Greene v. CommonwealthGreene v. Commonwealth
- Reporters:
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- Before:
- Wine
OPINION
WINE, Judge.
On June 30, 2005, a Hardin County grand jury returned an indictment charging Robert E. Greene with one count each of operating a motor vehicle with an alcohol concentration of or above 0.08(DUI), fourth offense (
The matter proceeded to a jury trial on June 12-15, 2006. Greene moved for a directed verdict of acquittal at the conclusion of the Commonwealth’s case and at the close of the evidence. The trial court denied both motions. Thereafter, the jury found Greene guilty on both charges. The jury fixed Greene’s sentence at five years on the DUI charge and twelve months on the suspended license charge, to run concurrently for a total of five years’ imprisonment. On October 10, 2006, the trial court entered a judgment imposing the jury’s sentence. This appeal followed. Finding no reversible error, we affirm.
Greene first argues that the trial court erred by denying his motion to suppress evidence seized as a result of the traffic stop, including the officer’s observations, results of the field sobriety tests, statements made by Greene at the scene, and the results of the Intoxilyzer test performed after his arrest. Greene contends that there was no reasonable suspicion to justify the initial stop, the officer was not properly qualified to perform the field sobriety tests, and the results of the portable breath test were not admissible at the suppression hearing. Greene also argues that his statements made after the stop and following his arrest should have been suppressed because the police officers failed to advise him of his
Miranda
rights. Finally, Greene asserts that the results of the Intoxilyzer test should have been suppressed because the officer failed to observe him for twenty minutes before administering the test, as required by
RCr 9.78 sets out the procedure for conducting suppression hearings and establishes the standard of appellate review of the determination of the trial court. Our standard of review of a trial court’s decision on a suppression motion following
At the suppression hearing, Officer Terry Cox of the Elizabethtown Police Department testified regarding the circumstances of the traffic stop on April 20, 2005. At approximately 9:30 p.m. that evening, a person identifying herself as Donna Greene telephoned the police department. She stated that Robert Greene was presently at the Dairy Queen on U.S. Highway 62 in a Mazda pickup truck. She also reported that Robert Greene had been drinking and that his license was suspended.
Arriving at the scene shortly thereafter, Officer Cox observed a Mazda pickup truck in the parking lot. While observing the vehicle, Officer Cox confirmed that Greene’s license was suspended. After some time, the pickup truck pulled out of the parking lot onto Cardin Street, which runs behind the Dairy Queen. Cardin Street makes a hard left turn just before intersecting with U.S. 62. However, the pickup truck missed the turn and drove into the parking lot of a welding supply store. The welding supply store was closed and the parking lot was empty. Officer Cox saw the pickup truck exit the parking lot back onto Cardin Street. The truck then turned east on U.S. 62.
Shortly thereafter, Officer Cox and other Elizabethtown police officers stopped the pickup truck. Upon approaching the truck, Officer Cox asked Greene, the driver, for his license. Greene replied that he did not have one. Officer Cox testified that he smelled alcohol on Greene’s breath. Upon further questioning, Greene admitted to having two beers prior to driving.
Officer Cox then administered two field sobriety tests, which Greene failed. Another officer at the scene, Officer Fegett, then administered the Preliminary Breath Test (PBT), as permitted by
Greene first argues that Officer Cox lacked a reasonable suspicion to justify the initial traffic stop. An officer with probable cause to believe that a traffic violation has occurred may stop the suspected vehicle. Wilson v. Commonwealth, 37 S.W.3d 745 (Ky.2001); Delaware v. Prouse, 440 U.S. 648, 663, 99 S.Ct. 1391, 1401, 59 L.Ed.2d 660, 673 (1979). But to justify a stop under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the officer must be able to articulate more than a mere “inchoate and un-particularized suspicion or ‘hunch’ ” of criminal activity. Id. at 27, 88 S.Ct. at 1883. Rather, a warrantless stop of a vehicle is permissible if the officer has an “articulable and reasonable suspicion” of criminal activity. Creech v. Commonwealth, 812 S.W.2d 162,163 (Ky.App.1991).
The objective justification for the officer’s actions must be measured in light of the totality of the circumstances.
See United States v. Sokolow,
490 U.S. 1, 109 S.Ct. 1581,104 L.Ed.2d 1 (1989);
Eldred v. Commonwealth,
906 S.W.2d 694 (Ky.1994). 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
In this case, Officer Cox articulated specific facts supporting a reasonable suspicion justifying a traffic stop. First, Officer Cox received a credible report that Greene was operating his vehicle under the influence of alcohol. Second, Officer Cox observed the vehicle as described in the report. Third and most importantly, Officer Cox confirmed that Greene’s license was suspended. Finally, Officer Cox saw Greene’s truck miss the turn on Cardin Street and drive into an empty parking lot. Considering the totality of these circumstances, we agree with the trial court that Officer Cox had a reasonable and articulable suspicion that Greene was operating the vehicle under the influence of alcohol.
Greene next argues that Officer Cox lacked probable cause to arrest him. In particular, he contends that Officer Cox failed to establish that he was qualified to administer the field sobriety tests. During cross-examination, Greene’s counsel questioned the sufficiency of Officer Cox’s training and his certification to administer field sobriety tests. However, Officer Cox testified that he had been trained to perform the tests and he demonstrated the tests for the trial court. While the evidence on this point was conflicting, there was substantial evidence to support the trial court’s conclusion that Officer Cox was qualified to administer the tests.
Greene next argues that the trial court erred by considering the results of the Preliminary Breath Test (PBT) during the suppression hearing. He points to
Prior to the enactment of
Probable cause for arrest occurs when a reasonable officer could conclude from all the facts and circumstances that an offense is being committed in his presence.
Commonwealth v. Fields,
194 S.W.3d 255, 258 (Ky.2006). A finding of probable cause may be based upon evidence, such as hearsay, which would be inadmissible at trial.
See
RCr 3.14.
See also White v. Commonwealth,
132 S.W.3d 877, 882-83 (Ky.App.2003). Thus, while
We do agree however that it is imperative the arresting officer demonstrate proficiency in utilizing the PBT as well as evidence the PBT be in proper working order. Even if we should find the Commonwealth failed to show one or both of these, we conclude that the Commonwealth presented sufficient evidence supporting a finding of probable cause even without the results of the PBT. Finally, neither the pass/fail result, nor the numerical result of the PBT, was presented to the jury. Consequently, any error in the judge considering the PBT results would be harmless.
Greene next argues that the trial court should have suppressed the statements which he made to Officer Cox both before and after his arrest. Shortly after the initial traffic stop, Greene told Officer Cox that he had consumed two beers. He also admitted that he did not have a driver’s license. Following his arrest and while at the jail, he told Officer Cox that he had two twenty-two ounce beers before he drove to Dairy Queen. Since no Miranda warnings were given before he was questioned, Greene contends that his statements must be suppressed.
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), requires police officers to advise suspects of their rights against self-incrimination and to an attorney prior to subjecting them to custodial interrogation. However, a Miranda warning is not required when a suspect is merely taken into custody, but rather when a suspect in custody is subject to interrogation. Miranda, 384 U.S. at 478-79, 86 S.Ct. at 1602, 1629. See also Watkins v. Commonwealth, 105 S.W.3d 449 (Ky.2003). As a general rule, ordinary traffic stops do not constitute custody for purposes of Miranda. Pennsylvania v. Bruder, 488 U.S. 9, 11, 109 S.Ct. 205, 207, 102 L.Ed.2d 172 (1988). Thus, Greene was not subject to a custodial interrogation when he made his initial statements to Officer Cox, and Miranda warnings were not required.
On the other hand, Greene was in custody when he made his later statement about the amount of beer he had consumed. Furthermore, interrogation has been defined to include “any words or actions on the part of police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect ... focus[ing] primarily upon the perceptions of the suspect, rather than the intent of the police.” Wells v. Commonwealth, 892 S.W.2d 299, 302 (Ky.1995), quoting Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 1689, 64 L.Ed.2d 297 (1980). After administering the Intoxilyzer test, Officer Cox specifically asked Greene how much and where he had consumed the alcohol. This was clearly a custodial interrogation subject to the requirements of Miranda. Since Officer Cox did not advise Greene of his Miranda rights before asking these questions, Greene’s statement should have been suppressed.
Nevertheless, we find this error harmless beyond a reasonable doubt. Greene’s second statement at the detention center was mostly cumulative of his earlier statement at the scene of the traffic stop. The only additional information concerned the quantity of beer he had consumed and where he had been drinking. Given the other evidence, particularly the
This brings us to the central issue presented in this appeal: the admissibility of the Intoxilyzer test results. As Greene correctly notes,
Notwithstanding the inconsistencies in the documentation, the trial court accepted Officer Cox’s testimony that he observed Greene for twenty minutes prior to administering the Intoxilyzer test. The evidence could have supported a contrary conclusion. But we cannot say that the evidence would compel such a finding. The trial court is in the best position to judge the credibility of witnesses and this Court is bound by the trial court’s findings of fact unless there is a clear error or abuse of discretion. Commonwealth v. Whitmore, 92 S.W.3d 76, 79 (Ky.2002). Although the documentation was not clear regarding exactly when the observation period began and ended, Officer Cox was certain that he observed Greene for the required twenty minutes. Under the circumstances, we cannot say that Officer Cox’s testimony was so improbable as to render it unworthy of credence. Therefore, the trial court did not err by denying the motion to suppress the Intoxilyzer results.
Furthermore, there was evidence that the Intoxilyzer test was administered to Greene within two hours after he was operating a motor vehicle.
See
Greene next takes issue with the trial court’s instructions to the jury. He first argues that the trial court improperly instructed the jury on a theory which was not supported by the evidence. In particular, he points out that the DUI instruction allowed the jury to find guilt if it found, in pertinent part, that he was operating a motor vehicle while “the alcohol concentration in his blood or breath was of or above 0.08 or while he was under the influence of alcohol
or any other substance which may impair one’s driving ability.” (Emphasis added).
Greene complains that the latter portion of this instruction allowed the jury to speculate whether he
But to preserve any error relating to the failure to give an instruction, there must be an objection in the record stating specifically the matter to which the party objects and the ground therefore. RCr 9.54(2). Merely tendering an alternative instruction is not sufficient. Grooms v. Commonwealth, 756 S.W.2d 131, 140 (Ky.1988). Thus, Greene’s objection to the instruction is not preserved for review.
Greene also contends that he was entitled to a missing evidence instruction because the police officers failed to make a video recording of the traffic stop. “[T]he purpose of a ‘missing evidence’ instruction is to cure any Due Process violation attributable to the loss or destruction of
exculpatory
evidence by a less onerous remedy than dismissal or the suppression of relevant evidence.”
Estep v. Commonwealth,
64 S.W.3d 805, 810 (Ky.2002). In the absence of any evidence that the loss of or failure to collect evidence was intentional, no due process interests are implicated.
Id.
Further,
Greene next argues that the trial court improperly admitted evidence that his seventeen-year-old son was in the vehicle at the time of the traffic stop. Before trial, Greene filed a motion in limine to exclude this evidence, arguing that this fact was irrelevant and unfairly prejudicial. The trial court denied the motion and allowed the evidence to be introduced at trial.
The Commonwealth argues that the evidence was admissible because Greene could have been charged with wanton endangerment. But a defendant is entitled to be tried solely on the question of his guilt of the offense charged in the indictment. Lantrip v. Commonwealth, 713 S.W.2d 816, 817 (Ky.1986). Unlike in Ramsey v. Commonwealth, 157 S.W.3d 194 (Ky.2005), Greene was not charged with wanton endangerment. Furthermore, the Commonwealth does not contend that the presence of Greene’s son was relevant to either the DUI or the suspended license charge.
However, Greene does not dispute that his son was present in the vehicle. While this fact was of limited relevance to the issues of the case, it was relevant to a full understanding of the circumstances surrounding the traffic stop. Moreover, we find no indication that the Commonwealth placed any undue emphasis on this fact either during the guilt or the penalty phase. Under the circumstances, we cannot find that the unfairly prejudicial effect of the evidence outweighed its probative value. KRE 403.
Greene further argues that the trial court should have granted a mistrial due to prosecutorial misconduct. During his closing, Greene’s counsel made an emotional appeal to the jury to consider how the arrest and trial affected Greene’s family. During the Commonwealth’s closing argument in the penalty phase, the prosecutor stated, “Should we give him the minimum and wait for something else?” Counsel objected, citing “the golden rule” as the basis for the objection. The trial court sustained Greene’s objection, but refused to declare a mistrial. The court offered to admonish the jury to disregard the comment, the prosecutor agreed to an admonition, but Greene’s counsel declined.
Greene contends that a mistrial was necessary because no admonition
While we note the prosecutor’s comment comes dangerously close to “send a message, a practice which is not favored, we do not believe he crossed that line. Brewer v. Commonwealth, 206 S.W.3d 343, 350 (Ky.2006).
Finally, Greene claims that, even if the aforementioned irregularities do not individually warrant reversal, their cumulative effect was to deny him a fair trial. However, we have found no error except the improper admission of Greene’s second statement, which did not prejudice Greene’s substantial rights. We likewise find no cumulative prejudice warranting reversal. See Woodall v. Commonwealth, 63 S.W.3d 104, 134 (Ky.2001). Moreover, we are persuaded that Greene received a fundamentally fair trial.
Accordingly, the judgment of conviction by the Hardin Circuit Court is affirmed.
ALL CONCUR.