A Jefferson Circuit Court jury found Appellant, William Mucker, guilty of possession of a handgun by a convicted felon, possession of a firearm by a convicted felon, possession of a defaced firearm, and carrying a concealed deadly weapon. The jury also found him to be a first-degree persistent felony offender (PFO). For these crimes, Appellant received a twenty-year prison sentence. He now appeals as a matter of right. Ky. Const. § 110(2)(b).
Around midnight on October 14, 2007, Officer Kenneth Martin of the Shively Police Department responded to a call regarding a fight in the parking lot of the local Veterans of Foreign Wars (VFW) post. While in transit, he received a second call advising him that there was a black male with a gun on the premises.
Upon arrival, a witness approached Officer Martin, informing him that an African-American male, who was driving a maroon sport-utility vehicle (SUV), was waving a handgun. The officers found a maroon SUV with an unidentified female sitting in the passenger's seat. Upon inquiring, the passenger told Officer Martin that the SUV belonged to her boyfriend, Appellant. Approximately ten minutes after reaching the SUV, the witness who previously approached Officer Martin pointed out Appellant near a Taurus in the parking lot.
Officer Martin then detained Appellant as he attempted to enter the backseat of the Taurus. Then, when they patted him down, they found a loaded semi-automatic handgun on Appellant's person. Officer Martin then arrested Appellant, handcuffing him and placing him in a patrol car.
When a license plate check connected the maroon SUV to Appellant, he admitted ownership, but refused consent to a search of the vehicle. Although they lacked consent and had never actually seen Appellant in the vehicle (but were told by his girlfriend that it was his), the officers nonetheless commenced a vehicle search, discovering a modified, sawed-off shotgun (with serial numbers filed off and the shoulder stock removed), in addition to a holster, shotgun shells, and a loaded magazine fitting the handgun previously found on Appellant.
A grand jury later indicted Appellant for possession of a handgun by a convicted felon, possession of a firearm by a convicted felon, possession of a defaced firearm, carrying a concealed deadly weapon, resisting arrest, disorderly conduct in the second degree, and first-degree PFO. Therefore, Appellant moved to suppress the searches of both his person and his vehicle. The trial court approved both searches.
At trial, the jury found Appellant guilty on four counts: possession of a handgun by a convicted felon, possession of a firearm by a convicted felon, possession of a defaced firearm, and carrying a concealed deadly weapon. In the combined PFO/Truth in Sentencing phase, the jury also found Appellant guilty of being a first-degree PFO. They then recommended that Appellant's eight-year sentence for possession of a handgun by a convicted felon be enhanced to seventeen years and his five-year sentence for possession of a firearm by a convicted felon be enhanced to thirteen years, to be served consecutively. The trial court reduced the recommended sentence to twenty years pursuant to KRS 532.1 lOflJJc).
Appellant now argues that KRS 527.040, which prohibits convicted felons from possessing firearms, violates the Kentucky Constitution and that the trial court erred by: denying his motion to exclude evidence obtained in the vehicle search; refusing to give a non-testifying defendant instruction; allowing the prosecutor to request a sentence in excess of the statutory maximum; and allowing cell phones in the jury room during penalty phase deliberations.
For the following reasons, we reverse the PFO conviction, vacate the resulting enhanced sentences, and affirm the remainder of Appellant's convictions and sentences. We remand this case to the trial court for further proceedings consistent with this opinion.
Appellant first argues that KRS 527.040
In Eary, we opined that a statute prohibiting felons from possessing firearms "is reasonable legislation in the interest of public welfare and safety and that such regulation is constitutionally permissible as a reasonable and legitimate exercise of police power." 659 S.W.2d at 200. We thoroughly revisited this issue in Posey, ultimately reaching the same conclusion.
Our decisions in Eary and Posey establish clear precedent as to the constitutionality of KRS 527.040. Precedent must be given considerable weight because stare decisis is "an ever-present guidepost" in appellate review and requires "deference to precedent." Caneyville Volunteer Fire Dept. v. Green's Motorcycle Salvage, Inc., 286 S.W.3d 790, 795 (Ky. 2009). Stare decisis ensures that the law will "develop in a principled and intelligible fashion" rather than "merely change erratically." Chestnut v. Commonwealth, 250 S.W.3d 288, 295 (Ky. 2008).
We see no sound reason for ignoring our precedent in this case. See Saleba v. Schrand, 300 S.W.3d 177, 183 (Ky. 2009) (stating that we ignore stare decisis only for "sound reasons to the contrary"). Accordingly, we once again affirm the constitutionality of KRS 527.040.
Appellant next argues that the trial court erred by refusing to suppress the evidence obtained from the SUV as fruits of an unconstitutional search. A court presented with a motion to suppress must "enter into the record findings resolving the essential issues of fact raised by the motion or objection and necessary to support the ruling." RCr 9.78. And when reviewing an order denying a motion to suppress, the trial court's findings of fact are "conclusive" if they are "supported by substantial evidence." Id. "Using those facts [if supported], the reviewing court then conducts a de novo review of the trial court's application of the law to those facts to determine whether the decision is correct as a matter of law." Commonwealth v. Jones, 217 S.W.3d 190, 193 (Ky. 2006).
As we must with all suppression issues, we begin by noting that "searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment subject only to a few specifically established and well-delineated exceptions." Katz v. United States, 389 U.S. 347, 357 (1967). A search incident to arrest is one of these established and well-delineated exceptions.
The United States Supreme Court set forth the appropriate standard for applying the search incident to arrest exception in the context of automobiles in Arizona v. Gant, 129 S.Ct. 1710; See also Rose v. Commonwealth, 322 S.W.3d 76, 79 (Ky. 2010) (adopting the Gant standard, as it was "necessary to bring the jurisprudence of this Commonwealth into compliance with that of our nation's highest court"). In Gant, the Court held that police may search a vehicle incident to the arrest of a recent occupant
Appellant asserts that the search of his SUV did not constitute a valid vehicle search incident to arrest because it failed the second Gant exception.
The Commonwealth responds that the trial court correctly denied the motion because the search was for evidence relevant to the crime of carrying a concealed deadly weapon. According to the Commonwealth, the Gant "offense of the arrest" exception is not limited to situations where an officer has not yet collected evidence necessary to satisfy all statutory elements. The Commonwealth analogizes carrying a concealed deadly weapon to drug offenses and offers McCloud v. Commonwealth, 286 S.W.3d 780 (Ky. 2009), in which this Court affirmed the search of a vehicle as a search for evidence of the offense of possession or trafficking in drugs, in support of its contention.
In outlining the second Gant exception, the Supreme Court emphasized the nature of the offense in assessing the requisite reasonable belief and established a dichotomy between drug offenses and routine traffic violations. The Court noted that "[i]n many cases, as when a recent occupant is arrested for a traffic violation, there will be no reasonable basis to believe the vehicle contains relevant evidence." Gant, 129 S.Ct. at 1719. Gant, as well as our own decision in Rose, deemed searches incident to arrest for routine traffic violations unreasonable. Gant, 129 S.Ct. 1710 (finding search incident to arrest for driving with suspended license unreasonable); Rose, 322 S.W.3d 76 (finding search incident to arrest for traffic fines unreasonable). Moreover, the Court went on to state that, "in other [cases], including Belton and Thornton, the offense of arrest will supply a basis for searching the passenger compartment of an arrestee's vehicle and any containers therein." Gant, 129 S.Ct. at 1719. Notably, Belton and Thornton were both cases involving arrests for drug offenses. New York v. Belton, 453 U.S. 454, 456 (1981) (defendants arrested for "unlawful possession of marijuana"); Thornton, 541 U.S. at 618 (defendant arrested after police officer discovered "three bags of marijuana" and "a large amount of crack cocaine" on his person). A litany of cases reinforces the Court's dichotomy, repeatedly affirming the reasonableness of vehicle searches pursuant to arrests for controlled substances.
We liken the offense of carrying a concealed deadly weapon to the drug offenses which have consistently provided "a basis for searching the passenger compartment of an arrestee's vehicle and any containers therein." Gant, 129 S.Ct. at 1719. For example, in United States v. Vinton, the federal circuit court affirmed a search incident to arrest for the unlawful possession of a butterfly knife. 594 F.3d 14, 24-27 (D.C. Cir. 2009). There, police officers arrested the driver of a vehicle after finding a knife and subsequently searched a locked briefcase found in the backseat. Id. at 21-22, 25. In analyzing the reasonableness of the search, the court in Vinton concluded that the unlawful possession of a weapon more closely resembles narcotics-possession offenses than routine traffic violations. Id. at 25-26 ("Indeed, it is difficult to imagine a principled basis for distinguishing the possession of narcotics from the possession of an unlawful weapon, where an arrest for the former makes it reasonable to believe additional narcotics remain in the car, but an arrest for the latter does not make it reasonable to believe additional weapons are in the car. In both cases, the defendant has been caught with a type of contraband sufficiently small to be hidden throughout a car and frequently possessed in multiple quantities.").
Turning to the case at bar, Appellant admitted to owning the SUV, the passenger of the SUV indicated that the vehicle belonged to her boyfriend, Appellant, and a witness at the scene identified Appellant as the African-American male that was driving a maroon sport-utility vehicle (SUV) and waving a handgun. More importantly, officers arrested Appellant for carrying a concealed deadly weapon, an offense similar to drug offenses.
We thus hold that it was reasonable in this instance to believe evidence relevant to the crime of carrying a concealed weapon might be found in the SUV. Unlike the circumstances of Rose and Gant, in which arrests were predicated on warrants for routine traffic violations, the officers here initially arrested Appellant for carrying a concealed deadly weapon, arriving on the scene based on a tip that a person with a maroon SUV was brandishing a gun. The officers thus acted reasonably by searching Appellant's vehicle for additional evidence of the concealed deadly weapon upon discovery of the handgun. The discovery of additional evidence such as ammunition is relevant to show possession, can be used to rebut defenses,
While we agree with the trial court's ultimate conclusion in this regard (its refusal to suppress the evidence obtained through the search of Appellant's vehicle), we note that the trial court inappropriately applied the Belton standard. In approving the search of Appellant's vehicle, the court stated: "[t]he discovery of a semi-automatic handgun on the Defendant's person provided Officer Martin with probable cause to arrest the Defendant. Once the Defendant was lawfully arrested, the police could search his vehicle, without a warrant or his consent, as a search incident to a lawful arrest." (emphasis added). Gant rejected the notion that police possessed such an entitlement to search a vehicle incident to arrest. Rose, 322 S.W.3d at 80. As a result, a Belton analysis, justifying a vehicle search solely due to the arrest of a "recent occupant," will no longer suffice in this Commonwealth. Id. ("[A] broad application of Belton, which allows vehicle searches incident to any arrest, [is] `anathema to the Fourth Amendment."') {citing Gant, 129 S.Ct. at 1720). We reiterate that the cart blanche rule that a vehicle may be searched incident to arrest of a recent occupant is no more.
Appellant also contests the trial court actions in his combined PFO/Truth in Sentencing proceeding, arguing that the trial court erred by refusing to give a non-testifying defendant instruction, allowing the prosecutor to ask the jury to recommend a sentence in excess of the statutory maximum, and allowing cell phones into the jury room during penalty phase deliberations.
Appellant argues that the trial court erred in refusing to give a non-testifying defendant instruction as mandated by RCr 9.54
RCr 9.54 requires a "no adverse inference of guilt instruction" if requested by the defendant. In Hibbard, this Court held that RCr 9.54(3) applies to the PFO phase of a trial because a jury must determine the guilt of the person charged in such proceedings. 661 S.W.2d at 474. As a result, "although a `no adverse inference instruction' is not required during the second phase of a trial where the jury is asked only to fix the defendant's punishment," we found that a trial court erred when it refused to give said instruction in a combined PFO/Truth in Sentencing phase. Watkins, 105 S.W.3d at 452.
Here, the trial court overruled Appellant's motion for additional language regarding his silence in the combined PFO/Truth in Sentencing jury instructions. As in Watkins, the jury should have been instructed in this case, as their duties included rendering a determination of guilt.
Because the trial court refused to include the additional language in Appellant's PFO/Truth in Sentencing proceeding, we must reverse the jury's PFO determination and the enhanced sentences it recommended as a result of that finding.
Appellant next argues that the trial court erred by allowing the prosecutor to ask the jury to recommend a sentence in excess of the statutory maximum of twenty years. The Commonwealth responds that any error relating to the sentencing cap was harmless because the trial court reduced the sentence to comply with the cap. Because this issue is likely to resurface on remand, we find it necessary to address.
KRS 532.055(2) states that a jury is to "determine the punishment to be imposed within the range provided elsewhere by the law." A jury should thus be instructed about the sentencing cap. Allen v. Commonwealth, 276 S.W.3d 768, 773-774 (Ky. 2008). In Allen, although the trial court knew that the defendant could serve no more than seventy years, no instructions were given to that effect, allowing the jury to "send a message" by recommending a onehundred-thirty-year sentence. Id. We agreed with the appellant in that case that the recommendation violated the plain language of KRS 532.055(2) and, in light of our decision to reverse on alternative grounds, directed that the trial court instruct the jury in any subsequent proceeding as to the sentencing cap. Id.
In this case, the trial court allowed the prosecutor to describe a twentyyear sentence as the "middle-range" of punishments even though it was the longest term to which Appellant could be sentenced.
Failing to instruct the jurors regarding the relevant cap in this case constitutes error. On remand, the trial court should instruct the jury on the statutory twenty-year sentencing limit in any subsequent PFO/Truth in Sentencing proceeding.
Appellant finally contends that the trial court erred by allowing cell phones into the jury room during penalty phase deliberations. However, he did not preserve this issue for appellate review and thus asks this Court to perform palpable error review. RCr 10.26. The Commonwealth responds that no palpable error occurred, as jurors were admonished not to communicate prior to deliberations and Appellant cannot show that any juror used his or her cell phone. Because this issue is likely to resurface on remand, we find it necessary to address.
This Court recently addressed the issue of juror cell phone usage in Winstead v. Commonwealth, 327 S.W.3d 386 (Ky. 2010). In Winstead, we held that a trial judge must direct a court official to collect and store all cell phones or other electronic communication devices when jury deliberations begin and retain them until deliberations are complete. 327 S.W.3d at 401.
In this case, jurors were instructed to turn off their cell phones and not to make any calls during deliberations, as well as admonished to only discuss the case amongst themselves. However, the trial court did not collect and store cell phones.
On remand, the trial court should collect and store all cell phones or other electronic communication devices when penalty deliberations begin and retain them until these deliberations are complete, pursuant to Winstead, 327 S.W.3d 386.
Furthermore, due to our decision to remand on alternative grounds, the Commonwealth's motion to strike Appellant's reply argument pertaining to cell phones has been rendered moot and is thus denied.
For the foregoing reasons, Appellant's convictions for possession of a handgun by a convicted felon, possession of a firearm by a convicted felon, possession of a defaced firearm, and carrying a concealed deadly weapon are affirmed. However, the PFO determination and the enhanced sentences resulting from that finding are reversed and this case is remanded to the trial court for further proceedings consistent with this opinion.
All sitting. Minton, C.J.; Abramson, Cunningham, Noble, and Venters, JJ., concur. Scott, J., concurs in result only by separate opinion in which Schroder, J., joins.
SCOTT, J., CONCURRING IN RESULT ONLY.
While I fully concur with my esteemed colleagues as to the reasonableness of the search and PFO/Truth in Sentencing issues, I concur in result only regarding the constitutionality of KRS 527.040.
As noted in my dissent in Posey, "[i]t is simply wrong to arrest, charge and convict Kentuckians of `felony crimes' for [having] a weapon . . . without any evidence the weapon was intended to be used for unlawful purposes." 185 S.W.3d 170, 183 (Ky. 2006) (Scott, J., concurring in part and dissenting in part). "Such a practice violates all of our rights to `bear arms in defense of [ourselves and others]' and our rights of self-defense." (Id. citing Ky Const. § 1 (1, 7)).
I am not alone in my viewpoint that some nonviolent felons may retain their right to keep weapons. For instance, a recent federal court of appeals decision suggested that a non-violent felon might prevail in an "as-applied" challenge to a felon-in-possession prohibition:
United States v. Williams, 616 F.3d 685, 693 (7th Cir. 2010) (O'Connor, J., sitting by designation).
Appellant, though, does not qualify for constitutional protection. As the record reveals, Appellant was a violent felon, previously convicted for first-degree robbery. Furthermore, the scope of the "right of self-defense" and "the right to bear arms" does not extend to "brandishing" a weapon. Posey, 185 S.W.3d at 202 (Scott, J., concurring in part and dissenting in part) ("[A] constitutional right may not be exercised to threaten, impede, or injure others in an unlawful manner; when it interferes with the lawful rights of others, it has no constitutional protection.") (citing Ogles v. Commonwealth, 11 S.W. 816 (Ky. 1889)).
Because I would affirm Appellant's convictions for possession of a handgun by a convicted felon and possession of a firearm by a convicted felon on alternative grounds, I concur in result only.
Schroder, J., joins.
Pursuant to this statute, Appellant can serve no more than twenty years in this case.
