Cherry v. Howie

• Decision Date: 31 May 2016
• Docket Number: CIVIL ACTION NO. 5:14-CV-179-TBR
• Citation: 191 F.Supp.3d 707
• Parties: Ann CHERRY, Plaintiff v. Guy HOWIE, et al., Defendant.
• Court: U.S. District Court — Western District of Kentucky

191 F.Supp.3d 707

Ann CHERRY, Plaintiff

v.Guy HOWIE, et al., Defendant.

CIVIL ACTION NO. 5:14-CV-179-TBR

United States District Court, W.D. Kentucky, Paducah Division.

Signed May 31, 2016

Filed June 1, 2016

David C. Troutman, Mark Edwards, Edwards & Kautz, PLLC, Paducah, KY, for Plaintiff.

H. Douglas Willen, Cotthoff & Willen, Hopkinsville, KY, James A. Sigler, Jonathan R. Oliver, Whitlow, Roberts, Houston & Straub, PLLC, Paducah, KY, for Defendants.

MEMORANDUM OPINION AND ORDER

Thomas B. Russell, Senior Judge

This matter comes before the Court upon Defendants', Guy Howie, Jefferson Alexander, Hopkinsville Police Department and City of Hopkinsville, Kentucky, Motion for Summary Judgment. (Docket No. 34.) The Plaintiff Ann Cherry has responded, (Docket No. 37), and Defendants have replied, (Docket No. 40). Fully briefed, this matter is ripe for adjudication. For the reasons enumerated below, the Court will GRANT in part and DENY in part Defendants' Motion.

Factual Background

Plaintiff Ann Cherry brought this litigation against various defendants, alleging abuse of process, malicious prosecution, and violation of due process. (Docket No. 1 at 6-8.) Ms. Cherry previously served as a Hopkinsville City Councilman. Id. at 3. According to Ms. Cherry, the basis for the Defendants' alleged misuse of the legal process against her involves an ordinance proposed by Defendant Guy Howie, the then Chief of Police of Hopkinsville, Kentucky. Id. at 3-4. Chief Howie proposed an ordinance to the City that would have required pawn shop owners to use an online service known as "Leads Online," which tracks pawn transactions. Id. at 3. Ms. Cherry contends that "[i]f passed, this ordinance would [have] prevent[ed] a pawn shop owner in Hopkinsville ... from using any competing online service." Id. at 4. Ms. Cherry alleges that Leads Online had provided incentives to police departments in exchange for departments getting pawn shops to enter into contractual relationships with Leads Online. Id. In July of 2012, Ms. Cherry alleges that after "much objection from local pawn shop owners" she tabled the ordinance against Chief Howie's wishes, pending an Ethics Panel Review. Id. The Ethics Hearing was scheduled for August 21, 2012, and Ms. Cherry was to testify there on behalf of the local pawn shop owners. Id.

Unrelated, though occurring in a similar time frame, the neighborhood where Ms. Cherry lives became the "target of a suspected prowler." (Docket No. 34–7 at 2.) According to the Defendants, neighbors made reports of "a naked burglar inside one home" and "a masturbating burglar outside another home." (Docket No. 34–7 at 2.) Defendants contend that concerns over the burglar were so high that the burglar became known "as the Southside Prowler." Id. Vicci Clodfelter, Ms. Cherry's neighbor, made the report of the masturbating burglar outside of her home. Id. When Ms. Clodfelter informed the police of the man outside her home, she reported that "the man she was seeing outside her window was white." Id. Defendants allege that shortly after Ms. Clodfelter called authorities, Ms. Cherry met with Ms. Clodfelter "showing her a picture of a black man she thought was the prowler and then showing her surveillance video from another neighbor's house that showed the suspected prowler." Id.

In order to alert the community of the suspected prowler, the Hopkinsville Police Department generated an automated phone call warning residents of the suspected prowler. (Docket No. 37 at 4.) The Defendants refer to this as a "Code Red" call. (Docket No. 34–7 at 2.) According to Ms. Cherry, the Code Red call "asked citizens to call the communication center with any information they might have that would be useful in apprehending the suspect. (Docket No. 37 at 5.) The Defendants allege that Ms. Cherry called 911 in response to the Code Red call and that she "announc[ed] herself as a city councilperson and insist[ed] that the information being disseminated to the public was incorrect because the suspect was black (as allegedly confirmed by her from watching the surveillance video)." Ms. Cherry has provided a transcript of the call in her Response, and the alleged transcript appears to track the Defendants' account of the phone call.¹ (Docket No. 37 at 5.) Defendants further allege that Ms. Cherry had a similar conversation with Chief Howie. (Docket No. 34–7 at 2.) Defendants also contend that Ms. Cherry sent a "mass email" containing the same allegation, however, they do not cite to the record when discussing this email, and to the Court's knowledge they have not attached this alleged "mass email."² (Docket No. 34–7 at 2.) Shortly after sending the first "mass email," the Defendants contend that Ms. Cherry sent another email informing the recipients that perhaps the suspect in the video was white and not black after all. Id. at 3. Lastly, Ms. Cherry allegedly sent a copy of her neighbor's surveillance video containing an image of the suspect to a Nashville local news station against the wishes of the law enforcement officers involved in the prowler investigation. Id. Ultimately, a white man was convicted for the crimes committed in Ms. Cherry's neighborhood. Id.

Following these events, Defendants state that Chief Howie asked Defendant Lieutenant Jefferson Alexander of the Hopkinsville Police Department "to look into what had taken place with regard to what he felt was [Ms.] Cherry's hampering of their efforts to investigate the Southside Prowler." Id. Lieutenant Alexander gathered information to make a "timeline to review regarding [Ms.] Cherry's activities." (Docket Nos. 34–7 at 3; 37-8 at 1-9.) According to the Defendants, after compiling a timeline, Lieutenant Alexander met with Commonwealth Attorney Lynn Pryor to review the information, and Ms. Pryor then decided to present the issue to a grand jury. (Docket No. 34–7 at 3.)

On August 17, 2012, Ms. Pryor presented testimony from Lieutenant Alexander to a grand jury. (Docket No. 1 at 4.) According to Ms. Cherry, Officer Alexander testified that she coerced her neighbor Vicci Clodfelter to "change her story" regarding the burglary that took place in Ms. Cherry's neighborhood and to state that the burglary suspect was black, and not white as she initially claimed. Id. Ms. Cherry also alleges that Lieutenant Alexander testified that she "tampered with public records" by allegedly sending a neighbor's private surveillance video of the alleged burglar to the media. Id. at 5. Lastly, Ms. Cherry contends that Lieutenant Alexander testified that she had "abused her power as a city councilman by interfering in the Hopkinsville Police Department's investigation into the burglary." Id. The Grand Jury returned felony indictments for tampering with a witness and tampering with public records, and a misdemeanor indictment for official misconduct. Id. The trial was scheduled for November 19, 2013. Id.

With regards to the first charge of tampering with a witness, Ms. Cherry claims that the Defendants did not have any evidence that she committed such a violation. (Docket No. 37 at 2.) Ms. Cherry points to the deposition testimony of her neighbor Ms. Clodfelter for support, as Ms. Clodfelter testified that Ms. Cherry did not coerce her into changing her description of the race of the suspected prowler. Id. at 23. Furthermore, Ms. Clodfelter testified that no one from the Hopkinsville Police Department or the Commonwealth Attorney's Office ever spoke with her about the allegations that Ms. Cherry had coerced her to change her description of the suspected prowler. Id. at 23–24. Ms. Cherry contends that Lieutenant Alexander and Chief Howie "concocted a story" that she had coerced Ms. Clodfelter to alter her statement as to the suspected prowler's race. Id. at 2.

Concerning the charge of tampering with public records, Ms. Cherry argues that the surveillance tape that she gave to the Nashville news station was privately owned and voluntarily released to her by the owners and, therefore, was not a "public record." Id. at 3–4. Additionally, with regards to the call Ms. Cherry made to 911 calling into question the accuracy of the Code Red call, she argues that it also cannot be the basis for a charge of tampering with public records because she did not change or destroy the Code Red call in any way. Id. Ms. Cherry argues that her actions do not make her subject to criminal liability under the statute. Id. at 3–4; see also Ky. Rev. Stat. § 519.060.

Lastly, regarding the charge of Official Misconduct, Ms. Cherry claims that it too was in error and based on faulty information as her previous two charges were used as support for this charge, and she believes the previous two charges do not have a sound basis. (Docket No. 37 at 5.)

Following her indictment and the service of a criminal summons, Ms. Cherry entered into plea negotiations with Commonwealth Attorney Lynn Pryor. (Docket No. 1 at 5-6.) The first plea offer was made in October 2012, "shortly before the November 2012 election, in which Ms. Cherry was the incumbent candidate for city council."

Id. at 5. According to Ms. Cherry, Ms. Pryor offered to dismiss all charges if Cherry would "drop out of the election before November 2012 and not run for Mayor or City Council again." Id. Ms. Cherry contends that she instructed her defense attorney to respond to the offer and to tell Ms. Pryor that she would consider the offer if Ms. Pryor would put it in writing. Id. Ms. Cherry states that Ms. Pryor then responded with a second offer that she would put the offer in writing if Ms. Cherry would additionally plead guilty to the misdemeanor. Id. at 6. On the morning of trial, Ms. Pryor made three additional offers to Ms. Cherry. Id. In the third offer, which Ms. Cherry accepted, Ms. Pryor agreed to dismiss with prejudice all charges if Ms. Cherry would agree "to drop off the City Council in January 2014, plus agree not [to] run for Mayor, and not [to] run for the City Council position again." Id.; see also ...