RENDERED: FEBRUARY 22, 2007 NOT TO BE PUBLISHED
*pew Court of 2005-SC-000831-MR 1,..141‘ IVA II C-4-15--200-7
RAYMOND FREDERICK PATTERSON APPELLANT
APPEAL FROM,JEFFERSON CIRCUIT COURT HONORABLE STEPHEN P. RYAN, JUDGE INDICTMENT NOS. 03-CR-2710 AND 03-CR-3282
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
This appeal is before the Court as a matter of right. The Appellant, Raymond
Frederick Patterson (Patterson), having been convicted of one count of Burglary in the
First Degree, two counts of Burglary in the Third Degree and Persistent Felony
Offender, for a total of twenty years imprisonment.
I. Background
On September 11, 2003, Detective Gosney noticed Patterson outside Rascal's
Bar sometime after 1:00 a.m. in the 2200 block of Frankfort Avenue. Patterson
attempted to enter the bar, which appeared to be closed at the time. The detective
followed him in an unmarked vehicle, while Patterson walked east along Frankfort
Avenue with another man. They split up in an alley, and Detective Gosney followed
Patterson west on Frankfort Avenue, but stopped at a railroad crossing. He lost sight of
Patterson, but continued to search for him. Fifteen to twenty minutes later, a police dispatcher announced that a burglar
alarm had alerted police to the Weber Group, a local architecture firm on Frankfort
Avenue. Detective Gosney responded to the scene, where he met other officers who
advised him that they had found a broken window, blood, and a shoe print. Still
suspicious of Patterson, Detective Gosney resumed looking for him.
Twenty to thirty minutes later, Detective Gosney stopped at a gas station on
Brownsboro Road. While he was refueling his cruiser, he saw Patterson walk north
towards a Thornton's gas station. Patterson stopped, walked behind a Rally's
restaurant, and then returned a few minutes later. As Patterson approached the door;of
Thornton's, Detective Gosney confronted him and identified himself as a police officer.
He asked Patterson where he had been, but Patterson did not respond. Detective
Gosney noticed that Patterson had what appeared to be fresh cuts on his right arm and
forehead, and he asked Patterson how he received those cuts. He then summoned an
officer at the scene of the Weber Group burglary and verified that police had found
blood at the Weber Group building, and another officer observed that the pattern of
Patterson's shoe print was similar to shoe prints left at the scene.
Detective Gosney handcuffed Patterson and performed a pat down search. He
noticed bulges in Patterson's front pockets, which sounded metallic. Detective Gosney
asked Patterson what was in his pocket, and he suggested that the detective remove
the items. Detective Gosney removed eight watches, one watchband, one bracelet, and
one coin pendant. Patterson was arrested.
Officers transported Patterson to the district substation. Detective Gosney and
Officer Anthony Scott searched the area around Rally's and discovered a small
zippered case containing a pistol in some bushes behind the restaurant. Detective Chris Horn photographed Patterson at the substation. At the time, he
thought that Patterson was not under arrest, so he released him hoping to obtain more
evidence which might connect him with the Weber Group burglary.
Detective Horn remained attentive to the police radio, hoping that he would learn
where Patterson had stolen the watches. At about 10:00 a.m., the radio dispatcher
announced a burglary at the Jones Bargain Center on Brownsboro Road. Detective
Horn responded to the scene where he met the owner, Ira Jones, who explained that
someone had pried open the basement door. He reported several items as stolen,
including several watches and a .25 caliber German pistol in a suede case.
Officers showed Jones the watches they had taken from. Patterson and the gun
found in the bushes behind Rally's; Jones identified them as those stolen from the
Jones Bargain Center.
On September 15, 2003, Detective Horn and Detective Brian Walker arrested
Patterson and charged him with burglary in the third degree (Weber Group) and
burglary in the first degree (Jones Bargain Center). He apparently made bond.
On or about October 21, 2003, someone broke into the James Fruit Market on
Frankfort Avenue and stole approximately $6 and a jacket. The burglar was caught on
surveillance video; upon viewing the tape, Detective Walker recognized the burglar as
Patterson.
On October 29, 2003, Detective Walker and Detective Horn drove to Patterson's
residence, where they left a business card and asked Patterson to come to the station
and speak with them. Later that day, Patterson called and agreed to come to the
station with an attorney, but did not appear. A warrant was obtained and he was
arrested later that evening.
3 Patterson was subsequently convicted of one count of burglary in the first degree
and two counts of burglary in the third degree. The jury also found Patterson guilty of
being a persistent felony offender in the first degree (PF01). His sentence was fixed at
ten years for the burglary in the first degree, enhanced to twenty by the PF01 and one
year for each count of burglary in the third degree, enhanced to ten years for each count
by PF01. Following his trial, Patterson entered into a conditional guilty plea pursuant to
RCr 8.09 and North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160. (1970), to possession
of a handgun by a convicted felon. The court sentenced him to ten years on that count.
The court ordered that the sentences on possession of a firearm by a convicted felon,
first-degree burglary and third-degree burglary convictions were to run concurrent for a
total sentence of twenty years. Patterson appeals these convictions as a matter of right.
Ky Const. Sec. 110(2)(b).
II. Analysis
Patterson raises several issues in this appeal: the denial of his motion to sever
his burglary charges; the trial court's failure to suppress evidence; the trial court's
admission of evidence that had not been provided in pre-trial discovery; the trial court's
denial of Patterson's motion fora mistrial or an admonition to the jury; and the trial
court's instructions to the jury.
A. Joinder of Charges
Patterson argues that the three burglary charges should have been severed for
trial. "A conviction resulting from a trial in which a motion [to sever the trials] has been
denied will be reversed on appeal only if the refusal of the trial court to grant such a
severance is found to amount to a clear abuse of discretion and prejudice to the defendant is positively shown." Spencer v. Commonwealth. 554 S.W.2d 355, 377 (Ky.
1977). Additionally, RCr 6.18 states the relevant rule:
Two or more offenses may be charged in the same complaint of two or more offenses whether felonies or misdemeanors, or both, may be charged in the same indictment or information in a separate count for each offense, if the offenses are of the same or similar character or are based on the same acts or transactions connected together or constituting parts of a common scheme or plan.
Patterson argues that although the robberies all occurred at night, they involved
different types of businesses and different methods of entry, and that the James Fruit
Market burglary occurred a month later and involved a different lead investigator.
Despite some minor differences, the burglaries are clearly of "the same or similar
character." All of the burglaries took place after hours at commercial businesses. The
Weber Group burglary and the James Fruit Market burglary were committed on the
same street, within the same block. The Weber Group burglary and the Jones Bargain
Center burglary occurred on the same day. Given these substantive connections and
similarities between the three burglaries, the charges were properly joined under RCr
6.18.
B. Suppression Issue
A protective search for weapons is permissible during the course of an
investigative stop when the police officer has a reasonable belief that the person may
be armed and dangerous. Patterson concedes this point, but argues that Detective
Gosney lacked the sufficient "reasonable suspicion" to perform a pat down for weapons.
Terry v. Ohio, 393 U.S. 1, 88 S.Ct. 1868 (1968).
At the suppression hearing held on the first day of trial, Detective Gosney
testified that he suspected Patterson of committing a series of burglaries; that he saw
Patterson a short distance from the Weber Group burglary; that he knew that officers 5 had found blood and a shoe print at the scene; that Patterson had fresh cuts on his
arms and forehead; and that Patterson's shoe print looked similar to a shoe print found
at the scene. Terry specifies that a protective search for weapons is only permissible
during the course of an investigative stop when the police officer has a reasonable
belief that the person may be armed and dangerous. 392 U.S. at 30-31, 88 S.Ct. a
1884-85. Given the information that Detective Gosney had, he could reasonably
suspect Patterson of being armed, thus giving him the right to do the pat down search
under Terry. While performing the pat down search, Detective Gosney felt the bulge in
Patterson's pocket, and Patterson actually invited him to reach in and take out what was
in his pockets. This is when the watches were discovered. Not only did Detective
Gosney act properly in performing the pat down search, Patterson also gave his
consent to a search of his pockets. "The Fourth Amendment test for a valid consent to
search is that the consent be voluntary...." Commonwealth v. Erikson, 132 S.W.3d 884,
888 (Ky. App. 2004). Patterson has not denied that he gave his consent and has not
suggested that his consent was extracted by coercion or deception. The motion to
suppress was properly denied.
C. Admitting Evidence Not Provided in Pre-Trial Discovery
Patterson alleges that the trial court improperly permitted the Commonwealth to
introduce evidence that had not been provided in pre-trial discovery: blood samples, a
shoe, and test firing of the gun.
i. Blood and Shoe Evidence
The Commonwealth claims that the issue about the blood and shoe has not been
preserved because there is no record of the trial court's ruling. Before this Court
addresses whether the evidence was properly admitted, it must first determine whether
6 the issue has been sufficiently preserved for appellate review. A motion in limine
resolved by an order of record is sufficient to preserve error for appellate review. KRE
103(d)(2); see also Lanham v. Commonwealth, 171 S.W.3d 14, 20 (Ky. 2005).
June 4, 2004, Patterson filed a discovery motion seeking, among other things, the
report of the Evidence Technician Unit (ETU). At a pre-trial hearing on June 7, 2004,
Patterson's counsel mentioned that the ETU was possibly missing from the discovery
materials. On the morning of trial, May 11, 2005, Patterson orally moved to suppress
the blood swabs collected at the scene of the Weber Group burglary and from his shoe,
arguing that he had still not been provided with the ETU report. Patterson argued that
the information provided in discovery did not disclose whether the blood that was
at the Weber Group was inside or outside of the building, did not reveal who collected
the shoe, and did not reveal who performed the testing. His primary objection, however,
was with the lack of disclosure of who collected the blood at the scene of the Weber
Group burglary. The prosecutor then discovered in the file that ETU technician Jennifer
Rehm had collected the blood and immediately disclosed this information. Patterson
claims that, at trial, he contemporaneously objected to the admissibility of the ETU
report and that the trial court overruled this objection.
The Commonwealth argues that the portions of the tape regarding the court's
ruling are silent and that Patterson's argument is not preserved because neither a
bystander bill, CR 75.14, nor a narrative statement, CR 75.13, were filed. A review of
the tape reveals that the record is in fact not silent and that the judge's ruling on
Patterson's motion is clearly audible. This error is probably the result of a malfunction in
the copying of the tape for the Commonwealth. Had the Commonwealth listened to the
original tapes, it would have discovered this error. The issue having been adequately
7 •
preserved, the Court must determine whether the trial court improperly admitted
evidence that had not been provided in pre-trial discovery.
Patterson claims that the Commonwealth failed to produce a report from the
ETU. Defense counsel noted in a pre-trial conference that she believed a report from
the ETU was missing concerning the collection of blood at one of the scenes. Though
the prosecutor assured defense counsel that they would review the file and provide the
information, it still had not been provided by the day of trial. On May 11, 2005, defense
counsel moved to suppress the blood swabs collected at the Weber Group and the ,
shoe taken from Patterson because the Commonwealth had repeatedly failed to turn
over the ETU report concerning the location and collection of this evidence.
same hearing, the Commonwealth finally provided several pieces of discovery not
previously provided, including the ETU report.
The trial court denied the motion to suppress and indicated to Patterson that it :
would give him the opportunity to speak with Technician. Rehm before she testified.
Defense counsel then objected to the admission of the blood and shoe evidence
because the Commonwealth had not complied with pre-trial discovery rules. During
Rehm's trial testimony, defense counsel renewed her objection to the admission of the
blood and shoe evidence. The Commonwealth argued that appropriate remedial
measures had been taken by turning over the ETU report and by permitting defense
counsel to interview Rehm prior to her testimony. The trial court overruled the objection
and permitted the Commonwealth to introduce the evidence.
The trial court did not abuse its discretion in admitting the blood and shoe
evidence considering that it was produced in advance of the testimony by the ETU
expert and the trial court allowed the defense attorney to speak with the ETU witness .
8 before she testified. There was ample opportunity to cross examine the witness or to
move for a continuance if one were needed to challenge the evidence. This clearly
comports with RCr 7.24(9), which states:
If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this rule or an order issued pursuant thereto, the court may direct such party to permit the discovery or inspection of materials not previously disclosed, grant a continuance, or prohibit the party from introducing in evidence the material not disclosed, or it may enter such other order as may be just under the circumstances.
As Patterson concedes in his brief, "a discovery violation justifies setting aside a
conviction only where there exists a reasonable probability that had the evidence been
disclosed the result at trial would have been different.'" Weaver v. Commonwealth, 955
S.W.2d 722, 725 (Ky. 1997) (quoting Wood v. Bartholomew, 516 U.S. 1, 5, 116 S.Ct. 7,
10, (1995)). In this case, there was substantial evidence against Patterson. He had
fresh cuts, was in possession of watches and jewelry obtained from the Jones Bargain
Center, and was caught on video breaking into the James Fruit Market. It is unlikely that
having early possession of an ETU report would have appreciably changed the outcome
of Patterson's trial. The Commonwealth argues that Patterson's trial counsel had the
evidence needed to prepare for trial. Defense counsel acknowledges she had a copy of
the DNA report which showed that samples taken at the Weber Group matched those
taken from Patterson, the defense was aware that Jennifer Rehm was to be called as a
witness, and they acknowledge that an evidence property slip identified Rehm as the
person who had deposited the evidence. The only thing missing at pre-trial was the
ETU report, and the trial court properly remedied that by giving the defense an
opportunity to interview Rehm prior to her testimony. ii. Test Firing of the Gun
During Detective Chris Horn's testimony, the prosecutor asked if the detective
had checked to see if the gun found in the bushes at the Rally's restaurant was
operational. Defense counsel objected, stating that the Commonwealth had not
provided these test results in pre-trial discovery. The prosecutor argued it was just
testimony, not real test results, and that the detective could dikuss the actions he took.
The court ruled that the Commonwealth could ask if the gun was operational.
Patterson argues that the test firing of the gun constituted a scientific test or
experiment to determine whether it was operational, and as such, should have been
excluded since the defense did not have access to the test results.
The trial court did not abuse its discretion in allowing testimony that the gun was
operational. Since showing that the gun was operational and thus a deadly weapon
was necessary to prove burglary in the first degree, KRS 511.020(1)(a), it was
predictable that the gun would be fired. The question is whether failing to disclose in
pre-trial discovery that it had been fired and was operational is error sufficient to justify
setting aside a conviction. Here, pre-trial disclosure would have made a difference only
if the gun was not operational. Disclosing that it was operational would not have caused
the result at trial to be different. Patterson never requested to test fire the gun. Thus
the trial court's admission of the testimony is not error.
D. Mistrial and Admonishment
The trial judge properly overruled Patterson's motion for a mistrial and
admonition. On the morning of trial, Patterson's counsel made an oral motion in limine
to preclude the prosecutor from introducing evidence that the police suspected him of
committing a "string of burglaries." The prosecutor wanted to introduce evidence that
10 Patterson was "under surveillance" and that there had been a "rash of other burglaries
in the area." The trial judge ruled that the prosecutor could introduce evidence that
Patterson was "under surveillance." During the trial, Detective Gosney testified that on
this particular evening, he was on burglary detail in the Brownsboro Road area When
asked what his duties were with respect to the detail, Detective Gosney stated that they
had a target individual and that if they could surveil him, they were to bring him in When
asked who this target individual was, Detective Gosney replied, "Raymond Patterson."
Patterson's counsel objected and approached the bench. Patterson asked for a mistrial
based on his belief that Detective Gosney's testimony had implied that Patterson was 'a
suspect in other burglaries. The trial court found no grounds for a mistrial, but instructed
the Commonwealth to move on and to avoid this topic. Defense counsel then requested
an admonition to the jury, but admitted that it was not sure what to tell them. The trial
judge stated he did not believe a line had been crossed and that an admonition would
only bring more attention to the testimony. The court overruled Patterson s request for
an admonition, but instructed the Commonwealth to "proceed with caution."
The granting of a mistrial is discretionary with the trial judge. Chapman v.
Richardson, 740 S.W.2d 929 (Ky. 1987). Absent an abuse of discretion, an appellate
court will not disturb the ruling of the trial court. Furthermore, a mistrial is appropriate
only where the record reveals "a manifest necessity for such action or an urgent or real
necessity." Bray v. Commonwealth, 68 S.W.3d 375, 383 (Ky. 2002) (citing Clay v.
Commonwealth, 867 S.W.2d 200, 204 (Ky. App. 1993)). Detective Gosney's testimony
was necessary to explain why the officers approached Patterson in the first place.
Clearly, officers may testify to information that explains the action they took. Daniel v.
11 Commonwealth, 905 S.W.2d 76, 79 (Ky.1995). The trial court properly denied
Patterson's requests for a mistrial and an admonition.
E. Jury Instructions
Patterson alleges that the trial court failed to give proper jury instructions,
specifically, that the court improperly instructed the jury on Patterson's right to remain
silent and also improperly instructed the jury in a manner consistent with the
presumption of innocence and burden of proof. In the instructions, the last paragraph of
Instruction No.5—Presumption of Innocence reads as follows: "The defendant is not
compelled to testify, and the fact that he does not cannot be used as an inference of
guilt and should not prejudice him in any way." (emphasis added). Patterson requested
that the language in the instruction be changed from "should" to "shall." Patterson
argues that "shall" is the language required by RCr 9.54(3). 1
This court believes that there is no significant difference between "shall" and
"should" in this particular instance. The given instruction mirrors the model instruction
set forth in 1 Cooper, Kentucky Instructions to Juries (Criminal) § 2.04A (1999).
Furthermore, the word "should" has been utilized in various trials and quoted by this
court in published opinions. See, e.g.,Radand v. Commonwealth, 191 S.W.3d 569, 591
(Ky. 2006) and Commonwealth v. Hager, 41 S.W.3d 828 (Ky. 2001). The language in
RCr 9.54(3) is not mandatory. It explicitly states that the tendered instruction use
wording that is "to the effect" of the rule. We believe that the instruction given in this
instance satisfies that requirement.
1"The instructions shall not make any reference to a defendant's failure to testify unless so requested by the defendant, in which event the court shall give an instruction to the effect that a defendant is not compelled to testify and that the jury shall not draw any inference of guilt from the defendant's election not to testify and shall not allow it to prejudice the defendant in any way." RCr 9.54(3). 12 The instruction given with regard to the innocence and burden of proof stated
that the jury would find him "guilty...if, and only if, you believe from the evidence beyond
a reasonable doubt all of the following...." Defense counsel submitted instructions that
state, "You will find the defendant, Raymond Patterson, not guilty, under this instruction
unless you believe from the evidence alone and beyond a reasonable doubt all of the
following...." Patterson argues that his submitted instructions are more in line with the
presumption of innocence.
The constitutionality of the trial court's given instructions was affirmed in Carter v.
Kentucky, 450 U.S. 288, 101 S.Ct.1112; 67 L.Ed.2d 241 (1981). In Carter, the trial
judge refused a defendant's request to instruct the jury that 'Mlle defendant is not
compelled to testify and the fact that he does not cannot be used as an inference of guilt
and should not prejudice him in any way." Id. at 289. The judge is required to give such
an instruction, when requested by the defendant, and the given instruction must
"minimize the danger that the jury will give evidentiary weight to a defendant's failure to
testify." Id. at 305. Carter does not require, however, that the trial court use the exact
language proposed by the defendant.
To presume that a jury would be led to believe that it is Patterson's burden to
prove his innocence based on the wording of the given instructions is not persuasive.
As the Court of Appeals ruled in Patterson v. Commonwealth, 630 S.W.2d X73, 75 (Ky. .
App. 1982),
it is entirely unreasonable to believe that a jury, without the benefit of a burden of proof instruction, could conclude other than that it is for the Commonwealth to bear this obligation. It is clearly evident through the presumption of innocence and reasonable doubt instructions upon where the burden lies without the need for a specific separate instruction.
13 We agree. It is always made clear to a jury who has the burden of proof and the
instructions given in this case would not likely make a jury think otherwise. The jury was
properly instructed on both counts.
For the above stated reasons, the judgment of the Jefferson Circuit Court is
affirmed.
Lambert, C.J.; Cunningham, Minton, Noble, Schroder and Scott, JJ., concur.
McAnulty, J., concurs in result only.
14 COUNSEL FOR APPELLANT:
Elizabeth B. McMahon Assistant Public Defender Office of the Jefferson District Public Defender 200 Advocacy Plaza 717-719 West Jefferson Street Louisville, Kentucky 40202
COUNSEL FOR APPELLEE:
Gregory D. Stumbo Attorney General
Perry T. Ryan Assistant Attorney General Office of Attorney General Criminal Appellate Division 1024 Capital Center Drive Frankfort, Kentucky 40601-8204