Opinion
NO. 2010-CA-000608-MR
01-25-2013
JESSE ROGERS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Susan Jackson Balliet Assistant Public Advocate Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Courtney J. Hightower Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM CLAY CIRCUIT COURT
HONORABLE OSCAR G. HOUSE, JUDGE
ACTION NO. 09-CR-00031
OPINION AND ORDER
AFFIRMING
BEFORE: DIXON, MAZE AND NICKELL, JUDGES. DIXON, JUDGE: Appellant, Jesse Rogers, entered a conditional guilty plea in the Clay Circuit Court to one count of manufacturing methamphetamine and was sentenced to ten years' imprisonment. He appeals the denial of his motion to suppress evidence seized during a warrantless search. For the reasons stated herein, we affirm.
On May 7, 2009, Appellant and co-defendant, Bertha Rogers, were indicted by a Clay County Grand Jury on one count of possession of methamphetamine and one count of manufacturing methamphetamine. The charges stemmed from a warrantless search of Roger's trailer on February 20, 2009. Appellant thereafter filed a motion in the Clay Circuit Court to suppress evidence obtained during the search. During a subsequent hearing on the motion, three of the officers that conducted the search testified. However, unbeknownst to the trial court and the parties, no audio recorded during the hearing.
On December 15, 2009, the trial court denied Appellant's motion to suppress, finding exigent circumstances existed that justified entry by the officers into the trailer and that the subsequent consent to search by Rogers disposed of any remaining basis to suppress the evidence. Appellant thereafter entered a conditional guilty plea and was sentenced to ten years' imprisonment. Appeal to this Court followed.
On November 15, 2010, appellate counsel, having exhausted efforts to obtain an audio recording of the suppression hearing, filed a proposed narrative statement pursuant to CR 75.13 based upon the notes taken by trial counsel during the hearing. Despite having initially informed appellate counsel that he had no notes or independent recollection of the hearing, the Clay County Commonwealth Attorney opposed the narrative statement.
At a hearing on December 6, 2010, trial counsel for Appellant and Rogers both testified as to their recollection of the officers' testimony during the suppression hearing. The Commonwealth offered no contradictory evidence, but instead requested that the trial court adopt its own suppression order as the narrative statement of the suppression hearing. On December 21, 2010, the trial court denied the motion to approve the narrative statement and gave the parties thirty days to file bystanders bills pursuant to CR 75.14. On January 12, 2010, Appellant filed bystander affidavits by trial counsel along with their contemporaneous notes of the suppression hearing. Again, the Commonwealth did not file any opposing affidavits.
On May 5, 2011, the trial court entered an order ruling:
[T]he Court finds that the nearly contemporaneous findings of fact accurately reflect the testimony of the officers at the hearing and should not now be displaced by individual recollection.Appellant thereafter filed exceptions to the trial court's findings and reiterated that the narrative statements should be approved.
The Court NOW ADOPTS the order entered on December 15, 2009, as the statement of facts introduced at the suppression hearing held on December 3, 2009, and this is in lieu of the defendant's proposed narrative statement or bystander affidavits.
In this Court, Appellant points out that this may be a case of first impression challenging a trial court's decision to reject an uncontroverted narrative statement as well as bystanders' affidavits. Appellant argues that the trial court's decision to re-adopt its own order as the official statement of facts introduced during the suppression hearing has resulted in a complete lack of a record on appeal. As such, Appellant maintains that he is prejudiced by the "purported narrative statement adopted by the court, which consists of nothing but the court's bare-bones, conclusory fact-findings contained in the very order that Appellant is attempting to challenge."
It is the duty of a party attacking the sufficiency of evidence to produce a record of the proceeding and identify the trial court's error in its findings of fact. Failure to produce such a record precludes appellate review. Harper v. Commonwealth, 694 S.W.2d 665, 668 (Ky. 1985), cert. denied, 476 U.S. 1178 (1986), overruled on other grounds in Barnett v. Commonwealth, 317 S.W.3d 49 (Ky. 2010). CR 75.13 allows party to prepare a narrative statement to supplement the record in places where a gap may exist in the recording or transcript if such is necessary for a complete record on appeal. The rule provides:
(1) In the event no mechanical or stenographic record of the evidence or proceedings at a hearing or trial was taken or made or, if so, cannot be transcribed or are not clearly understandable from the tape or recording, the appellant may prepare a narrative statement thereof from the best available means, including his recollection, for use instead of a transcript or for use as a supplement to or in lieu of an insufficient mechanical recording. This statement shall be served on the appellee, who may serve objections or proposed amendments thereto within 10 days after service upon him. Thereupon the statement, with the objections or proposed amendments, shall be submitted to the trial court for settlement and approval, and as settled and approved shall be included in the record on appeal.Settlement and approval of the narrative statement by the trial court is necessary even where the opposing party has not served objections or proposed amendments. Taylor v. Warman, 331 S.W.2d 899, 900 (Ky. 1960).
(2) By agreement of the parties a narrative statement of all or any part of the evidence or other proceedings at a hearing or trial may be substituted for or used in lieu of a stenographic transcript or mechanical recording.
In most instances there is no difficulty in settling upon a narrative statement, in which event there is no prejudice to the appellant. However, when the trial court fails or declines to settle the record or, in settling it, makes or adopts corrections that are objectionable, CR 75.14 provides a remedy. National Dairy Products Corp. v. Rittle, 487 S.W.2d 894, 896 (Ky. 1972). CR 75.14 provides:
In the event that the trial judge refuses or is unable for any reason to approve a record of the proceedings and evidence when submitted to him for settlement; or in the event he approves such a record or enters a correction thereon over a party's objection, an aggrieved party may, within five days after the trial judge's action, serve an exception as written by him, if its truth is attested by the affidavits of two bystanders, but its truth may be controverted and maintained by other affidavits so served, not exceeding five on either side. Affidavits controverting must be filed within five days after the serving of the correction and those maintaining within 10 days after the serving of the correction.Appellant fully complied with the requirements of both CR 75.13 and CR 75.14 in an attempt to remedy an obvious defect in the record.
Admittedly, we are troubled by what occurred in the trial court. Through no fault of Appellant's, the record of a hearing that was vital to his conviction was not recorded. When contacted by appellate counsel about the need for a narrative statement, the Commonwealth responded that it had no notes or independent recollection of the officers' testimony. Nevertheless, when Appellant tendered a proposed statement, the Commonwealth, puzzlingly, argued that it did not accurately reflect the testimony—despite its lack of recollection. The only evidence the Commonwealth offered in support of its position was its opinion that the trial court's findings must have been correct otherwise the court would not have ruled as it did.
Unfortunately, the Commonwealth's lack of participation or assistance herein disregards the importance of preserving a complete and accurate record for appellate purposes. Appellate courts operate based almost solely upon the basis of such records. Our standard of review requires us to first determine whether the trial court's findings of fact are supported by substantial evidence. The Commonwealth would have this Court believe that a trial court's findings are the substantial evidence necessary to support its findings. Clearly, such circular rationale was not contemplated by RCr 9.78. To accept the Commonwealth's position would absurdly result in a defendant rarely being able to challenge a trial court's order because the record would consist only of the facts contained in that order. If a trial court is permitted to re-adopt its own fact-finding as the narrative statement of what occurred during a hearing, the remedy set forth in CR 75.13 and CR 75.14 is meaningless.
Notwithstanding the Commonwealth's failure to proffer any evidence disputing Appellant's narrative statement, it was within the trial court's discretion to refuse to approve the statement. It was not, however, within the court's discretion to rule on the bystanders' affidavits. CR 76.14 does not contemplate any action by the trial court. "Although the Rule does not provide that the bystander's bill shall become part of the record on appeal, it certainly seems proper that it be included in the original record pursuant to 75.07(1)." Phillips, Kramer and Burleigh, 7 Kentucky Practice Series Rules of Civil Procedure § 75.14, Comment 4 (6th ed. 2012). As such, this Court is at liberty to adopt Appellant's uncontroverted bystanders bills as the accurate record of what transpired during the suppression hearing.
Nevertheless, even if we accept the facts contained in the bystanders' affidavits as true, Appellant's argument that suppression was warranted must fail on the merits. Our standard of review from a denial of a motion to suppress is as follows: First, we must determine whether the findings of fact are supported by substantial evidence. If so, those findings are conclusive. RCr 9.78; Adcock v. Commonwealth, 967 S.W.2d 6, 8 (Ky. 1998). "Based on those findings of fact, we must then conduct a de novo review of the trial court's application of the law to those facts to determine whether its decision is correct as a matter of law." Commonwealth v. Neal, 84 S.W.3d 920, 923 (Ky. App. 2002) (citations omitted).
"At a suppression hearing, the ability to assess the credibility of witnesses and to draw reasonable inferences from the testimony is vested in the discretion of the trial court." Pitcock v. Commonwealth, 295 S.W.3d 130, 132 (Ky. App. 2009) (Citing Commonwealth v. Whitmore, 92 S.W.3d 76, 79 (Ky. 2002)). On appellate review, our role "is to review findings of fact only for clear error while giving due deference to the inferences drawn from those facts by the trial judge." Perkins v. Commonwealth, 237 S.W.3d 215, 218 (Ky. App. 2007).
Appellant contends that the officers violated his 4th Amendment right to be free of unreasonable search and seizure when, without permission or a warrant, the officers entered an enclosed shed that was attached to the rear of the trailer. It is Appellant's position that the shed was "curtilage" and thus considered part of an individual's property protected under the 4th Amendment. See Oliver v. United States, 466 U.S. 170, 180, 104 S.Ct. 1735, 1742, 80 L.Ed.2d 214 (1984). Although the trial court ruled that exigent circumstances justified that search, Appellant contends that the officers' testimony clearly disputes the trial court's findings that they were aware of the methamphetamine smell prior to entering the shed. As such, because there was no indication of methamphetamine prior to entry of the shed, Appellant concludes that the search was violative of the 4th Amendment. We must disagree.
The trial court's findings of fact in its order were chronological as to the time line of events in question and provided:
The defendants having moved to suppress evidence taken during a search on February 20, 2009, at which the Court heard testimony from Officer William Goins, Sheriff Kevin Johnson, and Chief Jeff Culver and heard the arguments of counsel and being otherwise fully advised:Unlike the trial court's findings, however, trial counsel's affidavits recounted the officers' testimony as it was heard during the suppression hearing, with Officer Goins testifying first followed by Sheriff Johnson and Chief Culver.
NOW FINDS that Chief Culver detected a "meth" smell as he approached the front door and so advised other officers present; all three officers testified that they heard individuals moving around inside the mobile home and despite repeated effort to obtain a response from the
Defendants, neither Defendant came to the door; the officers were aware that an October, 2008 investigation at the same mobile [sic] had lead [sic] to charges against Bertha Rogers for manufacturing methamphetamine and at that earlier incident no one would answer the door and entry was made after voices of minor children were heard inside of the mobile home; exigent circumstances existed that justified entry by the officers and the subsequent consent to search signed by Bertha Rogers disposes of any remaining basis to suppress the evidence.
Officer Goins testified that after receiving the tip that Appellant and Rogers were in the process of making methamphetamine, the officers proceeded directly to the scene. He and Sheriff Johnson went around to the back of the trailer and entered an enclosed "shed" structure that was attached to the trailer. Upon entering the shed, Officer Goins immediately detected a chemical smell and observed containers of Coleman fuel and drain opener. The officers knocked on the door and identified themselves. Although they could hear people moving around inside the trailer, no one answered the door for ten minutes. Sheriff Johnson thereafter opened the door and entered the trailer. Appellant and Rogers were located in a back bathroom. About that time, the other officers walked in through the front door. Officer Goins testified that all four officers were present in the trailer at the time Rogers gave consent to search the premises.
Sheriff Johnson's version of events was basically the same as Officer Goins. Sheriff Johnson added that he was the one who made the decision to enter the shed, after which he detected a "volatile, toxic" odor. After receiving no response at the back door, Sheriff Johnson thereafter entered the trailer followed by Officer Goins.
Chief Culver was the last officer to testify. He stated that when he exited his vehicle and approached the trailer, he smelled the odor of methamphetamine coming from a bathroom window. Chief Culver testified that he went to the front door as Officer Goins and Sheriff Johnson headed toward the back of the trailer. Chief Culver stated that he received no response from knocking although he could hear and see people moving around inside the trailer. He thereafter entered through the front door.
The fallacy in Appellant's argument is that his position hinges upon a finding that Officer Goins and Sheriff Johnson had already proceeded to the back of the trailer before Chief Culver exited his vehicle and detected the smell of methamphetamine emanating from the front window. If such were the facts, Appellant would have a strong argument that exigent circumstances did not exist and the officers were not justified in entering the shed. However, a thorough review of counsel's affidavits and notes from the hearing do not support Appellant's interpretation of the facts. In fact, neither the affidavits nor counsel's notes actually contradict the trial court's finding that Chief Culver advised Officer Goins and Sheriff Johnson about the methamphetamine smell prior to them going to the rear of the trailer.
Accordingly, even accepting Appellant's bystanders bills as an accurate reflection of the testimony from the suppression hearing, we must conclude that the trial court's finding that exigent circumstances existed that justified the warrantless search is supported by the record and therefore conclusive. RCr 9.78. Therefore, the trial court did not err in denying Appellant's motion to suppress.
The Court further notes that Rogers has filed a Motion to Advance this matter for decision. As this opinion has now been rendered Rogers motion is now moot.
The order of the Clay Circuit Court is affirmed.
ALL CONCUR.
Donna L. Dixon
JUDGE, COURT OF APPEALS
BRIEFS FOR APPELLANT: Susan Jackson Balliet
Assistant Public Advocate
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Courtney J. Hightower
Assistant Attorney General
Frankfort, Kentucky