer to determine whether his suspicions were correct.

On this issue, the United States Supreme Court has held:

The predicate permitting seizures on suspicion short of probable cause is that law enforcement interests warrant a limited intrusion on the personal security of the suspect. The scope of the intrusion permitted will vary to some extent with the particular facts and circumstances of each case. This much, however, is clear: an investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop. Similarly, the investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer’s suspicion in a short period of time. It is the State’s burden to demonstrate that the seizure it seeks to justify on the basis of a reasonable suspicion was sufficiently limited in scope and duration to satisfy the conditions of an investigative seizure.
Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 1325-26, 75 L. Ed. 2d 229 (1983) (internal citations omitted, emphasis added).

Here, Deputy McGuire noted that Leatherman exhibited glassy eyes and that she was acting nervous and fidgety. He also noted that she had a cup of beer and an opened, but recorked, bottle of wine in the vehicle. That certainly provided Deputy McGuire with grounds to determine whether Leatherman was driving under the influence by performing field sobriety tests. Leatherman then demonstrated six clues on the HGN test.4 Accordingly, because of the open containers of alcohol and the results of the HGN test, the deputies were justified in performing a breathalyzer test to determine whether Leatherman was under the influence of alcohol.

We note for the record that the test was negative and that later blood tests were also negative for alcohol or drugs.

Finally, consent searches of her automobile and her person did not reveal any heroin or any other illegal substance. However, there is no dispute that the deputies discovered a bottle of prescription medication, and Leatherman admitted that she was on several medications, including Clonazepam, which did constitute sufficient grounds for her continued detention. Our conclusion is supported by this admission, as well as Deputy McGuire’s testimony related to his observations of Leatherman.

We must next consider whether Deputy McGuire had the requisite probable cause to arrest Leatherman without a warrant.

KRS 431.005(1) permits a peace officer, including a sheriff’s deputy, to make an arrest in the following situations:

(a) In obedience to a warrant; or

(b) Without a warrant when a felony is committed in his presence; or

(c) Without a warrant when he has probable cause to believe that the person being arrested has committed a felony; or

(d) Without a warrant when a misdemeanor, as defined in KRS 431.060, has been committed in his presence; or

(e) Without a warrant when a violation of KRS 189.290, 189.393, 189.520, 189.580, 511.080, or 525.070 has been committed in his presence, except that a violation of KRS 189A.010 or KRS 281A.210 need not be committed in his presence in order to make an arrest without a warrant if the officer has probable cause to believe that the person has violated KRS 189A.010 or KRS 281A.210.

There is no dispute that Deputy McGuire did not have a warrant for Leatherman’s arrest. Therefore, his authority to arrest Leatherman would fall under subsection (e).

In Maryland v. Pringle,540 U.S. 366, 124 S.Ct. 795, 157 L. Ed. 2d 769 (2003), the United States Supreme Court addressed warrantless arrests and the concept of probable cause. The Court recognized as a general matter that, “[a] warrantless arrest of an individual in a public place for a felony, or a misdemeanor committed in the officer’s presence, is consistent with the Fourth Amendment if the arrest is supported by probable cause[,]” id., 540 U.S. at 370, 124 S. Ct. at 799, and then addressed the question as to “whether the officer had probable cause to believe that Pringle committed that crime [possession of cocaine].” Id. It went on to provide a comprehensive discussion of the probable-cause standard:

The long-prevailing standard of probable cause protects citizens from rash and unreasonable interferences with privacy and from unfounded charges of crime, while giving fair leeway for enforcing the law in the community’s protection. On many occasions, we have reiterated that the probable-cause standard is a practical, nontechnical conception that deals with the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. Probable cause is a fluid concept — turning on the assessment of probabilities in particular factual contexts — not readily, or even usefully, reduced to a neat set of legal rules.

The probable-cause standard is incapable of precise definition or quantification into percentages because it deals with probabilities and depends on the totality of the circumstances. We have stated, however, that the substance of all the definitions of probable cause is a reasonable ground for belief of guilt, and that the belief of guilt must be particularized with respect to the person to be searched or seized.
Id., 540 U.S. at 370-71, 124 S. Ct. at 799-800 (internal citations, quotations, and brackets omitted). Finally, the Court instructed that “[t]o determine whether an officer had probable cause to arrest an individual, we examine the events leading up to the arrest, and then decide `whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to’ probable cause.” Id., 540 U.S. at 371, 124 S. Ct. at 800.

Similarly, the Supreme Court of Kentucky has stated:

As the United States Supreme Court has remarked, probable cause is a flexible, common-sense standard. It merely requires that the facts available to the officer would “warrant a man of reasonable caution in the belief,” that certain items may be contraband or stolen property or useful as evidence of a crime; it does not demand any showing that such a belief be correct or more likely true than false. A “practical, nontechnical” probability that incriminating evidence is involved is all that is required.
Williams v. Commonwealth, 147 S.W.3d 1, 7-8 (Ky. 2004).

In the present case, we hold that Deputy McGuire had probable cause to arrest Leatherman for DUI. Deputy McGuire testified that Leatherman appeared to be under the influence of something, despite his observation that she was not driving erratically or weaving.

Furthermore, Leatherman failed the HGN test, which reveals intoxication by alcohol or some other drug, although she later passed the breathalyzer test. Finally, the product information for Klonopin (Clonazepam) attached to Leatherman’s brief 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.”

Therefore, the observation of Leatherman’s glassy eyes and odd behavior coupled with her admission that she was taking prescription medication that included a warning about driving was sufficient to provide Deputy McGuire with probable cause to arrest her for DUI. Therefore, Deputy McGuire’s warrantless arrest of Leatherman did not deprive her of her constitutional rights against illegal search and seizure.

Next, we shall address Leatherman’s argument that the trial court erred in granting the Commonwealth’s motion in limine prohibiting her from mentioning any statement or question she made to Deputy McGuire regarding her watch in the backseat of the cruiser. Leatherman contends that she should have been permitted to elicit testimony from Deputy McGuire that she had asked him about her watch before he actually discovered it or the drugs in the backseat of the cruiser.

Because Deputy McGuire was permitted to testify that Leatherman admitted the watch was hers, she argues that the jury was left with the impression that the drugs were also hers. She goes on to argue that her statement to Deputy McGuire about her watch did not constitute hearsay because it was not offered to prove the truth of the matter asserted in the statement — that she had lost her watch. Rather, it was offered to show the effect it had on Deputy McGuire in that he looked behind the seat to retrieve the watch (where he found the drugs) and to establish his inconsistent statements from earlier proceedings. The Commonwealth, in turn, argues that the trial court did not abuse its discretion in disallowing the introduction of this statement during Deputy McGuire’s testimony.

In support of this argument, Leatherman cites to Schrimsher v. Commonwealth,190 S.W.3d 318 (Ky. 2006). In Schrimsher, the Supreme Court of Kentucky addressed the application of Kentucky Rules of Evidence (KRE) 106, also known as the rule of completeness, which provides: “When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.”

Describing the rule, the Schrimsher Court held that,
[A] party purporting to invoke KRE 106 for the admission of otherwise inadmissible hearsay statements may only do so to the extent that an opposing party’s introduction of an incomplete out-of-court statement would render the statement misleading or alter its perceived meaning. The issue is whether the meaning of the included portion is altered by the excluded portion.
Schrimsher, 190 S.W.3d at 330-31 (footnote, citation, and internal quotation marks omitted).

Regarding Leatherman’s reliance on Schrimsher, the Commonwealth argues that she was attempting to explain an earlier statement, not complete an incomplete out-of-court statement to prevent the jury from being misled. The Commonwealth also argues that Leatherman is precluded from raising the issue of the discrepancy in Deputy McGuire’s statements during the course of the proceedings because there was no foundation in place that would permit her to impeach his prior statements and because the argument was different from the one presented below, citing Kennedy v. Commonwealth,544 S.W.2d 219, 222 (Ky. 1976), overruled on other grounds by Wilburn v. Commonwealth, 213 S.W.3d 321 (Ky. 2010).

Kentucky law is well settled that a trial court’s decision to admit evidence is subject to an abuse of discretion standard.

Since the trial court’s unique role as a gatekeeper of evidence requires on-the-spot rulings on the admissibility of evidence, we may reverse a trial court’s decision to admit evidence only if that decision represents an abuse of discretion. And for a trial court’s decision to be an abuse of discretion, we must find that the decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.
Clark v. Commonwealth, 223 S.W.3d 90, 95 (Ky. 2007) (internal quotation marks and footnotes omitted). Similarly, “[a] trial court’s ruling under KRE 106 (i.e., the “rule of completeness”) is discretionary.” Schrimsher,190 S.W.3d 318, 330 (Ky. 2006).

While we disagree with the Commonwealth’s “can of worms” argument, we ultimately agree that the trial court did not abuse its discretion in declining to admit this statement during Deputy McGuire’s testimony. We note that 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. Furthermore, Leatherman did not attempt to impeach Deputy McGuire’s prior statements regarding the discovery of the watch and drugs through laying a proper foundation. Even if we were to hold that this ruling was made in error, we must hold that it constitutes harmless error as the ruling is not “inconsistent with substantial justice.” RCr 9.24. Permitting the introduction of this out of court would not have changed the outcome due to the strength of the rest of the testimony that was introduced, 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.

Furthermore, we perceive no palpable error under RCr 10.26 in the Commonwealth Attorney’s statements during closing argument. Leatherman contends that she established palpable error in the Commonwealth Attorney’s reference to her watch as an “autograph” on the drugs and as well as in what she describes as an impermissible comment on her silence in the following passage from the trial:

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.

We disagree with Leatherman’s assertion that such argument violated her constitutional rights or rose to the level of palpable error justifying any further review.

Finally, we shall consider Leatherman’s argument that the trial court erred in denying her motion for a directed verdict on the DUI charge. Leatherman contends that the Commonwealth failed to introduce sufficient proof to permit the matter to go to the jury because there was no scientific proof revealing the presence of a prescription medication in her system.

The Supreme Court of Kentucky succinctly set forth the directed verdict rule in Commonwealth v. Benham,816 S.W.2d 186, 187 (Ky. 1991):

On motion for directed verdict, the trial court must draw all fair and reasonable inferences from the evidence in favor of the Commonwealth. If the evidence is sufficient to induce a reasonable juror to believe beyond a reasonable doubt that the defendant is guilty, a directed verdict should not be given. For the purpose of ruling on the motion, the trial court must assume that the evidence for the Commonwealth is true, but reserving to the jury questions as to the credibility and weight to be given to such testimony.

On appellate review, the test of a directed verdict is, if under the evidence as a whole, it would be clearly unreasonable for a jury to find guilt, only then the defendant is entitled to a directed verdict of acquittal. See also Wilburn v. Commonwealth, 312 S.W.3d 321 (Ky. 2010).

The applicable statute in this case is KRS 189A.010, which addresses the crime of driving under the influence. Specifically related to this case, the Commonwealth was required to prove that Leatherman was operating her motor vehicle “[w]hile under the influence of any other substance or combination of substances which impairs one’s driving ability.” KRS 189A.010(1)(c).

The evidence elicited at trial established that Leatherman admitted to Deputy McGuire that she was taking three prescription medications, including Clonazepam, which contains a warning regarding driving while on that medication. Deputy McGuire also testified as to his observations of Leatherman’s behavior, including the results of the HGN test showing intoxication.

Furthermore, Mr. Wilkey testified at trial that Leatherman and her husband visited him several months after the incident regarding his upcoming testimony. He reported that Leatherman told him that she was unable to remember what they discussed because she was “whacked out.” This evidence is more than a mere scintilla and is of sufficient substance to permit the question of guilt to go to the jury. Commonwealth v. Sawhill,660 S.W.2d 3, 5 (Ky. 1983).

For the foregoing reasons, the judgment of the McCracken Circuit Court is affirmed.

ALL CONCUR.

Footnotes

1. Senior Judge Michael L. Henry concurred in this opinion prior to the expiration of his term of senior judge service. Release of the opinion was delayed by administrative handling.

Back to Reference

2. We assume “218A” refers to Kentucky Revised Statutes (KRS) Chapter 218A, which addresses controlled substances.

Back to Reference

3. The original order denying Leatherman’s motion to suppress had been entered on January 11, 2007.

Back to Reference

4. “Nystagmus is an involuntary rapid movement of the eyeball, which may be horizontal, vertical, or rotatory. (The Sloane-Dorland Ann. Medical-Legal Dict. (1987) p. 504.) An inability of the eyes to maintain visual fixation as they are turned from side to side (in other words, jerking or bouncing) is known as horizontal gaze nystagmus, or HGN.” People v. Ojeda,225 Cal.App.3d 404, 406, 275 Cal.Rptr. 472, 472-73 (1990).

The horizontal gaze nystagmus (HGN) test is one of the tests law enforcement officers perform either in the field or at the police station when they suspect an individual is under the influence of alcohol or some other drug. The prosecution often introduces the results of the HGN test in DWI prosecutions. This test is based on the theory “that alcohol and drug use increases the frequency and amplitude of HGN and cause it to occur at a smaller angle of deviation from forward.” Although alcohol and drug use may increase the HGN, it can also be produced by other pathological, chemical or natural causes.” 3 Barbara E. Bergman and Nancy Hollander, Wharton’s Criminal Evidence § 13:49 (15th ed. 2009).

I wrote this article last year, and I am reblogging it from Firedoglake, with minor changes. I will be writing more about holiday dumpster diving sometime in the next couple of weeks.

Deep diving a dumpster in Seattle. (photo: sea turtle via Flickr)

On October 23, 2010, WikiHow offered an excellent and comprehensive article on dumpster diving technique, so this diary is not a rehash. I only add a few of points: 1. Never dive a medical or hospital dumpster 2. Never dive a compacting dumpster. 3. Dive in quadrants. This way, you never have to throw anything outside of the dumpster in order to get at the contents at the bottom. 4. Double your configuration, like  a cave diver, and carry two of everything, except your wallet or money, which you should not take with you, into a dumpster and  5. If you dive as a couple you tend to appear pathetic (which of course you are) rather than menacing (which you are not).

Between us, my husband and I have about ten dollars to last us until the end of the month. So, for the moment, it is all about aluminum and copper. Aluminum brings $0.45 to $0.60 per pound in cash at recycle, and insulated copper (cords cut from appliances, telephones, or anything that plugs into a wall except for cable) brings $1.00 per pound. Add another dollar per pound if you are willing to strip the cords. January is the best month of the year for divers because Christmas is now a disposable holiday and  Christmas lights are, quite literally, the gift that keeps on giving. We will keep eating this month because we know how to dive for survival.

What I really enjoy, however, is diving  to observe economic and sociological trends. I find it absolutely fascinating. Pushed, years ago, to this strange, stigmatized hobby by need, I inadvertently discovered my real passion of looking for things that tell stories (divorce trash, death trash, the end of the WWII era trash),  solving mysteries, and learning about people.  I am, at times paralyzed, or at least stopped short with soul-gripping nostalgia or sadness, and at other times hit with irony, hilarity and coincidence the likes of which I could never experience (or make up) in the surface world. What other people want you to see is on the surface. If you want to know about the real world, look at what people throw away. In fact, here is an ice-breaker if you are dumpster curious: You can approach a diver and say, “Amazing what people throw away, isn’t it?”  . . . (more…)

Written by Masoninblue and reblogged from frederickleatherman.wordpress.com. If you are following the Frog Gravy incarceration blog, and you are not interested in the legal case, please refer to today’s Frog Gravy 72: Meanness Among Warehoused Inmates.

Author’s note: Welcome back to the Killer Cross. If you are a new reader, or you would like to review the previous three portions of this cross examination, go here for:

Part 1,
Part 2
Part 3

I did not know the answers to questions 106-108, so I left them blank and recommended Mr. McNeill check it out. Crane’s first lawyer, Will Kautz, had asked Deputy McGuire if he would be willing to submit the plastic baggie containing the rock to the crime lab for fingerprint analysis, which he agreed to do. These questions were designed to elicit answers relative to his handling the bag. Crane and I knew her fingerprints would not be on the bag and we figured his fingerprints would be.

We found out at trial that no request was made by McGuire or a prosecutor to check for prints on the bag.

Questions 75-81 were supplied by Crane-Station

75. Q: You previously testified under oath in Mrs. Leatherman’s case that the seatbelt crack where Mrs. Leatherman was seated in the back of your cruiser for transport did not have a seatbelt pulled through, is that correct?

A: Yes.

Transcript Suppression, page 25, lines 22-25

76. Q: So, in your thorough, routine weekend maintenance, you forgot to pull the seatbelt through?

A: Yes.

77. Q: So, Mrs. Leatherman was cuffed behind the back for transport without the benefit of even seatbelt safety, correct?

A: Yes.

78. Q:Are you aware that Kentucky has a seatbelt law?

A: Yes.

79. Q: And, as a trained police officer who has seen any number of traumatic injury accidents, you can surmise that the seatbelt law is in place to prevent injury, permanent disability, or death, correct?

A: Yes.

80. Q: But the benefit of added safety does not apply to your suspects that you handcuff and place in the back seat for transport, correct?

A: Yes.

81. Q: And this ‘oversight’ on your part could place not only you but your entire department, in jeopardy for carrying liability for injuries or deaths that could have been prevented, correct?

A: Yes.

82. Stricken.

83. Q: When you filled out the Uniform Citation, you charged Mrs. Leatherman with possession of a controlled substance, but you did not specify or identify the substance, did you?

A: No, I didn’t.

84. Q: Even though you immediately recognized it as crack, correct?

A: Yes.

Transcript Grand Jury, page 7, line 12

85. Q: Crack is a form of cocaine, isn’t it?

A: Yes.

86. Q: Cocaine comes in another form called powder, right?

A: Yes.

87. Q: And isn’t it generally true that white folks prefer powder cocaine while African Americans prefer crack?

A: Yes.

88. Q: Isn’t it also true that crack is smoked?

A: Yes.

89. Q: Crack is a highly addictive drug, isn’t it?

A: Yes.

90. Q: That’s because crack produces an intense high that only lasts a few minutes, correct?

A: Yes.

91. Q: Coming down from that high is so unpleasant that users refer to it as crashing, isn’t that right?

A: Yes.

92. Q: And one reason why crack is so addictive is that users want to feel good again so they’ll smoke another rock, if it’s available, won’t they?

A: Yes.

93. Q: Most users will smoke up all the crack they have and go look for more as soon as they run out, right?

A: Yes.

94. Q: They will keep smoking it sometimes for several days until they run out and then they might sleep for several days, right?

A: Yes.

95. Q: Crack smokers usually carry a glass pipe and a torch with them so they can smoke crack as soon as they purchase it from their dealer, right?

A: Yes.

96. Q: You and Deputy Walters and Officer Dawes did not find a glass pipe in Mrs. Leatherman’s car or on her person, correct?

A: Yes, you’re right.

97. Q: You, Deputy Walters and Officer Dawes did not find a crack torch in her vehicle or on her person, correct?

A: Yes, you’re correct.

98. Q: And the three of you did not find any residue of smoke crack in her vehicle or on her person, right?

A: Correct.

99. Q: It’s not unusual for crack users to have burned lips, right?

A: Correct.

100. Q: It’s not unusual for crack users to have burned fingertips, correct?

A: Correct.

101. Q: And crack users, or people under the influence of crack will have dilated pupils, right?

A: Yes.

102. Q: Since you didn’t document that Mrs. Leatherman had dilated pupils, the ladies and gentlemen of the jury can conclude that she did not have dilated pupils, right?

A: Yes.

103. Q: You picked up the suspected controlled substance with your fingers, didn’t you?

A: Yes.

104. Q: You were not wearing gloves, correct?

A: Correct.

105. Q: You wouldn’t want to risk catching a serious life threatening disease such as AIDS or Hepatitis C by coming in contact with a foreign object or substance that might be infected, right?

A: Of course.

106. Q: I noticed on the video that Deputy Walters wore rubber gloves when he searched the trunk of Mrs. Leatherman’s car. Do all deputies carry rubber gloves with them on patrol?

A:

107. Q: Did you have rubber gloves available in your vehicle?

A:

108. What hand did you use to pickup the suspected controlled substance?

A:

109. When you showed it to Mrs. Leatherman, you said, “It sure looks like heroin to me,” didn’t you?

A: Yes.

in dash audio/video

110. Q: She responded that she didn’t know what it was although it looked like some kind of bread crumb, correct?

A: Yes.

in dash audio/video

111. Q: Then she told you to find out what it was by field testing it and sending it to the crime lab for a confirmatory test, right?

A: Yes.

in dash audio/video

112. Q: After you took her to jail, you field tested substance for heroin, right?

A: Yes.

113. Q: Even though you believed it was crack?

A: Yes.

114. Q: The substance tested negative for heroin, right?

A: Yes.

115. Q: But you didn’t field test it to determine if it was crack, did you?

A: No, I did not.

116. Q: And the reason you didn’t is you knew all along it was crack cocaine, right?

A: Yes.

117. Q: If you had any doubt that it was crack, you could have field tested the substance, correct?

A: Yes.

118. Q: You were trained to field test supected controlled substances to eliminate the possibility that a suspected controlled substance is not a controlled substance, right?

A: Yes.

119. Q: Yet, even though you knew it was crack all along, you did not specify in the Uniform Citation that the controlled substance was crack cocaine, correct?

A: Yes.

To be continued . . .

Cross posted from my law blog.

Barn at winter by Crane-Station
barn at winter by Crane-Station on flickr. jail art done at Ricky’s World.

In the depths of winter I finally learned there was in me an invincible summer.
-Albert Camus

Frog Gravy is a nonfiction incarceration account.

Inmate names are changed.

Frog Gravy contains graphic language.

McCracken County Jail Cell 107, winter, 2008

Meg announces to the cell that she is on her period.

“So?” says Christie.

“So, I get out in two weeks, and I can get some dick!”

Meg lives in a motel on the outside, where she trades her body for drugs. She has nine children; many of them were born while Meg was in jail. After Meg is released and after she gets her ‘dick,’ her tenth child will be born in prison, but we do not know this yet.

She has made the comment about getting some ‘dick’ to be mean, because she knows that the rest of the cell occupants are serving lengthier sentences than she has ever had to serve, and that we will be unable to know a man’s touch or have sex, and she will.

When the announcement about dick does not elicit much of a response, Meg starts in on Christie, who, having been denied drug court and now faces 24 years for nonviolent drug-related charges, is desperately depressed. Christie stays on her bunk all the time now, crying.

One of Christie’s felonies, by the way, is for a cold check in the amount of something like one dollar and seventy-two cents, whereas Meg, who will walk out of the jail and get some dick and get pregnant two weeks from now, has a lengthy history of theft and possession charges that, for some reason, she has never had to worry much about, in terms of serving any time.

Rather, during her frequent yet brief accomodations in the McCracken County Jail, she busies herself with the passive-aggressive practices of constant manipulation and torment of fellow inmates who will be serving lengthy sentences entombed in cement with no hope. Each time, Meg leaves, and gets some dick, among other things.

Meg says to Christie, “I think you are overreacting.”

“I can’t help it,” says Christie. I’m not overreacting. I feel really, really, really bad inside. People notice that there is something wrong. I can’t quit crying. I don’t mean to be such a bitch about it. I just don’t know what to do about it. I sleep 15 hours a day now. I can’t handle this.”

“It’ll be all right,” says Meg, who, two weeks from now will be having sex.

“You don’t know that,” says Christie.” I’m sorry. This isn’t me, but I just don’t know what to do.”

Christie cries.

Down the hall, Harry yells from his isolation cell, “HELLLLP! PLEEEEASE! Somebody! Let me out! Helpme helpmehelpme helpmehelpme Helllllpp…”

Sally is on the phone, calling her mother “a fucking whore.”

Sally calls her mother every five minutes or so, and treats her like a disobedient child. She says, at maximum volume, “I love you! Shut your fucking mouth, you’re nuthin’ but a lazy whore.”

Sally’s mother shouts back. Sally also screams at her 17-year-old son on the phone. She holds the receiver and says to us, “He ain’t got his books for home school yet. Can you believe that shit? My mother ain’t even got his books! She ain’t nuthin’ but a useless whore, don’t do nuthin’ but lay on her back all day.”

The son is supposed to be homeschooled by Sally’s mother, who is addicted to Vicodin and who never completed the eighth grade, because Sally is in jail.

The son is also apparently very sick, with some kind of severe illness that Sally cannot define. Munchausen by Proxy I think to myself, although I never say it. I think this to myself privately because Sally also self-reports severe, undefined illness in herself, and the mother is dysfunctional, and there is too much collective severe-yet-undefined illness in a young group of closely connected people. Sally looks healthy and robust. It is Christie, crying on her bunk, unable to get up, that I worry about.

I like Sally, and we get along well. I do not agree with how she speaks to her mother or her son, but Sally is amicable to fellow inmates, and she has a delightful sense of humor.

Meanwhile, Meg has come back to the cell from a brief visit to the jail library. The library is a jail cell with mostly paperback romance novels and religious materials, and a remarkable dearth of literature. Meg sets an arm load of romance novels onto the steel table, and then starts gossiping about YaYa, who was in the library, gossiping about Amy. YaYa is not here to defend herself.

Meg says, “I just wanted to hit her.”

I say, “She’s pretty big. Maybe that is not such a good idea. You know, hitting her.”

“The bigger they are, the harder they fall.”

Meg taps on the wall to the cell next door, to arrange for her delivery of drugs for the evening, in the form of the inmate-next-door’s psych meds. Everything went okay for her first delivery, and I secretly hope that everything will continue to go okay, because when Meg is on someone else’s psych meds, she usually shuts up.

They make some arrangement.

Later, I am doing exercises on the floor next to the steel door when the steel door flies open, nearly hitting me, and there stands Tiffany, the sergeant, and she is irate. She says, “Who got the note from Carter!?”

“Who’s Carter?” I say.

“Who got that note from Carter!?”

Just then, we realize that Meg’s drug arrangement has not gone as planned. Carter, the inmate next door who was on psych medication, had wrapped two pills in paper and ‘fished’ them underneath her cell door and into our cell, under the door. But it did not work, because the note got stuck.

Tiffany leaves. Meg goes off on Carter. “Dumb bitch, she shoulda knocked.”

Meg smiles, giggles, and laughs, as though she had nothing whatsoever to do with the note or the pills in the note. She dismisses the whole incident, and gets on the phone to make arrangements with someone on the outside to smuggle cigarettes into the jail. Later, she tries to get me to make an appointment with the nurse and lie about some ailment, so that Meg can get Tylenol pills, or any pills. I refuse.

When I refuse, she makes fun of me, of my trial, of my conviction, of my lengthy sentence, and of the fact that she will be getting dick two weeks from now and I will not be getting any dick until it is too late for me to have sex, because I am too old.

In my mind I try to come up with reasons for meanness and lack of empathy among warehoused humans in the same predicament, and I wonder if people in the train cars during the holocaust were mean to each other. What is it, exactly, that brings out such hate? Perhaps it is overcrowding or demeaning, dehumanizing treatment, or lost confidence in ‘the system,’ or female jealousy, mental illness, lack of stimulus, or hormones, or frustration and separation from love, touch and family. Maybe it is a combination of everything.

I fold my cranes out of scavenged paper. I move them around. I adjust the towel on my head. I go into the bathroom and climb onto the steel toilet and look through the slit to the dumpsters outside.

I return to the steel table. I put the tiny cranes with the big cranes.

I stay silent.

I will also post the Commonwealth brief, sometime in the next couple of days. These documents are in the public domain. I will blog another Frog Gravy today, for those of you following the incarceration blogs.

PURPOSE OF THIS REPLY BRIEF

This Reply Brief responds to the Appellee’s Brief. Any failure to respond should not be taken as waiver of an issue or allegation.

I. The evidence should have been suppressed.

A. The 911 call.

The Appellee does not respond to Ms. Leatherman’s argument that the information in the 911 call was insufficient to establish a reasonable suspicion that she was committing a crime. Leatherman reiterates that the sum of what Deputy McGuire knew from the 911 dispatch: “a lady” was walking around in the caller’s neighbor’s yard and talked to him. TR 149. The caller did not say whether he had been present during that conversation. The caller did not tell the 911 operator that the person had seen heroin, any other drug or any sort of drug paraphernalia in the person’s car. The caller also did say that the woman appeared to be under the influence. McGuire testified that he had no idea when the woman had made contact with the neighbor. VR 4; 11/27/2006; 14:05:04.

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

The government makes the nonsensical argument because Ms. Leatherman initiated voluntary citizen-police contact; the Fourth Amendment does not apply in this situation. It then asserts “the only evidence in this case was that appellant pulled over on her own accord” and she “does not now dispute that finding.” Id. The government then argues that “other section of the revised statutes may be implicated by the improper signaling…” Id., at 6-7.

The government also claims that because Leatherman did not challenge the trial court’s first conclusion that McGuire did not initiate a stop, the finding must be accorded great weight. The government quotes from the trial court’s second suppression order that “the fact that the officer observed appellant signal a left turn and abruptly pull over to the right is reason to investigate and possibly cite for an improper turn.” Brief for Appellee, BA, at 6.

This Court need only look at the totality of circumstances in order to be shown that McGuire fully intended to pull Rachel Leatherman over at whatever point he found her. McGuire said, “I was going to [stop her], anyway [when he discovered himself overtaking her on US 60], yes. When she started to pull over, I just went ahead and turned my lights on.” VR 4; 11/27/2006; 14:07:28; emphasis added.

McGuire testified that he first checked the Queensway Drive neighborhood, hoping to see the dark blue Buick with the Washington plates. VR 4; 11/27/2006; 14:05:04. He wanted to stop her in that neighborhood if possible. He testified that as he drove toward Paducah and 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.

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.

McGuire’s testimony leads to only one conclusion: McGuire intended to pull Rachel Leatherman over whether he had found her in the Queensway neighborhood, on US 60 or in Paducah. Moreover, McGuire found it unusual that the car was going slower than he was and that it had a constantly blinking turn signal. Id., 14:12:20. He also found suspicious the amount of time the turn signal flashed and the car stayed in the right lane without moving into the left. Once he overtook the car, McGuire said he then 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. McGuire thought that action was as suspicious as the woman driving in the right lane with her left turn signal blinking, so he activated his emergency lights. Id., 14:17:14.

In an attempt to bootstrap probable cause from whatever facts it can garner, the government argues that “both the wine and the beer are violations of KRS 198.530(2).” BA, at 9. At the preliminary hearing, McGuire testified that he had ruled out alcohol intoxication because the PBT had showed that she was not under the influence of alcohol. Transcript of Preliminary Hearing (hereinafter TPH) 8. At the suppression hearing, McGuire said his suspicions that Leatherman was impaired were the allegedly failed HGN test and glassy eyes and that Leatherman was “just very nervous.” VR 4; 11/27/2006; 14:20:36; 14:20:45. Shortly afterward, McGuire admitted that the HGN result by itself could not provide probable cause. Id.; 14:21:45.

Thus, McGuire was left with Leatherman’s “glassy eyes” and appearing “very nervous” as probable cause.
In Garcia v. Commonwealth, a Kentucky State Police Trooper noted Garcia’s “nervousness, lane change, failure to make eye contact, ‘death grip’ on the steering wheel, and out-of-state license plate” as what made up his reasonable suspicion to pull Garcia over. 185 S.W.3d 658 (Ky. 2006).

The Kentucky Supreme Court found such facts describe a substantial number of drivers on our highways and constitute an innocuous mirage created in an attempt to retrospectively justify the stop. If 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. Simply put, such routine driving habits do not warrant a police stop under Terry.

Id., 665. McGuire gave those facts in a retroactive attempt to justify the stop. He did not have reasonable suspicion or probable cause. Rachel Leatherman requests remand with instructions to suppress the evidence against her.

II. Scrimsher error

The government inexplicably argues that Ms. Leatherman did not have “standing to contest [Deputy McGuire’s] search of his own vehicle.” BA, at 9. The issue at hand has nothing to do with whether McGuire had the authority to search his own vehicle. Rather, the issue concerns the government’s motion in limine to prevent the defense from referring to statements Rachel Leatherman made after McGuire told her he found what looked like drugs next to her watch.

It is important also to review the changing nature of McGuire’s testimony before discussing this issue.
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. However, 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. At the suppression hearing, McGuire testified that 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.

The government argues that “Appellant. . .does not show that a foundation was made to impeach the witness with his prior statement as to when and what he said, nor does appellant present a single instance where the court denied her the right to cross-examine the deputy on any of his prior statements nor even that an argument was made to the trial court in that regard.” BA, at 10.

Ms. Leatherman cites the following from her Brief for Appellant:

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.

Brief for Appellant, at 16.

It is clear that defense counsel was attempting to lay a foundation to impeach McGuire when the government objected. It is clear that this is one instance where the trial court denied Leatherman’s right to cross-examine on those prior statements. It is also clear that any further argument would have been futile. The law does not require futile objections. Rachel Leatherman requests relief.

Respectfully submitted,

JULIA K. PEARSON

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

Author’s Note: This is a continuation of the Killer Cross that never happened because Crane Station’s lawyer, Chris McNeill, refused to use it. If you have missed the first two parts of the cross, which are in Part 3 and Part 4 of this series, follow the links. I recommend reading them before reading this post, for the sake of continuity.

All rise. Court is again in session.

Good morning, ladies and gentlemen. You may be seated.

Deputy McGuire, you may return to the witness stand. I remind you that you are still under oath.

Counsel, you may proceed with your cross examination.

Thank you, your Honor.

40. Q: On the way to the hospital, you never detected any movement in the back seat that caused you to believe that Mrs. Leatherman was attempting to hide anything, did you?

A: No.

Transcript Suppression, page 24, lines 15-18

41. Q: But you testified under oath to the grand jury that on the way to Lourdes Hospital “Of course, she’s cuffed behind her back, and she is trying to work it — work it down into the seat, and she dropped her watch with it,” didn’t you?

A: Yes.

Transcript Grand Jury, pages 4-5, lines 23-1

42. Q: You didn’t see anything that would suggest she did that, did you?

A: No.

43. You told another lie, didn’t you?

A: Yes.

44. Q: You also testified to the grand jury that the Kentucky State Crime Laboratory result of the alcohol content in Mrs. Leatherman’s blood wasn’t back yet, didn’t you?

A: Yes.

Transcript Grand Jury, page 5, lines 17-18.

45. Q: Please take a look at Defendant’s Exhibit A. It has been identified as a copy of the laboratory analysis of the alcohol content in Mrs. Leatherman’s blood by Examiner Neil K. Vowels. Do you recognize it?

A: Yes.

46. Q: He did not detect any alcohol in her blood, did he?

A: No, he didn’t.

47. Q: Please take a look at the bottom left corner of the exhibit. There is a notation that reads, “Date Completed.” What date appears next to these words?

A: 7/14/2006.

48. Q: You testified before the grand jury on July 28, 2006, didn’t you?

A: Yes.

49. Q: So, you testified 14 days after Examiner Vowels completed his report, correct?

A: Yes.

50. Q: Now take a look at the top line. It indicates that the report was faxed to the prosecutor’s office at 12:32 PM on July 24, 2006, doesn’t it?

A: Yes.

51. Q: That was 4 days before you testified before the grand jury, correct?

A: Yes.

52. Q: Now at the grand jury when the Commonwealth’s Attorney said, “We don’t have the blood results back?” and you answered, “I don’t believe so, blood or lab, yeah,” can you explain why you and the Commonwealth Attorney did not know the result of the alcohol analysis of Mrs. Leatherman’s blood sample — a test completed two weeks before and faxed to the Commonwealth’s Attorney four days before you testified before the grand jury?

A: No.

53. Q: You have testified that Mrs. Leatherman failed all six clues on the HGN test. You did not document the basis for your conclusion in your narrative report, did you?

A: No.

54. Q: We only have your word for that, don’t we? Just as only have your word that she told you that she was on all of her prescription medication?

A: Yes.

55. Q: For the sake of argument, let’s assume you did tell the truth when you testified that she failed all six clues. As a police officer certified to give the HGN test, you must know that NHTSA, the National Highway Traffic and Safety Administration, recommends that the test be administered to a suspect facing away from the police cruiser because the strobing lights will cause a false nystagmus, don’t you?

A: Yes.

Link.

Q: Yet, you positioned her facing your strobing police cruiser when you administered the HGN, didn’t you?

A: Yes.

in-dash video

56. Q: Metoprolol is one of the prescription drugs that Mrs. Leatherman had in her car when you pulled her over, correct?

A: Yes.

57. Q: Metoprolol is a drug used to control hypertension, or high blood pressure, correct?

A: Yes.

58. Q: As a police officer certified to administer the HGN test, you know that hypertension can cause nystagmus, don’t you?

A: Yes.

59. Q: You, Deputy Walters, and Officer Dawes thoroughly searched Mrs. Leatherman’s vehicle, including the trunk, her purse, and her personal belongings, correct?

A: Yes.

60. Q: Other than the three prescription drugs, you didn’t find any drugs, drug residue, or paraphernalia, did you?

A: No.

61. And Officer Dawes thoroughly searched Mrs. Leatherman by the side of the road before you placed her in the back seat of your police cruiser, didn’t she?

A: Yes.

62. Q: The search included a visual examination of her genital area, correct?

A: Yes.

63. Q: She also reached into Mrs. Leatherman’s back pockets, correct?

A: Yes.

64. Q: And before the search, you ordered Mrs. Leatherman to empty her front pockets by turning them inside out, didn’t you?

A: Yes.

65. Q: And Officer Dawes checked Mrs. Leatherman’s breasts to see if she might have hidden something in her bra, didn’t she?

A: Yes.

66. Q: She also checked around Mrs. Leatherman’s waist to see if she might have hidden something there, correct? And shoes?

A: Yes.

67. Q: No drugs, drug residue, or paraphernalia were found, right?

A: Correct.

The answers to questions 59-67 can be verified by the in-dash video.

68. Q: You didn’t arrest her for DUI Alcohol, did you?

A: No, I did not arrest her for DUI alcohol.

69. Q: You didn’t arrest her for possession of a controlled substance at that point either, correct?

A: Yes.

70. Q: You arrested her for DUI Drugs, didn’t you?

A: Yes.

Transcript Preliminary Hearing, page 8, lines 4-6.

71. Q: You didn’t advise Mrs. Leatherman that she was under arrest, did you?

A: No, I didn’t.

72. Q: You told her that you were taking her to Lourdes Hospital for a blood test, didn’t you?

A: Yes.

73. Q: A blood test that she offered to take, correct?

A: Yes.

74. Q: You didn’t tell her you were taking her to jail, did you?

A: Correct, I didn’t tell her I was taking her to jail.

Author’s Note: Questions 71-74 set up a point to be made during final argument; namely, that Crane-Station had no reason to attempt to slough a rock of crack behind his seat during the ride to the hospital. Assuming for the sake of argument that she had somehow hidden it so well that Officer Dawes could not find it and, given that we know that Crane-Station knew her blood test would come back negative for alcohol and drugs, we can reasonably conclude that she would have had no reason to think she would be searched again. Therefore, why risk attracting attention attempting to slough drug?

This illustrates another important point about cross examining effectively. Use it to set-up your final arguments during summation.

Judge: Excuse me Counsel. Let’s break for the day. Court will be in recess.

To be continued . . .

Cross posted from my law blog.