Nunn v. Commonwealth

• Decision Date: 02 April 2015
• Docket Number: 2013–SC–000814–MR
• Citation: 461 S.W.3d 741
• Parties: David R. Nunn, Appellant v. Commonwealth of Kentucky, Appellee
• Court: United States State Supreme Court — District of Kentucky

461 S.W.3d 741

David R. Nunn, Appellant

v.Commonwealth of Kentucky, Appellee

2013–SC–000814–MR

Supreme Court of Kentucky.

RENDERED: APRIL 2, 2015

Counsel for Appellant: David R. Nunn, Little Sandy Correctional Complex

Counsel for Appellee: Jack Conway, Attorney General of Kentucky, Gregory C. Fuchs, Assistant Attorney General, Office of the Attorney General, Office of Criminal Appeals

Opinion

OPINION OF THE COURT BY JUSTICE VENTERS

Appellant, David Nunn, appeals from a judgment of the Hardin Circuit Court sentencing him to twenty years' imprisonment for the crimes of fleeing and evading in the second-degree, being a felon in possession of a handgun, and being a persistent felony offender in the first-degree. As grounds for relief, Appellant contends that the trial court erred by: (1) denying his motion to suppress evidence found incident to a Terry stop; (2) denying his right to counsel as construed under Section 11 of the Kentucky Constitution by unduly restricting his right to hybrid counsel; (3) admitting evidence of other crimes contrary to KRE 404(b) ; (4) permitting the Commonwealth to comment upon his post-arrest silence; (5) denying his motion for a continuance thus depriving him of due process; and (6) erroneously imposing court costs.

I. FACTUAL AND PROCEDURAL BACKGROUND

When Kentucky State Police Trooper Shannon White stopped Appellant for operating his vehicle with an expired temporary tag, Appellant was unable to produce vehicle registration documents or proof of insurance. White decided that the proper course of action was to impound Appellant's car, so she summoned a tow truck. As they waited for the tow truck, White directed Appellant to exit the vehicle and walk to the back of it so that White could frisk him for weapons. Appellant got out of the vehicle, but hesitated in walking to the rear of the vehicle. When the trooper demanded compliance, Appellant turned and ran away. White took chase and caught him. A bag of marijuana was found along the route of Appellant's attempted escape and a search of his person produced a loaded handgun. Appellant was indicted on several charges arising from the incident, and the case went to trial on three of those charges: first-degree fleeing and evading police, possession of a handgun by a convicted felon, and being a persistent felony offender.

At trial, Appellant testified that he was in possession of the firearm only because earlier that day he had taken it from his daughter for her own safety and protection (lest there be an accident). Based upon that defense, the jury was given a choice of evils instruction. Ultimately, the jury found Appellant guilty of second-degree fleeing and evading police, possession of a handgun by a convicted felon, and of being a persistent felony offender in the first-degree, for which he received a total sentence of twenty years' imprisonment. Due to Appellant's status as an “indigent” defendant, the trial court waived the fines associated with this conviction, but ordered that he pay the court costs upon his release from incarceration. Appellant appeals as a matter of right.

II. ANALYSIS

A. The trial court correctly denied Appellant's motion to suppress.

We first consider Appellant's claim that the trial court erred in failing to suppress the handgun found on his person and the marijuana found nearby. Appellate review of a trial court's ruling on a motion to suppress involves a two-step process. Frazier v. Commonwealth, 406 S.W.3d 448, 452 (Ky.2013) (“In reviewing a trial court's ruling on a suppression motion, an appellate court must first determine if the trial court's factual findings are not clearly erroneous and are supported by substantial evidence.... A de novo review of the trial court's application of the law to the facts completes the analysis.”) (citations omitted). See also Welch v. Commonwealth, 149 S.W.3d 407, 409 (Ky.2004) (citing Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996) ).

Appellant does not challenge the trial court's findings of fact. It is not disputed that Appellant fled from the police officer after she had instructed him to submit to a pat down search. The crux of Appellant's argument is that the initial stop for the expired license tag was completed, and that as they waited for the tow truck to arrive, Trooper White had no authority to further detain him, and no justification to search his person. He reasons that White's demand that he exit the vehicle and submit to a pat down was an attempt to conduct an illegal search leading directly to the discovery of the incriminating evidence.

We reject the premise of Appellant's argument because we conclude that White did not abuse her authority in detaining Appellant as they awaited the tow truck. An officer may briefly detain a citizen upon individualized reasonable articulable suspicion that criminal activity is afoot. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). White's observation of Appellant's unlawfully licensed vehicle supplied the individualized, reasonable articulable suspicion for stopping his vehicle. Having stopped the vehicle and discovered that it was not insured, White's decision to hold the vehicle to prevent its return to the roadway was a reasonable course of action based upon public safety. Although Appellant was not under arrest, he was still subject to the Terry stop while his vehicle was being secured.

However, Appellant correctly asserts that the reasonable suspicion that justifies the initial stop of a vehicle (here, the expired license tag) does not, under Terry, authorize an additional pat down search for weapons unless it includes, or is later supplemented with, the additional reasonable belief or suspicion that the subject may be armed. “Nothing in Terry can be understood to allow a generalized ‘cursory search for weapons' or indeed, any search whatever for anything but weapons. The ‘narrow scope’ of the Terry exception does not permit a frisk for weapons on less than reasonable belief or suspicion directed at the person to be frisked[.]” Ybarra v. Illinois, 444 U.S. 85, 93–94, 100 S.Ct. 338, 343, 62 L.Ed.2d 238 (1979). Where the “the police officer had sufficient facts to form a reasonable belief that [the detained suspect] was armed ... she was entitled to conduct a protective pat down search.” Commonwealth v. Whitmore, 92 S.W.3d 76, 79 (Ky.2002) (citing Terry, and Commonwealth v. Crowder, 884 S.W.2d 649, 652 (Ky.1994) (“Since the nature of the non-threatening contraband was not immediately apparent to [the police officer] when conducting the patdown, his further exploration of Crowder's pocket ‘was not authorized by Terry ’ ”[.] )).

Thus, if Trooper White entertained a reasonable suspicion that Appellant may have been armed, her concern for her own safety would justify the demand to frisk Appellant for weapons as they waited by the side of the road for a tow truck. However, while our review of the record discloses that White never articulated that kind of suspicion, the failure in that regard ultimately proves to be inconsequential because Appellant's sudden decision to flee the scene changes the analysis.

We recognize that “flight, in and of itself, is insufficient to establish probable cause” to arrest. Commonwealth v. Jones, 217 S.W.3d 190, 197 (Ky.2006). But unlike the usual situation where flight might be regarded as sign of guilt, Appellant's flight was the corpus delicti of the very crime of second-degree fleeing and evading police for which he now stands convicted. Second-degree fleeing and evading police is a Class A misdemeanor. It was committed in Trooper White's presence and she was, therefore, authorized to arrest Appellant immediately.¹ The search of his person that followed his capture was incident to that arrest, and was, therefore, unquestionably proper. The contraband was found as a result of a lawful search incident to arrest. We accordingly agree with the trial court's ruling denying Appellant's motion to suppress the discovery of the handgun. Regardless of the propriety of White's first attempt at frisking Appellant for weapons, Appellant's subsequent behavior inevitably led to the discovery of the evidence.² The trial court's denial of Appellant's motion to suppress was correct.

Appellant cites Turley v. Commonwealth, 399 S.W.3d 412 (Ky.2013), for the principle that, even if the initial stop was justified by reasonable suspicion, an officer cannot detain a motorist beyond completion of the original purpose of the initial traffic stop “unless something happened during the stop to cause the officer to have a ‘reasonable and articulable suspicion that criminal activity [is] afoot.’ ” Id. at 421 (quoting United States v. Davis, 430 F.3d 345, 353 (6th Cir.2005) (emphasis added).

However, the facts in Turley are distinguishable: there, although the officer's purpose in making the traffic stop had been completed, he improperly continued his control over the motorist. We reasoned that contraband discovered during the course of this subsequent detention should be excluded from evidence because the subsequent seizure was unaccompanied by individualized articulable reasonable suspicion to extend the detention as required by Terry. Turley, 399 S.W.3d at 415, 416. Here, much to the contrary, the fact that White and Appellant were still waiting for the tow truck signifies that the business for which the stop was justified was ongoing. But even more compelling, in contrast with Turley, here “something happened during the stop.” Appellant committed an additional crime in the officer's presence (he fled while in lawful Terry custody), and so additional intervention was warranted, including the resulting search of Appellant.

B. The trial court's abuse of discretion in imposing limitations upon Appellant's hybrid counsel arrangement was harmless error.

Prior to the trial Appellant filed notice of his “Limited Waiver of Counsel,” and a Faretta hearing was held.³ At the hearing, App...