United States, 517 U.S. 690, 699 (1996)) (internal citations omitted); see also
RCr 9.78.
The trial court found from Sheriff Folger and Deputy Thacker's
testimony that police had discovered the abandoned SUV, which contained
items that had been stolen from the burglaries earlier that night; that the
police were looking for one black male and two white males in connection with
the burglaries; and that, within a relatively short time period and distance from
the abandoned SUV, Appellant had been knocking on doors looking for a ride
before entering a taxi, which picked up a white male passenger a short
distance away. This Court has consistently held that a law enforcement
officer's testimony alone is enough to constitute "substantial evidence." See
e.g., Payton v. Commonwealth, 327 S.W.3d 468, 471 72 (Ky. 2010); Chavies v. -
Commonwealth, 354 S.W.3d 103, 108 (Ky. 2011); Williams v. Commonwealth,
364 S.W.3d 65, 68 (Ky. 2011). As such, there was substantial evidence to
support the trial judge's findings of fact, and they are conclusive. There was no
clear error by the trial court in regard to its factual findings.
4 Thus, the question we must now address is whether the trial court
appropriately applied its findings of fact to the law when it held that there was
probable cause for Appellant's arrest. To do so, we must determine whether it
was proper for police to stop the taxi. The Fourth Amendment of the United
States Constitution and Section 10 of the Kentucky Constitution protect an
individual from unreasonable searches and seizures. Therefore, to conduct an
investigatory stop, a police officer must have "a reasonable articulable
suspicion" that criminal activity is afoot or that a person the officer encounters
is wanted in connection with a completed felony. Bauder, 299 S.W 3d at 588
(quoting Terry v. Ohio, 392 U.S. 1, 30 (1968)); United States v. Hensley, 469
U.S. 221, 229 (1985). This Court has explained:
A reasonable suspicion is more than an unparticularized suspicion or hunch. Reasonable suspicion, while requiring less of a showing than probable cause, requires at least a minimal level of objective justification for making the stop. Accordingly, the stop of an automobile and the resulting detention of the driver are unreasonable, under the Fourth Amendment, absent a reasonable, articulable suspicion that . . . an occupant is otherwise subject to seizure for violation of the law. The 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, 299 S.W 3d at 591 (citing Terry, 392 U.S. at 27; United States v.
Sokolow, 490 U.S. 1, 7 (1989); Delaware v. Prouse, 440 U.S. 648, 663 (1979);
United States v. Cortez, 449 U.S. 411, 417-18 (1981)) (internal citations and
quotation marks omitted).
Appellant asserts that the police had no reasonable, articulable suspicion
to stop the taxi. He argues that the police only stopped the taxi because it
5 contained one black male passenger and one white male passenger, and that
the passengers were not doing anything illegal at the time the taxi was stopped.
However, Appellant's assertion ignores the totality of the circumstances. While
the races of the taxi passengers was one factor that led police to make the
investigatory stop, there were many others that also must be considered. See
Hampton v. Commonwealth, 231 S.W.3d 740, 747 (Ky. 2007) (discussing that
innocent behavior combined with other circumstances can amount to
reasonable suspicion).
Law enforcement officers were in the midst of their investigation and in
active pursuit of the suspects involved in a series of felony burglaries that
occurred approximately twelve hours earlier. Video surveillance footage
showed two white males and one black male burglarizing the stores. An
abandoned SUV that had earlier evaded the police was discovered, and it
contained various stolen items. Then, not far from the abandoned SUV,
Special Deputy Akers observed a black male, Appellant, on foot looking for a
ride before getting in the taxi and soon thereafter picking up a white male
passenger. Sheriff Folger testified that in his experience, it was not common
for people to be seeking a taxi in that area. He also testified that Special
Deputy Akers had been a Special Deputy for several years, and he had proven
to be a reliable source for receiving such information.
Based on the observations and information provided by Special Deputy
Akers, Sheriff Folger believed there was reasonable suspicion to perform an
investigatory stop of the taxi. Sheriff Folger did not pull the taxi over based on
6 a mere "hunch." Rather, the facts taken together indicate "at least a minimal
level of objective justification for the stop." Id. He had a reasonable,
articulable suspicion that the occupants of the vehicle were responsible for the
burglaries, and, thus, subject to seizure for violation of the law. Moreover, we
must give deference to Sheriff Folger's determination of reasonable suspicion:
Officers may draw on their own experience and specialized training to make inferences from, and deductions about, the cumulative information available to them that might well elude an untrained person . . . . This Court has made clear that due deference must be given to the reasonableness of inferences made by police officers.
Id. at 592 (citing United States v. Arvizu, 534 U.S. 266, 274-74 (2002));
Commonwealth v. Whitmore, 92 S.W.3d 76, 79 (Ky. 2002)). Therefore,
considering the totality of the circumstances, we hold that law enforcement
officers had reasonable articulable suspicion to stop the taxi.
Alternatively, Appellant contends that even if the stop of the taxi was
lawful, the arrest that followed the stop was not. He agrees that only
reasonable suspicion was needed to stop the taxi, but he asserts that probable
cause was required for police to make an arrest. We first note that while we
believe there was probable cause to justify Appellant's arrest, we also think
that this is an exception where police did not need probable cause to justify an
extended detention of Appellant:
The precise limits on investigatory stops to investigate past criminal activity are more difficult to define. The proper . . . test, which is grounded in the standard of reasonableness embodied in the Fourth Amendment, balances the nature and quality of the intrusion on personal security against the importance of the governmental interests alleged to justify the intrusion. When this balancing test is applied to stops to investigate past crimes, we 7 think that probable cause to arrest need not always be required . . . [W]here police have been unable to locate a person suspected of involvement in a past crime, the ability to briefly stop that person, ask questions, or check identification in the absence of probable cause promotes the strong government interest in solving crimes and bringing offenders to justice. Restraining police action until after probable cause is obtained would not only hinder the investigation, but might also enable the suspect to flee in the interim and to remain at large. Particularly in the context of felonies or crimes involving a threat to public safety, it is in the public interest that the crime be solved and the suspect detained as promptly as possible. The law enforcement interests at stake in these circumstances outweigh the individual's interest to be free of a stop and detention that is no more extensive than permissible in the investigation of imminent or ongoing crimes. United States v. Hensley, 469 U.S. 221, 229 (1985).
Even assuming probable cause was required, we hold that it existed.
"To determine whether an officer had probable cause to arrest an individual, we
examine the events leading up to the arrest, and then decide whether these
historical facts, viewed from the standpoint of an objectively reasonable police
officer, amount to probable cause." Maryland v. Pringle, 540 U.S. 366, 371
(2003) (internal citations omitted); see also Commonwealth v. Jones, 217
S.W.3d 190, 196 (Ky. 2006). "Probable cause for arrest involves reasonable
grounds for the belief that the suspect has committed, is committing, or is
about to commit an offense." McCloud v. Commonwealth, 286 S.W.3d 780,
785-86 (Ky. 2009).
After the taxi was stopped, Sheriff Folger was able to identify that
Appellant and Johnson were dressed the same as the burglars were in the
surveillance video. Specifically, Sheriff Folger noted that Appellant was
wearing distinctive black athletic shoes with red and white markings that had
8 been visible in the video. Police also discovered a photograph of a young boy in
Johnson's wallet, which was identical to the photograph found in the SUV.
Johnson claimed that the photograph was of his nephew.
We hold that the facts, viewed from the perspective of a reasonably
objective police officer, established probable cause for Sheriff Folger to believe
that Appellant was a participant in the burglaries. Because the stop of the taxi
and the subsequent arrest of Appellant were both lawful, no evidence was the
fruit of an illegal search or seizure. Thus, we hold that the trial court did not
err in denying Appellant's suppression motion.
B. The Trial Court Did Not Err by Allowing Sheriff Folger to Testify Regarding Special Deputy Akers's Statements
Over Appellant's hearsay objection, the trial court permitted Sheriff
Folger to testify that Special Deputy Akers informed him that he had seen
Appellant going door-to-door looking for a ride before getting in a green taxi,
which shortly thereafter picked up Johnson. Sheriff Folger testified that he
used the information provided by Akers to locate the taxi and pull it over to
investigate Appellant and Johnson as suspects in the burglaries. Appellant
asserts that the trial court committed reversible error when it allowed this
testimony. Specifically, Appellant contends that Akers's statements were
inadmissible hearsay. He further argues that his right under the Sixth
Amendment's Confrontation Clause was violated because he did not have an
opportunity to cross-examine Akers. We disagree.
In regard to investigative verbal acts and hearsay testimony, this Court
has held: 9 The rule is that a police officer may testify about information furnished to him only where it tends to explain the action that was taken by the police officer as a result of this information and the taking of that action is an issue in the case . . . . Such testimony is then admissible not for proving the truth of the matter asserted, but to explain why a police officer took certain actions.
Chestnut v. Commonwealth, 250 S.W.3d 288, 294 (Ky. 2008) (internal citation
omitted). We have further explained that this testimony is limited "to
circumstances where the taking of action by the police is an issue in the case
and where it tends to explain the action that was taken as a result of the
hearsay information." Id. at 294. Moreover, "[t]he standard of review for a trial
court's evidentiary ruling is abuse of discretion." Kerr v. Commonwealth, 400
S.W.3d 250, 261 (Ky. 2013). The test for abuse of discretion is whether the
trial court's decision was arbitrary, unreasonable, unfair, or unsupported by
sound legal principles. Commonwealth v. English, 993 S.W.2d 941, 945
(Ky. 1999).
At trial, Appellant argued that he was illegally arrested and that Sheriff
Folger did not have a sufficient description of the burglary suspects to arrest
Appellant for the crimes. Thus, the actions taken by police were at issue in the
case. As such, we hold that the trial court did not abuse its discretion when it
permitted Sheriff Folger to testify about the information provided to him by
Akers. The at-issue testimony was not offered to prove the truth of what Akers
told Sheriff Folger. Rather, it was offered to explain Sheriff Folger's "motive" for
stopping the taxi and subsequently arresting Appellant. See Chestnut, 250
S.W.3d at 294. The testimony explained why Sheriff Folger thought that the
10 burglary suspects were in the taxi and therefore why he pursued the taxi and
pulled it over. Sheriff Folger's testimony concerned only what he did on the
day in question, not the truthfulness of Akers's statements. See id.
Further, the Confrontation Clause only applies to the right to confront
and cross-examine witnesses when their statements are being used to prove
the truth of the matter asserted. Id. at 295 (citing Crawford v. Washington, 541
U.S. 36 (2004); Norton v. Commonwealth, 890 S.W.2d 632, 635 (Ky.App.1994)).
Since the testimony about Akers's statements was admitted only to explain
Sheriff Folger's actions, Appellant was not denied his right to confrontation.
Thus, the trial court did not err in admitting Sheriff Folger's testimony.
C. The Trial Court Did Not Err by Permitting Officer Stratton to Testify to the Contents of a Lost Surveillance Video
Finally, Appellant contends that the trial court committed reversible
error when it permitted Officer Chris Stratton to testify about surveillance video
from the Parksville Country Store. We review the trial court's evidentiary ruling
for an abuse of discretion. Kerr v. Commonwealth, 400 S.W.3d 250, 261
(Ky. 2013).
Officer Stratton testified that he personally saw the video and that it
showed three males in hooded sweatshirts breaking into the store and
ransacking it. However, the video was never produced to Appellant, and it was
not played for the jury at trial. Appellant asserts that the Commonwealth's
failure to present the original video recording violates the best evidence rule,
KRE 1002, and the Confrontation Clause of the Sixth Amendment.
11 The Commonwealth counters that the surveillance recording was lost or
destroyed by the store owner, Jerry Sinkhorn, before the Commonwealth was
able to obtain it. Sinkhorn testified at trial that he was a new owner of the
store at the time of the burglary and that he was unfamiliar with the operation
of the surveillance recording system. Sinkhorn explained that he inadvertently
taped over or erased the pertinent video recording. As such, the
Commonwealth argues that that Officer Stratton's testimony about the video
was admissible pursuant to KRE 1004(1) because the original was lost or
destroyed. We agree with the Commonwealth.
KRE 1002 provides, "No prove the content of a writing, recording, or
photograph, the original writing, recording, or photograph is required, except
as otherwise provided in these rules . . . ." (Emphasis added.) "Essentially, this
rule requires a party to introduce the most authentic evidence which is within
their power to present." Savage v. Three Rivers Med. Ctr., 390 S.W.3d 104, 114
(Ky. 2012). KRE 1004 states that "[t]he original is not required, and other
evidence of the contents of a writing, recording, or photograph is admissible if:
(1) Originals lost or destroyed. All originals are lost or have been destroyed,
unless the proponent lost or destroyed them in bad faith . . . ." "Other
evidence" as prescribed in KRE 1004 includes any type of secondary evidence,
such as oral testimony, and is not limited to just duplicates of the original. See
Robert G. Lawson, The Kentucky Evidence Law Handbook, § 7.20 [5] (5t1a ed.
Lexis 2013) (citing Evidence Rules Study Committee, Kentucky Rules of
Evidence, p. 111 (Nov. 1989)) ("A satisfactory explanation for nonproduction of
12 the original eliminates the impact of Rule 1002 . . . and leaves the offering
party free to produce whatever secondary evidence he thinks will be most
helpful to his case.").
The burden of proving that an original was lost or destroyed rests with
the offering party. That party is also required to call the last known custodian,
if available, to testify to the loss or destruction of the original. Taulbee v.
Drake, 198 S.W.2d 50 (Ky. 1946); see also Robert G. Lawson, The Kentucky
Evidence Law Handbook, § 7.25[2][b] 5th ed. Lexis 2013). After hearing the
offering party's explanation for the loss or destruction of the original, it is
vcrithin the trial court's discretion to determine whether the loss was in bad
faith. See Robert G. Lawson, The Kentucky Evidence Law Handbook, §
7.25[2][b] (5th ed. Lexis 2013) (citing Evidence Rules Study Committee,
Kentucky Rules of Evidence, p. 111 (Nov. 1989)).
In the present case, the Commonwealth satisfied its obligations by calling
the store owner to testify that he inadvertently lost or recorded over the
surveillance footage. Officer Stratton also testified that he watched the video (
before it was erased. Appellant did not offer any evidence suggesting that the
video was lost or destroyed in bad faith. Thus, we hold that it was within the
trial court's discretion to determine that Officer Stratton's testimony was the
most authentic evidence of the video that the Commonwealth was capable of
presenting and therefore admit the testimony.'
I Additionally, the trial court permitted Appellant to have a missing evidence instruction, which allowed the jury to infer that the lost video would be favorable to his case if it were available. Even if we accepted Appellant's contention that
13 As for Appellant's assertions regarding the Confrontation Clause and the
lost video, as discussed above, the Confrontation Clause only applies to
hearsay matters, which are out of court statements offered to prove the truth of
the matter asserted. KRE 801(c). A statement is defined in part as "nonverbal
conduct of a person, if it is intended by the person as an assertion." KRE
801(a). The burglars' actions on the surveillance video were not intended to be
assertions. Therefore, the video was hot hearsay. Harwell v. Commonwealth,
WL 1103112, at *9 (Ky. 2011). In addition, Appellant had the opportunity at
trial to cross-examine Officer Stratton about his recollection and account of the
video. As such, we hold that there was no Confrontation Clause violation and
the trial court did not abuse its discretion when it permitted Officer Stratton to
testify to what he observed on the video.
III. CONCLUSION
For the aforementioned reasons, we affirm Appellant's convictions and
sentence.
All sitting. All concur.
permitting testimony on the video constituted an abuse of discretion by the trial court, we believe the error would be harmless. RCr 9.24. An evidentiary error may be deemed harmless if the reviewing court can say with fair assurance that the judgment was not substantially swayed by the error. Winstead v. Commonwealth, 283 S.W.3d 678, 688-89 (Ky. 2009). Given the extensive amount of other evidence provided in the case, including another surveillance video that was played for the jury and DNA evidence that linked Appellant to items stolen from the burglarized stores, we can say with fair assurance that the jury was not substantially swayed by Officer Stratton's testimony.
14 COUNSEL FOR APPELLANT:
Jason Apollo Hart, Assistant Public Advocate
COUNSEL FOR APPELLEE:
Jack Conway, Attorney General of Kentucky
David Bryan Abner, Assistant Attorney General