Matthews v. Commonwealth
| Decision Date | 14 October 2011 |
| Docket Number | NO. 2010-CA-001157-MR,2010-CA-001157-MR |
| Parties | BOYD DANIEL MATTHEWS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE |
| Court | Kentucky Court of Appeals |
TO BE PUBLISHED
APPEAL FROM MCCRACKEN CIRCUIT COURT
On June 11, 2009, Detective Matt Wentworth of the Paducah Police Department's drug unit set up an undercover buy through a confidential informant (CI).1 Detective Wentworth gave the CI cash to purchase the drugs, wired him for video and audio recording, and dropped him off at the proper location. Detective Wentworth and other officers monitored the CI as he met with and purchased crack cocaine from a person who was unfamiliar to the officers. The CI asked for and received the drug dealer's telephone number.
A few weeks later, Detective Wentworth and another officer encountered the same person, whom they recognized from his unusual forked beard. They approached the man, who identified himself as Matthews, the appellant in this case, and they arrested him on an active bench warrant for failure to appear or pay a fine. The officers searched Matthews, recovered two cell phones and plastic baggies, and transported him to the police department. While at the police department, Detective Wentworth took the cell phones to another room and dialed the drug unit's number to check the cell phone's number on the office phone's caller ID. One of the phones had the same number as the number given to the CI by the drug dealer following the buy on June 11. He then scrolled through the contact information on both phones. Detective Wentworth also photographed Matthews.
Rather than charging Matthews with a crime at that point, Detective Wentworth talked with Matthews about becoming a confidential informant, and he agreed. Detective Wentworth returned the phones to Matthews upon his release and provided Matthews with a telephone number where he could be reached. Matthews was to contact the detective at some point in the near future to set something up, but he never did. When Detective Wentworth contacted him weeks later, Matthews told him he was no longer interested in becoming a confidential informant. Detective Wentworth then filed charges against Matthews for trafficking based upon the CI's photographic identification of Matthews as the drug dealer at the June 11 buy. In September 2009, the McCracken County grand jury indicted Matthews for trafficking in a controlled substance, cocaine, first offense (Kentucky Revised Statutes (KRS) 218A.1412) and for being a PFO I (KRS 532.080).
Following his indictment, Matthews moved to suppress the evidence Detective Wentworth obtained from the two cell phones that were seized and searched without a warrant when Matthews was picked up on the active bench warrant in late June. He argued that he had a reasonable expectation of privacy in the contents of the phones and that his arrest had nothing to do with drug trafficking or any other substantive offense, citing Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009). The circuit court held a hearing at which the only witness to testify was Detective Wentworth. In an order entered March 26, 2010, the circuit court suppressed the search of the contact list on the cellphone because it was not a search incident to his arrest and because Matthews had a reasonable expectation of privacy, citing Gant and United States v. Quintana, 594 F.Supp.2d 1291 (M.D.Fla. 2009). However, the circuit court declined to suppress the identification of the numbers assigned to the seized cell phones because Matthews' expectation of privacy was not legitimate, citing Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979). It also declined to suppress Detective Wentworth's process to identify the number and his subsequent call to that number.
Also prior to trial, Matthews sought to preclude the admission of Kentucky Rules of Evidence (KRE) 404(b) evidence of prior bad acts consisting of four phone calls, which was resolved in an Agreed Order providing that the Commonwealth could not introduce the evidence in its case-in-chief, but could introduce it on rebuttal if a proper foundation had been laid. Matthews also sought to suppress the results of the photo identification, which the parties discussed the day of trial. The circuit court ultimately denied the motion to suppress in a post-trial order, finding the identification was reliable, but noted that the line-up identification was not presented to the jury at trial.
The matter proceeded to trial on April 5 and April 6, 2010. The Commonwealth offered testimony from the officers involved in the controlled buy as well as from the CI, who identified Matthews as the person from whom he had purchased the crack cocaine on June 11, 2009. Matthews testified in his own defense, stating that he was not the person who appeared in the audio and videorecordings of the controlled buy and that he had been out of the state with his brother at the time of the transaction. The jury returned a verdict of guilty on the trafficking charge and following the penalty phase, found Matthews guilty of being a PFO I and recommended a sentence of ten years on the trafficking conviction enhanced to seventeen years by the PFO I conviction.
At the conclusion of the trial, the circuit court expressed some concern that the Commonwealth had not proved the elements of the PFO I charge in that it might not have established that Matthews was eighteen years old at the time he committed a trafficking offense, for which offense he was convicted in 1999. The circuit court ordered the parties to brief the issue and later ruled that the jury could make a reasonable inference that Matthews committed the felony after he reached the age of eighteen, citing Carver v. Commonwealth, 303 S.W.3d 110 (Ky. 2010). The court then entered its final judgment and sentence of imprisonment in accordance with the jury's verdict on June 10, 2010. This appeal now follows.
On appeal, Matthews raises six issues for our consideration: 1) whether the circuit court properly ruled on the motion to suppress regarding the search of the cell phones; 2) whether the circuit court properly admitted evidence of a letter Matthews attempted to pass to another inmate; 3) whether the Commonwealth made improper statements in its closing argument; 4) whether the Commonwealth proved all of the elements of the PFO I charge; 5) whether the trial judge should have sua sponte recused; and 6) whether cumulative errors denied him his right to a fair trial.
The first issue we shall address is whether the circuit court properly ruled on the motion to suppress. In his initial brief, Matthews appears to state that the circuit court denied his motion to suppress in its entirety, which the Commonwealth pointed out was incorrect, because the court only denied the motion in relation to the identity of the cell phone number. In his reply brief, Matthews reworks this argument to assert that the court should not have split the results of what he describes as an illegal search and that he had a reasonable expectation that no one would make calls on his cell phone. The Commonwealth also contends that Matthews' argument is moot because no evidence concerning the method Detective Wentworth used to obtain the cell phone number was introduced at trial. We agree with Matthews that this issue is not moot, but we ultimately agree with the Commonwealth that this argument has no merit.
Our standard of review from a denial of a motion to suppress is two-fold. 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). Because there are no disputes related to the factual findings, we shall confine our review to whether the decision is correct as a matter of law.
Our first consideration is whether a search actually occurred. The United States Supreme Court set forth the law applicable to this analysis in Smith v. Maryland, 442 U.S. 735, 739-40, 99 S.Ct. 2577, 2579-80, 61 L.Ed.2d 220 (1979), which we shall set forth below, in pertinent part:
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