Gasaway v. Commonwealth

671 S.W.3d 298

Maurice GASAWAY, Appellant

v.COMMONWEALTH of Kentucky, Appellee

2021-SC-0457-DG

Supreme Court of Kentucky.

June 15, 2023

COUNSEL FOR APPELLANT: Erin Hoffman Yang, Assistant Public Advocate.

COUNSEL FOR APPELLEE: Daniel Cameron, Attorney General of Kentucky, Christopher Henry, Assistant Attorney General.

OPINION OF THE COURT BY JUSTICE NICKELL

Maurice Gasaway was convicted of one count of possession of heroin in Hardin Circuit Court. The Court of Appeals affirmed. We granted discretionary review to consider three overarching issues.

First, we must consider the bounds under which the warrantless search of a parolee's vehicle is constitutionally permissible. We adopt the reasonableness test for such searches under the Fourth Amendment¹ as announced by the United States Supreme Court in Samson v. California , 547 U.S. 843, 126 S.Ct. 2193, 165 L.Ed.2d 250 (2006), and we overrule our decision in Bratcher v. Commonwealth , 424 S.W.3d 411 (Ky. 2014), to the extent it holds the conditions of parole imposed by Kentucky law are immaterial to the Fourth Amendment analysis. The scope of Section 10 of the Kentucky Constitution² is not properly before this Court for review. We hold, albeit for different reasons, the Court of Appeals properly affirmed the trial court's denial of Gasaway's motion to suppress evidence obtained from a warrantless search of his truck.

Second, we must consider whether Kentucky should recognize a per se rule prohibiting the Commonwealth from introducing, in a subsequent proceeding, evidence of a crime for which the defendant has previously been acquitted. We hold Kentucky does not recognize such a per se rule. Nevertheless, we further hold the Court of Appeals erred by affirming the trial court's admission of evidence, under KRE ³ 404(b), of methamphetamine for which Gasaway had been acquitted, and evidence of marijuana for which Gasaway had been found guilty.

Finally, we must consider whether the trial court improperly permitted three witnesses to interpret the contents of a video recording. We hold the Court of Appeals erred by affirming the trial court's decision allowing the first witness to testify regarding events he did not perceive in real-time. Any questions regarding the propriety of the other two witnesses’ testimony were not properly preserved for review.

Therefore, for the following reasons, the decision of the Court of Appeals is affirmed in part and reversed in part. We remand to the trial court for further proceedings.

I. FACTS AND PROCEDURAL HISTORY

Maurice Gasaway, a parolee under active supervision, was employed at Knight's Mechanical in Hardin County, Kentucky. On August 30, 2018, Gasaway and two other employees were working in the sheet metal shop. At some point, one of Gasaway's co-workers, Austin McClanahan, noticed a small plastic bag about the size of a thumbnail on the floor. McClanahan picked up the bag just as his supervisor, Josh Bush, entered the room. Bush instructed McClanahan to place the bag on the desk in Bush's office. Bush covered the bag with a few sheets of paper and notified his supervisor that he suspected the bag contained illegal drugs. Bush's supervisor informed his supervisor, Jeremy Knight,⁴ about the situation.

After lunch, Knight went to Bush's office and secured the bag in another container. Knight also reviewed surveillance video from the area where the bag was found. Based on the video, Knight suspected the bag fell from Gasaway's pocket when he reached in his pocket to retrieve his cellphone. Knight gave the bag to another employee, Brian Tharpe, who then contacted Detective Robert Dover of the Greater Hardin County Narcotics Task Force.

The next day, Det. Dover came to Knight's Mechanical to investigate. Det. Dover performed a field test and determined the substance contained in the bag was heroin. After speaking with Tharpe and viewing the surveillance video, Det. Dover also suspected Gasaway of possessing the heroin. Det. Dover and two other officers confronted Gasaway inside the workplace. Gasaway denied possessing the heroin. Det. Dover then handcuffed and Mirandized⁵ Gasaway before leading him outside.

Once outside the building, Gasaway realized parole officers were on the scene. At this point, Gasaway launched into a sustained, vulgar tirade directed at Det. Dover. Det. Dover then placed Gasaway in the back of a police cruiser. Det. Dover searched Gasaway's person, but did not discover any incriminating evidence. However, Det. Dover retrieved a key fob from the search of Gasaway's person.

The key fob opened a truck in the parking lot. Det. Dover ascertained the truck was registered to Gasaway's wife and that Gasaway usually drove the truck to work. Det. Dover requested consent to search the truck, which Gasaway refused. Apparently, the parole officers commenced the search of the truck and Det. Dover subsequently participated. In the console, Det. Dover discovered two bags of marijuana and a pill which Det. Dover initially believed to contain ecstasy, but was later determined to contain methamphetamine. He also discovered a few marijuana "roaches" in a cupholder ashtray with marijuana "shake" around it.⁶ The search also uncovered a Whizzinator—a prosthetic penis which illegal drug users frequently use to store and pass clean urine when drug testing is required.

Gasaway was charged with first-degree possession of a controlled substance, heroin; second-degree possession of a controlled substance, ecstasy⁷ ; and possession of marijuana in Hardin Circuit Court. By supplemental indictment, he was charged with first-degree possession of a controlled substance, methamphetamine. Gasaway filed a motion to suppress the evidence obtained from the search, which the trial court denied. Following trial, Gasaway was found guilty of possession of marijuana, not guilty of possession of methamphetamine, and the jury hung on the heroin charge.

The Commonwealth elected to retry Gasaway on the heroin charge and the jury returned a guilty verdict. His conviction for possession of heroin rested, in part, upon the evidence of methamphetamine for which he was previously acquitted and the evidence of marijuana for which he was previously convicted. The Court of Appeals affirmed the conviction. We granted discretionary review and heard oral argument on April 19, 2023.

II. GASAWAY'S BRIEF DOES NOT COMPLY WITH RAP 32(A)(4)

At the outset, Gasaway's opening brief to this Court does not comply with RAP ⁸ 32(A)(4), which requires an appellant's opening brief to "contain at the beginning of the argument a statement with reference to the record showing whether the issue was properly preserved for review and, if so, in what manner." We have strictly mandated compliance with this rule since its inception under the prior Kentucky Rules of Civil Procedure. Skaggs v. Assad, By & Through Assad , 712 S.W.2d 947, 950 (Ky. 1986) (citing CR ⁹ 76.12(4)(c)(iv) ) ("It goes without saying that errors to be considered for appellate review must be precisely preserved and identified in the lower court."). RAP 32(A)(4) does not distinguish between this Court and the Court of Appeals when prescribing the organization and contents of an appellant's opening brief. The failure of an appellant's brief to conform to the appellate rules justifies the striking of the brief under RAP 31(H)(1).

Regarding the suppression issue, Gasaway merely noted, "[t]he Court of Appeals held it was ‘constrained’ to conclude that Section 10 of the Kentucky Constitution would present no impediment against a warrantless and suspicionless search of a parolee or his vehicle." Gasaway then cited the Court of Appeals’ opinion.¹⁰ This statement neither indicates the fact nor the manner of preservation as contemplated by RAP 32(A)(4). It simply refers to an observation made by the Court of Appeals.

Regarding the admissibility of the methamphetamine evidence, Gasaway's brief does not contain any statement of preservation. Regarding the marijuana evidence, Gasaway simply quoted the holding of the Court of Appeals and then cited to its opinion. Again, merely quoting the decision of the Court of Appeals does not tell this Court whether the issue was preserved.

Regarding the interpretation of the surveillance video, Gasaway stated "three witnesses were permitted to testify, over objection that they could see something drop from Maurice's hand on the video." However, while we are directed to the allegedly improper testimony, Gasaway failed to specify where the objection occurred. Regarding the first witness, there was a relevant objection, which was not cited and occurred over ten minutes prior to Gasaway's cite. Regarding the second witness, we were not directed to an objection, nor could we find one in the record. Regarding the third witness, we were directed to an objection, which the trial court remedied by rephrasing the Commonwealth's question and no further relief was requested.

The purpose of the preservation statement rule is to assure the reviewing court that "the issue was properly presented to the trial court, and therefore, is appropriate for ... consideration." Cotton v. NCAA , 587 S.W.3d 356, 360 (Ky. App. 2019) (quoting Oakley v. Oakley , 391 S.W.3d 377, 380 (Ky. App. 2012) ). While this procedural rule preserves judicial resources, it also serves an important substantive purpose: the fact and manner of preservation generally determines the applicable standard of review. Id. Furthermore, it is neither the function nor the responsibility of this Court to scour the record to ensure an issue has been properly preserved for appellate review. Phelps v. Louisville Water Co. , 103 S.W.3d 46, 53 (Ky. 2003).

The Court of Appeals addressed each of Gasaway's claimed errors as if they were properly preserved for review.¹¹ Additionally, the Court of Appeals urged this Court to consider the applicability of Section 10 of the Kentucky Constitution. We note the Commonwealth has not challenged the preservation of any issues before ...