Darden v. Commonwealth

52 S.W.3d 574, 2001 Ky. LEXIS 135, 2001 WL 963964
CourtKentucky Supreme Court
DecidedAugust 23, 2001
Docket1999-SC-0791-DG
StatusPublished
Cited by3 cases

This text of 52 S.W.3d 574 (Darden v. Commonwealth) is published on Counsel Stack Legal Research, covering Kentucky Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Darden v. Commonwealth, 52 S.W.3d 574, 2001 Ky. LEXIS 135, 2001 WL 963964 (Ky. 2001).

Opinions

STUMBO, Justice.

A Todd Circuit Court jury convicted Marcus T. Darden of possession of a controlled substance in the first degree (enhanced by possession of a firearm), possession of a weapon on school property, and possession of marijuana. Darden was sentenced to a total of five (5) years imprisonment. The Court of Appeals, sitting en banc, affirmed his conviction. We granted discretionary review and now reverse and remand the case to the Todd District Court.

Officer Moberly, a policeman with the Elkton Police Department, testified that he, along with two other officers, provided security for a high school football game on September 15, 1995. At some time during the game he responded to a call from Sergeant Marklin regarding a complaint from the school principal that an odor of marijuana was emanating from an adjacent baseball field. Moberly was instructed to approach the baseball field by patrol car. Upon entering the lot, Moberly stated he observed five black males walking from the baseball field to the parking lot and watched them get in a car and drive away together. In accordance with Marklin’s directive, he followed the ear and stopped the vehicle approximately 150 yards from the gate of the school. When Appellant rolled down the window, Moberly noticed the strong smell of marijuana. Moberly then asked if any drugs or weapons were in the car, to which Appellant directed him to the glove compartment. A consensual search revealed drugs, marijuana and cocaine, drug paraphernalia and weapons.

Since Appellant was a minor at the time of the offense, he was initially proceeded against in the juvenile session of the Todd District Court. On October 5, 1995, the Commonwealth moved to transfer the ease [576]*576to the circuit court for trial as an adult due to his possession of a weapon on school property pursuant to KRS 635.020(4). The court granted the motion and Darden was indicted on March 13, 1996. Testifying in his own defense, Appellant denied both knowledge of the car’s contents and any incriminating statements that were attributed to him by Moberly. He also testified that his older brother, who was present in the car at the time of the stop, later admitted to him that the items found were his.

SUPPRESSION OF EVIDENCE

We first address the issue of the search and seizure of the evidence found in the car. Darden argues that the automobile stop and related search were unreasonable for want of objective indicia particular to its subject and want of authority to arrest for the crime ostensibly being investigated. Essentially, Darden asserts that there was no individualized suspicion present here because Moberly did not smell marijuana on the school grounds himself and saw no unusual activity. He therefore could not have had a reasonable and articulable suspicion regarding Darden’s behavior. Moreover, says Darden, the stop was ostensibly implemented for investigation of mere marijuana possession, a misdemean- or that is exempt from warrantless arrest unless actually committed in the presence of an officer. KRS 218A.1422, KRS 431.005. Darden says that since the stop was illegal, the fruits of that stop, inclusive of both tangible evidence and any incriminating statements attributed to Appellant, should have been suppressed.

The Commonwealth argues, and we agree, that it was reasonable for the officer to assume that the people who had just left the baseball field may have been the source of the marijuana smoke given the fact there was no one else on the baseball field or in the parking lot. In Creech v. Commonwealth, Ky.App., 812 S.W.2d 162, 163-64 (1991), the Court of Appeals approved an investigatory stop after the officer observed the defendant’s truck, late at night, in the extreme corner of the club’s parking lot, with two occupants hunched over, facing each other. Further, in Graham v. Commonwealth, Ky.App., 667 S.W.2d 697, 699 (1983), the Court of Appeals upheld an investigatory stop, based upon an anonymous tip, to investigate a possible misdemeanor. In the case at bar, the tip was not even anonymous, but came from the school principal, surely a reliable source. Moberly had a reasonable suspicion that the subjects in the car were involved in criminal activity such that a stop of the car for purposes of investigating the possible criminal behavior was justified. We do not find the holding of the trial court to be clearly erroneous. Likewise, we affirm the holding of the trial court and the Court of Appeals with regard to this issue.

“USE” OF A FIREARM

Darden argues that the trial court erred in allowing the case to be transferred from juvenile court to circuit court because unlawful possession of a firearm is not actual use of a firearm and does not satisfy KRS 635.020(4). KRS 635.020 lists several criteria to be met before a child can be tried as an adult in circuit court. Subsection (4) allows the case to be transferred to circuit court if: 1) the child is charged with a felony; 2) the child is fourteen (14) years old; and 3) a firearm was used in the commission of that felony. The Commonwealth argues that because Darden was charged with the felony of possession of a firearm on school property, a violation of KRS 527.070, the statute which allows him to be tried in circuit court is automatically activated. According to the Commonwealth, the act of possessing the weapon is the illegal act itself and constitutes “use in the commission of [577]*577the offense” as required by KRS 635.020(4). Therefore, mere possession of a weapon on school property would allow the automatic transfer to circuit court and allow him to be tried as an adult. The trial court found this convincing, as did the Court of Appeals. We believe this result to be illogical and entirely against the intent of the legislature.

In Haymon v. Commonwealth, Ky., 657 S.W.2d 239 (1983), this Court held that the term “use of a weapon” in the burglary statute was ambiguous because it is subject to two entirely different interpretations, presence and actual use, and defendants are entitled to the benefit of the ambiguity:

The Commonwealth contends that possession of a weapon involves its use; that the intent of the General Assembly was to deter the involvement or presence of weapons in the commission of crimes. Admittedly, the word “use” is subject to such a construction.
On the other hand, the General Assembly took pains to distinguish between being “armed” with a weapon and the “use of a weapon” in the burglary statute.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Chipman v. Commonwealth
313 S.W.3d 95 (Kentucky Supreme Court, 2010)
Darden v. Commonwealth
52 S.W.3d 574 (Kentucky Supreme Court, 2001)

Cite This Page — Counsel Stack

Bluebook (online)
52 S.W.3d 574, 2001 Ky. LEXIS 135, 2001 WL 963964, Counsel Stack Legal Research, https://law.counselstack.com/opinion/darden-v-commonwealth-ky-2001.