Nix v. Commonwealth

• Decision Date: 22 March 2018
• Docket Number: 2017-SC-000217-MR
• Parties: SHELBY JOE NIX APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
• Court: United States State Supreme Court — District of Kentucky

SHELBY JOE NIX APPELLANT
v.
COMMONWEALTH OF KENTUCKY APPELLEE

2017-SC-000217-MR

Supreme Court of Kentucky

MARCH 22, 2018

IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION.

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NOT TO BE PUBLISHED

ON APPEAL FROM BULLITT CIRCUIT COURT
HONORABLE RODNEY D. BURRESS, JUDGE
NO. 16-CR-00061

MEMORANDUM OPINION OF THE COURT

AFFIRMING

Shelby Joe Nix (Nix) was involved in a traffic stop that led to his arrest and subsequent indictment in Bullitt County. Nix proceeded to trial and was convicted by a Bullitt County jury of trafficking in a controlled substance (>2 grams methamphetamine), first degree, and possession of open alcohol beverage container in a motor vehicle. He was also found to be a persistent felony offender in the first degree by the jury. Pursuant to the jury's recommendation, the Bullitt County Circuit Court sentenced him to 20 years to serve. He appeals as a matter of right to this Court on several grounds: (1) that the circuit court should have granted his motion to suppress; (2) that the Commonwealth was permitted to introduce Kentucky Rule of Evidence (KRE)

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404(b) evidence, violating his due process rights; (3) that the circuit court erred in allowing an officer to testify as an expert; and (4) that the circuit court should have granted his motion for mistrial, based on a discovery violation. For the reasons discussed herein, we affirm the final judgment and sentence of the Bullitt Circuit Court.

I. BACKGROUND

In 2015, Nix was placed on probation in Bullitt Circuit Court. One of the conditions of his probation was that he not participate in "scrapping." One of the probation office supervisors, Officer Phil McHargue, was familiar with Nix and had problems with him complying with a no-scrapping rule in the past. Therefore, he asked local law enforcement to watch out for Nix because he believed Nix was likely to violate this rule again.

On January 2, 2016, Lebanon Junction Police Officer Joshua Waters saw Nix in traffic pulling a load of old metal. When Nix turned in front of him, Waters noticed that Nix's car did not have a license plate. Waters contacted McHargue on his way to intercept Nix and initiate a traffic stop. Ultimately, Waters did pull Nix over but found he did have a license plate; the license plate, however, was not displayed as required by law. McHargue arrived on scene and Waters asked Nix to exit the vehicle. They questioned Nix about the scrap and McHargue called his supervisor. McHargue, under his supervisor's advice, placed Nix under arrest for violation of his probation condition not to scrap. McHargue and Waters searched Nix's vehicle and found a pouch with 19 small baggies of a white, powdery substance later determined to be

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methamphetamine. Nix was subsequently charged with operating a motor vehicle without the rear license plate being illuminated; possessing an open alcoholic beverage container in a motor vehicle; trafficking in a controlled substance (>2 grams methamphetamine), first degree; and for being a persistent felony offender in the first degree. Nix proceeded to trial, at which time he was convicted, and the jury recommended an enhanced sentence of twenty years to serve.

II. ANALYSIS

A. The circuit court did not err in denying Nix's motion to suppress.

At the outset, we recognize that "we utilize a clear error standard of review for factual findings and a de novo standard of review for conclusions of law" in reviewing a trial court's denial of a suppression motion. Jackson v. Commonwealth, 187 S.W.3d 300, 305 (Ky. 2006). The circuit court made the following findings of fact regarding the traffic stop on January 2, 2016:

Officer Waters observed [Nix] moving South on Highway 61. Officer Waters testified the vehicle which [Nix] was driving did not appear to have a license plate. Further, [Nix] was pulling a trailer filled with assorted pieces of old metal. Officer Waters testified that he recognized [Nix] at that time. Further, Officer Waters testified that Probation and Parole Officer Phil McHargue had instructed Lebanon Junction law enforcement to contact him should any officer observe [Nix] 'scrapping,' as doing so was a violation of the terms of [Nix]'s probation.
Traffic conditions kept Officer Waters from pulling out directly onto Highway 61. Rather, Officer Waters moved to intercept [Nix] at the intersection of Church and Main Street. While in route, Officer Waters called Probation and Parole Officer Phil McHargue to report [Nix]'s apparent involvement in scrapping.
Upon intercepting [Nix], Officer Waters was still unable to see [Nix]'s license plate. Therefore, Officer Waters testified he initiated his lights and stopped [Nix]. ...

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While approaching [Nix]'s vehicle[,] Officer Waters saw [Nix]'s license plate. However, the plate was severely scratched and was leaning up against the ball of the truck instead of being properly attached. Officer Waters informed [Nix] that he was. stopped because of his improper license plate.
Officer Waters testified that he then returned to [Nix]'s vehicle and made small talk with [Nix].
...
Officer McHargue arrived within eight minutes of [Officer Waters'] initiation of the traffic stop. Upon his arrival, Officer McHargue instructed [Nix] to exit his vehicle. Officer Waters testified that as [Nix] exited the vehicle several items were in plain view that are prohibited by [Nix']s probation in another case. There was a sword next to the center console of the vehicle. There were also several empty bottles of [whiskey] in the vehicle floor boards.

Thereafter, McHargue placed Nix under arrest and requested that Waters transport him to the detention center.

First, this Court must determine whether there is clear error in any of the circuit court's findings. "[F]indings of fact are clearly erroneous only if they are manifestly against the weight of the evidence." Frances v. Frances, 266 S.W.3d 754, 756 (Ky. 2008) (citing Wells v. Wells, 412 S.W.2d 568, 571 (Ky. 1967)). There are three findings which this Court must find are against the weight of the evidence. First, the trial court stated that Waters saw Nix's license plate while approaching him at first contact. However, Waters clearly testified that he only saw the license plate after Nix informed him that the license plate was present and Waters went and examined it. Second, the trial court found that Officer McHargue instructed Nix to exit his vehicle. It was actually Officer Waters that testified that he told Nix to get out of his vehicle when McHargue arrived at the scene. And third, the trial court found that Waters testified that he saw several items, including a sword and empty bottles

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of whiskey, in the vehicle when Nix exited the vehicle. It was actually McHargue who testified about finding these items; Waters specifically stated he never saw any contraband until after McHargue located the items in his search of the vehicle. To the extent these facts are contrary to the evidence at the hearing, we must find clear error. However, these facts do not ultimately affect the conclusions of law, which we review de novo.

The trial court determined that Waters was justified in initiating the traffic stop. The court further found that, based on his observations and understanding of scrapping, Waters had reasonable suspicion to believe that Nix was violating his probation. The court also found that, under the voluntarily signed conditions of probation, Nix had consented to cooperate with a peace officer working at the direction of a probation officer. Thus, Nix had consented, by means of these conditions, to a detention past the initial stop in order to cooperate with Waters, at the direction of McHargue. Under these same conditions, Nix agreed that an officer could conduct a warrantless search if that officer has reasonable suspicion to believe Nix was violating the conditions of his probation. Due to these grounds, the trial court overruled Nix's motion to suppress.

We agree with the trial court that Waters was justified in initiating the traffic stop. At the outset, we note that Nix's objection to Waters' subjective intent in initiating the traffic stop is irrelevant. An "officer's subjective intention is irrelevant here; subjective intentions do not play a role in either a probable cause or a reasonable suspicion analysis under the Fourth

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Amendment." Lamb v. Commonwealth, 510 S.W.3d 316, 322 (Ky. 2017). "[T]he fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer's action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action." Id. (quoting Scott v. United States, 436 U.S. 128, 138 (1978) (citing United States v. Robinson, 414 U.S. 218 (1973))). Thus, so long as the objective justification for the traffic stop and further delay remain, Waters' intent is immaterial.

Here, Waters was unable to view a license plate, correctly displayed according to law. "It has long been considered reasonable for an officer to conduct a traffic stop if he or she has probable cause to believe that a traffic violation has occurred." Davis v. Commonwealth, 484 S.W.3d 288, 291 (Ky. 2016) (quoting Commonwealth v. Bucalo, 422 S.W.3d 253,...