Joseph Barrier v. Commonwealth of Kentucky ( 2021 )

RENDERED: AUGUST 20, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-0605-DG
JOSEPH BARRIER APPELLANT
APPEAL FROM RUSSELL CIRCUIT COURT
v. HONORABLE VERNON MINIARD, JR., JUDGE
ACTION NO. 20-XX-00001
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
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BEFORE: CLAYTON, CHIEF JUDGE; ACREE AND LAMBERT, JUDGES.
CLAYTON, CHIEF JUDGE: Joseph Barrier appeals from the Russell Circuit
Court’s decision which affirmed the Russell District Court’s order denying his
motion to suppress evidence in a driving under the influence (“DUI”) case. The
issues involve whether the Russell Circuit Court erred in affirming the district
court’s decision to allow testimony according to Kentucky Rule of Criminal
Procedure (RCr) 8.27(3)(a) and whether the stop of Barrier’s vehicle fell within the
constitutional limits of the Fourth Amendment. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On September 21, 2019, Barrier pulled his white Ford F-250 truck
into the Jamestown Christian Church parking lot in Jamestown, Russell County,
Kentucky to ask for directions to a location in Wayne County, Kentucky. Upon
entering the parking lot, Barrier spoke to Victor Cooper, who was at the church
cleaning up after a wedding event. In interacting with Barrier, Cooper became
aware that Barrier was confused as to where he was originally from and stated that
“[Barrier] seemed like he was somewhere else.” Cooper then informed his
brother-in-law, Deputy Nathan Bradshaw, who was also at the church, that he
should call the vehicle in as he believed Barrier was “under the influence of
something.”
Deputy Bradshaw, who had witnessed the white truck exiting the
parking lot, phoned dispatch and reported the vehicle as having a driver who was
potentially under the influence. Approximately ten minutes later, Deputy
Bradshaw left the church parking lot and located the white truck sitting at a
convenience store. He then phoned dispatch again to update them as to the
vehicle’s current location. Dispatch, in turn, radioed Officer Heath Tarter of the
Jamestown Police Department. Officer Tarter was advised to be on the lookout for
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a full-sized, white, four-door pick-up truck with a possibly intoxicated driver and
with a last known location of the convenience store.
Upon arriving at the location and identifying the vehicle, Officer
Tarter approached the vehicle and found the appellant in the driver’s seat. During
his encounter with Barrier, Officer Tarter immediately smelled alcohol. Officer
Tarter inquired if Barrier had been drinking, to which Barrier responded that he
had had “several” that night. The officer then conducted two field sobriety tests,
both of which indicated that Barrier was intoxicated. Officer Tarter informed
Barrier of implied consent, and Barrier refused a blood test. Barrier was then
placed under arrest for DUI.
Barrier was ultimately charged with DUI, First Offense, which was
later amended to DUI, Second Offense. Prior to Barrier’s trial in Russell District
Court, Barrier filed a motion to suppress evidence. The district court conducted a
suppression hearing during which Barrier objected to the testimony of Cooper and
Deputy Bradshaw. The district court denied Barrier’s motion to suppress and
Barrier entered a conditional guilty plea. Barrier appealed to the Russell Circuit
Court, which affirmed the district court’s denial of the motion to suppress. Barrier
now appeals that order on discretionary review.
Further facts will be discussed as relevant to the arguments on appeal.
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ANALYSIS
1. Testimony During Suppression Hearing
Barrier first argues that the court erroneously allowed the testimony of
Cooper and Deputy Bradshaw during the suppression hearing. “The trial court’s
decision whether to strike all or part of the witness’s testimony is reviewed for
abuse of discretion.” Adkins v. Commonwealth, 96 S.W.3d 779, 789 (Ky. 2003).
The test for abuse of discretion is “whether the trial judge’s decision was arbitrary,
unreasonable, unfair, or unsupported by sound legal principles.” Commonwealth v.
English, 993 S.W.2d 941, 945 (Ky. 1999).
RCr 8.27 discusses suppression motion practice. In particular, RCr
8.27(3)(a) states that:
[e]xcept for good cause shown, not later than forty-eight
(48) hours before a suppression hearing, a party who
reasonably anticipates calling a person to testify as a
witness at the suppression hearing shall furnish every
other party with a copy of all statements of such a person
(other than the defendant) that relate to the subject matter
of that person’s anticipated testimony at the suppression
hearing.
Barrier contends that, because the Commonwealth did not provide a written copy
of Cooper’s and Deputy Bradshaw’s statements prior to the hearing, the trial court
erred in allowing them to testify.
We disagree. RCr 8.27(3)(e) states that “[i]f the party who called the
witness[es] willfully disobeys an order to produce or deliver a statement, the court
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must strike the witness’s testimony from the record.” (Emphasis added.) This
portion of the rule makes clear that the trial judge is only required to strike the
testimony of a witness if a party stands in direct defiance of an order to produce or
deliver a statement of that witness’s testimony.
We have reviewed the record and find that no such order was issued
by the trial court to the Commonwealth. Thus, the trial court was under no
obligation to strike the testimony of Cooper or Deputy Bradshaw. Further, the trial
court specifically noted that the Commonwealth had provided an oral notification
to Barrier about its intent to call both Cooper and Deputy Bradshaw as witnesses
and advised Barrier of the content of their testimony. Therefore, the trial court
found that the Commonwealth had not acted maliciously or attempted to withhold
information from Barrier. Because the trial court had no duty to strike the
testimony provided by Cooper and Deputy Bradshaw and found good cause to
allow the testimony at the suppression hearing, we find that the trial court did not
abuse its discretion in allowing such testimony.
2. Constitutionality of Investigatory Stop
Barrier next challenges the constitutional validity of Officer’s Tarter’s
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stop in this case. In Collier v. Commonwealth, a panel of this Court stated that
“[a]n investigatory stop under Terry v. Ohio1 is permissible on less than full
1
Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
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probable cause to arrest where an officer has a reasonable, articulable suspicion
that a particular person encountered was involved in or is wanted in connection
with a completed felony.” 713 S.W.2d 827, 828 (Ky. App. 1986) (citing U.S. v.
Hensley, 469 U.S. 221, 231, 105 S. Ct. 675, 681, 83 L. Ed. 2d 604 (1985)). When
reviewing a trial court’s order regarding whether certain evidence should be
suppressed, we defer to the trial court’s factual findings unless they are clearly
erroneous and we review de novo the trial court’s application of the law to the facts
found. Welch v. Commonwealth, 149 S.W.3d 407, 409 (Ky. 2004).
Barrier first contends that Officer Tarter’s stop of his vehicle was
based upon an anonymous tip with no corroborating evidence, and thus could not
withstand constitutional scrutiny under Terry because it did not have “sufficient
indicia of reliability.” Barrier argues that, because Deputy Bradshaw never stated
his name to the dispatcher and Officer Tarter’s only information was that a
“deputy” had made the call, his tip was an anonymous one and thus was not
permissible.
As discussed by the Kentucky Supreme Court, “[t]he significance of
whether [the] tip was generated from [an] ‘anonymous’ informant[] or not bears
upon our overall determination of reliability.” Commonwealth v. Kelly, 180
S.W.3d 474, 477 (Ky. 2005). Indeed, “[b]efore an investigating officer can rely on
an anonymous tip as part of his basis for reasonable suspicion, that tip must have
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sufficient indicia of reliability.” Henson v. Commonwealth, 245 S.W.3d 745, 748
(Ky. 2008) (citations omitted). Specifically, “[i]n cases involving identifiable
informants who could be subject to criminal liability if it is discovered that the tip
is unfounded or fabricated, such tips are entitled to a greater ‘presumption of
reliability’ as opposed to the tips of unknown ‘anonymous’ informants (who
theoretically have ‘nothing to lose’).” Kelly, 180 S.W.3d at 477 (citation omitted).
In this case, we find Barrier’s argument to be unconvincing, as the
setting and circumstances of this case do not support a conclusion that the tip was
truly “anonymous.” First, Officer Tarter knew that the information and facts had
passed through dispatch. The trial court found that the dispatcher had identified
Deputy Bradshaw based on his voice and had relayed to Officer Tarter that a
deputy had called in the tip relating to Barrier’s vehicle. Second, Officer Tarter
knew that the source of the tip was a “deputy,” which further established the
reliability of the facts. As discussed in Kelly, the foregoing “information alone
raises a strong presumption that [such] informant[] could likely be located in the
event that [his] tip was determined to be false or made for the purpose of
harassment.” Id. at 477. Third, Officer Tarter knew that the facts had come from a
source who had witnessed the alleged criminal activity. Finally, Officer Tarter was
able to locate the white, four-door Ford F-250 pick-up truck precisely where the
informant had predicted the vehicle would be. Further, the fact that Deputy
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Bradshaw was identified to be called as a witness demonstrates that he was able to
be identified as the informant and his tip was, therefore, anything but anonymous
and generated from an identifiable informant.
Barrier’s argument also focuses on a supposed lack of a “predictive
element” in the information provided by Deputy Bradshaw. Barrier cites Henson,
in which case the Kentucky Supreme Court stated that a tip that did not provide
details “. . . such as where the car would be located or the suspects’ destination or
future actions. . .” was insufficient to allow an officer to corroborate to make a tip
reliable. 245 S.W.3d at 750. Further, the Henson Court stated that the absence of
predictive information, such as where the defendant would be and what he would
be doing, was “[p]articularly noteworthy.” Id.
Here, we again find Barrier’s argument to be unconvincing. Firstly,
Deputy Bradshaw’s second call informed dispatch that the vehicle could be found
at the local convenience store where it was ultimately discovered. Secondly,
Barrier had stated that he intended to travel to Wayne County, thereby disclosing
his intended destination. This information was also relayed to Officer Tarter.
Thirdly, Deputy Bradshaw’s tip included predictive information that Barrier would
be operating a vehicle while under the influence. Deputy Bradshaw’s tip provided
information on the driver’s state, a description of the vehicle, and predictive
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information that the vehicle would be present at the convenience store. Thus, we
affirm as to this argument.
Barrier next argues that Officer Tarter had no reasonable articulable
suspicion that Barrier was involved in criminal activity. In deciding whether an
officer possessed reasonable suspicion to conduct a Terry stop, “[t]he court must
consider the totality of the circumstances in determining whether a police officer
had a particularized and objective basis for suspecting that a person stopped may
be involved in criminal activity.” Bauder v. Commonwealth, 299 S.W.3d 588, 591
(Ky. 2009) (citing U.S. v. Cortez, 449 U.S. 411, 417-18, 101 S. Ct. 690, 695, 66 L.
Ed. 2d 621 (1981)).
Barrier first argues that the description of his vehicle could have
potentially matched hundreds of other similar vehicles in Russell County. This
argument is particularly weak given that the events of the case at bar took place
near midnight, which would greatly diminish the amount of traffic in smaller
towns. Further, the vehicle matching that description was found precisely where
Deputy Bradshaw’s tip said it would be located. Therefore, we find this argument
to be without merit.
Secondly, Barrier argues that the Commonwealth presented no
evidence that Barrier was operating the vehicle when the stop took place. While
Barrier cites this Court to several cases wherein a defendant was not observed or
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witnessed to be operating a vehicle, in this case the Commonwealth produced two
witnesses who testified that they had seen Barrier operating the vehicle. While
Officer Tarter did find the vehicle legally parked, the testimony of Deputy
Bradshaw illustrates that Barrier had driven the vehicle to the convenience store.
Moreover, Cooper identified Barrier at the suppression hearing as the driver of the
vehicle and testified that he had witnessed Barrier drive up to the church parking
lot as well as leave the parking lot. Moreover, Barrier was seated in the driver seat
and he had previously requested directions to Wayne County. This request implies
an intent to continue operating the vehicle to that location.
Thus, based on the totality of the circumstances, we believe that the
findings of the district court were supported by substantial evidence that Officer
Tarter had a reasonable articulable suspicion to conduct a temporary stop of
Barrier’s vehicle and that the circuit court did not err in its decision to uphold the
district court’s order in denying the motion to suppress evidence.
Accordingly, the order of the Russell County Circuit Court is
affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Rhett B. Ramsey Terran Cross Helm
Monticello, Kentucky Jamestown, Kentucky
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