Relford v. Com.

• Decision Date: 06 May 1977
• Citation: 558 S.W.2d 175
• Parties: William Jacob RELFORD, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: Kentucky Court of Appeals

Page 175

558 S.W.2d 175

William Jacob RELFORD, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Court of Appeals of Kentucky.

May 6, 1977.

Rehearing Denied July 8, 1977.

Rehearing and Rehearing En Banc Denied July 26, 1977.

Discretionary Review Granted Oct. 24, 1977.

Jack Emory Farley, Public Defender, Com. of Ky., Edward C. Monahan, Asst. Public Defender, Frankfort, for appellant.

Robert F. Stephens, Atty. Gen., Robert W. Hensley, Asst. Atty. Gen., Frankfort, Patrick H. Molloy, Com. Atty., 22nd Judicial Circuit, Lexington, for appellee.

Before GANT, LESTER and PARK, JJ.

GANT, Judge.

On February 3, 1976, two detectives of the Lexington Metro Police Department observed a vehicle belonging to the Appellant which was being driven by one Eva Jean Adams on the streets of Lexington. The detectives recognized the driver as a person who they knew was wanted in connection with an escape from a juvenile detention facility and further recognized the Appellant who was on the sidewalk trying to get the driver's attention as she drove by and recognized the passenger in this vehicle. Without losing sight of the vehicle they began to follow it and after pulling up behind the vehicle they saw the Appellant approach the vehicle, apparently remove something from his waist or shirt and hand it to the driver and then saw the passenger appear to place something under the seat of the car. The two detectives approached the car, required the passenger to get out of the car and, based upon their observation and according to their testimony, in order to determine whether a weapon had been placed under the seat by the passenger, searched under the passenger's seat with him standing just outside the vehicle and found there a brown envelope. This envelope was a standard U. S. Government "window" envelope containing a Social Security check made to one Beulah Thomas, which was seen without opening the envelope.

At this point, one of the detectives asked the driver, whom they knew was Eva Jean Adams, "What's your name?" She replied that she was Beulah Thomas and at this time the detectives placed Eva Jean Adams, the passenger and the Appellant all under arrest and charged them with Criminal Possession of a Forged Instrument.

At the trial of this action, Eva Jean Adams testified that the Appellant and the passenger had approached her in a restaurant shortly before the arrest and solicited her aid in cashing a Government check and that after first refusing to do so she had indicated to them a certain location near where the arrest took place at which she felt they could cash the check. The Appellant testified that the first time he saw the check was at the time of his arrest and the passenger testified that the first time he saw the check was when Eva Jean pitched it to him as the police approached the vehicle and that he had, in fact, stuffed it under the seat of the Appellant's vehicle.

Appellant cites five errors committed by the trial court as the basis for his argument for reversal of this cause.

The first error urged by the Appellant is that the search of the vehicle in question constituted an unreasonable search and seizure within the limitations prescribed by the Fourth Amendment of the Constitution of the United States. In connection with this alleged error, it should be first noted that no objection was made to the introduction of the evidence herein, nor was any suppression hearing held prior to trial or during trial outside the hearing of the jury. This type of conduct makes it extremely hard for an Appellate Court to rule upon whether probable cause existed, and whether the search was of the type covered under Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), or any other applicable principle laid down by the Supreme Court of the United States or by the courts of this jurisdiction. Indeed, we know of no rule in this jurisdiction which would require the prosecution to introduce all the evidence concerning the circumstances of the search when those circumstances are not put at issue by an objection and thus are removed from consideration by the jury. In the case of Bays v. Commonwealth, Ky., 486 S.W.2d 706 (1972), the court held that introduction of the evidence concerning a search was not necessary when the court had previously determined as a matter of law that the evidence was admissible. The failure to object would also remove that issue from the jury and there would be no necessity for the Commonwealth to introduce all the "circumstances of the search."

The position of this Court is best stated in the case of Sykes v. U. S., 373 F.2d 607, 612 (5th Cir. 1966) cert. denied 386 U.S. 977, 87 S.Ct. 1172, 18 L.Ed.2d 138 (1967). In that case the court stated as follows:

Imagination in re-living the trial is here not sufficient, but must be accompanied by speculation as to what would have appeared had the claim of error been considered. Speculation wastes time and bears ephemeral fruit. For this reason this Court has held that there is no "plain error" where, irrespective of the substantiality of the claimed...