461 S.W.3d 741
Ky.2015Background
- Trooper White stopped David Nunn for an expired temporary tag; Nunn could not produce registration or insurance and the vehicle was to be towed.
- While waiting for the tow, White directed Nunn to exit and submit to a frisk; Nunn hesitated and then fled.
- White chased and arrested Nunn; a bag of marijuana was found along his flight path and a loaded handgun was found on his person.
- Nunn was tried and convicted of second-degree fleeing and evading, being a felon in possession of a handgun, and being a persistent felony offender; sentenced to 20 years.
- On appeal Nunn raised six claims: suppression error (Terry stop/frisk), improper restrictions on hybrid (co-)counsel, admission of other-crimes evidence (KRE 404(b)), prosecutorial comment on post-arrest silence, denial of continuance, and improper court costs.
- The Court affirmed the convictions, rejecting or finding harmless the alleged errors and upholding the assessment of court costs as facially valid.
Issues
| Issue | Nunn's Argument | Commonwealth's Argument | Held |
|---|---|---|---|
| Suppression: search incident to stop/frisk | Stop was completed; further detention and frisk lacked individualized suspicion, so evidence should be suppressed | Stop and custody for tow maintained a valid Terry stop; Nunn’s flight constituted a misdemeanor in officer’s presence, authorizing arrest and search incident to arrest | Denied — search lawful; flight created arrest authority and search incident to arrest justified discovery of gun and marijuana |
| Hybrid counsel limits | Court’s conditions on hybrid representation (pre-submitted questions, all-or-nothing witness examination, advance witness list) unconstitutionally restricted right to be heard by self and counsel under Ky. Const. §11 | Court may impose reasonable trial-management limits; here accommodation of hybrid counsel was granted and restrictions were within discretion | Mixed — some conditions (2 and 3) were an abuse of discretion but error was harmless beyond a reasonable doubt; convictions affirmed |
| Admission of gun and drugs in phase-one (KRE 404(b)) | Evidence of other crimes improperly admitted to prove propensity | Evidence went to motive for flight and was admissible under KRE 404(b)(1) as proof of motive | Denied — admission proper as motive/explanation for flight |
| Prosecutor comment on post-arrest silence | Prosecutor’s remark about Nunn not mentioning his defensive story to police was an impermissible comment on silence | Comment was fleeting; no contemporaneous objection; evidence against Nunn was strong so error was harmless | Denied — comment improper but not palpable error; harmless |
| Continuance denial | Trial should have been continued for hybrid-counsel writ and counsel scheduling/transcript/lab report issues | Trial courts have discretion under RCr 9.04; writ pendency alone does not require continuance | Denied — no abuse of discretion; trial court acted within bounds |
| Court costs imposed despite indigency | As indigent, Nunn should not have been ordered to pay court costs | Indigency for appointed counsel (needy person) differs from “poor person” finding needed to waive costs; court did not make a contrary poor-person finding | Denied — costs facially valid under precedent; no reversible error |
Key Cases Cited
- Frazier v. Commonwealth, 406 S.W.3d 448 (Ky. 2013) (standard for appellate review of suppression rulings)
- Terry v. Ohio, 392 U.S. 1 (U.S. 1968) (limited stop and protective frisk doctrine)
- Turley v. Commonwealth, 399 S.W.3d 412 (Ky. 2013) (officer may not extend a stop absent new reasonable articulable suspicion)
- Wake v. Barker, 514 S.W.2d 692 (Ky. 1974) (recognition of limited waiver/hybrid counsel)
- Deno v. Commonwealth, 177 S.W.3d 753 (Ky. 2005) (complete denial of hybrid counsel is structural error)
- Spicer v. Commonwealth, 442 S.W.3d 26 (Ky. 2014) (distinction between "poor person" status for waiving costs and "needy person" for appointed counsel)