VANMETER, Judge.
Chad Anthony Hensley appeals from the Kenton Circuit Court's judgment and sentence convicting him of possession of a controlled substance in the first degree for heroin. Hensley appeals his conviction on the basis of the denial of his motion to suppress evidence obtained in a warrantless search, admission of prior bad acts under KRE 404(b), and untimely notice of discovery for use of prior convictions. For the following reasons, we affirm.
On January 23, 2014, Hensley, his significant other, Randall Ruwan, and a second passenger rode together to a friend's house to purchase a video camera. After Hensley paid $20 for the camera as an intended gift to Ruwan, the friend took the video camera into a back room of her home, out of sight of Hensley, then returned and handed Hensley the case with the camera purported to be inside. He testified that he did not look in the case when handed to him but could feel the weight of the camera in the closed case. Hensley then placed the video camera case into his pocket. The camera also included a video cord, paperwork, and a C.D. that explained how the camera worked. When Hensley was driving home about five minutes later, he was pulled over by Officer Wyatt Gayer for speeding.
Officer Gayer approached the vehicle and asked Hensley for his registration, insurance, and identification. Officer Gayer commenced the traffic stop with routine questions directed at Hensley. Gayer then asked if any illegal weapons or narcotics were in the vehicle, and testified that Hensley became visibly nervous, and attempted to confer with the other passengers. At this point, Gayer asked the other passengers not to speak for Hensley, and then asked him to step out of the vehicle so they could speak "one-on-one." A second detective, Dwayne Rolfson, arrived at this time to assist Gayer with the traffic stop.
Hensley exited his car, and Gayer asked Hensley again if he had anything illegal either in the car or on his person, to which Hensley answered no. In Gayer's opinion, Hensley seemed to get more nervous at this request. Gayer then asked Hensley if he would mind emptying his pockets onto the hood of the patrol car. Hensley emptied his pockets, and placed the contents, which included the camera case, on the back of the patrol car. Gayer asked permission to search the camera case, which Hensley granted. Inside the camera case, Gayer found some film, empty film canisters, papers, and a small knotted baggie of a tan substance, which was later identified as heroin. Gayer asked Hensley where the bag of heroin came from, but Hensley told him that he did not know, and that the camera case was not his, but rather Ruwan's. After the discovery of the heroin, Gayer and Rolfson searched the car and the other two occupants.
At the jury trial, Hensley testified that due to medical issues, his memory is "fuzzy" about the actual details of the traffic stop.
Hensley was convicted by a Kenton County jury of first-degree possession of a controlled substance, heroin, and sentenced to three years. He now directly appeals his conviction and sentence. Any necessary additional facts will be discussed with the relevant argument.
Hensley makes three arguments on appeal. First, he argues that the trial court erred when it denied his motion to suppress because the search and seizure of his person violated the Fourth Amendment. Second, Hensley argues that the trial court violated KRE
Hensley argues that the trial court erred in denying his motion to suppress for three reasons. First, he argues the trial court's findings were not supported by substantial evidence. Second, he argues that the initial traffic stop was not supported by probable cause, and was thus improper. Third, he argues Officer Gayer conducted an unreasonable search and seizure not supported by a warrant and not under any exception to the warrant requirement.
After a hearing on a defendant's suppression motion, a trial court's findings are deemed to be conclusive if supported by substantial evidence. See, e.g., Simpson v. Commonwealth, 474 S.W.3d 544, 547 (Ky. 2015); Talbott v. Commonwealth, 968 S.W.2d 76, 82 (Ky. 1998). The trial court's findings of fact will only be overturned if clearly erroneous. Davis v. Commonwealth, No. 2014-SC-000405-MR, 2016 WL 1068352, at *1 (Ky. Mar. 17, 2016); Welch v. Commonwealth, 149 S.W.3d 407, 409 (Ky. 2004). Finally, an appellate court conducts a de novo review of the trial court's application of the law to those facts to determine whether its decision is correct as a matter of law. Drake v. Commonwealth, 222 S.W.3d 254, 256 (Ky. App. 2007); Commonwealth v. Neal, 84 S.W.3d 920, 923 (Ky. App. 2002).
First, Hensley argues that the trial court's findings were not supported by substantial evidence as required by RCr
Hensley argues that Officer Gayer's testimony is not corroborated by any other witness at the scene, nor was he wearing his body camera. However, corroboration is not required for a trial court's determination of witness credibility. The trial court specifically found Hensley's claims of coercion unbelievable and that his consent to the search was voluntary, and stated explicitly the facts on which it relied. The trial court's findings were "based squarely in the evidence presented at the suppression hearing." Hampton v. Commonwealth, 231 S.W.3d 740, 749 (Ky. 2007). A trial court's choice "between various competing and inconsistent versions of the events . . . does not undermine the decision. In fact, that is the essential function of the trial court as the trier of fact when presented with preliminary questions such as whether consent was voluntarily given." Id.
In this case, the trial court's findings about the voluntariness of the search were explicitly founded on Officer Gayer's testimony at the suppression hearing, which the court deemed trustworthy. The trial court's findings were therefore supported by substantial evidence, and thus not clearly erroneous. See id. Since we have determined the trial court relied on substantial evidence in its findings, we will now review the motion to suppress de novo to determine if the decision was correct as a matter of law. Commonwealth v. Pride, 302 S.W.3d 43, 49 (Ky. 2010).
Hensley argues Officer Gayer's initial traffic stop was pretextual and not supported by probable cause, and that Gayer also did not have probable cause to detain him after the initial traffic stop, for which he was not issued a citation.
This court recently addressed probable cause to initiate a traffic stop:
Baker v. Commonwealth, 475 S.W.3d 633, 634-35 (Ky. App. 2015). The Kentucky Supreme Court has held that "an officer who has probable cause to believe a civil traffic violation has occurred may stop a vehicle regardless of his or her subjective motivation[.]" Wilson v. Commonwealth, 37 S.W.3d 745, 749 (Ky. 2001). Recent Kentucky cases have addressed situations in which seemingly minor violations justified a traffic stop.
In the instant case, that Hensley was exceeding the posted speed limit is not contested. Once Officer Gayer used stationary radar technology to clock Hensley going 30 m.p.h. in a posted 25 m.p.h. zone, he certainly had probable cause to believe that Hensley violated the traffic laws. The trial court did not err in finding that this traffic stop was proper and supported by probable cause.
Alternatively, Hensley argues that even if the traffic stop was proper, he was improperly detained beyond a reasonable scope of time justified for a traffic violation.
Johnson v. Commonwealth, 179 S.W.3d 882, 884 (Ky. App. 2005) (overruled on other grounds by Davis v. Commonwealth, No. 2014-SC-000405-MR, 2016 WL 1068352 (Ky. Mar. 17, 2016)).
The United States Supreme Court made clear in Ohio v. Robinette that "the fact that [an] 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. . . . Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis." 519 U.S. 33, 38, 117 S.Ct. 417, 420-21, 136 L. Ed. 2d 347 (1996) (internal citations and quotations omitted). In Robinette, the facts of which very closely mirror the instant case, the Court held that in light of the admitted probable cause to stop the appellant for speeding, the Officer "was objectively justified in asking Robinette to get out of the car, subjective thoughts notwithstanding." Id. at 519 U.S. at 38, 117 S. Ct. at 421. The Court has additionally held that "once a motor vehicle has been lawfully detained for a traffic violation, the police officers may order the driver to get out of the vehicle without violating the Fourth Amendment's proscription of unreasonable searches and seizures." Pennsylvania v. Mimms, 434 U.S. 106, 111, n. 6, 98 S.Ct. 330, 333, n. 6, 54 L.Ed.2d 331 (1977).
Hensley contends this two-hour traffic stop far exceeded the time necessary to effectuate the purpose of issuing a speeding citation. We disagree. The traffic stop itself did not take two hours; rather, the entire encounter took two hours. Almost immediately following the initial exchange between Officer Gayer and Hensley, the heroin was discovered, at which point, the traffic stop became an arrest for the possession of heroin and not merely a stop for a traffic violation. The trial court did not err in holding that this stop and the duration of the stop did not violate the Fourth Amendment.
Hensley argues that he was improperly seized by Officer Gayer when he complied with the order to exit his vehicle and accompany the officer to the front of the patrol car. Hensley contends that this search and seizure were not within an exception to the warrant requirement, and thus violated the Fourth Amendment. Since Officer Gayer did not have a warrant to search Hensley, the Commonwealth has the burden to establish that the warrantless search is permissible under a recognized exception to the warrant requirement. Gallman v. Commonwealth, 578 S.W.2d 47, 49 (Ky. 1979).
"Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a seizure has occurred." Baker, 5 S.W.3d at 145 (citing Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968). "A person has been seized when, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980). "[I]t is fundamental that all searches without a warrant are unreasonable unless it can be shown that they come within one of the exceptions to the rule that a search must be made pursuant to a valid warrant." Commonwealth v. Jones, 217 S.W.3d 190, 195 (Ky. 2006). However, "consent is one of the established exceptions to the Fourth Amendment's warrant requirement." Id. at 198.
The United States Supreme Court has stated that "even when officers have no basis for suspecting a particular individual, they may generally ask questions of that individual, ask to examine the individual's identification, and request consent to search his or her luggage, as long as the police do not convey a message that compliance with their requests is required." Florida v. Bostick, 501 U.S. 429, 434-35, 111 S.Ct. 2382, 2386, 115 L. Ed. 2d 389 (1991) (internal citations omitted). "The Fourth Amendment does not require that a lawfully seized defendant be advised that he is "free to go" before his consent to search will be recognized as voluntary. The Amendment's touchstone is reasonableness, which is measured in objective terms by examining the totality of the circumstances." Robinette, 519 U.S. at 33-34, 117 S. Ct. at 419. "The Fourth Amendment test for a valid consent to search is that the consent be voluntary, and voluntariness is a question of fact to be determined from all the circumstances." Id., 519 U.S. at 40, 117 S. Ct. at 421 (internal citations and quotations omitted). "When considering the totality of the circumstances, a reviewing court should take care not to view the factors upon which police officers rely to create reasonable suspicion in isolation. Courts must consider all of the officers' observations, and give due weight to the inferences and deductions drawn by trained law enforcement officers." Greene v. Commonwealth, 244 S.W.3d 128, 133-34 (Ky. App. 2008) (internal citations omitted).
In this case, the trial court did not issue a written order following the two-part suppression hearing, which was held on July 21, 2014 and July 28, 2014. In that hearing, the trial judge made the following findings:
His consent to exiting the car, empting his pockets, and to Officer Gayer searching the camera case satisfied the consent exception to the warrant requirement, and Officer Gayer did not act in a way to obviate that consent. The trial court did not err in finding that this warrantless search was proper under the Fourth Amendment.
We find that the traffic stop was supported by probable cause, and that the warrantless search and seizure were proper under the consent exception. The denial of Hensley's motion to suppress was supported by substantial evidence and not clearly erroneous.
Second, Hensley argues that the trial court erred in permitting the Commonwealth to introduce his prior use and possession of heroin. He contends that the Commonwealth used this evidence to show that "his conduct in this case was in conformity thereof," and that the trial court erred in overruling his defense counsel's objection to this evidence.
KRE 404(b) states in relevant part:
Generally, prior bad acts are inadmissible because "[u]ltimate fairness mandates that an accused be tried only for the particular crime for which he is charged. An accused is entitled to be tried for one offense at a time, and evidence must be confined to that offense. . . . The rule is based on the fundamental demands of justice and fair play." Clark v. Commonwealth, 223 S.W.3d 90, 96 (Ky. 2007) (internal citation omitted). As a result, KRE 404(b) is construed as "being exclusionary in nature," and "any exceptions to the general rule that evidence of prior bad acts is inadmissible should be closely watched and strictly enforced because of the dangerous quality and prejudicial consequences of this kind of evidence.'" Id. (internal citation and quotation omitted).
The Supreme Court of Kentucky has set out a three-part inquiry in Bell v. Commonwealth for the review of the admissibility of evidence of other crimes, wrongs, or acts: Is the prior bad acts evidence relevant for a purpose other than to prove habitual criminal disposition? Is the prior bad acts evidence sufficiently probative of the actual commission of the current crime? Does the potential for prejudice from the use of this prior bad acts evidence substantially outweigh its probative value? 875 S.W.2d 882, 889-90 (Ky. 1994); KRE 403.
In this case, Hensley argues that he was not on trial for being a prior drug user, and that this line of questioning into his prior heroin usage is not only unduly prejudicial, but also improper use of prior bad acts evidence. The burden is on the Commonwealth to establish a proper basis for admitting such evidence, "including a need for such evidence, and that its probative value outweighs its inflammatory effect." Daniel v. Commonwealth, 905 S.W.2d 76, 78 (Ky. 1995).
On both cross and direct examination, Hensley testified that he did not initially know what fell out of the camera case during Gayer's search but that he "registered" what was in the packet "after a few seconds." Hensley testified on direct examination that he had no knowledge that the camera case in his pocket contained heroin.
The Commonwealth argues that this testimony was elicited in order to show an absence of mistake or accident regarding Hensley's possession of the heroin. Further, on direct examination, Hensley opened the door to this line of questioning when he testified he recognized what was in the baggie, thereby allowing the Commonwealth to question the basis of his recognition. See Muncy v. Commonwealth, 132 S.W.3d 845, 848 (holding that prior bad acts are admissible if the defendant "opened the door to the information . . . when he testified that he had no knowledge of the drugs recovered from the cushions of his sofa").
Additionally, the trial judge properly restricted this questioning to include only Hensley's knowledge of the contents of the baggie. The Commonwealth did not use Hensley's prior heroin use to show that he had possessed heroin before and thus must have possessed heroin this time. Rather, this testimony showed merely Hensley's knowledge and recognition of heroin after he testified to recognizing that heroin was in the baggie, which goes to the "knowing" element of his current charge. The Commonwealth met its burden under the three-part Bell inquiry: 1. Hensley's prior heroin use was relevant to show knowledge and the absence of mistake or accident that Hensley knew what is the baggie when it fell from the camera case; 2. Hensley's prior heroin use was sufficiently probative to warrant introduction into evidence; and 3. The potential for prejudice from Hensley's prior heroin use was not substantially outweighed by its probative value, especially as limited by the trial court. The trial court did not abuse its discretion in allowing the Commonwealth to admit testimonial evidence of Hensley's prior heroin use.
Last, Henley argues that the trial court erred in admitting his prior convictions during the penalty phase of his trial. He contends that the Commonwealth did not disclose its intent to use these convictions in a timely manner, which prejudiced the jury. He also argues that this untimely disclosure did not allow his defense adequate time to prepare to respond. We review an alleged failure to properly disclose prior convictions for abuse of discretion. See Baumia v. Commonwealth, 402 S.W.3d 530, 545 (Ky. 2013).
In this case, Hensley filed a written motion for discovery on March 7, 2014, which requested:
The Commonwealth did, in fact, provide Hensley with notice that the convictions would be used. In response to Hensley's discovery request, on March 10, 2014, the Commonwealth responded: "Defense counsel is placed on notice that the Commonwealth will introduce the defendant's criminal history at any sentencing hearing if any, and the defendant is as familiar with his criminal record as is the Commonwealth."
In Baumia, the Supreme Court of Kentucky rejected the assertion that no error occurs simply because the appellant is aware of prior convictions. 402 S.W.3d at 544-45. However, that case involved the introduction of a prior conviction which had not been included in discovery requests to the defense. "The United States Supreme Court has held that a discovery violation serves as sufficient justification for setting aside a conviction when there is a reasonable probability that if the evidence were disclosed the result would have been different." Chestnut v. Commonwealth, 250 S.W.3d 288, 296-97 (Ky. 2008). If no prejudice occurred, then any failure to properly disclose a prior conviction is not an abuse of discretion. Baumia, 402 S.W.3d at 545.
Hensley argues that the purpose of discovery is to inform the defense, in order to plan its strategy, of what the prosecutor has knowledge and possession, and that his defense counsel did not have adequate time to prepare. Grant v. Commonwealth, 244 S.W.3d 39, 43 (Ky. 2008) (stating that it is a discovery violation when the prosecutor has knowledge of statements of a defendant that it may use or introduce to impeach). Hensley also argues that these three felony convictions prejudiced the jury, and that these convictions were undoubtedly part of the reason he was sentenced to three years instead of a lesser sentence, although it cannot be shown conclusively that this is what swayed the jury.
Notwithstanding Hensley's notice of the Commonwealth's intent to use any prior convictions in the penalty phase, as well as knowledge of his prior convictions, pursuant to RCr 7.24, the Commonwealth is required to provide copies of the specific indictments it intends to introduce against a defendant when a discovery motion has been properly filed.
For the foregoing reasons, the conviction and order from the Kenton Circuit Court are affirmed.
ALL CONCUR.
