Ward v. Commonwealth

568 S.W.3d 824

Willie WARD, Appellant

v.COMMONWEALTH of Kentucky, Appellee

2017-SC-000343-MR

Supreme Court of Kentucky.

MARCH 14, 2019

COUNSEL FOR APPELLANT: Julia Karol Pearson, Assistant Public Advocate, Department of Public Advocacy.

COUNSEL FOR APPELLEE: Andy Beshear, Attorney General of Kentucky, Leilani K.M. Martin, Assistant Attorney General.

OPINION OF THE COURT BY JUSTICE HUGHES

Willie Roger Ward appeals as a matter of right from the Jefferson Circuit Court judgment convicting him of first-degree sodomy, possession of a handgun by a convicted felon, and being a persistent felony offender (PFO) in the first degree. Ward was sentenced to twenty-five years for sodomy and fifteen years for possession of a handgun, with the sentences running consecutively for a total sentence of forty years. On appeal, Ward raises several evidentiary and procedural issues. Finding no error, we affirm the trial court.

FACTS AND PROCEDURAL HISTORY

At trial, both Ward and the seventeen-year-old victim, S.R., testified about the events that transpired and provided varying accounts of what happened.

In the early morning hours of August 18, 2014, Ward was driving alone in downtown Louisville and saw S.R. by a bus stop. S.R. testified that Ward stopped her, while he stated that S.R. waved to him. Ward offered her a ride, and she informed him that she did not have anywhere to go, but he told her they could ride around. The two drove around for a little while. According to S.R., Ward asked her if she would perform oral sex on him for fifteen dollars, and she declined. Ward alleged that S.R. brought up the topic of oral sex and directed him to a church parking lot. According to S.R., Ward told her that he lived near the church.

At approximately 3:57 a.m., someone who identified himself only as "Richard" called 911. Richard told the 911 operator that he saw a car sitting in a church parking lot for fifteen minutes with its lights off. He lived across the street from the parking lot and provided a general description of the vehicle he was observing. He stated, "I don't know who it is, they got their lights off ... they do turn a lot of tricks in this lot so that might be what it is."

S.R. testified that after they parked, they talked for a few minutes and then, suddenly, Ward had his pants down and she saw a gun. She stated that he put the gun to her cheek and her phone fell from her lap to the floorboard. He threatened to "put a hot one" in her and push her out of the car. S.R. understood this to mean that he was going to shoot her if she did not comply. S.R. started to perform oral sex on Ward, and within five minutes, she noticed the red and blue lights of the police car and sat up.

Ward testified to a different sequence of events, denying that he forced S.R. to perform oral sex. He stated that while he was riding around collecting salvage to sell to the junkyard, he noticed S.R. waving to him. He asked if she needed a ride, and she said "yes." He stated that a conversation about oral sex came about at some point after they were driving around for twenty to thirty minutes. He stated that S.R. directed him to the church parking lot. Ward denied telling S.R. that he lived near the church but acknowledged that his uncle lived nearby. Ward testified that S.R. wanted a place to shower and sleep in exchange for sex, and that the oral sex was consensual.

At trial, Ward claimed that he tried to start the car and drive away afterwards but could not get his foot to press down on the pedal because something was in the way. Due to a surgery, he was wearing a medical boot at the time and needed a cane to walk. He stated that S.R. moved his leg over and went down to the floorboard to move whatever was keeping his foot from pressing the pedal, then sat back up when the police arrived. Ward testified that he did not know where S.R. placed the item once she moved it.

One of the officers testified that he believed he was dispatched to the parking lot to investigate possible prostitution. When the officers arrived, they asked for identification and for Ward and S.R. to exit the vehicle. After running a quick search based on the information provided, the officer immediately learned that Ward was a convicted sex offender. The officer called a detective with the sex crimes unit to see whether S.R., who was seventeen years old at the time, could be in Ward’s presence given his sex offender status. The detective stated that without more information, she could not say whether a crime had occurred.

While one officer went to perform the identification search, S.R. and Ward were separated, with S.R. standing toward the rear of the vehicle with the other officer. S.R. disclosed to that officer that Ward forced her to perform an act. The officers then contacted the sex crimes detective again, and she arrived at the scene shortly thereafter. The detective interviewed S.R. and digitally recorded her statement and also conferred with the officers to make sure S.R.’s statement was similar to what she initially disclosed. S.R. told the detective that she had engaged in prostitution previously, but she was not prostituting herself that night with Ward.

After taking S.R.’s statement, the detective arrested Ward. She searched him, then placed him in handcuffs in the back of the police car, while she searched his vehicle to locate the firearm S.R. claimed Ward had used to threaten her. The firearm was located immediately under the driver’s seat.

Ward’s trial was trifurcated. At the end of the first phase, the jury found him guilty of first-degree sodomy, and at the close of the second phase, the jury found him guilty of possession of a handgun by a convicted felon. Finally, at the close of the third phase, the jury found Ward guilty of being a first-degree persistent felony offender (PFO), enhancing the recommended sentences from the first two phases. Consistent with the jury’s recommendation, the trial court entered a judgment sentencing Ward to twenty-five years for sodomy and fifteen years for possession of a handgun, to run consecutively for a total of forty years.

ANALYSIS

On appeal, Ward argues that the trial court erred: (1) by not suppressing the handgun and S.R.’s testimony; (2) by improperly applying the protection of the Rape Shield Law to exclude evidence that S.R. had performed acts of prostitution in her past; (3) by allowing evidence that S.R. was seventeen at the time of the charged offense; (4) by ruling that the admission of evidence of S.R.’s age at the time of the offense did not open the door to evidence of S.R.’s prior prostitution; (5) by not allowing Ward to stipulate in the second phase of the trial that he was a convicted felon; and (6) by not severing Ward’s possession of a handgun by a convicted felon charge for separate trial. Additional facts will be presented as necessary.

I. The trial court did not err in denying Ward’s motion to suppress the handgun or S.R.’s testimony.

Ward moved to suppress the handgun and S.R.’s testimony on the grounds the evidence was obtained as a result of an illegal stop and search. The trial court denied the motion, including the following findings in its opinion and order:

According to [the detective’s] testimony, the Defendant was placed under arrest, handcuffed, and then seated in the back of a police car for transport. [The detective] searched the defendant’s vehicle finding a firearm under the driver’s seat. The Defendant seeks to have this evidence suppressed arguing that the "stop" was based on a 911 call which was uncorroborated and that the warrantless search was illegal because the Defendant was secured in the backseat of a police car at the time the search was made.

The testimony before the Court is that the vehicle was parked in the church parking lot at 4:04 a.m. when Off. Drury approached the car. Officer Drury saw two people in the car and, upon questioning them about their presence, learned their identities and quickly ascertained that the Defendant was a registered sex offender and the other occupant was a juvenile female. Shortly thereafter the seventeen year old told Off. Drury that she was forced at gunpoint to perform oral sex on the Defendant. This brief detention was reasonable under the circumstances and does not invalidate a subsequent search of the vehicle.... In the case before this Court the police were notified of a suspicious car parked in a church parking lot at approximately 4:00 a.m. When Officer Drury arrives, he sees the Defendant’s parked [sic] in the church parking lot with two individuals inside. There was no arrest made or subsequent search of the car conducted based on the 911 call. It wasn't until the seventeen year old made her accusation that the Defendant was placed under arrest and the car searched for evidence of the crime that the seventeen year old reported.

On appeal, Ward argues that the trial court erred in denying his motion to suppress the gun and S.R.’s testimony. More specifically, Ward argues that (1) he was seized; (2) the police lacked reasonable suspicion; (3) the "Richard" 911 call was an anonymous tip that was uncorroborated; and (4) S.R.’s testimony was tainted and should have been suppressed.

Appellate review of a suppression decision is two-fold. First, "[w]e review the trial court’s factual findings for clear error, and deem conclusive the trial court’s factual findings if supported by substantial evidence.

The trial court’s application of the law to the facts we review de novo." Williams v. Commonwealth, 364 S.W.3d 65, 68 (Ky. 2011).

In the seminal case, Terry v. Ohio, the Supreme Court held that police may briefly detain someone for investigative purposes if "the police officer [can] point to specific and articulable facts" which lead him to reasonably conclude "that criminal activity may be afoot." 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). In Ward’s case, the police officers conducted a Terry stop based on a 911 tip about a suspicious vehicle parked...