Noe v. Commonwealth
| Decision Date | 01 November 2018 |
| Docket Number | 2017-SC-000326-MR |
| Parties | ERIC T. NOE APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE |
| Court | United States State Supreme Court — District of Kentucky |
IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD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 OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION.
NOT TO BE PUBLISHED
ON APPEAL FROM MADISON CIRCUIT COURT
MEMORANDUM OPINION OF THE COURT
Eric Thomas Noe, representing himself pro se with standby counsel, was convicted by a jury of first-degree robbery and sentenced to twenty years' imprisonment. He is represented by appointed counsel in this matter of right appeal.1 On appeal, Noe requests reversal of his conviction due to the following alleged trial court errors: (1) denying his motion for directed verdict on the first-degree robbery charge, and overruling his objection to the jury instructions on first-degree robbery; (2) denying his motion to suppress evidence seized during the search of his apartment; (3) failing to conduct a suppression hearing on his objection to the recorded statement he made at the police station being playedfor the jury; and (4) not ordering the Commonwealth to turn over body cam evidence showing Noe's initial detention. Finding none of Noe's claims have merit, we affirm.
On July 16, 2015, a male perpetrator wearing a mask, a black-hooded sweatshirt embroidered with a red dragon, gray EKU2 sweatpants, and gloves entered the Chase Bank in downtown Richmond. He gave a small black and red backpack to the bank teller behind the counter and repeated the statements, "put the money in the f****** money in the bag b****!" and "hurry the f*** up!" During most of the encounter, the perpetrator kept his right hand in his sweatshirt pocket. At one point during the robbery, the offender, with his hand inside his sweatshirt pocket, leaned on the counter. A second bank teller testified that he thought the perpetrator might have a gun on him because of his stance and his hand on the counter. However, no gun or other weapon was seen during the robbery, no threat to use a gun or other weapon was ever made by the perpetrator, and only a grainy still frame of a bulge in the perpetrator's pocket on the bank's surveillance video was ever thought to have possibly been a weapon. The detective who reviewed the image from the bank's surveillance video testified on cross-examination that the bulge could have just been the hand of the offender which was in his pocket at the time.
Soon after the robbery, surveillance footage from directly above Noe's apartment, located less than two blocks from the bank, showed him enteringthe apartment in clothes matching those of the robbery suspect and leaving three minutes later. Richmond Police Department Officer, Chip Gray, was advised of an armed robbery at Chase Bank at 10:02 a.m. The suspect was described as a white male, with brown hair, in his 20's, in a white t-shirt, gray EKU sweatpants and a black and red backpack heading in the direction of the area where Noe was eventually stopped. At 10:04 a.m., Officer Gray made eye contact with Noe on the street and stated that Noe had a "change of behavior" upon this contact, immediately turning to ascend a narrow alleyway about one and a half blocks diagonally from Chase Bank. Noe made it all the way up the alley and almost into his apartment when Officer Gray called out to him. Noe then retreated to speak with Officer Gray. Officer Gray asked Noe why he was sweating, to which Noe responded that he had just finished a run. During this initial question, a radio dispatch updated Gray that the suspect's white t-shirt had red stripes. Noe was wearing a white t-shirt with a red "Avengers" symbol inside a red circle, khaki shorts, yellow shoes, and a different backpack.3 After receiving this update, Officer Gray detained Noe while explaining to him that there had been a robbery. He handcuffed Noe, since he did not know at that time whether a weapon had been used in the robbery, and removed his backpack.
Officer Gray asked Noe where he was going: Noe stated that he was on his way to class at EKU but was returning home to retrieve his phone. OfficerGray then asked Noe several questions about his class attendance at EKU. Noe hesitated when answering what building he had class in and could not remember his professor's name. At 10:12 a.m., Noe stated that his class was at 9:30 a.m., to which Officer Gray noted he was going to be very late, since the school was about a mile away. One minute later, Officer Gray asked university police whether Noe was enrolled in a 9:30 a.m. class. Six minutes after that university police informed Officer Gray that Noe was an active student but was not enrolled in summer classes. After hearing this news, Officer Gray ran a track with his dog from the bank to Noe's apartment in an attempt to discover further evidence that Noe was the perpetrator.
During this time, Noe remained detained by other officers outside the alleyway leading to his apartment. Dispatch records indicated that Noe gave verbal consent to search his apartment at 10:43 a.m., but officers went to the wrong apartment. At 10:51 a.m., Noe again verbally consented to a search of his apartment, and officers entered the correct apartment. Once inside, officers found the backpack containing evidence of the robbery. Officer testimony revealed that the backpack's main compartment contained gray EKU sweatpants, a black-hooded sweatshirt with a dragon emblem, a black bandana, a left shoe, a single latex glove, a box cutter, almost all the cash taken from the bank, and nothing else. Officers then left the apartment, obtained a search warrant and arrested Noe.
At a suppression hearing in October 2016, testimony indicated that another officer at the scene of Noe's detention may have been wearing a bodycam, but nothing was made of this indication until Noe brought it up again three months later on the last day of trial. At the close of trial, the jury was instructed on both first and second-degree robbery, and Noe was convicted of first-degree robbery and sentenced to twenty years' imprisonment. This appeal followed.
At trial, Noe moved for a directed verdict on first-degree robbery, which the trial court denied. Noe then objected to the jury instructions on first-degree robbery, on grounds that the Commonwealth failed to prove he had a deadly weapon. The trial court overruled his objection. In Noe's original appellate brief, he challenges only the trial court's denial of his directed verdict; yet in his reply brief, in response to the Commonwealth pointing out the absence of any claimed instructional error in his appellate brief, Noe raises the jury instruction issue as well.
"Normally, assignments of error not argued in an appellant's brief are waived." Commonwealth v. Bivins, 740 S.W.2d 954, 956 (Ky. 1987). However, since Noe preserved both issues below and both relate to the sufficiency of the evidence, we elect to review his claims together, despite Noe's failure to raise the instructional error theory until his reply brief. See Commonwealth v. Pollini, 437 S.W.3d 144, 148 (Ky. 2014) ().
Appellate review of a preserved sufficiency of the evidence challenge is the same whether the appellate court is reviewing a denial of a directed verdict motion or the requested exclusion of a jury instruction. Commonwealth v. Hasch, 421 S.W.3d 349, 357 (Ky. 2013). The standard is "'after viewing the evidence in the light most favorable to the Commonwealth, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" Id. (quoting Commonwealth v. Jones, 283 S.W.3d 665, 668 (Ky. 2009)).
A motion for directed verdict is appropriate "when the defendant is entitled to a complete acquittal[,] i.e., when, looking at the evidence as a whole, it would be clearly unreasonable for a jury to find the defendant guilty, under any possible theory, of any of the crimes charged in the indictment or of any lesser included offenses." Campbell v. Commonwealth, 564 S.W.2d 528, 530-31 (Ky. 1978). A motion for directed verdict is not the proper means for relief "[w]hen the evidence is insufficient to sustain the burden of proof on one or more, but less than all, of the issues presented by the case." Kimbrough v. Commonwealth, 550 S.W.2d 525, 529 (Ky. 1977) (citing Columbia Gas of Kentucky, Inc. v. Maynard, 532 S.W.2d 3, 7 (Ky. 1976)).
Noakes v. Commonwealth, 354 S.W.3d 116, 119 (Ky. 2011).
Noe maintains that because the evidence was insufficient to show he had a weapon, the trial court should have directed a verdict of acquittal on first-degree robbery or, alternatively, not instructed the jury on first-degree robbery. However, when the evidence is sufficient to sustain the burden of proof on some, but not all, elements of a count, the proper procedure for a criminal defendant is to object to the jury instruction and to request instruction on alesser-included offense, not to move for a directed verdict. See Holland v. Commonwealth, 466 S.W.3d 493,...
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