Kentucky Precedent: Zero alcohol, zero drugs, zero impaired driving DUI

May 23, 2014

by Crane-Station

Good afternoon. In the next few weeks, I will be uploading documents and footage from my case in Kentucky. It is the only case that I am aware of, in the entire country, where a DUI has been affirmed on appeal, and published as precedent, where blood analysis showed zero drugs detected and zero alcohol, and there was no impaired driving whatsoever. In other words, this case can and will be cited, in Kentucky, in future Sober DUI cases.

Commonwealth of Kentucky
Court of Appeals
NO. 2008-CA-000849-MR
RACHEL LEATHERMAN APPELLANT
APPEAL FROM MCCRACKEN CIRCUIT COURT
v. HONORABLE CRAIG Z. CLYMER, JUDGE
ACTION NO. 06-CR-00408
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING

page 2, the 911 call:

DISPATCHER: Central dispatch. This is Lou.
Could I help you.
MR. WILKEY: Yes, sir. This is Vernon Wilkey.
I live out here on Queensway Drive.
And there is a lady in a dark blue looks like a
Buick LeSabre. I’d say it’s a late ‘80s, early ‘90s model.
And I’ve got a license plate number. But she’s out here
walking around in my neighbor’s yard and everything
and writing stuff down, and she’d talked to him and
mentioned something about tar heroin and all that stuff.
DISPATCHER: Talked to who?
MR. WILKEY: My neighbor next door.

Walking around and writing in a book and mentioning something “about 218A,” a drug statute, which is what the dispatcher related to the officer, is considered criminal activity, in Kentucky, if you are from out-of-state, page 14:

Based upon the prior 911 call, during which the caller described a woman
driving a car that displayed Washington state license plates who was committing
criminal activity,

The stop and search of my vehicle and my person lasted nearly two hours, and was performed by three officers from two agencies. Since the tape was tampered with, however, the court of appeals only apparently viewed a brief portion. I will be uploading the original that I have, but I need to fix something on the computer first, as it will currently not play a DVD. Anyway, the court of appeals found and noted, in pertinent part, the following:

Two hours is reasonable, for the “brief” investigatory stop, page 14:

However, the
law is clear that a stop may only continue long enough for the officer to determine
whether his suspicions were correct.

Also on page 14, and this is significant. They conclude that I essentially stopped the officer, and insisted on the search. This is false. The evidence in in prior testimony, that I was not allowed to confront, and also, in the dispatch recording that was altered and tampered with, in chambers, on the morning of my trial. I will be presenting that. For example, the officer testified at the Grand Jury, but I was disallowed from questioning him on any prior testimony:

As I was going back into town on Highway 60–Queensway is right off Highway 60. I located the vehicle right around the area of Highway 60 and Cairo Road. I stopped the vehicle, asked her to exit–asked her to exit the vehicle.

This disallowment cleared the way for suborned perjury at trial and the following finding in the affirming opinion:

and the undisputed fact that Leatherman pulled to the side of the
road and stopped before Deputy McGuire activated his emergency lights,

Now, for the other significant findings:

We note that the record contains a videotape of the
cruiser cam video; unfortunately, there is no audio recording attached to the video.

This is false. The recording is clear, and I will show that. An altered version was sent to Frankfort.

This is the key part of the sober DUI. The Court of Appeals actually noted in the opinion:

A breath test and later blood tests revealed that there were no drugs or alcohol in
Leatherman’s system.

[emphasis added]

The DUI was solely based on this finding. The arresting officer had a thorough understanding of HGN and its connection to impairment. He told the Grand Jury, as would a scientist:

And it’s the same principle as if you were to spin around in a circle ten times and then check someone’s eyes. The room’s spinning. That’s the same–that’s the same way that we use to detect the presence of any kind of controlled substance, alcoholic beverages in a DUI arrest.

And she showed–she failed that. She showed all six clues of that.

Pfffffffffffffft.

The finding at page 5 of the opinion:

On the horizontal gaze nystagmus (HGN) test, Leatherman showed six clues that indicated impairment.

You might be thinking that the 2-hour search of my car, trunk, personal belongings, crotch, breasts, shoes and person in full view of passing traffic, and also the gas tank, and underneath the seats- a couple of officers on the tape actually disappear inside the car- may have produced illegal drugs. Wrong:

They did not find any illegal drugs during the search.

Deputy McGuire requested that a female officer respond to the scene to
perform a search of Leatherman. Paducah Police Officer Gretchen Dawes
responded, obtained consent to search, and performed a thorough search of
Leatherman, including the front and back pockets of her jeans, the rolled up pants
legs, and under her T-shirt. The search is depicted in the cruiser cam video.
Officer Dawes did not find any weapons or illegal drugs on her person.

[emphasis added]

The documents and footage that I will upload and share will show, among other things: suborned perjury at trial, and suborned perjury at the grand jury. Also- a secret meeting before trial in chambers, hidden from the docket and unknown to me at the time, where several motions in limine were decided, namely, that the rules of evidence would be suspended in my case and I would be barred from cross examining witnesses on prior inconsistent statements; ex parte juror contact post trial, and juror telephone home, work and cell numbers in the case file ahead of a reconstructed and falsified ‘prospective juror’ chart. Also- a secret post trial agreed order denying suppression based on trial testimony, that was written by the prosecutor four months prior to trial and faxed to my attorney, who hid that from me; and a crime lab tech testifying as an ‘expert medical witness’ – qualifying as an expert based on a 30-second internet surf of a lab tech site, where he downloaded two bogus articles and then assured my attorney. “I am your man!” Plus- just minutes before the secret meeting before my trial in chambers, recorded evidence was altered and deleted on 13 occasions, at 8:36, 8:37 and 8:38 AM specifically, and then a fake, prosecutor-generated ‘transcript’ was entered instead of the recording, for the trial.

In addition, I took the case all the way to the US Supreme Court for cert, which was denied, apparently with help from the United States Solicitor General. The petition had to do with the secret post trial agreed order denying suppression that was altered to reflect the new story told at trial, only the order, as I said, was penned four months before trial. So, they deceived the highest court in the nation as well. The Question presented:

Whether the Court’s order denying her Motion to Suppress Evidence, which was amended after the trial and included information presented at trial but not at the suppression hearing violated Petitioner’s right to be free from unreasonable Search and Seizure under the Fourth Amendment of the United States Constitution.

The United States Supreme Court was unaware, as was I until just recently, that the amended post trial order containing trial information was written before the trial ever took place.

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No. 11-10420
Title:
Rachel Leatherman, Petitioner
v.
Kentucky
Docketed: May 21, 2012
Lower Ct: Court of Appeals of Kentucky
Case Nos.: (2008-CA-000849-MR)
Decision Date: January 21, 2011
Rehearing Denied: April 12, 2011
Discretionary Court
Decision Date: February 15, 2012

~~~Date~~~ ~~~~~~~Proceedings and Orders~~~~~~~~~~~~~~~~~~~~~
May 15 2012 Petition for a writ of certiorari and motion for leave to proceed in forma pauperis filed. (Response due June 20, 2012)
Jun 13 2012 Waiver of right of respondent Kentucky to respond filed.
Jun 21 2012 DISTRIBUTED for Conference of September 24, 2012.
Oct 1 2012 Petition DENIED.

~~Name~~~~~~~~~~~~~~~~~~~~~ ~~~~~~~Address~~~~~~~~~~~~~~~~~~ ~~Phone~~~
Attorneys for Petitioner:
Roy Alyette Durham II. Assistant Public Advocate (502) 564-8006
100 Fair Oaks Lane Suite
Suite 302
Frankfort, KY 40601
roy.durham@ky.gov
Party name: Rachel Leatherman
Attorneys for Respondent:
Gregory C. Fuchs Office of the Attorney General (502) 696-5342
Counsel of Record 1024 Capitol Center Dr.
Suite 200
Frankfort, KY 40601-8204
Party name: Kentucky

Donald B. Verrilli Jr. Solicitor General (202) 514-2217
United States Department of Justice
950 Pennsylvania Avenue, N.W.
Washington, DC 20530-0001
SupremeCtBriefs@USDOJ.gov
Party name: Kentucky

May 22, 2014 | Version 2012.0
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Supreme Court of the United States

http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/11-10420.htm

I was shocked to discover only recently, in the case file, that the post-trial ‘third order’ was not sua sponte, as my appeal attorney and the United States Supreme Court was led to believe. Rather, it was written by the prosecutor and faxed to my attorney, who hid it from me, on September 27, 2007, four months before my trial. What is extra egregious about the third order is, the claim that I requested it. I had no way to request anything. I was in the hole, in jail.

We will break this analysis of this case down in excruciating detail, with documents, over the next several weeks to months, so look for posts, as we continue to cover other topics.

The lab tests are at the end of this post.

(For some outrageous reason, the labs seem to be scrubbed from my flickr photostream. No worries, they are screen grabbed and scanned and mailed all over the country.)

It is also notable that Kentucky flipped the bird to the Sixth Circuit, who allowed this woman to sue over her bogus DUI arrest:

http://www.ca6.uscourts.gov/opinions.pdf/12a0175p-06.pdf

Around this time, Throckmorton momentarily pointed his flashlight inside
Green’s vehicle. Throckmorton stated in his deposition testimony that he aimed the
flashlight’s beam toward the floor of the vehicle so as to illuminate Green’s face without
shining the light directly into her eyes. He “noticed that her pupils were constricted,”
which he thought “was kind of abnormal” because his training had taught him that a
person’s pupils will typically dilate in a dark setting. But, as he noted during his
deposition, “different chemicals or different types of drugs [can] hamper this process.
So. . . if you shine a light into somebody’s eyes, their pupils may stay completely dilated,
they won’t react to the light. Or else . . . they may be constricted, and you put them in
a low lighting and they won’t dilate.”

UPDATE:

CS here. Found em!

On July 24, 2006, four days before the Grand Jury met in my case, the exculpatory alcohol result was Faxed to the Commonwealth:
Exculpatory evidence hidden
and
Exculpatory evidence hidden

On July 28, my birthday, 2006, the Commonwealth suborned perjury at the Grand Jury hearing, saying (transcript linked above):

Q. We don’t have the blood results back?

A. I don’t believe so. Blood or lab, yeah.

Q. Did she admit to drinking at all?

A. No, I don’t believe she did. You can smell alcoholic beverages on a person.

Q. So you could smell it on her?

A. Yes, sir.

I was indicted for an alcohol DUI, when the Commonwealth had a 0.00 alcohol result, in its hand.

On September 25, 2006, the Commonwealth received the exculpatory blood test result for drugs, showing “No drugs detected”
Exculpatory evidence hidden.
and
Exculpatory evidence hidden.

On October 16, 2006 the Commonwealth made me an offer of eight years. The Bill of Particulars with the offer was signed under oath:
Sworn under oath

The problem is, the document claims that the Commonwealth had in its possession NO EXCULPATORY EVIDENCE.
False statement on sworn Bill of Particulars

The document was perjured, and exculpatory evidence was hidden, in the hopes that I would plead guilty. I refused. But just so that you know, it is this sort of prosecutorial and public defender misconduct that results in a great many guilty pleas from people who are not guilty.


Egregious Public Defender Misconduct [part 2]

October 27, 2013

by Crane-Station

This post is lengthy and has to do with events that unfolded in my legal case.

Part one, with the case background, is here.

Public defender Chris McNeill complaint, continued:

McNeill waived my presence at a pretrial chambers conference where several motions in limine were decided without my knowledge or consent. During the conference, he agreed not to present my defense and never told me that he had done so.
Note: SCR 3.130-1.4(b) provides that “[a] lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.”

1. On the first morning of my trial of January 22, 2008, McNeill and Harris met secretly with the Court in chambers to discuss several motions in limine that would affect the outcome of my trial.

2. That is, the tape starts rolling AFTER they all listen to and tamper with, AND modify and alter, the recorded 911 dispatch evidence wav files – all 11 of them.

3. Since they recorded the secret meeting but intentionally did not record the evidence examination and evidence tampering, I believe the meeting was staged to benefit McNeill: he appears genuine, baffled and just doing his best to deal with harmful and confusing court behavior. This is not 11.42 worthy, when he was just doing his job. Otherwise, why bother to record the secret conference at all? Nobody knew about it. The reason the meeting is recorded is simple. When, on 11.42 I claim ineffective assistance because my lawyer failed to present a defense, McNeill could claim, “What on earth was I supposed to do, given that I was barred by ruling, from doing so? Look, see, I was barred from functioning!”

4. McNeill waived my appearance at this meeting without my consent. He failed to tell me that such a meeting was scheduled, let alone that I had a right to be there. He failed to explain what he had done in the meeting. Also, as his handwritten note in his case file shows, he falsely told my Frankfort attorney that the meeting tape was inaudible. The meeting tape is audible. He lied to my appeal attorney.

5. Please note: What I also did not know until just a couple of weeks ago when I examined the CDs in McNeill’s case file closely is, that there was some kind of a meeting-before-the-meeting, where McNeill apparently altered audiotape evidence of the recorded conversation between 911 dispatch and the deputies. In fact, all of the wav files of 911 dispatch that were recorded on the night of my arrest on June 26, 2008 were “created, modified and accessed” on the morning of my trial, January 22, 2008, at and around 8:35, 8:36, 8:37 and 8:38 AM. This information is readily available on the “properties” tab for each wav file. During the trial, McNeill entered a typewritten, Harris-authored and fake undated, sheet of paper called an ‘unofficial transcript’ of the 911 dispatch recording, the same recording that he had apparently listened to and examined that morning . At no time did McNeill ever submit any actual recorded evidence, with time stamps, to the court record as evidence or to the court record on appeal. This led to an important and misleading finding from the Court of Appeals, which had only the typed ‘unofficial transcript’ to work with: in reality, two different officers were looking to pull me over on the night of my arrest, based upon a 911 call, and in reality, the two officers were talking to each other, in addition to replying to dispatch.

6. The Court of Appeals, working off the fake document, was misled, and combined two different statements from two people into one. They did not have access to the time stamps, nor did they have a list of codes that dispatch and officers use, to communicate. The “unofficial transcript” was typed by Harris, who deliberately left off the time stamps and CAD call code meanings, because they conflicted with the perjury he was planning to suborn at trial as well as the post-trial agreed order based on the upcoming trial ‘testimony’ he was crafting, where the officer falsely testified that I got his attention on the road because I had my turn signal on “for and unusual period of time for no apparent reason.” That testimony was refuted by the CAD call sheet and by the dispatch statements, that were time-stamped. That testimony came up, not surprisingly, for the very first time, at trial.

7. McNeill likely never would have admitted that the pretrial meeting ever happened but for my husband’s pointed question upon noticing that a gathering had occurred. McNeill misinformed him, dismissing it as a minor housekeeping session. In reality, the meeting proceeded as follows:

8. The meeting began with a couple of Harris false statements about what is on the DUI arrest cruiser dash-cam videotape recording. Harris says the stop lasted only a few minutes, when in fact, it was a stop and search by three officers from two agencies that lasted 1.25 hours. Harris states that I was stumbling, when, in fact the tape refutes this, and also, the officer testified previously under oath at the preliminary and suppression hearings, that I was “steady on (my) feet.” McNeill does not correct the false statements even though he had copies of both transcripts.

9. The two lawyers shared some vague arguments about Schrimsher v. Commonwealth, 190 S.W.3d 318 (2006) that originated in the same court some years prior, having to do with the admissibility at trial of an exculpatory statement by a defendant during a taped custodial interrogation at the police station. The Kentucky Supreme Court held that, subject to the rule of completeness that did not apply in that case, the statement was inadmissible hearsay, unless offered by the prosecution as an admission by a party opponent.

10. Schrimsher did not apply, in part, because it did not involve a DUI arrest, or a DUI dash-cam videotape of a DUI arrest, which is governed by a Kentucky statute that is specific to DUI cases. KRS 189A.100 states, in pertinent part:

(2) Law enforcement agencies may record on film or videotape or by other visual and audible means the pursuit of a violator or suspected violator, the traffic stop, or field sobriety tests administered at the scene of an arrest for violation of KRS 189A.010 or such tests at a police station, jail, or other suitable facility subject to the following conditions:

b) The entire recording of the field sobriety tests and the entire recording of such portions of the pursuit and traffic stop as were recorded is shown in court unless the defendant waives the showing of any portions not offered by the prosecution; and

(c) The entire recording is available to be shown by the defense at trial if the defendant so desires regardless of whether it was introduced by the Commonwealth;

(emphasis added)

11. The DUI arrest videotape contained my recorded statements that night about an incident where, during the course of the DUI arrest, I directed the officer to do something and he did it. Specifically, at the hospital for the blood draw portion of the sobriety testing, I asked the officer to move the back seat of his cruiser, and retrieve my watch, which had fallen during the ride, through the crack at the back of the seat, to the floorboard underneath. I could not reach to the floorboard underneath the seat because I was handcuffed. The officer moved the seat as I requested and got my watch, but then suddenly claimed that I had put “heroin” with the watch. On the cruiser videotape, I ask, “Why would I ask you to get my watch if I had just put some kind of drug with it? Explain that. That makes no sense.” Also on the dash-cam tape, the officer insists that he has found heroin. Twice, I pointedly ask him to both “field test and lab test” his discovery, because it could be “some kind of bread crumb.” My clear speech and specific statements exhibit presence of mind and mental clarity. They show no sign of mental impairment and would have been admissible to contradict the deputy’s testimony at trial that I exhibited confusion, could not follow simple directions and was obviously impaired. In addition, the statements were not hearsay because they would have been offered to prove that he found the suspected controlled substance under his back seat in response to my request that he look under the seat for my watch. This is what he testified to under oath at the preliminary hearing, so it was also admissible as a prior inconsistent statement under oath. For these reasons my statements were not hearsay. McNeill, who is a licensed attorney, is presumed to know the law. At the very least, he should be presumed to know how to find, read and understand Schrimsher and the hearsay rule. Instead of objecting and preserving the objection for appellate review, he said nothing. His failure was deliberate, because my husband and I both showed McNeill the statute and the relevant portion of the deputy’s testimony at the preliminary hearing. My husband also explained to McNeill why my statement was not hearsay and why Schrimsher did not apply.

12. I believe McNeill may have also tampered with the dashcam DUI arrest recording so that it is cut short, eliminating this critical audio portion, and the last hour of the tape, for the record on appeal. The Court of Appeals states “Unfortunately, there is no audio.” This is false. There is audio, in the original, unmodified recorded evidence. His actions constituted a violation of the statute that prohibits tampering with evidence, a felony under Kentucky law.

13. Ironically, I was the only person charged with tampering and the only person in the case who did not tamper with evidence.

14. There would now be a planned and deliberate move of the drug exhibit evidence from ‘not in plain view’ before trial, to ‘plain view’ during trial, as if the events from the night of arrest as well as the under-oath testimony from the preliminary hearing, never existed.

15. McNeill pretended to be baffled when the court asked him about my specific request that the officer move the seat and get the watch. He says he did not know if I said that, even though the deputy testified about it at the preliminary hearing, and even though and I had given McNeill an official transcript of the testimony.

16. McNeill pretended to be baffled even though, just days prior, without my knowledge and without informing me, he spent the day with Harris, and with the arresting deputy, and, according to the chain of evidence log, the actual drug exhibit, taking dozens of photos of the cruiser backseat, with the drug exhibit, apparently, placed in various places in relation to the seat. In many photos, the seat is completely removed from the car. The photos were taken on January 16, on the same day that the ‘drug exhibit’ was checked out of the evidence locker. (Notably, the ‘evidence’ was not weighed, nor was it checked back into the locker, until after the trial ended on January 23. The evidence log corruption will be under separate heading.) McNeill never told the court that he, Harris, and the officer (and likely KSP Lab analyst Ryan Johnson) spent the better part of the day with drugs and a camera, six days prior, taking photos and planning trial testimony.

17. In the same pre-trial conference meeting that I never knew about, Harris promised not to mention a cup of beer found in the console during the vehicle stop, if McNeill would promise not to mention that the Commonwealth suborned blatant perjury at the Grand Jury to get the indictments in the first place, as McNeill well knew because he had the grand jury testimony in his briefcase. This was a motion in limine, from Harris, who knew about the grand jury perjury, but did not want the trial jury to hear about it.

18. Harris knew that the officer lied to the grand jury about: lab test results for alcohol, the smell of alcohol on my person, and me being essentially stumbling drunk. My alcohol blood test result was 0.00, and the Commonwealth knew it, because the exculpatory result was faxed to the Commonwealth four days prior to the grand jury meeting. Nonetheless, the Commonwealth and the officer took turns lying to the grand jury about 1) having blood test results back, claiming they weren’t available when they were 2) me stumbling, when the officer testified at preliminary that I was “steady on (my) feet” and 3) me smelling of alcohol, when my blood alcohol level was 0.00, the officer had previously testified that “alcohol wasn’t a factor” and the tape shows me passing 4 roadside PBT (portable breath test) tests, that the officer also testified to previously.

19. Harris moved in limine that McNeill be prevented from asking questions about the deputy’s perjured testimony, in front of the grand jury, that led to my indictment in the first place.

20. McNeill agreed not to mention any perjured statements made to the grand jury during the trial.

21. Ultimately at trial, Harris violated the agreed motion in limine, and he talked about a cup of beer in the console, but McNeill did not respond by 1) moving for a mistrial 2) exploring the suborned Grand Jury perjured testimony or 3) at the very least and as a Hail Mary pass, preserving the record with objection. The cup of beer would be addressed in the affirming published opinion, (even though I had zero alcohol in my blood) but the suborned perjured testimony would not be addressed in the published opinion affirming, as a direct result of McNeill’s actions.

22. Harris moved in limine for an order that would characterize my consenting to chemical blood testing at two Kentucky State labs as well as consenting to two out of four roadside sobriety tests during a 1.25-hour vehicle stop as a “refusal” to consent to sobriety testing. McNeill did object, even though the KRS statute is clear on refusals (ie, they concern blood, breath or urine). In other words, with the court’s consent and no objection by McNeill, Harris changed my consent into a refusal.

23. In the meeting, Harris wishes to use 404(b) evidence.

24. The court ruled that 404 (b) evidence was inadmissible. Harris violated this ruling with the first sentence of his opening statement. I asked McNeill to object and move for a mistrial, but he refused.

25. McNeill never did inform me of any of these developments, nor did he inform me that he would not be presenting defense, nor did he inform me that jury instructions were amended on a ‘refusal’ issue. I never knew until a couple of weeks ago, what he had done with recorded evidence, prior to the start of the videotape for the meeting.

26. Being in the dark until the trial was nearly concluded, I thought McNeill was still going to mention the main issue in my defense: that it would not make sense for anyone to ask for an officer to move the seat and retrieve a watch, if the person was attempting to conceal something with the watch. The officer himself had testified on this point previously. Late on the second and last day of trial I asked McNeill when he would be presenting my defense, and when he would be confronting the officer on his prior inconsistent statements about the watch. McNeill wrote it off with the statement: “The jury might be offended if they learned the cop was telling different stories.”

27. McNeill’s criminal behavior by tampering with evidence and his inexcusable failure to defend me deprived me of my Sixth Amendment right to present a defense in a criminal trial, where a person’s liberty and future is at stake.


Forensic Fraud (Part 2)

January 13, 2012

As I said yesterday in Part 1,

One of the biggest problems we’ve seen in crime labs is people testifying as experts regarding matters beyond their expertise.

This happened in Crane-Station’s case when a lab tech with a bachelor’s degree from Transylvania University in Lexington, KY, who routinely analyzes human blood samples for controlled substances in the Central Lab of the Kentucky State Crime Laboratory using gas chromatography and mass spectrometry (GCMC), testified as an expert toxicologist regarding the probable effects of Clonazepam on her. He was permitted to do this without objection from her lawyer, even though,

(1) he had not detected Clonazepam, or any other drugs in her blood when he analyzed her sample;

(2) he had no formal training in drug toxicology;

(3) he never had published a peer reviewed article in a professional journal on any subject;

(4) he did not know what constituted a toxic level of Clonazepam in human blood, as opposed to a safe level;

(5) the prosecutor told him that she had admitted taking her prescribed medication when she was arrested, which included Clonazepam, but he had no information regarding what dosage she had taken and when she had taken it.

Nevertheless, he was permitted to express his opinion as an ‘expert’ that she was probably under the influence of and impaired by Clonazepam when the deputy stopped her.

This was a travesty of speculative nonsense and never should have happened.

Now, how is it possible that she could have been under the influence of and impaired by Clonazepam, if he did not detect it in her blood sample?

Well, he testified that it is difficult to detect using gas chromatography and he might have been able to detect it using liquid chromatography, but the Kentucky State Crime Lab cannot afford the equipment to perform that analysis.

Could some other lab have performed the analysis?

Well, as a matter of fact, NMS Labs in Philadelphia can do it and the Kentucky State Crime Laboratory has a contract with NMS to do the test.

Did that happen in Crane’s case?

According to the Director of the Kentucky State Crime Laboratory, the lab sent her blood sample to NMS.

But Ryan Johnson claims that he did not send her blood sample to another lab and the prosecution denies that another lab tested her sample, or that there is an exculpatory lab result from NMS.

However, there is a 2-month gap between the date that Ryan Johnson completed his analysis and the date that it was approved by his supervisor.

Sure looks like he completed his analysis and sent her sample to NMS. They tested it and sent it back reporting an exculpatory result confirming his analysis without generating a written report, so his supervisor reviewed and signed off on his exculpatory result. Then the prosecution turned over his report without mentioning the NMS report.

NMS has referred all inquiries to the prosecutor and, as I said, the prosecutor claims there is no NMS Report or analysis.

This is the kind of bullshit that we are dealing with.


The Wenatchee Sex Ring Case: UPDATED

January 7, 2012

Before I accepted an offer to teach at the American Justice School of Law (AJSL), a start-up law school in Paducah, Kentucky, as well as organize and manage the school’s innocence project, I warned the dean and assistant dean that I wanted their assurance that they would support me, if I questioned and attempted to change the criminal justice system in Paducah. I had previously done that in Wenatchee, Washington with Innocence Project Northwest, an organization that I had cofounded at the University of Washington School of Law in Seattle. The legal and political turmoil that we caused in Wenatchee was still ongoing and I wanted them to know that I would do everything within my power to root out injustice in Paducah, if I found it, no matter how that might impact the school. Both men promised me they would have my back and I accepted their offer of employment.

When Crane-Station and I arrived in Paducah in June, 2006, I discovered that the deans had been recruiting students to enroll at AJSL by using my name and national reputation from our work in the Wenatchee case. I had more or less expected them to do this, so I was not surprised. In fact, I was rather pleased, as I have always viewed myself as a revolutionary and derived considerable pride from instigating change. Nevertheless, I soon found myself checkmated after Crane-Station was arrested because I feared what might happen to her, if I pushed too hard. We have often wondered if the prosecution’s determination to get a conviction and send her to prison for as long as possible, even if it had to withhold evidence, cheat, and suborn perjury to do so, was a reaction to my presence here and the threat that I represented to the conduct of business as usual in this immensely corrupt river town.

I will be writing more about that corruption in the future. Before I do, however, I want to tell y’all a little bit about the Wenatchee Sex Ring case, so that you might better understand why we believe Crane-Station was railroaded into prison to neutralize me. After all, that is an extraordinary claim to make and we believe y’all deserve to know why we believe that is what happened.

The first thing y’all have to understand is that the Wenatchee Sex Ring never existed. It was the product of the prejudiced mind and fevered sexual imagination of a Wenatchee police officer named Bob Perez and several child welfare social workers. The defendants and their children were poor white folks living on welfare and social security disability payments. They belonged to the same church and stood out in an otherwise economically well off community. Many of the parents and their children were developmentally disabled and viewed by many in the community with suspicion and distrust, if not outright hostility. Despite an absence of any evidence, Perez and the social workers also suspected the parents were sexual perverts.

That situation changed when one young girl told her mentally disabled mother, Idella Everett, that several boys in her class at school had jumped her in an alley as she was walking home from school and forcibly touched her privates. The mother reported the matter to a state social worker who suspected the mother and the child were lying in order to protect the child’s father, Harold Everettt, by blaming the boys for bruises in the child’s genital area. When Idella insisted that Harold would never do that to a child, she decided that both parents were sexually abusing the child in the home on an ongoing basis, even though the child persistently denied it. She then persuaded Idella that it was in the best interests of the child to remove her from the home and place her in a loving and nurturing foster home for awhile and put her in therapy to deal with her issues. Not knowing that she had a right to refuse the placement and concerned about her daughter’s welfare, Idella signed a consent form agreeing to the placement.

Well, the loving and nurturing foster home turned out to be the police officer’s home. He and his wife kept repeating that they knew her parents were “very sick and needed help.” They explained the situation to the therapist to make sure that he ‘knew’ that the girl was been sexually abused by her parents over an extended period of time and they decided to work together to convince the girl that her siblings, who were still living in the home, were in danger of being sexually abused by sick parents who needed help to prevent them from victimizing her siblings. They played on her love for her family insisting that unless she told the ‘truth’ (i.e., that her parents had sexually abused her) so that they could provide the help that the parents needed to get better, her siblings would suffer the inevitable unpleasant consequences and it would be her fault because she did not tell the truth. They never told her that getting her parents the help they needed meant convicting them of raping children and sentencing them to prison for more than 20 years.

As ya’ll can imagine, the girl soon buckled under that pressure and told them what they wanted to hear about her parents. Police immediately arrested the parents who immediately protested that they were innocent. The police accused them of lying, separated them, transported them to the police station, and placed them in separate interview rooms. Then they lied telling each of them that the other had confessed that both of them had raped their children and they would spend the rest of their lives in prison, unless they confessed and pled guilty.

Lawyers were not appointed to represent them until after they signed their confessions.

Meanwhile, the police officer continued to tell the girl that he ‘knew’ more adults were involved. When the minister of the church held a public meeting at the church to discuss the arrests and publicly announced that the church membership believed the girl’s parents were innocent victims of a witchhunt investigation and prosecution, the officer and the social worker decided that the minister and everyone who supported him must belong to the sex ring. He told the girl he believed they were involved and sure enough, she agreed.

The police then focused their investigation on interviewing the children of those individuals. They went to the schools that the children attended, pulled them out of their classes and interviewed them individually using the same tactics they used with girl. In most cases, the children buckled under pressure and told them what they wanted to hear.

That led to another wave of arrests with police employing the same tactics they had used with the child’s parents to extract false confessions. Eventually, all of the parents pled guilty and were sentenced to prison terms exceeding 20 years.

Eventually, many of the children recanted their false accusations and there was any physical evidence corroborating the accusations.

I decided to get involved when I read The Power to Harm, an expose of the incredible injustice that had taken place in Wenatchee written by Andrew Schneider and Mike Barber, reporters for the Seattle Post Intelligencer. I recruited 40 lawyers in Seattle to work for free and teamed them up with law students to represent 17 of the innocent men and women who were wrongfully convicted. We succeeded in freeing all of our clients even though all of them had pleaded guilty.

In recognition of our efforts, the National Law Journal awarded Innocence Project Northwest and our teams of lawyers and students its prestigious Indigent Defense Award in 2000.

I do not believe the corrupt legal system in Paducah welcomed my arrival.

EDIT: In the paragraph that begins with the word, ‘eventually’,I corrected a mistake by adding the word never, which is italicized.

Unfortunately, I also inexplicably forgot to mention that all of my innocence project files were in the car when Crane-Station was pulled over and the officers can be seen in the in-dash video reading through them with flashlights using the lid of the trunk as a desk.

This occurred before she was transported to the hospital for the blood draw and before the ‘discovery’ of the controlled substance that started out being heroin and later became crack.

I apologize for the omissions.


The Decision From Hell (Part 2)

December 28, 2011

Yesterday, in Part 1 of this post, I critiqued the first part of the Court of Appeals decision affirming the trial court’s denial of her pretrial motion to suppress evidence.

I concluded that the Court of Appeals erred because it improperly relied on evidence (1) obtained after the deputy stopped Crane Station and (2) facts invented by the trial court. The Court of Appeals also (3) erroneously claimed that her appellate lawyer had failed to challenge any of the trial court’s findings of fact. I provided links to the decision by the Court of Appeals and Crane’s Opening Brief on Appeal and her Reply Brief.

In a related post today entitled How Could Judge Taylor Forget Garcia v. Commonwealth, I discussed a decision he wrote reaching the opposite conclusion on a set of materially indistinguishable facts. You may find that to be an interesting and helpful follow-up to Part 1 since he is one the three judges who decided her case. I also referenced Crane’s Petition for Rehearing of the decision by the Court of Appeals just so there is no misunderstanding or confusion regarding whether her lawyer challenged the findings of fact.

This first part of the decision by the Court of Appeals stands for the proposition that a motion to suppress based on an argument that a police officer lacked a reasonable suspicion to stop someone can be decided on the basis of information he acquires after the stop. Likewise an argument that a police officer lacked probable cause to arrest can be decided on the basis of evidence that turns up after the arrest. Both principles are contrary to long established federal and state case law and eviscerate the Fourth Amendment.

Therefore, the Kentucky State Supreme Court must grant discretionary review and reverse the Court of Appeals. If it does not, trial courts across the state will create havoc by following the decision by the Court of Appeals and denying motions to suppress in violation of a long line of state and federal cases. Eventually, the Supreme Court would have to grant review in one of those cases and overrule the Court of Appeals in the Leatherman case.

That is why it is necessary to grant discretionary review.

Today, I will critique that part of the decision that deals with Crane’s statement that her watch had fallen behind the seat during the ride to the hospital and her request for the deputy’s assistance to retrieve her watch for her.

Tomorrow in Part 3, I will deal with the final issue; namely, the decision by the Court of Appeals that the trial court properly denied her motion for a directed verdict of acquittal on the DUI charge. Due to the length of today’s article, I have decided that I should discuss the latter issue in a separate post.

When Deputy McGuire assisted Crane to get out of the back seat of his patrol vehicle at the hospital (because she was handcuffed with her hands behind her back), she told him that her watch had fallen off her wrist and dropped behind the rear seat during the ride. She asked him to please retrieve it for her. That is undisputed.

At the preliminary hearing, McGuire testified that, after they returned to his vehicle following the blood draw, he pulled the seat back, saw the watch and the suspected controlled substance near it, and seized both of them. When her lawyer asked him if he could see the two items before he pulled the seat back, he said. “No.” However, at the suppression hearing, he testified that he saw both items in “plain view” sitting at the top of the seatbelt crack next to where she was sitting when he opened the door to assist her to get out of his vehicle at the hospital.

Those two statements are mutually exclusive. They cannot both be true and there is no question that Crane’s lawyer was entitled to challenge the deputy’s credibility at trial by impeaching him with his prior inconsistent statement under oath at the preliminary hearing. Nevertheless, the trial judge sustained an improper objection by the prosecutor to that line of inquiry preventing him from eliciting the inconsistent statement.

Why did the trial judge do that?

Before jury selection, the trial judge granted the prosecutor’s motion in limine (i.e., at the beginning) for an order preventing the defense from introducing Crane’s statement about her watch and her request for his assistance in retrieving it on the ground that her statement was inadmissible hearsay.

I have addressed this issue previously in Hearsay, Part Deaux.

The judge’s ruling was improper because the statement was not hearsay, since it was not offered to prove the truth of the matter asserted in the statement. It was offered to show that, as a result of something she said (and it really does not matter what it was, which is why it was not offered to prove the truth of the matter asserted), he pulled the seat back to look for her watch and found both the watch and the suspected controlled substance in proximity to each other.

There is nothing misleading or improper about allowing the jury to hear that evidence because that is the way it happened, according to the deputy’s testimony at the preliminary hearing.

Instead, the jury only heard the deputy’s trial version of his discovery, which was that he found her watch and the suspected controlled substance in plain view on top of the rear seat in the seatbelt crack right next to where she was sitting. To make matters worse, in his final summation the prosecutor said the proximity of her watch to the suspected controlled substance in plain view amounted to her “autograph” on the controlled substance and she had not offered any explanation for how they happened to be in plain view together in the seatbelt crack right next to her.

It’s not surprising in the least that the jury found her guilty of possession and evidence tampering for attempting to conceal the rock of crack. Would the jury have convicted her if they knew that the deputy found the rock not in plain view, but under his back seat because she asked him to retrieve her watch from under the seat?

I do not believe the jury would have convicted her because who would ask a police officer to retrieve their watch from under the seat, if they had lost the watch while attempting to slough a controlled substance?

That was her defense, but the trial judge took it away from her with his ruling in limine.

The Court of Appeals did not decide whether her statement about her watch and request for his assistance to find her watch was inadmissible hearsay. Instead, it dodged the issue by saying the error, if any, was harmless because she could have testified about her statement and request. Indeed, the Court of Appeals noted that the trial judge told her that she could testify about it.

Why does this not make any sense?

(1) If the statement were hearsay, it is not admissible, whether or not she testifies. That is the law and the trial judge cannot create an exception that does not exist.

(2) She had a constitutional right under the Fifth Amendment not to testify and a right to have the judge instruct the jury that it cannot hold her silence against her. In other words, silence is not evidence of guilt.

(3) The judge’s unlawful exception was a manipulative and coercive effort to force her to testify against her will in violation of her Fifth Amendment right to remain silent and not have her silence held against her.

(4) If she had testified, the jury would have been presented with a classic he-said-she-said controversy in which he said he found her watch and the rock together in plain view at the top of the seatbelt crack on the seat right next to her, and she said he found it under the seat after she asked him to look for her watch. Not even the longest long shot Louie at Hialeah would put a fin on her fate in such a swearing contest.

(5) Who could deny that the odds on the outcome of that he-said-she-said swearing contest would change dramatically, if the jury found out that the deputy had previously testified under oath at the preliminary hearing, about a week after her arrest, confirming her statement. The suppression hearing was five months after her arrest and the trial was 18 months after her arrest, by the way. There can be little doubt that the jury would have believed her and disbelieved his plain-view testimony. Then their whole case falls apart.

(6) That is why her lawyer’s attempt to cross examine the deputy by impeaching him with his prior inconsistent statement under oath at the preliminary hearing was proper and legitimate.

To call this error harmless is disingenuous and absurd. But guess what? That is not even the right test. Why is it not the right test?

The trial judge’s order in limine and his ruling preventing her lawyer from impeaching the deputy with the deputy’s prior inconsistent statement under oath at the preliminary hearing took away her defense.

A defendant in a criminal case has a constitutional right to put on a defense and her right to do that was denied to her by the trial judge’s rulings and aggravated by the prosecutor’s closing argument in which he commented on her silence, which is forbidden by the Fifth Amendment. He also attempted to switch the burden of proof over to her to prove her innocence, which is a denial of due process of law under the Fifth and Fourteenth Amendments.

When the court and a prosecutor violate a defendant’s constitutional rights, the test presumes the error affected the outcome of the trial and the prosecution must rebut that presumption by proof beyond a reasonable doubt that it did not.That is a far different test from the one employed by the Court of Appeals.

There is no way the prosecution can meet its burden in this case. Therefore, the Court of Appeals must be reversed on this issue.

Until tomorrow . . .


How Could Judge Taylor Forget Garcia v. Commonwealth?

December 28, 2011

Note: I am cross posting this article from Crane Station’s site with her permission. In the article, she points out that Judge Taylor, who signed off on the opinion written by Judge Lambert in her case affirming the trial judge’s denial of her motion to suppress evidence, reached the opposite conclusion in an opinion that he wrote in Garcia v. Commonwealth. Judge Taylor was certainly free to change his mind. Judges who change their minds, typically write a concurring opinion explaining why they changed their mind. Usually a judge will change his mind because the Supreme Court has rendered a decision changing the law and the decision is binding precedent. The judge has no choice when that happens. Other times, for one reason or another, the judge will conclude that there is some significant fact in the case that differs from the earlier case causing him to reach an apparently contradictory conclusion. When that happens, the judge will write a concurring opinion distinguishing the two cases.

Judge Taylor, however, has remained silent, even though Crane’s lawyer handling the appeal specifically mentioned the contradiction in her Petition for Rehearing.

I suspect the answer may be due to the panel’s false assumptions (1) to rely on after-acquired and false information to support the trial judge’s clearly erroneous findings of fact and (2) to falsely declare that her lawyer failed to challenge any of the trial court’s findings of fact. I specifically addressed and shot down these false assumptions in The Decision From Hell (Part 1).

Judge Taylor’s refusal to explain himself and the panel’s refusal to mention and explain why the United States Supreme Court’s decision in United States v. Hensley does not require reversal is inexcusable and reflects poorly on the judges who decided the case, the Court of Appeals, and the legal system in general.

For those of you following the legal case, bear in mind that the case is no longer about me. The fact that the Kentucky Court of Appeals has designated the opinion in my case “to be published” means that they have deemed the case serious and important enough that it has precedential value for any and all related cases in the future; the Court seeks to make the Leatherman case available for future citation as binding case law.

In the Petition for Rehearing, Hon. Julia Pearson discussed a published Kentucky case, Garcia v. Commonwealth.

This Court also ignored Garcia v. Commonwealth, in which a member of this panel found the police did not have reasonable suspicion to stop a driver who “quickly changed to the right lane” as a Kentucky State Police Trooper approached the vehicle. 185 S.W.3d 658, 660-661 (Ky. App. 2006). The panel found that “Garcia’s nervousness, lane change, failure to make eye contact, ‘death grip’ on the steering wheel, and out-of-state license plate. . . . describe a substantial number of drivers on our highways.” Further, the panel said, “[i]f we were to accept the Commonwealth’s argument, ordinary law abiding citizens could be subjected to a stop by police based upon routine driving habits.” Id., at 665.

Contrast Garcia’s behavior with that of Rachel Leatherman in the case at bar. According to the officers in each case, both Leatherman and Garcia appeared nervous and changed lanes and had out-of-state license plates. The difference is that Leatherman driving with a turn signal blinking is somehow seen as suspicious behavior rather than the routine (for some drivers) driving habit that it unfortunately is.

The author of the published opinion in Garcia v. Commonwealth is Judge Taylor. Judge Taylor was a member of the panel in Leatherman as well. The Petition for Rehearing in Leatherman v. Commonwealth was denied without comment by judges Taylor, Lambert and Isaacs.

Note the ultimate irony, as stated by Hon. Julia Pearson:

The ultimate irony for this case is that after the hour and one-half Deputy McGuire held Rachel Leatherman on the side of the road, he found nothing illegal. This Court stated as much when it said, “consent searches of her automobile and her person did not reveal any heroin or any other illegal substance.” Leatherman, supra, 2011 WL 181251, at *7.

Such was not the case in Garcia.

Judge Taylor wrote the Garcia opinion. How could he sign off on, and seek publication of, the Leatherman opinion, reaching the opposite conclusion that he reached when he wrote Garcia? We do not know the answer to this question. At the vary least, Judge Taylor should have written a concurring opinion explaining why he reached the opposite conclusion, but he did not. His silence is deafening.

Here is the Garcia opinion that Judge Taylor wrote:

Garcia v. Commonwealth

THE COURT OF APPEALS OF THE STATE OF KENTUCKY

February 24, 2006

FRANCISCO GARCIA APPELLANT
v.
COMMONWEALTH OF KENTUCKY APPELLEE
HEINRICH LETKEMAN APPELLANT
v.
COMMONWEALTH OF KENTUCKY APPELLEE

APPEAL FROM FRANKLIN CIRCUIT COURT HONORABLE WILLIAM L. GRAHAM, JUDGE ACTION Nos. 04-CR-00045-001 & 04-CR-00045-002.

The opinion of the court was delivered by: Taylor, Judge

TO BE PUBLISHED

OPINION

(1)REVERSING AND REMANDING APPEAL NO. 2004-CA-002271-MR

(2) AFFIRMING APPEAL NO. 2004-CA-002283-MR

BEFORE: MINTON, SCHRODER, AND TAYLOR, JUDGES

Francisco Garcia brings Appeal No. 2004-CA-002271-MR from an October 4, 2004, judgment of the Franklin Circuit Court entered upon a conditional plea of guilty to trafficking in marijuana. Heinrich Letkeman brings Appeal No. 2004-CA-002283-MR from an October 4, 2004, judgment of the Franklin Circuit Court entered upon a conditional plea of guilty to trafficking in marijuana. We reverse and remand Appeal No. 2004-CA-002271-MR. We affirm Appeal No. 2004-CA-002283-MR.

On March 6, 2004, Garcia and his passenger, Letkeman, were traveling upon Interstate 64 in a 1993 Dodge Caravan. Kentucky State Trooper Jeremy Devasher approached the vehicle and noticed the vehicle quickly changed to the right lane. The trooper testified that he pulled his cruiser alongside the vehicle. Trooper Devasher thought that the driver, Garcia, looked nervous because he avoided making eye contact with the trooper and kept a “death grip” on the steering wheel of the vehicle. The trooper then observed cracks in the windshield of Garcia’s vehicle and thought the cracks impaired Garcia’s forward vision. At this point, Trooper Devasher stopped the vehicle for a traffic violation.

Trooper Devasher testified that he asked Garcia a series of questions in both English and Spanish; consequently, the trooper believed Garcia spoke English very well. Trooper Devasher testified that Garcia and Letkeman’s stories concerning their travel plans fell apart upon further questioning. The trooper also noted that neither had any luggage for a purported trip to Virginia.

The trooper issued a citation for a cracked windshield pursuant to Kentucky Revised Statutes (KRS) 189.110. After issuing the citation, the trooper informed Garcia the traffic stop was complete and he was free to leave. Trooper Devasher then asked Garcia for permission to search the vehicle. The trooper testified that Garcia nodded affirmatively and pointed to the vehicle. A search was commenced, and ten bricks of marijuana were seized from the vehicle.

Garcia and Letkeman were indicted by the Franklin County Grand Jury upon the offense of trafficking in marijuana over five pounds (KRS 218A.1421(4)). Thereafter, Garcia and Letkeman filed motions to suppress the evidence seized (marijuana) from the search of the vehicle. After an evidentiary hearing, the circuit court denied both motions to suppress.

Garcia and Letkeman entered conditional pleas of guilty to the offenses of trafficking in marijuana. Pursuant to the conditional pleas, Garcia and Letkeman preserved the issue of whether the circuit court properly denied their motions to suppress. See Ky. R. Crim. P. 8.09. On October 4, 2004, Garcia and Letkeman were each sentenced to seven years’ imprisonment with one year to serve and the remaining sentence probated for a period of five years. These appeals follow.

Appeal No. 2004-CA-002271-MR

Garcia contends the circuit court erroneously denied the motion to suppress evidence seized from his vehicle. Specifically, Garcia contends the stop of his vehicle based upon the cracked windshield was improper. Garcia argues that the cracked windshield was not a violation of KRS 189.110. Thus, he contends the initial stop of the vehicle was without reasonable suspicion of criminal activity and the circuit court erred by denying his motion to suppress evidence.

Our standard of review of a suppression determination is succinctly set forth in Stewart v. Commonwealth, 44 S.W.3d 376, 380 (Ky.App. 2000)(footnote omitted):

First, the factual findings of the court are conclusive if they are supported by substantial evidence. The second prong involves a de novo review to determine whether the court’s decision is correct as a matter of law.

We observe that resolution of this appeal involves issues of both fact and law.

It is well-established that the stopping of a vehicle and detaining of its occupants amounts to a seizure under the Fourth Amendment of the United States Constitution and under Section 10 of the Kentucky Constitution. It is equally axiomatic that a police officer may stop a motor vehicle if that officer possesses reasonable suspicion that criminal activity has occurred or is imminent. Delaware v. Prouse, 440 U.S. 648 (1979). The occurrence of a traffic violation is recognized as sufficient justification to warrant a stop of a motor vehicle.

The initial stop of Garcia’s vehicle was originally premised upon Trooper Devasher’s belief that the cracked windshield constituted a violation of KRS 189.110. This statute provides as follows:

(1) A windshield in a fixed and upright position, that is equipped with safety glazing as required by federal safety-glazing material standards, is required on every motor vehicle which is operated on the public highways, roads, and streets, except on a motorcycle or implement of husbandry.

(2) A person shall not operate a motor vehicle on a public highway, road, or street with any sign, sunscreening material, product, or covering attached to, or located in or upon the windshield, except the following:

(a) A certificate or other paper required to be displayed by law;

(b) Sunscreening material along a strip at the top of the windshield, if the material is transparent and does not encroach upon the driver’s direct forward viewing area as defined in Federal Motor Vehicle Safety Standards No. 205 as the AS/1 portion of the windshield.

(3) A person shall not operate a motor vehicle required to be registered in the Commonwealth, on a public highway, road, or street on which vehicle the side wings and side windows on either side forward of or adjacent to the operator’s seat are composed of, covered by, or treated with any sunscreening material or other product or covering which has the effect of making the window nontransparent or which would alter the window’s color, increase its reflectivity, or reduce its light transmittance, except as expressly permitted by this section. A sunscreening material may be applied to the windows if, when tested on one-eighth (1/8) inch clear glass, the material has a total solar reflectance of visible light of not more than twenty-five percent (25%) as measured on the nonfilm side and a light transmittance of at least thirty-five percent (35%) in the visible light range.

(4) A person shall not operate a motor vehicle required to be registered in the Commonwealth, on a public highway, road, or street on which vehicle any windows behind the driver are composed of, covered by, or treated with any sunscreening material, or other product or material which has the effect of making the window nontransparent or which would alter the window’s color, increase its reflectivity, or reduce its light transmittance, except as specified below:

(a) Sunscreen material consisting of film which, when tested on one-eighth (1/8) inch clear glass, has a total solar reflectance of visible light of not more than thirty-five percent (35%) as measured on the nonfilm side and a light transmittance of at least eighteen percent (18%) in the visible light range; however, sunscreen material which, when tested on one-eighth (1/8) inch clear glass, has a total solar reflectance of visible light of not more than thirty-five percent (35%) as measured on the nonfilm side and a light transmittance of at least eight percent (8%) in the visible light range may be used on multipurpose passenger vehicles;

(b) Perforated sunscreening material which, when tested in conjunction with existing glazing or film material, has a total reflectance of visible light of not more than thirty-five percent (35%) and a light transmittance of no less than thirty percent (30%). For those products or materials having different levels of reflectance, the highest reflectance from the product or material will be measured by dividing the area into sixteen (16) equal sections and averaging the overall reflectance. The measured reflectance of any of those sections may not exceed fifty percent (50%).

(5) A person shall not operate a motor vehicle required to be registered in the Commonwealth, upon a public highway, road, or street, on which vehicle the rear window is composed of, covered by, or treated with any material which has the effect of making the window nontransparent, unless the vehicle is equipped with side mirrors on both sides.

(6) Each installer or seller of sunscreening material shall provide a pressure-sensitive, self-destructive, nonremovable, vinyl-type film label to the purchaser stating that the material complies with the provisions of KRS 189.010(20) to (23) and subsections (1) to (5) of this section. Each installer shall affix the required label to the inside left door jamb of the motor vehicle. In addition, the label shall state the trade name of the material and the installer’s or seller’s business name. Labeling is not required for factory glazing which complies with Federal Motor Vehicle Safety Standard No. 205.

(7) Every percentage measurement required by subsections (3) and (4) of this section is subject to a tolerance of plus or minus three percent (3%).

(8) A person shall not install window tinting materials on a vehicle that fails to meet the minimum standards for light transmission pursuant to subsections (3) and (4) of this section. Tinted material that fails to meet the minimum standards for light transmission pursuant to subsections (3) and (4) of this section shall be removed immediately.

(9) A person who applies sunscreening materials in violation of this section shall be guilty upon conviction of a Class B misdemeanor.

(10) Nothing in this section shall prevent the display of a representation of the American flag on the rear window of any motor vehicle, including any vehicle owned by a local or state government, provided that the representation does not exceed a size of five (5) inches by eight (8) inches and is placed in a lower corner of the rear window.

(11) The windshield on every motor vehicle shall be equipped with a device for cleaning rain, snow or other moisture from the windshield. The device shall be so constructed as to be controlled by the operator of the vehicle.

(12) Nothing in this section shall be construed to prevent the use of any window which is composed of, covered by, or treated with any material or component in a manner approved by federal statute or regulation if the window was a component part of a vehicle at the time of the vehicle manufacture, or the replacement of any window by a covering which meets these requirements.

KRS 189.110.

A reading of KRS 189.110 reveals that it provides requirements for window sunscreening and tinting. It also sets forth mandatory safety glazing of glass and windshield wiper requirements. It, however, does not set forth any express or implied proscriptions against cracks in a vehicle’s windshield. Based upon the plain language of KRS 189.110, a cracked windshield simply does not constitute a violation of its provisions. As a cracked windshield is not a violation of KRS 189.110, we believe the Commonwealth cannot justify the stop of Garcia’s vehicle upon same.

Alternatively, the Commonwealth argues the traffic stop was lawful because the cracked windshield was a violation of KRS 189.020, which states as follows:

Every vehicle when on a highway shall be so equipped as to make a minimum of noise, smoke or other nuisance, to protect the rights of other traffic, and to promote the public safety.

The interpretation of a statute is a matter of law for the court. City of Worthington Hills v. Worthington Fire Prot. Dist., 140 S.W.3d 584 (Ky.App. 2004). When interpreting a statute, a word is to be afforded its ordinary meaning unless it has acquired a technical meaning. Id. Upon examination of KRS 189.020, we must initially decide whether a cracked windshield constitutes an “other nuisance” within its meaning. When interpreting the term “other nuisance” in KRS 189.020, we are guided by the rule of statutory interpretation called ejusdem generis:

[W]here, in a statute, general words follow or precede a designation of particular subjects or classes of persons, the meaning of the general words ordinarily will be presumed to be restricted by the particular designation, and to include only things or persons of the same kind, class, or nature as those specifically enumerated, unless there is a clear manifestation of a contrary purpose.

Steinfeld v. Jefferson County Fiscal Court, 312 Ky. 614, 229 S.W.2d 319, 320 (1950)(citations omitted). Applying the rule of ejusdem generis to KRS 189.020, the term “other nuisance” is preceded by the particular designation of “noise” and “smoke.” To effectuate legislative intent, we believe “other nuisance” should be interpreted as including only those nuisances of a similar kind as noise and smoke. Accordingly, we do not interpret the term “other nuisance” in KRS 189.020 as encompassing a cracked windshield.

KRS 189.020 also requires a vehicle to be equipped so as “to protect the rights of other traffic, and to promote the public safety.” A cracked windshield that unreasonably impairs the vision of a driver certainly increases the risk and likelihood of an accident. The increased risk would undoubtedly present a significant threat to public safety and would adversely affect the rights of other traffic. Therefore, we hold that a cracked windshield must unreasonably impair the vision of a vehicle’s driver to constitute a violation of KRS 189.020. We emphasize that a cracked windshield is a violation of KRS 189.020 only if it is of sufficient severity to unreasonably reduce the driver’s visibility.

In the case at hand, Trooper Devasher testified that he believed the cracked windshield impaired Garcia’s forward vision. The circuit court concluded:

Courts hold that stopping a vehicle for a traffic law violation is constitutionally permissible under the Terry test. Whren v. United States, 517 U.S. 806 (1996); Commonwealth v. Fox, Ky., 48 S.W.3d 24 (2001). That is the situation here. Before stopping the Defendants’ vehicle, the officer observed two cracks in the vehicle’s windshield. The officer believed the cracks impaired the driver’s vision and violated KRS 189.110. The officer subsequently stopped the vehicle and issued Defendant Garcia a citation for this violation. The vehicle stop, therefore, did not contravene the Constitution.

In the record, there exists a photograph of Garcia’s vehicle, which provides a full view of the windshield. Upon examination of the photograph, the cracks do not appear to be of sufficient severity to unreasonably impair Garcia’s forward vision. We observe that mere hairline cracks of a vehicle’s windshield are not typically of sufficient severity to constitute a violation of KRS 189.020. Hence, we are of the opinion that the cracks in the windshield of Garcia’s vehicle were not of sufficient severity to constitute a violation of KRS 189.020.

We also reject the Commonwealth’s attempt to justify the stop as an investigatory stop based upon reasonable suspicion of criminal activity under Terry v. Ohio, 392 U.S. 1 (1968). The Commonwealth particularly argues:

Furthermore, given the training and experience of this officer, other indicia were present that suggested criminal activity might be afoot. The nervousness displayed by the driver, the erratic lane change upon observing that the officer was near, the failure to make eye contact, the “death grip” on the steering wheel, and the foreign license plate (knowing that the drug interdiction training indicated that illegal drugs typically travel east to west) led to further suspicion.

Commonwealth’s Brief at 12.

In Commonwealth v. Banks, 68 S.W.3d 347, 350-351 (Ky. 2001), the Supreme Court emphasized:

[T]he test for a Terry stop . . . is not whether an officer can conclude that an individual is engaging in criminal activity, but rather whether the officer can articulate reasonable facts to suspect that criminal activity may be afoot . . . . The totality of the circumstances must be evaluated to determine the probability of criminal conduct, rather than the certainty.

In the case sub judice, the articulated facts set forth by Trooper Devasher were Garcia’s nervousness, lane change, failure to make eye contact, “death grip” on the steering wheel, and out-of-state license plate. We believe these facts describe a substantial number of drivers on our highways and constitute an innocuous mirage created in an attempt to retrospectively justify the stop. If we were to accept the Commonwealth’s argument, ordinary law abiding citizens could be subjected to a stop by police based upon routine driving habits. Simply put, such routine driving habits do not warrant a police stop under Terry. As such, we do not believe that Trooper Devasher possessed the requisite reasonable suspicion to justify an investigatory stop of Garcia’s vehicle.

In sum, we hold the initial stop of Garcia’s vehicle was improper and the circuit court erred by denying Garcia’s motion to suppress the marijuana subsequently seized from the vehicle.

We view Garcia’s remaining contentions as moot.

Appeal No. 2004-CA-002283-MR

Letkeman argues that the circuit court improperly denied his motion to suppress the evidence seized from the vehicle.*fn1 Specifically, Letkeman contends that a cracked windshield is not a violation of KRS 189.110; thus, the initial stop was invalid. Letkeman further maintains that Garcia did not voluntarily consent to the search of the vehicle.

It has been recognized that the protection of the Fourth Amendment against unreasonable search and seizure is a personal right and cannot be vicariously asserted. Rakas v. Illinois, 439 U.S. 128 (1978)(citing Alderman v. United States, 394 U.S. 165 (1969)). To have standing to contest a search and seizure, an individual must possess a legitimate expectation of privacy in the area searched or property seized. Rakas, 439 U.S. 128. The United States Supreme Court has developed a two-step analysis for determining whether a legitimate expectation of privacy exists:

[W]hether the individual has exhibited a subjective expectation; and whether such subjective expectation, viewed objectively, is justifiable under the circumstances.

United States v. Thornley, 707 F.2d 622, 624 (1st Cir. 1983) (citing Smith v. Maryland, 442 U.S. 735 (1979)).

In the case at hand, we cannot say that Letkeman possessed a reasonable expectation of privacy in the vehicle. The record indicates that Letkeman was a passenger in the vehicle and did not assert an ownership or possessory interest in the vehicle. A mere passenger in a vehicle generally does not have the requisite expectation of privacy to raise the issue of the legality of the vehicle’s search. Rakas v. Illinois, 439 U.S. 128 (1978).

Letkeman also claims ownership of the marijuana seized from the vehicle and believes that such ownership in the property seized confers standing. The ownership and possession of seized property is not dispositive upon the issue of expectation of privacy; rather, such are simply factors to be considered. United States v. Salvucci, 448 U.S. 83 (1980).

In this case, the seized property was wrapped bricks of marijuana. These bricks were hidden in the vehicle’s rear storage compartments. Applying the two-part analysis for determining whether an expectation of privacy existed, we believe Letkeman satisfied the first part because it is uncontroverted he possessed a subjective expectation of privacy in the marijuana. However, the second part of the test requires that the subjective expectation of privacy be objectively reasonable under the circumstances.

The facts reveal that Letkeman was only a passenger in the vehicle and did not have control over its contents. Specifically, it appears that Letkeman did not possess the legal right to exclude third parties from exercising possession or control over the vehicle or its contents. Moreover, the marijuana bricks were not concealed by Letkeman in luggage or other baggage. Rather, the bricks were simply hidden in the vehicle’s rear storage compartments. Considering the unique circumstances of this case, we cannot say Letkeman possessed an objectively reasonable expectation of privacy in the seized marijuana.

In sum, we are of the opinion that Letkeman did not possess the requisite expectation of privacy to establish standing to contest the legality of the vehicle’s stop or of the marijuana’s seizure.

Letkeman also argues that his detention following the vehicle’s stop was unreasonably long and constituted a violation of the Fourth Amendment of the United States Constitution and Section 10 of the Kentucky Constitution. Letkeman particularly maintains he was detained by Trooper Devasher for some thirty minutes while waiting for another trooper to arrive. Letkeman contends that Trooper Devasher lacked reasonable suspicion of criminal activity to warrant the thirty-minute detention and that the citation took only a few minutes to issue.

In Ohio v. Robinette, 519 U.S. 33 (1996), the Supreme Court recognized that the legality of a continued detention following a stop for a traffic violation is a question of reasonableness. It has been held:

Questions that hold potential for detecting crime, yet create little or no inconvenience, do not turn reasonable detention into unreasonable detention. They do not signal or facilitate oppressive police tactics that may burden the public-for all suspects (even the guilty ones) may protect themselves fully by declining to answer. Nor do the questions forcibly invade any privacy interest or extract information without the suspects’ consent.

United States v. Burton, 334 F.3d 514, 518 (6th Cir. 2003).

In the case sub judice, the record indicates that Trooper Devasher questioned Letkeman and Garcia, checked the vehicle’s registration and license plate, and checked Garcia’s out-of-state driver’s license. Upon the whole, we believe the continued detention of Letkeman for some thirty minutes after the initial traffic stop was reasonable.

Letkeman additionally maintains the statement he made to police following his arrest should be suppressed.*fn2

Specifically, Letkeman alleges he did not voluntarily and knowingly waive his rights under Miranda v. Arizona, 384 U.S. 436 (1966). Letkeman contends he was advised of his Miranda rights in English but that he “did not understand English sufficiently to make a valid waiver of these important rights.” Letkeman Brief at 19. Letkeman claims his primary language is Spanish.

In its order denying Letkeman’s motion to suppress, the circuit court found:

Detective Brennan testified that Letkeman spoke English to him, answered everything asked of him, and he and Letkeman could communicate with each other.” (Comm. Br. at 13). Trooper Devasher testified that Letkeman answered “yes” when Devasher asked him if he understood his Miranda rights. Devasher also testified that Letkeman knew English better than he originally led the trooper to believe. Though Letkeman testified that he does not speak English and did not understand everything that Trooper Devasher said, the Court finds in favor of the Commonwealth based on the testimony by Brennan and Devasher.

Based upon the testimony of Detective Brennan and Trooper Devasher, we conclude the circuit court’s findings that Letkeman understood English and understood he was waiving his rights under Miranda were not clearly erroneous. See Stewart, 44 S.W.3d 376.

For the foregoing reasons, Appeal No. 2004-CA-002271-MR is reversed and this cause remanded for proceedings not inconsistent with this opinion, and Appeal No. 2004-CA-002283-MR is affirmed.

ALL CONCUR.


The Decision From Hell (Part 1)

December 27, 2011

The Kentucky State Court of Appeals issued its decision affirming Crane Station’s conviction on January 21, 2011. Her motion for reconsideration was summarily denied without an explanation. Her motion for discretionary review is pending in the Kentucky State Supreme Court.

I call the 3-0 opinion written by written by Judge Lambert and joined by judges Henry and Taylor the decision from hell and will now take it apart. First, here is a link to the decision.

The Court begins by making two fundamental errors that invalidate the conclusion it reached affirming the circuit court’s denial of the motion to suppress evidence. The two errors are:

(1) It relied on after-acquired information, including trial testimony and the dispatcher’s tape, which is prohibited by the United States Supreme Court and the Kentucky Supreme Court; and

(2) It stated that the appellant had failed to challenge any of the findings of fact in the three suppression orders, which is absolutely false.

In United States v. Hensley, the Supreme Court held that trial courts must decide the constitutional validity of investigatory stops of civilians by police officers (i.e., whether there was reasonable suspicion or probable cause to justify the stop) based on the information available to the police officer before the stop. Information acquired after the stop cannot be used to justify a stop that was not supported by reasonable suspicion or probable cause because that would eliminate the rule.

The Supreme Court also held in Hensley that, even if a police officer stops a suspect acting in good faith on mistaken information provided by a dispatcher, the stop nevertheless violates the Fourth Amendment, if the correct information did not constitute a reasonable suspicion.

Therefore, the proper legal analysis under Hensley is to determine whether the information supplied by the 911 caller constituted a reasonable suspicion to justify the stop. The caller said,

And there is a lady in a dark blue looks like a Buick LeSabre. I’d say it’s a late 80s, early ’90s model. And I’ve got a license plate number. But she’s out here walking around in my neighbor’s yard and everything and writing stuff down, and she’d talked to him and mentioned something about tar heroin and all that stuff.

The caller did not describe suspicious activity, much less criminal activity. He described a conversation between his neighbor and a stranger in which the stranger mentioned the word heroin. So what?

This is not complicated. Absent information that the caller witnessed a purchase or sale of a controlled substance, or possibly a request to purchase or sell a controlled substance, there is nothing to investigate.

A reasonable suspicion is more than a mere hunch or suspicion. The hunch or suspicion must be reasonable. That is, it must be supported by articulable objective facts and circumstances that would warrant a reasonable person to conclude that a crime has been committed, is being committed, or is about to be committed. That did not happen.

Now, the stop would violate the Fourth Amendment, even if the dispatcher had innocently altered what the caller said and told the deputy that the caller had reported witnessing a drug transaction between his neighbor and a stranger and the officer stopped the stranger to investigate.

Why? Because the dispatcher cannot create a reasonable suspicion that did not already exist, even if the dispatcher does so by committing an innocent mistake. In other words, good faith reliance on mistaken information provided innocently by a dispatcher cannot create a reasonable suspicion where none existed. Therefore, the dispatcher’s information is irrelevant under Hensley.

But even if we consider what the dispatcher said, there still is no reasonable suspicion. He said,

Suspicious person complaint, the 4000 block of Queensway Drive off of Lester Harris and Bottom Street. A white female in a dark blue LeSabre that’s out walking around asking people about 218A.

(218A is a reference to the Kentucky State Uniform Controlled Substances Act)

Again, so what? A person walking around asking people about a drug statute is not illegal activity.

I am not saying that the caller’s tip should not have been investigated. I am saying that the proper procedure would have been to contact and interview the caller to obtain additional information regarding what he observed, which the deputy did the following day. However, even if the caller provided additional information such as, “I saw the woman buy some heroin from my neighbor,” the information could not be considered for the purpose of determining whether the deputy had a reasonable suspicion to stop Crane Station because he acquired that information after he stopped her. Therefore, it is irrelevant.

But the caller did not say anything like that. He said,

On 6-28-2006, a Lady driven a Buick LeSabre stoped at my driveway and ask me if I would sell 2 berrlles and i said they belong to my Naber. She had her painst unbuttoned and unzipped. She acted like she was under the Influence of something. She was a dirty Blonde wereing Blue shirt and Blue Jeans. (Spelling and grammatical errors in the original)

(incidentally, her jeans were not unbuttoned and unzipped in the in-dash video)

Asking someone if they are willing to sell two barrels is not criminal activity. (The barrels were made out of oak and split in half across the middle so they could be placed on a deck and used as planters) In addition, the statement does not mention heroin or any other drug. Finally, the description he provided and the conclusion that she appeared to be high on something falls far short of “sufficient articulable objective facts and circumstances that would warrant a reasonable person in concluding that the person had committed, was committing, or was about to commit a crime.”

Also, since the caller provided the statement after he knew about the arrest, his perspective would have necessarily changed and we cannot know whether he would have said the same thing, if he had been interviewed before the stop. The bottom line is this information should not have been considered.

Additional information that came to light at subsequent pretrial hearings or the trial itself would, of course, also be irrelevant on the issue of reasonable suspicion because it would have been after-acquired. Therefore, to the extent that the Circuit Court and later the Court of Appeals relied on such information to enter findings of fact, such findings are necessarily invalid, as a matter of law under Hensley.

A consideration of the deputy’s observations of Crane Station’s driving prior to the stop is not prohibited by Hensley. To find out what he observed, the Circuit Court should have watched and listened to the deputy testify at the suppression hearing and the Court of Appeals should have watched the video and read the transcript of his testimony at the suppression hearing. Evidently the judges did not do this because the deputy testified that her driving was exemplary, she violated no laws, and he pulled her over as soon as he realized that she and her vehicle matched the description provided by the caller. He did not pull her over because of her driving; he admitted that he pulled her over because he suspected she possessed heroin.

The deputy was the only witness at the suppression hearing. Therefore, there were no disputed facts. No he-said-she-said differences for the trial judge to resolve. He merely had to enter findings of fact based on what the witness said, but he did not do that.

Instead, he made-up some facts, such as Crane Station initiated a voluntary citizen-police contact that is not subject to the Fourth Amendment, when the deputy testified that he pulled her over. He also relied on trial testimony, which was after-acquired information, including testimony by the deputy that directly and materially contradicted his testimony at the suppression hearing.

It is difficult to know what the hell was going on when the deputy and the trial judge were making stuff up.

The Court of Appeals added to the mess by ruling that the appellant is stuck with the invalid findings of fact because she did not challenge them on appeal. That is absurd because her lawyer challenged all of the materially false facts. There is no doubt. Read her opening and reply briefs, if you do not want to take my word for it.

Finally, the Court of Appeals ignored Hensley. Ignored Crane’s argument that the HGN should not have been considered because it was improperly administered. Concluded that despite “not driving erratically or weaving” and passing a portable breath test, the invalid HGN, when considered together with nervousness, glassy eyes, her admission that she was taking prescribed Clonazepam, and other unspecified “odd behavior,” the deputy had probable cause to arrest. Apparently, despite quoting the product insert warning for Conazepam, which does not say that people who take the drug should never operate machinery or a motor vehicle the Court of Appeals believes that, as a matter of law, a police officer has probable cause to arrest anyone who takes the drug and operates a motor vehicle whether they drive properly or not. The Court also ignored federal and state cases cited by Crane’s lawyer, which hold that nervousness is not a valid or reliable indicator of impairment because people who are not under the influence of drugs or alcohol typically also exhibit nervousness when stopped. They require additional evidence of evasive behavior to establish probable cause to arrest and there was no evidence of that in Crane’s case.

So, did the judges on the Court of Appeals read her briefs?

Difficult to conclude that they did, because I do not see how they could honestly claim that her lawyer failed to challenge any findings of fact, if they had read it.

On the other hand, if they wrote an opinion affirming the conviction without having read her briefs, they should be defrocked and disbarred.

Either way, they have a lot of splainin’ to do.

I will deal with the rest of the Decision From Hell in Part 2 tomorrow.

Until then, Court will be in recess.


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