RENDERED: JUNE 23, 2017; 10:00 A.M. NOT TO BE PUBLISHED Commonwealth of Kentucky Court of Appeals NO. 2016-CA-000435-MR GLENN GARY ATKINS APPELLANT APPEAL FROM FAYETTE CIRCUIT COURT v. HONORABLE KIMBERLY N. BUNNELL, JUDGE ACTION NO. 13-CR-01175 COMMONWEALTH OF KENTUCKY APPELLEE OPINION AFFIRMING ** ** ** ** ** BEFORE: KRAMER, CHIEF JUDGE; ACREE AND JONES, JUDGES. KRAMER, CHIEF JUDGE: Glenn Gary Atkins appeals the Fayette Circuit Court s judgment convicting him of: being a convicted felon in possession of a firearm; resisting arrest; second-degree fleeing or evading police; tampering with physical evidence; operating a motor vehicle under the influence of alcohol/drugs with a 0.08 aggravator, first offense; and being a second-degree persistent felony
offender (PFO-2nd). After a careful review of the record, we affirm because the circuit court properly denied Atkins s motion to suppress and his motion for a continuance. I. FACTUAL AND PROCEDURAL BACKGROUND Atkins was indicted on the following charges: being a convicted felon in possession of a handgun; third-degree assault of a police/probation officer; firstdegree fleeing or evading police on foot; tampering with physical evidence; leaving the scene of an accident/failure to render aid or assistance; operating a motor vehicle under the influence of alcohol/drugs, with a 0.08 aggravator, second offense; failure of owner to maintain required insurance/security; and PFO-2nd. He moved to suppress all the evidence that was collected following his initial stop by law enforcement on the grounds that the officers had no reasonable suspicion that [Atkins] was involved in criminal activity, which rendered the stop and frisk unconstitutional. Atkins further contended that he was stopped solely based upon his race and... after being frisked and no weapons being found and after he subsequently left the scene the officer alleged that [he] found a gun that [he] claim[s] was possessed by [Atkins]. A suppression hearing was held. During the hearing, Doug Keenan testified that he was driving down a road in Fayette County and came upon a single-vehicle wreck, where the car at issue had hit a fence and a tree on a curve. Mr. Keenan had not seen the wreck occur, but he believed he was less than thirty -2-
seconds behind the car involved in the accident. Mr. Keenan saw two people, one male and one female, around the back of the car. The man was wearing shorts and a baseball cap that was turned backwards. Mr. Keenan testified that both the man and woman were black. It was after 3:00 am when Mr. Keenan saw them, and there was no light on that curve. Officer Brandon Scott Harris of the Lexington Division of Police also testified during the suppression hearing. He attested that he was driving on Versailles Road and he had just passed Mason-Headley Road, where the accident had occurred, when he heard the call from dispatch. Dispatch said there had been a collision on Mason-Headley Road and the people involved in it were walking along Mason-Headley Road and towards Versailles Road. Officer Harris testified that dispatch described the people involved as a black man who was wearing a hat, plaid shirt, and shorts; and a white woman who was wearing black shorts. Headley Road, where he saw two people, who he later discovered were Atkins and a woman named Reese Ann White. 1 Officer Harris did not recall seeing any other people on the street at that time. The two people were slowly jogging over the hill towards Officer Harris and near the scene of the accident. Officer Harris activated his emergency lights and asked them if they had been involved in the wreck. The two people were evasive in answering the question. Officer Harris testified that 1 We are uncertain of the correct spelling of Ms. White s name, so we are using the spelling provided in Atkins s appellate brief. Officer Harris turned his vehicle around and went back to Mason- -3-
when he stopped Atkins and Ms. White, Atkins, who is a black man, was wearing a hat, a shirt that appeared to be plaid, and shorts. Ms. White, who is a white woman, was wearing shorts. Officer Harris asked to see their identifications. According to Officer Harris, Atkins was not acting normal he was acting jittery and hostile. Officer Harris asked Atkins if he was on anything. Both Atkins and Ms. White were sitting on the curb at the time. Atkins was smoking a cigarette, and Ms. White asked if she could smoke a cigarette, but Officer Harris denied her request because it would require her to reach into her purse. Atkins became agitated, he passed his cigarette to Ms. White, hopped up, and took off running down the hill by the Cardinal Hill Rehabilitation Center. Officer Harris yelled for Atkins to stop, but Atkins did not, so Officer Harris pursued him. While he was running, Atkins reached into his pocket, pulled out a metallic item that looked to Officer Harris like a firearm, and threw it. Officer Harris heard the item hit the retaining wall of the Cardinal Hill Rehabilitation Center, and the item then bounced over the wall. Officer Harris jumped on Atkins s back, they tussled, during which Atkins s shirt came off, and Atkins got away momentarily. However, Officer Harris again caught Atkins and, with the help of two other officers who had arrived by that time, Atkins was handcuffed. After Atkins was handcuffed, Officer Harris and one other officer went to look and see what Atkins had thrown at the wall. They found a firearm 2 on the other side of 2 Officer Harris described the firearm as a high-point, nine-millimeter firearm. -4-
the wall in the vicinity of where Officer Harris had seen Atkins throw a metallic item. Officer Harris attested that he had not conducted a pat down of Atkins before he fled. Officer Harris testified that when they returned to Ms. White, she was speaking with an officer, and she had admitted that Atkins had been driving the car, that they had been at a gentlemen s club, and that they had been drinking. Officer Harris stated that Atkins also admitted that he had been drinking that night. Ms. White then testified at the suppression hearing. She stated that on the night in question, she and Atkins had been at a pub watching a football game involving her favorite team, the Dallas Cowboys. She remembered that Atkins was wearing blue shorts and a grey shirt that night because she recalled teasing him about the fact that he was wearing the team colors of the Dallas Cowboys. Ms. White attested that Atkins s shirt had a Polo insignia on it of a horse. She was pretty positive that Atkins was not wearing a plaid shirt that night. Ms. White stated that she thought Atkins was wearing a grey hat with a brim all the way around it, like a fisherman s hat, that evening. She attested that she believed she was wearing a tan skirt and a black and blue shirt with brown shoes that night. Ms. White testified that when she and Atkins encountered the police officer that evening, he asked where they were coming from, if they were armed, and if they had been involved in an accident. They did not respond to his questions. She attested that the officer patted Atkins down and asked for their -5-
identifications. Atkins lit a cigarette and was smoking it when Ms. White wanted to get a cigarette out of her purse to smoke, but was not permitted to do so. Ms. White acknowledged that Atkins then took off running. She never saw a gun on Atkins s person that evening, and she attested that if he had been carrying one in his front pocket, she would have seen it. Ms. White testified that she remembered being in an accident that evening near where they were stopped by the officer, but she did not remember telling the police that she had been in an accident. She attested that Atkins was driving the car when the accident occurred. She and Atkins then got out of the car and began walking toward Versailles Road to get help. Ms. White stated that she did not know why she did not tell the officer that they had been in an accident when the officer stopped them and asked if they had been in one. At the close of the suppression hearing, the circuit court indicated it was going to deny the motion to suppress. The court reasoned that it only took about two minutes for Officer Harris to reach Atkins and Ms. White after he received the call from police dispatch concerning the accident. Additionally, the court found that Atkins and Ms. White were in close proximity to the scene of the accident when they were stopped by Officer Harris. Thus, the circuit court reasoned that the close proximity in both time and location to the accident, as well as the similarities of Atkins and Ms. White to the descriptions of the individuals mentioned in the dispatch, which the court noted was not 100 percent dead-on, -6-
was sufficient to give Officer Harris a reasonable and articulable suspicion to justify the stop. The circuit court then entered its written order denying Atkins s motion to suppress for the reasons stated on the record. One day before trial was scheduled to begin, the defense moved to continue the trial because the defense wanted Ms. White to testify at it, but the defense had been unable to find her. The defense wanted Ms. White to testify because she had previously attested at the suppression hearing that Atkins was patted down before he ran from police, which would indicate that he did not have a gun on him. The circuit court asked the Commonwealth if it was opposed to playing the recording of Ms. White s testimony from the suppression hearing at trial, and the Commonwealth objected to that proposition. The Commonwealth noted that the trial had been scheduled for two months and the case had been on the court s docket for more than two years. The circuit court denied the motion for a continuance. Atkins entered a conditional Alford 3 plea to the following charges, some of which were amended from the charges indicted: Count One -- convicted felon in possession of a firearm; Count Two -- resisting arrest; Count Three -- second-degree fleeing or evading police; Count Four -- tampering with physical evidence; Count Six -- operating a motor vehicle under the influence of 3 A defendant entering a plea of guilty under North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970) refuses to admit guilt but acknowledges that the Commonwealth can present sufficient evidence to support a conviction. -7-
alcohol/drug with a 0.08 aggravator, first offense; and Count Eight -- PFO-2nd. The remaining charges (Counts Five, Seven, and Nine) were dismissed. Atkins s plea was conditioned on his right to appeal the circuit court s denial of his motion to suppress and its denial of his motion for a continuance. Atkins was sentenced to: Count One -- five years of imprisonment; Count Two -- twelve months of imprisonment; Count Three -- twelve months of imprisonment; Count Four -- one year of imprisonment, enhanced to five years by Count Eight; and Count Six a ninety-day license suspension. Additionally, Counts Two, Three, Four, and Six were ordered to be served concurrently with each other and concurrently with Count One, for a total of five years of imprisonment. Atkins now appeals. He contends that the circuit court erred: (a) in denying his motion to suppress; and (b) in denying his motion for a continuance. II. ANALYSIS A. MOTION TO SUPPRESS Atkins first alleges that the circuit court erred in denying his motion to suppress. Specifically, he asserts that Officer Harris lacked reasonable suspicion to seize [Atkins and Ms. White] based on a vague description offered by Doug Keenan. Atkins argues that he was simply described as an African[-]American man wearing generic attire of a shirt and shorts and cap. Atkins notes that it was a warm day when he was stopped by Officer Harris, and no other description of him was provided, including any description regarding his age, weight, or height. -8-
We will not disturb the circuit court s findings subsequent to a hearing on a motion to suppress if they are supported by substantial evidence, and we will only overturn the circuit court s factual findings if they are clearly erroneous. Drake v. Commonwealth, 222 S.W.3d 254, 256 (Ky. App. 2007). However, the circuit court s legal conclusions are reviewed de novo. Id. The circuit court s findings are supported by substantial evidence. As the court found, Officer Harris was able to get to the area of the accident quickly after it occurred because he was already driving in the area. Additionally, Atkins and Ms. White were in close proximity to the scene of the accident when Officer Harris asked them if they had been involved in an accident. Further, Officer Harris testified that he did not recall seeing any other people on the street at that time, which also justifies his act of stopping Atkins and Ms. White to see if they were the parties who had been involved in the accident that had been reported. Doug Keenan attested that the two people involved in the accident were a male and a female, which Atkins and Ms. White are, and that the male was black and was wearing a hat and shorts. This matched Officer Harris s description of Atkins on the evening in question. Although Doug Keenan testified that the female was black, and Ms. White is white, Officer Harris attested that dispatch stated that the female was white. Consequently, substantial evidence supports the circuit court s findings. -9-
We now turn to conduct de novo review of the circuit court s legal conclusions in denying the motion to suppress. The Fourth Amendment of the United States Constitution and Section Ten of the Kentucky Constitution prohibit unreasonable searches and seizures by police officers. There are three types of interaction between police and citizens: consensual encounters, temporary detentions generally referred to as Terry [4] stops, and arrests. Garcia v. Commonwealth, 335 S.W.3d 444, 446 (Ky. App. 2010) (internal quotation marks and citations omitted). In the seminal case of Terry v. Ohio, the [United States] Supreme Court held that a brief investigative stop, detention and frisk for weapons short of a traditional arrest based on reasonable suspicion does not violate the Fourth Amendment. Terry recognized that as an initial matter, there must be a seizure before the protections of the Fourth Amendment requiring the lesser standard of reasonable suspicion are triggered. A police officer may approach a person, identify himself as a police officer and ask a few questions without implicating the Fourth Amendment. A seizure occurs when the police detain an individual under circumstances where a reasonable person would feel that he or she is not at liberty to leave. Where a seizure has occurred, if police have a reasonable suspicion grounded in specific and articulable facts, that a person they encounter was involved in or is wanted in connection with a completed felony, then they may make a Terry stop to investigate that suspicion. Evaluation of the legitimacy of an investigative stop involves a twopart analysis. First, whether there is a proper basis for the stop based on the police officer s awareness of specific and articulable facts giving rise to reasonable suspicion. Second, whether the degree of intrusion was 4 Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). -10-
reasonably related in scope to the justification for the stop. Baltimore v. Commonwealth, 119 S.W.3d 532, 537-38 (Ky. App. 2003) (internal quotation marks and footnotes omitted). In the present case, the Commonwealth acknowledged during the suppression hearing that the stop in the present case was a Terry stop. On the night in question and after receiving the call from dispatch about the accident, Officer Harris saw Atkins and Ms. White slowly jogging over a hill and in his direction, so he pulled his police cruiser over and activated its emergency lights. He then approached Atkins and Ms. White and merely asked if they had been involved in the accident. Officer Harris attested and Ms. White acknowledged in her testimony that she and Atkins were evasive in answering Officer Harris s question. Additionally, Officer Harris testified that Atkins was not acting normal he was acting jittery and hostile. Officer Harris then asked for the identifications of Atkins and Ms. White and told them to sit down on the curb. Atkins became agitated after Officer Harris denied Ms. White s request to get a cigarette out of her purse. Atkins then got up and fled, throwing a firearm over a wall as Officer Harris pursued him. Based on this evidence, the standard for a proper Terry stop set forth in Baltimore was met in this case. First, there was a proper basis for the stop based on the police officer s awareness of specific and articulable facts giving rise -11-
to reasonable suspicion. This is because Officer Harris knew that an accident had just occurred in that area, that a man and a woman were involved in the accident, and that they were walking away from the accident scene, and the only people he saw on the street at that late hour were Atkins and Ms. White. Second, the degree of intrusion was reasonably related in scope to the justification for the stop. Officer Harris merely asked Atkins and Ms. White if they had been in an accident. When they were both evasive in answering that simple question, and Officer Harris observed Atkins acting jittery and hostile, he asked for their identifications and told them to sit on the curb. This degree of intrusion was reasonably related in scope to Officer Harris s justification for the stop, considering that he knew an accident had just occurred and Atkins and Ms. White were in the vicinity of the accident, yet they were evasive in answering his question about whether they had been involved in an accident. Thus, Officer Harris had a reasonable, articulable suspicion that Atkins was involved in criminal activity. Consequently, the stop was constitutional, and the circuit court properly denied Atkins s motion to suppress. B. MOTION FOR A CONTINUANCE Atkins next contends that the circuit court erred in denying his motion for a continuance. He requested a continuance the day before his trial was scheduled to begin due to the fact that he was unable to locate Ms. White, she had not answered the defense s telephone call(s), and he wanted her to testify on his behalf. Defense counsel noted that Ms. White had a trial date scheduled three -12-
months later, and he was hoping to contact her at that time. Defense counsel told the court that the Commonwealth had not agreed to the notion of playing Ms. White s video recorded testimony from the suppression hearing at trial. The Commonwealth told the circuit court that it objected to playing the recorded testimony, even though Ms. White had been subject to cross-examination during the suppression hearing. The Commonwealth and the circuit court noted that the trial had been scheduled for two months, and the case had been on the docket since 2013 (i.e., for over two years). The court found that if they moved forward with the trial the next day (because the court had already denied the motion for a continuance), it would be appropriate to play the recording of Ms. White s suppression hearing testimony, with certain redactions made per Atkins s request, 5 due to the fact that the defense was unable to get in touch with her. When the court asked if the defense had any objection to that proposition, the defense responded that it would prefer to have the redacted tape played over having no witness at all. The Commonwealth objected to playing the recording, even with the redactions. [W]hether a continuance is appropriate in a particular case depends upon the unique facts and circumstances of that case. The factors are: 1) length of delay; 2) previous continuances; 3) inconveniences to litigants, witnesses, counsel, and the court; 5 The redactions would have involved questions that had been asked about the DUI offense. -13-
4) whether the delay is purposeful or is caused by the accused; 5) availability of other competent counsel; 6) complexity of the case; and 7) whether denying the continuance will lead to identifiable prejudice[.] Guffey v. Guffey, 323 S.W.3d 369, 371 (Ky. App. 2010) (internal quotation marks and citations omitted). As for the length of the delay, defense counsel noted that Ms. White had a trial date scheduled three months later, and he was hoping to contact her at that time. The Commonwealth and the court noted that the trial had been scheduled for two months, there were no subpoenas issued for Ms. White to come to court and testify, and the case had been on the court s general docket since 2013 (i.e., for over two years). Additionally, it was mentioned that there was no guarantee that the defense would be able to get in touch with Ms. White at her scheduled trial date, because she might not even show up for her trial. This factor weighs in the Commonwealth s favor because the trial had already been scheduled for two months, and the defense still had not subpoenaed Ms. White during that time. Therefore, a three-month delay, after which there still was no guarantee that they would be able to contact Ms. White, was too long under these circumstances. This factor weighs in the Commonwealth s favor. -14-
Regarding previous continuances, there were many previous continuances in this case. Although the majority of the orders to continue that are in the written record do not explain the reasons for the continuances, one such order does provide the reason that counsel was withdrawing and new counsel was being appointed for Atkins. In its appellate brief, the Commonwealth states that another reason for the delay in bringing the case to trial was the fact that Atkins committed new offenses while out on bond. Atkins does not deny this. Rather, he admits that his case has been pending for some time, but he claims that [t]hese delays should not be attributed to [him]. However, he provides no explanation why they should not be attributed to him, and it is not obvious from the written record why they should not, other than the one continuance so that counsel could be appointed for him. In reviewing the docket sheet in this case, we found seventeen prior continuances in the case before Atkins filed his motion for a continuance. Therefore, this factor weighs in the Commonwealth s favor. As for inconveniences to litigants, witnesses, counsel, and the court, the case had already been pending for more than two years, there had been seventeen continuances, and it is not a complicated case. The Commonwealth had two witnesses testify at the suppression hearing and, presumably, those same witnesses would be called to testify at trial. Due to the fact that the case had already been pending for so long and there had been so many prior continuances, another continuance would have been quite inconvenient for the witnesses, counsel -15-
for the Commonwealth, and the court. This factor weighs in the Commonwealth s favor. Regarding whether the delay is purposeful or is caused by the accused, defense counsel stated that the reason for the delay was because he was unable to get in touch with Ms. White in order to get her to testify at trial. Defense counsel informed the court that Ms. White had a trial scheduled three months from when the continuance was requested, and Ms. White s counsel told defense counsel that he could not help defense counsel get in touch with Ms. White. Defense counsel had a telephone number for Ms. White, but she did not answer his telephone call(s). Therefore, defense counsel hoped to contact Ms. White when she came to court for her own trial in an effort to get her to testify in this case. Because counsel had been unable to get in touch with Ms. White, who was an eyewitness to the events in question, this delay was not caused by the accused. Therefore, this factor weighs in Atkins s favor. Because there was no issue concerning counsel s competence, the factor concerning the availability of other competent counsel is not applicable here. Regarding the complexity of the case, this case was not particularly complex. As for whether denying the continuance would lead to identifiable prejudice, it would not because if the case had proceeded to trial, the court was going to play the video recording of Ms. White s suppression hearing testimony with certain portions redacted, per Atkins s request. The portions that were going -16-
to be redacted involved questions about the DUI offense. Again, the parts of the recording to be redacted would be redacted per Atkins s request, so there would have been no prejudice to Atkins from redacting those parts of Ms. White s testimony. Consequently, there was no identifiable prejudice from denying Atkins s motion for a continuance, because the parts of Ms. White s testimony that Atkins would have wanted presented at trial would have been presented by playing the redacted video recording of her suppression hearing testimony. Therefore, weighing all of the factors, the circuit court did not err in denying Atkins s motion for a continuance, and this claim lacks merit. Accordingly, the judgment of the Fayette Circuit Court is affirmed. ALL CONCUR. BRIEF FOR APPELLANT: Erin Hoffman Yang Assistant Public Advocate Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Matthew R. Krygiel Assistant Attorney General Frankfort, Kentucky -17-