Opinion
NO. 2017-CA-000651-MR
07-20-2018
ELGIN MELSON APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Susan Jackson Balliet Assistant Public Advocate Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Mark D. Barry Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM CAMPBELL CIRCUIT COURT
HONORABLE JULIE REINHARDT WARD, JUDGE
INDICTMENT NO. 16-CR-00866 OPINION
REVERSING AND REMANDING
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BEFORE: J. LAMBERT, NICKELL, AND TAYLOR, JUDGES. LAMBERT, J., JUDGE: Elgin Melson appeals from the Campbell Circuit Court judgment of conviction and sentence of thirteen years' imprisonment for Possession of a Firearm by a Convicted Felon and Persistent Felony Offender in the Second Degree (PFO II). Kentucky Revised Statutes (KRS) 527.040 and 532.080, respectively. We reverse and remand for a new trial.
Melson states at the outset that the facts and procedural history are not in dispute. Thus, they will only be recited as is necessary for the resolution of the six issues he raises on appeal, which we address in the order presented by him.
Melson's first two arguments concern the suppression of evidence obtained at the scene of his arrest on the evening of September 15, 2016. Three local law enforcement officers had just completed clearing a scene at a condominium complex in Campbell County, Kentucky, when Melson arrived in a vehicle driven by a female acquaintance. The driver did not shut off the engine or pull into a parking spot but rather sat idling in the middle of the parking lot, supposedly to allow Melson to use his cell phone's GPS to locate an address in the neighborhood. Sergeant Nicholas Love, with the Highland Heights Police Department, decided to investigate further. He based this decision upon three factors: The lateness of the hour, the fact that the officers were in the area on another call relating to criminal activity, and the oddity of the vehicle in question having both California and Ohio license plates.
Sergeant Love began by approaching the driver's side of the vehicle and identified himself as a police officer. The other policemen walked to the passenger side of the vehicle. The officers shone flashlights into the vehicle. Seated in the backseats were another female and her two young children.
Love asked the driver if she would exit the vehicle, and she complied. He asked about the registration, and she explained that she had recently moved from California to Ohio. The driver also told Love that she had offered her passengers a ride to Northern Kentucky, where they were to meet someone named Kristi, whom they were to call once they reached the condominium complex. The driver gave consent to search the vehicle while the policemen ran a check on the validity of its registration. Located in the floor of the backseat, behind Melson, was a backpack which contained a loaded 9mm pistol. Also contained in the backpack were men's toiletry items and clothing. The female in the backseat stated that the backpack belonged to Melson, but Melson denied ownership.
A background check on Melson revealed that he had a prior felony, and the officers made the decision to arrest him on a handgun charge. A search warrant was obtained on Melson's cell phone. The phone's contents included photographs of Melson wearing clothing similar to items found in the backpack. Melson was charged and later indicted for the convictions he now appeals as well as Wanton Endangerment in the First Degree (because of the gun's proximity to the young children in the car).
In a bifurcated proceeding, Melson entered a guilty plea to a reduced charge of second-degree wanton endangerment pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970) (i.e., that Melson did not admit guilt per se but in so pleading acknowledged his belief that the evidence against him strongly indicated guilt and that his interests were best served by a guilty plea). --------
Prior to trial, Melson filed a motion to suppress evidence. The circuit court held a hearing and denied the motion. On appeal Melson repeats the arguments that he made to the circuit court, namely, that the initial stop was not justified and that the stop was unreasonably extended. Thus, Melson reasons, the fruits of the stop must be suppressed, and the circuit court erred in denying his motion. We disagree on both accounts.
We first address whether the stop was justified.
A police officer may constitutionally conduct a brief, investigatory stop when the officer has a reasonable, articulable suspicion that criminal activity is afoot. Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). A reasonable suspicion is more than an "unparticularized suspicion or 'hunch.'" Id. at 27, 88 S.Ct. 1868. Reasonable suspicion, while requiring less of a showing than probable cause, requires at least a minimal level of objective justification for making the stop. United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989). Accordingly, the stop of an automobile and the resulting detention of the driver are unreasonable, under the Fourth Amendment, absent a reasonable, articulable suspicion that the driver is unlicensed, or that the automobile is not registered, or that either the vehicle or an occupant is otherwise subject to seizure for violation of the law. Delaware v. Prouse, 440 U.S. 648, 663, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979). The court must consider the totality of the circumstances in determining whether a police officer had a particularized and objective basis for suspecting that a person stopped may be involved in criminal activity. United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981).Bauder v. Commonwealth, 299 S.W.3d 588, 590-91 (Ky. 2009) (emphases added). Sergeant Love testified at the suppression hearing that he had concerns over the vehicle's conflicting registration plates. The circuit court did not err in finding these reasonable and articulable concerns justified the stop.
We also affirm the circuit court's holding that the stop was not unreasonably extended. "[W]here a motorist is initially stopped for a valid purpose and subsequently gives consent to a search of his vehicle, the voluntariness of his consent is the only issue to consider for purposes of the Fourth Amendment—and not whether the continued detention was justified by reasonable suspicion." Commonwealth v. Erickson, 132 S.W.3d 884, 889 (Ky. App. 2004) (citing United States v. Burton, 334 F.3d 514, 518 (6th Cir. 2003)). Here the driver consented to the vehicle's search while the officers ran a check on its registration. The consent was voluntary and the stop was not unreasonably extended. "Absent any findings by the court that the consent was not given or that it was coerced, we simply cannot hold that this search violated the Appellees' Fourth Amendment rights." Commonwealth v. Alberhasky, 497 S.W.3d 767, 771 (Ky. App. 2015). Cf. Turley v. Commonwealth, 399 S.W.3d 412 (Ky. 2013). Thus, the circuit court did not err.
More troubling to us is Melson's third argument, whether the trial court erred in failing to strike a juror for cause. We begin this discussion with the standard of review:
Long-standing Kentucky law has held that a trial court's decision on whether to strike a juror for cause must be reviewed for abuse of discretion. Adkins v. Commonwealth, 96 S.W.3d 779 (Ky. 2003); Pendleton v. Commonwealth, 83 S.W.3d 522 (Ky. 2002). The court must weigh the probability of bias or prejudice based on the entirety of the juror's responses and demeanor. There is no "magic question" that can rehabilitate a juror as impartiality is not a technical question but a state of mind. United States v. Wood, 299 U.S. 123, 57 S.Ct. 177, 81 L.Ed. 78 (1936); Pennington v. Commonwealth, 316 S.W.2d 221 (Ky. 1958). When the question is analyzed as to whether the trial court judge abused his discretion, a reviewing court must determine if the trial court had a sound legal basis for his ruling. If a judge errs on a finding of fact, he must be clearly erroneous or there is no error; if error is premised on incorrect application of the law, a judge abuses his discretion when the legal error is so clear that there is no room for the judge to have ruled any differently. [Kentucky Rules of Criminal Procedure] RCr 9.36 requires a judge to excuse a juror if there is a reasonable basis to believe the juror cannot be fair and impartial.Shane v. Commonwealth, 243 S.W.3d 336, 338 (Ky. 2007), as modified (Apr. 9, 2008).
Before a judge can come to the legal conclusion that a juror is or is not qualified at the voir dire stage, he must determine the credibility of the juror's answers. For instance, a juror might say he can be fair, but disprove that statement by subsequent comments or demeanor so substantially at odds that it is obvious the judge has abused his discretion in deciding the juror is unbiased.
In this case, one of the prospective jurors was a law enforcement officer in Campbell County. At the beginning of voir dire, after the Assistant Commonwealth Attorney (ACA) introduced himself, his co-counsel, and the officer present at the prosecution's table, the ACA named four other attorneys and six support staff of the Commonwealth Attorney's Office. The circuit court asked if any of the prospective panel members were acquainted with the named persons. We quote directly from Melson's brief regarding Juror Downs:
Juror Downs immediately raised his hand. The court asked: "Who[m] do you know?" Downs responded, "Most of the Commonwealth, and the officer." Downs specifically knew everyone at the prosecution counsel table, ACA Zimmerman, ACA Burns, and Officer Conrad. He "worked with them" in his job in law enforcement in Campbell County. Asked if he felt his relationship would affect his ability to be fair and impartial, he said no. Downs denied any working knowledge of Melson's case and denied that he would feel uncomfortable returning a not guilty verdict. But he had a working relationship with the entire Commonwealth's Attorney's office, referred cases to that office, and had meetings in that office. Counsel objected because Downs also knew her colleague . . . was a public defender and could infer that she was a public defender, and the jury should not learn that. It got worse. During a break, a friend of Melson heard Downs say something "derisive towards the defense" to a bailiff, and when questioned, Downs was equivocal. He did not deny it. He said he had spoken "to deputies." Asked if he'd spoken to one of the officer witnesses, he was again equivocal, saying the "only people I recall talking to is the guy at the front desk." In summary, Downs was thrice equivocal in claiming not to "remember" if he 1) said anything about the case, 2) spoke to a witness, or 3) said something derogatory about the defense. He recalled only telling "the guy at the front door," presumably a deputy, that we were "still in selection." He was "not aware" of witnesses [to that conversation].(Emphases in original.) After the circuit court denied Melson's motion to strike Juror Downs for cause, Melson was forced to remove Downs by use of a peremptory strike. Melson exhausted all his peremptory strikes and was unable to remove another juror who ultimately remained on the panel.
"Here, the defendant was tried by a jury that was obtained by forcing him to forgo a different peremptory strike he was entitled to make. If he had been allowed that strike, he may well have struck one of the jurors who actually sat on the jury." Shane, 243 S.W.3d at 340.
Thus, the correct inquiry is not whether using a peremptory strike for a juror who should have been excused for cause had a reasonable probability of affecting the verdict (harmless error), but whether the trial court who abused its discretion by not striking that juror for reasonable cause deprived the defendant of a substantial right. Harmless error analysis is simply not appropriate where a substantial right is involved, and is indeed logically best suited to the effect of evidence on a verdict, though some procedural errors may also be reviewed in this light. Here, the defendant did not get the trial he was entitled to get. For these reasons, the holding in Morgan must be overturned.Shane, 243 S.W.3d at 341.
Although the juror claimed he could be impartial in spite of his close association with prosecution, staff, and other law enforcement officers, his later actions strongly indicated otherwise. Trial counsel's trifecta of concerns was well-founded, and the circuit court erred in denying the motion to strike Juror Downs for cause. "There is no reason for a trial court to imperil the integrity of its proceedings by retaining questionable jurors." Morrison v. Commonwealth, 528 S.W.3d 896, 901 (Ky. 2017). We thus reverse on this issue. See also Sluss v. Commonwealth, 450 S.W.3d 279, 285 (Ky. 2014) ("[E]veryone likes to think they can be fair under any circumstances and are highly reluctant to admit that they cannot. Of course we know better. Judges should know better and not surrender their discretion solely to the spoken words of prospective jurors.").
Melson's fourth argument is that the circuit court erred in failing to grant a mistrial after one of the prosecution witnesses mentioned a possible federal charge against Melson. The witness had been attempting to establish the chain of custody of the firearm in question when she made the following response to a question on direct examination: "The case was referred to me by my supervisor, we were potentially taking this case federally, but it was decided at a later point in time between the United States Attorney and Mr. Zimmerman that it would be retained in state court." We do not agree that this comment warranted the granting of a mistrial. Woodard v. Commonwealth, 147 S.W.3d 63, 68 (Ky. 2004). However, the better practice, upon retrial, would be for the prosecution to word more carefully its questioning in order to avoid this type of response.
Melson also argues the circuit court improperly allowed Sergeant Love to compare Melson's clothing in the cell phone photographs to the menswear items found in the backpack. We find no abuse of discretion in allowing this type of testimony. Rucker v. Commonwealth, 521 S.W.3d 562, 569 (Ky. 2017). Moreover, the circuit court properly admonished the jury that it was the ultimate fact-finder. See Webb v. Commonwealth, 387 S.W.3d 319, 327 (Ky. 2012).
The final issue regarding the timeliness of disclosure of certain jail telephone recordings is rendered moot by this Court's ruling on the juror issue.
The judgment of the Campbell Circuit Court is reversed, and this matter is remanded for new trial.
NICKELL, JUDGE, CONCURS IN RESULT ONLY.
TAYLOR, JUDGE, CONCURS IN RESULT ONLY. BRIEFS FOR APPELLANT: Susan Jackson Balliet
Assistant Public Advocate
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Mark D. Barry
Assistant Attorney General
Frankfort, Kentucky