author: Justice ABRAMSON.

text:
    Raymond CLUTTER, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Nos. 2008-SC-000747-MR, 2009-SC-000025-MR.
    Supreme Court of Kentucky.
    Sept. 23, 2010.

      Steven Jared Buck, Assistant Public Advocate, Department of Public Advocacy, Frankfort, KY, Counsel for Appellant.
    Jack Conway, Attorney General of Kentucky, Jason Bradley Moore, Assistant Attorney General, Office of Criminal Appeals, Office of the Attorney General, Frankfort, KY, Counsel for Appellee.
   Opinion of the Court by

Justice ABRAMSON.

Appellant Raymond Clutter appeals from a Judgment of the Gallatin Circuit Court, entered upon a jury verdict, convicting him of second-degree rape, second-degree sodomy, and of being a persistent felony offender in the first degree (PFO 1). He was sentenced to ten years imprisonment for the rape conviction and ten years imprisonment for the sodomy conviction, both enhanced to twenty years by his PFO 1 status and ordered to run concurrently for a total of twenty years imprisonment. Raising two claims of error, Clutter appeals to this Court as a matter of right pursuant to § 110(2)(b) of the Kentucky Constitution. First, Clutter asserts that his case should have been dismissed due to prosecutorial delay in violation of the Interstate Agreement on Detainers (IAD), codified in Kentucky law by KRS 440.450. Second, he claims that the trial court erred when it refused to prohibit any reference to an incriminating statement attributed to Clutter, given that the Commonwealth did not provide notice regarding the statement until the evening before trial. Finding no merit in either of Clutter’s claims, we affirm his conviction and sentence.

RELEVANT FACTS

In 1998, Clutter was indicted on the offenses that resulted in the current convictions. The offensive acts occurred in 1990 when Clutter engaged in sexual intercourse and deviate sexual intercourse with the daughter of his then-girlfriend and business partner. The victim was less than fourteen years old at the time of the offenses. Although the victim reported the incidents to school personnel soon after they occurred, she later recanted. At Clutter’s 2008 trial, the victim testified that she had recanted years earlier at the request of her mother. However, when the victim gave birth to her own child in 1997, concern for that child’s safety around Clutter prompted her to report Clutter’s history of sexually abusing her, starting when she was only four years old. In her videotaped statement to the police, the victim recounted the history of the sexual abuse, including the two specific acts for which Clutter was ultimately charged and convicted.

As noted above, Clutter was indicted on these offenses in 1998. A trial date of July 31,1998, was initially set, but continued by agreement of the parties until September 9, 1998. On September 1, 1998, Clutter’s counsel filed a motion for a continuance. The parties agreed to another continuance and on September 5, 1998, Clutter’s counsel filed a motion for a new trial date. While this motion was pending, Clutter’s bond was revoked because he had committed an additional criminal offense. Subsequently, Clutter was taken into federal custody for that offense, namely the use of interstate commerce facilities in the commission of murder for hire. He eventually pled guilty to that charge and served approximately ten years in federal prison. Clutter was tried for the instant offenses upon his release from federal custody in 2008. He was convicted of both offenses and sentenced to twenty years in accord with the jury’s verdict.

ANALYSIS

I. Because Clutter Failed to Properly Invoke the Provisions of the Interstate Agreement on Detainers Act, There Was No Error in the Trial Court’s Refusal to Dismiss the Charges Upon Grounds of Prosecu-torial Delay Under the Act.

Clutter asserts that the charges against him should have been dismissed for the failure to bring him to trial within 180 days of his having substantially complied with the provisions of the IAD. Article III of the IAD, codified at KRS 440.450, provides in relevant part:

(1) Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of a party state, and whenever during the continuance of the term of imprisonment there is pending in any other party state any untried indictment, information or complaint on the basis of which a detainer has been lodged against the prisoner, he shall be brought to trial within one hundred eighty (180) days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer’s jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information or complaint: provided that for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance. The request of the prisoner shall be accompanied by a certificate of the appropriate official having custody of the prisoner, stating the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner, and any decisions of the state parole agency relating to the prisoner.
(2) The written notice and request for final disposition referred to in paragraph (1) hereof shall be given or sent by the prisoner to the warden, secretary of corrections or other official having custody of him, who shall promptly forward it together with the certificate to the appropriate prosecuting official and court by certified mail, return receipt requested.

Thus, in order to start the 180-day time period under subsection (1), the prisoner must give the required notice to the warden, secretary of corrections or other official having custody of him. It then becomes that official’s responsibility to attach the certificate containing the necessary information and forward both documents to the appropriate prosecuting official.

To evaluate Clutter’s claim, we must determine whether and when Clutter complied with the provisions of the IAD. Clutter, having been taken into federal custody in September 1998, pled guilty to the federal charge in March 1999 and was sentenced in June 1999. In November 1999, Clutter filed a motion for speedy trial with the Gallatin Circuit Court and informed that court of his status of federal incarceration. At a hearing on his motion, the trial court told Clutter’s counsel that his request needed to be made in compliance with the IAD. About a year later, in November 2000, Clutter filed a pro se motion to dismiss the charges based on pre-indictment delay as well as a violation of his right to speedy trial. The trial court denied the motion as to Clutter’s speedy trial rights, but reserved ruling on the pre-indictment delay aspect pending an eviden-tiary hearing. After the court’s ruling, Clutter filed a reply to the Commonwealth’s response. Apparently under the impression that the subsequent filing of his reply revived the previously ruled upon motion, Clutter began submitting filings designed to obtain another ruling on this same motion. Specifically, on April 24, 2001, Clutter filed a “request for final disposition.” Significantly, this pleading contains an acknowledgement by Clutter that he had been advised on a total of three occasions, by two separate attorneys, that he was required to submit forms to the officials at the federal prison in order to invoke the IAD. Clutter proceeded to express his disagreement with this advice, instead asserting that the Commonwealth could have procured custody of Clutter under a separate provision of the IAD, Article IV.

Clutter then filed a pro se petition for a writ of mandamus in the Court of Appeals, seeking an order to compel the trial court to rule on his motion. Upon denial of the writ, Clutter renewed his. motion to dismiss in the trial court in January 2002. In May 2002, the trial court remanded the motion from the docket, stating that the motion had already been ruled upon. In August 2002, Clutter filed yet another pro se motion to invoke his speedy trial rights under the IAD. In this motion, Clutter identified the commencement date of his federal incarceration, estimated his good-time credit and his projected release date. The paragraph in the pleading containing this information is followed by “(Exhib-it_).” The exhibit identifier is blank and there are no exhibits or other attachments to the pleading. In October 2002, the trial court stated that it would take the motion under submission.

In February 2003, Clutter filed a second pro se petition for mandamus with the Court of Appeals. Significantly, Clutter admitted in this petition “Although Clutter has not given his request for disposition to [Bureau of Prisons] officials, he has clearly met his burden by sending his request for disposition to the Court and prosecutor with the certificate from the ‘appropriate officials having custody’ containing the required information to envoke [sic] the IAD, Article IV for the prosecutor to initiate proceedings.” Clutter’s petition was denied.

In June 2003, a status conference was held wherein Clutter’s attorney told the court that it was his understanding that Clutter was refusing to properly request disposition of the charges through the federal prison authorities. Counsel told the court that he would write a letter to Clutter explaining that he must go through the prison authorities to invoke the transfer provisions of the IAD. Of course, one of the previous motions filed by Clutter conceded that he had already been advised of this requirement. In September 2003, Clutter filed another pro se motion, requesting trial within 180 days, again with no accompanying certificate from the federal prison warden. At a status conference in 2003, Clutter’s counsel stated that he believed Clutter had properly complied with the IAD. The Commonwealth responded that it would secure Clutter for trial upon receipt of the certificate from the federal prison. A few weeks later, another status conference was held, wherein the Commonwealth advised the court that it still had not received any documents from the federal prison. The court clerk advised that she had yet to receive such documents either.

In March 2006, Clutter filed a motion to dismiss upon grounds that he had not been tried within 180 days of his 1999 motion or within 180 days of his 2003 motion. In April 2006, the trial court overruled the motion, noting Clutter’s continuing failure to comply with the IAD. In the summer of 2007, Clutter completed his federal sentence and was delivered to Boone County Jail where he was facing a separate indictment on a charge of capital murder. A pre-trial conference was held on the instant charges in January 2008, and trial was set for April 2008. In February 2008, Clutter again moved the court to reconsider its refusal to dismiss the indictment for failure to try him within 180 days as required by the IAD, arguing that he had substantially complied with its provisions. The motion was overruled and this case proceeded to trial in June 2009, whereupon Clutter was convicted.

The foregoing chronology and description of Clutter’s purported efforts to invoke the time provisions of the IAD reveal that Clutter obstinately refused to initiate the process by providing his notice and request to the federal officials having custody of him and, consequently, he never obtained the required certificate from the prison warden. Prior to August 2002, Clutter made no attempt to provide the information explicitly required by KRS 440.450(1). And, in his August 2002 motion, Clutter merely noted the commencement date of his federal incarceration along with his estimated good-time credit and projected release date. No certificate from the warden or any other verifying documents accompanied the motion. Nevertheless, Clutter asserts that his “substantial compliance” was sufficient to invoke the IAD’s provisions. We disagree.

The IAD is a congressionally sanctioned interstate compact and is, therefore, subject to federal construction. Norton v. Parke, 892 F.2d 476 (6th Cir.1989). Federal courts have emphasized the necessity of strict compliance with the procedures of Article III of the IAD, especially the requirement of certification by prison officials in the sending state. See Ellis v. Commonwealth, 828 S.W.2d 360, 361 (Ky.1992). (discussing federal cases). Although there is a limited exception to the requirement of strict compliance, it applies only when strict compliance is thwarted by a public official despite a prisoner’s having done everything possible to achieve strict compliance. For example, in Schofs v. Warden, FCI, Lexington, 509 F.Supp. 78 (E.D.Ky.1981), substantial compliance with the IAD was deemed sufficient to invoke its provisions. In that instance, however, “[t]he petitioner requested, and was denied, through no fault of his own, the forms necessary to initiate a request for final disposition pursuant to the IAD.” Id. at 82. Schofs otherwise complied with the IAD. Likewise, in Pittman v. State, 301 A.2d 509 (Del.1973), strict compliance with the IAD was prevented by the prison official who refused to execute the proper forms upon the prisoner’s request and, instead, erroneously told the prisoner that the requesting state was not a party to the IAD. However, strict compliance may be excused only where the prisoner has diligently endeavored to comply, but was prevented from doing so by the failure or inaction of a public official. Id.

The exception is not applicable here because Clutter did not do everything possible to achieve strict compliance; rather, when repeatedly informed of the need to proceed through the federal prison officials who had custody of him, he simply refused to do so. The failure to strictly comply was solely Clutter’s fault. Accordingly, the cases he relies on for substantial compliance are unpersuasive. This case is more akin to Rhodes v. Commonwealth, 622 S.W.2d 677 (Ky.App.1981), which distinguished Pittman as follows:

It is one thing for an official having custody to refuse to process a request and thus leave the prisoner to communicate as best he can with the State which has lodged a detainer for him. That was Pittman. It is quite a different matter, however, when a prisoner simply ignores the official having custody of him and attempts to communicate directly with the requesting State. That is this case and the difference from Pittman is significant and determinative.

Rhodes, 622 S.W.2d at 678 (quoting Beehe v. State, 346 A.2d 169, 171 (Del.1975)).

Where there is no obstruction to strict compliance due to a public official’s conduct, failure to strictly comply and, more particularly, failure to notify the proper prison authority so that the appropriate certification may be prepared is insufficient to invoke the provisions of the IAD. In Norton v. Parke, supra, a Kentucky prisoner sought to have an Ohio indictment dismissed for failure to bring him to trial within 180 days of his demand. However, the demand was made directly to the Ohio court in a speedy trial motion. The prisoner’s failure to channel his request through the Kentucky warden and consequent absence of the warden’s accompanying certificate was deemed fatal to the prisoner’s IAD claim.

In United States v. Espinoza, 841 F.2d 326 (9th Cir.1988) a prisoner’s failure to lodge his request through prison officials having custody of him precluded him from invoking the IAD’s time provisions. Similarly, in United States v. Henson, 945 F.2d 430 (1st Cir.1991) a prisoner’s failure to provide proper certification was detrimental to his attempted compliance with the IAD. And, again, in United States v. Moline, 833 F.2d 190 (9th Cir.1987), a prisoner’s failure to give notice to the official having custody of him was deemed a complete failure to comply with an essential element of the act.

Moreover, Clutter’s attempt to shift the burden to the prosecuting state under Article IV of the IAD is simply unavailing. Article IV does provide a mechanism for the prosecuting state to secure custody of the prisoner and if this process is utilized, the prosecuting state must try the prisoner within 120 days of his arrival in the receiving state. However, whether to initiate this process is within the discretion of the prosecuting state. A prisoner’s attempt to invoke the IAD’s provisions under Article III does not, then, shift the burden to the prosecuting state. Under Article III, it is the prisoner’s notification to the official where he is being held that shifts the burden to that official to prepare and send the necessary forms. Rhodes, 622 S.W.2d at 677. Clutter simply failed to comply with Article III despite repeated advice as to how to comply. Accordingly, there was no error in the trial court’s refusal to dismiss the indictment against Clutter for failure to comply with the IAD.

II. The Trial Court Did Not Abuse Its Discretion By Refusing to Prohibit the Introduction of an Incriminating Statement Made by Clutter.

The evening before trial, the Commonwealth provided Clutter’s counsel with supplemental discovery, consisting of an oral statement that Clutter had made to Johnny Daugherty in 1990, admitting that he had had sex with the victim. The Commonwealth recognized that the disclosure of the statement was required under RCr 7.24, which requires disclosure of the substance of any oral incriminating statement made by a defendant. The Commonwealth admitted that disclosure here was untimely and, as a result, stated that it would not introduce the statement in its case-in-chief. Prior to trial, Clutter moved the court to prohibit introduction of the statement in rebuttal as well. The trial court denied the motion and ruled that the statement could be introduced if needed for rebuttal provided that a proper foundation was laid. Although the statement was never actually introduced at trial, Clutter asserts that his right to testify in his own defense was compromised by the potential for the admission of the incriminating statement and reversal is thus warranted.

The trial court has broad discretion to determine the admissibility of rebuttal evidence and its decision in this regard is reviewed for an abuse of discretion. Chestnut v. Commonwealth, 250 S.W.3d 288 (Ky.2008). This Court has on previous occasions found such an abuse of discretion to have occurred where the evidence or statements were withheld from the defense altogether. See Chestnut, supra, 250 S.W.3d at 299 (finding an abuse of discretion in the admission of withheld evidence that “essentially gutted Appellant’s defense”); Grant v. Commonwealth, 244 S.W.3d 39 (Ky.2008) (finding an abuse of discretion where the withheld statements prevented defense counsel from making an informed decision as to appropriate defense strategy); Akers v. Commonwealth, 172 S.W.3d 414 (Ky.2005) (same). However, where a disclosure was made at some point prior to trial, albeit untimely, the inquiry is whether the defendant was prejudiced by the tardiness in disclosure of the statement, not by the statement itself. Beaty v. Commonwealth, 125 S.W.3d 196 (Ky.2003). Accordingly, Clutter’s assertion that he was prejudiced because the potential for introduction of the belatedly revealed statement precluded him from testifying in his defense is unavailing. Clutter fails to focus on any prejudice caused by the untimeliness of the disclosure. In fact, Clutter’s trial counsel acknowledged that a continuance was the proper remedy in instances of late disclosures. However, Clutter chose not to seek this remedy because he did not want to further delay the trial. Clutter argues, in part, that he did not want to risk preservation of his IAD claim by seeking a continuance. As the Commonwealth points out, though, if there had been any merit to Clutter’s IAD claim, it was uncontroverted that Clutter was not tried within 180 days. Thus, there was no legitimate concern that requesting a continuance based upon the late disclosure of the incriminating statement would affect the preservation of Clutter’s IAD claim. Accordingly, Clutter has not established any entitlement to relief based on the Commonwealth’s late disclosure of the incriminating statement Clutter had made to Johnny Daugherty.

CONCLUSION

The trial court properly determined that Clutter’s failure to comply with the provisions of the IAD precluded him from obtaining relief based on the time provisions in KRS 440.450. Further, the trial court did not abuse its discretion in refusing to prohibit the admission of Clutter’s incriminating statement on rebuttal, if a proper foundation was laid, despite the Commonwealth’s untimely disclosure of that statement. Accordingly, Clutter’s convictions and twenty-year sentence are affirmed.

All sitting. All concur.


source: Caselaw Access Project

author: Justice CUNNINGHAM.

license: Public Domain

text:
    William Howard MORELAND, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    No. 2009-SC-000310-MR.
    Supreme Court of Kentucky.
    Sept. 23, 2010.

      Shannon Renee Dupree, Assistant Public Advocate, Department of Public Advocacy, Frankfort, KY, Counsel for Appellant.
    Jack Conway, Attorney General, James Coleman Shackelford, Assistant Attorney General, Office of Criminal Appeals Attorney General’s Office, Frankfort, KY, Counsel for Appellee.
   Opinion of the Court by

Justice CUNNINGHAM.

In the early morning hours of November 23, 2001, S.C. awoke and discovered a masked man standing by her bed. The intruder straddled her back, put a knife to her throat, bound her with electrical tape, and threatened her to “do as she was told.” He punched her in the face and then turned S.C. onto her back. He performed oral sex and then raped her. During the attack, the intruder told S.C. that it was “pay back” time and threatened to hurt her daughter, who was staying overnight with her grandmother. He also threatened S.C.’s son, who was asleep in the other room, claiming that he had tied him up. After completing the rape, the intruder told S.C. that he needed to “get rid of the evidence” and poured bleach over her genital area. After the intruder left, S.C. went to the hospital where a rape kit was performed.

On the morning of January 23, 2002, C.C., a seventeen-year-old high school student, was getting ready for school. Her mother and sister had just left the house, and C.C. was expecting her ride to school shortly thereafter. She heard a noise in her mother’s bedroom, went to investigate, and was confronted by a masked intruder. She turned to run, but was caught in the kitchen. The intruder held a knife to her throat and ordered her to remove her clothing. He first performed oral sex and then raped her. After completing the rape, he ordered C.C. into the bathtub to wash herself. He also told C.C. that he would kill her if she “talked.” After the intruder left, C.C.’s school friend arrived and C.C. was taken to the hospital where a rape kit was performed.

In the early morning hours of March 1, 2004, K.P., then eight months pregnant, was asleep on her living room couch with her twenty-month-old daughter. She awoke to find an intruder standing over her, his face covered. He smacked her in the face and ordered her, at knifepoint, to put her daughter in her crib. K.P. returned to the living room and the intruder told her to remove the clothing from her lower body. He put a blanket over her head so she could not see him and, when she struggled to breathe under the blanket, he punched her in the face. The intruder performed oral sex and then raped her. During the attack, he told K.P. that he would kill her and her daughter if she went to the police. After he left, she went to a local hospital and was examined.

Four years later, Appellant’s mother contacted police to obtain an E.P.O. against her son. She also told the authorities that she believed Appellant was responsible for the still unsolved sexual assaults. With her consent, police searched her home, which she and Appellant had shared on and off for several years. The officers collected a toothbrush used by Appellant. DNA found on that toothbrush matched the male DNA profile of the semen found on all three rape victims. Based on that evidence, police obtained a search warrant to collect a buccal swab from Appellant. A DNA profile was established from the buccal swab that also matched the semen found on all three victims.

Appellant was tried before a McCracken County jury and convicted of three counts of first-degree burglary, three counts of first-degree rape, three counts of first-degree sodomy, three counts of intimidating a participant in a legal process, and two counts of tampering with physical evidence. The jury recommended twenty years for each of the burglary, rape and sodomy charges; and five years for each of the intimidating and tampering charges. The jury also recommended that the sentences run consecutively. Pursuant to KRS 532.110(l)(c), the trial court imposed a sentence of imprisonment for a term of seventy years. This appeal followed.

Appellant first argues that he was entitled to a directed verdict of acquittal on all charges of intimidating a participant in a legal process. The argument is preserved for appellate review by counsel’s motion.

As noted above, all three victims testified that, during and after the commission of the rapes, Appellant made verbal threats to the effect that he would kill them if they called police. Defense counsel argued that the threats were made to effectuate the sexual assaults and, therefore, could not sustain an independent intimidation charge. Further, defense counsel argued that there were no legal proceedings in existence at the time the threats were made and, therefore, the threats could not have been directed at a “participant in the legal process.” We agree.

After the attacks against S.C. and C.C., but before the attack against K.P., the General Assembly amended KRS 524.040. At the time the crimes were committed against S.C. and C.C., KRS 524.040(l)(a) provided, in pertinent part: “A person is guilty of intimidating a witness when, by use of physical force or a threat directed to a witness or a person he believes may be called as a witness in any official proceeding, he influences, or attempts to influence, the testimony of that person.” (Emphasis added). KRS 524.040(l)(a) was amended in 2002. Accordingly, at the time of the crimes against K.P., the statute provided that a person is guilty of “intimidating a participant in the legal process when, by use of physical force or a threat directed to a person he believes to be a participant in the legal process, he or she influences, or attempts to influence the testimony, vote, decision, or opinion of that person.” (Emphasis added).

By amending the language identifying the requisite belief the perpetrator must hold regarding the victim, the General Assembly essentially limited the class of potential victims. Prior to 2002, it was satisfactory that the victim be anyone who the accused believed may be called as a witness, regardless of whether actual proceedings had been initiated or the defendant’s knowledge of those proceedings. The current version of the statute, in contrast, requires the accused threaten a person he believes to be a participant in the legal process. The use of the present tense “to be” indicates a requirement that the perpetrator believes the victim is participating in the legal process at the time the offense is committed.

The instructions delivered at trial failed to recognize this distinction with respect to the crimes against S.C. and C.C. Though the attacks on S.C. and C.C. occurred pri- or to the effective date of the 2002 amendments, the jury was instructed according to the amended version of KRS 524.040. That is, the jury was required to find that Appellant believed each victim “to be a participant in the legal process.” The jury was instructed similarly with respect to K.P., though this was proper as the attack on K.P. occurred in 2004. However, neither party objected at trial to this error in the jury instructions.

Though the jury might reasonably have concluded that, at the time of the attacks, Appellant believed S.C. or C.C. may — at some point in the future — be called as a witness in an official proceeding, the jury was not so instructed. Under the instructions actually delivered, Appellant was entitled to a directed verdict. It is impossible to conclude that Appellant believed any of the three victims “to be a participant in the legal process” at the time of the offenses since no legal process yet existed, nor could Appellant have believed that any legal process had been initiated.

As such, the evidence presented at trial was insufficient to “induce a reasonable juror to believe beyond a reasonable doubt that [Appellant] was guilty.” Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky.1991) (internal citations omitted). The trial court erred in failing to direct a verdict of acquittal on all three charges of intimidating a participant in the legal process. The convictions must be vacated.

Appellant next argues that the trial court improperly refused to strike two jurors for cause. The decision whether to excuse a juror for cause lies within the sound discretion of the trial court, who is in the best position to evaluate the nature and sincerity of the potential juror’s responses. Stopher v. Commonwealth, 57 S.W.3d 787, 796 (Ky.2001). The established test for determining whether a juror should be stricken for cause is whether “the prospective juror can conform his views to the requirements of the law and render a fair and impartial verdict.” Thompson v. Commonwealth, 147 S.W.3d 22, 51 (Ky.2004) (quoting Mabe v. Commonwealth, 884 S.W.2d 668, 671 (Ky.1994)). Appellant contends that jurors R.G. and G.K. should have been excused because they had read a newspaper article about the case.

Both jurors acknowledged that they had read an article concerning Appellant’s case. Of reading the story, R.G. said she only remembered that the case involved rape charges, and that the trial was expected to last three days. She stated that she did not form any opinion based on the article. She was instructed not to re-read the article and to alert the trial court if she remembered further details.

Juror G.K. remembered from the article that the case involved some burglary and sex charges, and some mention of DNA evidence. While acknowledging that he had read the entire article, G.K. also stated that he did not remember much because he had “skimmed it over in a hurry.” The trial court again instructed the juror to raise his hand if anything else jogged his memory of the article.

There is no indication that the trial court abused its discretion with respect to either juror. Exposure to pretrial publicity does not automatically disqualify a prospective juror. Maxie v. Commonwealth, 82 S.W.3d 860, 862 (Ky.2002). Based on the totality of circumstances surrounding the responses of both jurors, we find no error in the trial court’s refusal to strike them for cause. See Fugett v. Commonwealth, 250 S.W.3d 604, 613 (Ky.2008).

Appellant’s final allegation of error is that he was entitled to a severance of the charges against him. RCr 6.18 allows for the joinder of offenses in separate counts of an indictment provided that 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.” Joinder is improper if the defendant or the Commonwealth will be unduly prejudiced. RCr 9.16. Prejudice in this context has been described as an “unreasonable” disadvantage. Romans v. Commonwealth, 547 S.W.2d 128, 181 (Ky.1977). A significant factor in identifying prejudice due to joinder is the extent to which evidence of one offense would be admissible at trial of the other offenses. Rearick v. Commonwealth, 858 S.W.2d 185, 187 (Ky.1993). The trial court’s decision with respect to joinder is reviewed for abuse of discretion. Cannon v. Commonwealth, 777 S.W.2d 591, 597 (Ky.1989).

It is hard to conceive of a set of crimes with more striking similarities than the assaults on S.C., C.C., and K.P. Each occurred in the early morning hours against a woman who was the lone adult in the home. Each woman lived in a mobile home within the vicinity of Appellant’s mother — two in the same mobile home park. Appellant was a stranger to each victim. In each attack, Appellant wore a mask and used a knife. He orally sodomized each victim before raping her. He used physical force and threatened to kill each victim. He wore gloves during two of the attacks. He made an attempt to destroy evidence during two of the attacks. Appellant’s semen and DNA were collected from each victim.

The facts of each assault were sufficiently similar to establish a modus operandi. See Billings v. Commonwealth, 843 S.W.2d 890, 892 (Ky.1992) (quoting Adcock v. Commonwealth, 702 S.W.2d 440, 443 (Ky.1986)):

In every case in which evidence of other crimes is sought to be introduced to establish a pattern or scheme, the real question is whether the method of the commission of the other crime or crimes is so similar and so unique as to indicate a reasonable probability that the crimes were committed by the same person.

The trial court did not err in refusing to sever the charges.

The judgment of the McCracken Circuit Court is affirmed in part and vacated in part. Appellant’s convictions of rape, sodomy, burglary, and tampering with physical evidence are affirmed. Appellant’s convictions of intimidating a participant in the legal process are vacated.

All sitting. All concur.


author: Justice VENTERS.

text:
    Patrick Paul BURKE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    No. 2009-SC-000431-MR.
    Supreme Court of Kentucky.
    Sept. 23, 2010.

      Shelly R. Fears, Assistant Public Advocate, Department Of Public Advocacy, Frankfort, KY, Counsel for Appellant.
    Jack Conway, Attorney General, Michael John Marsch, Assistant Attorney General, Office Of Criminal Appeals, Attorney General’s Office, Frankfort, KY, Counsel for Appellee.
   Opinion of the Court by

Justice VENTERS.

Appellant, Patrick Paul Burke, was convicted by a Jefferson Circuit Court jury of second-degree escape and first-degree persistent felony offender. For these crimes, Appellant received a sentence of twenty years’ imprisonment. Appellant now appeals to this Court as a matter of right. Ky. Const. § 110.

Appellant asserts two arguments on appeal: 1) that the trial court erred by denying his request for a jury instruction on the justification defense of “choice of evils”; and 2) that the trial court erred by giving an admonition to the jury over his objection. For the reasons set forth herein, we affirm Appellant’s conviction and sentence.

FACTUAL AND PROCEDURAL BACKGROUND

In 2007, approximately six and a half years into a twenty-five year sentence in the penitentiary, Appellant was placed by the Department of Corrections into a halfway house in Louisville. On November 11, 2007, with the permission of corrections officials, Appellant checked out of the halfway house for an unsupervised visit to the dentist. However, instead of going to the dentist, Appellant fled the state. He was apprehended on February 22, 2008, in Newcastle, Delaware, after a vehicular pursuit.

On February 25, 2008, the Jefferson County Grand Jury handed down an indictment charging Appellant with second-degree escape and with being a first-degree persistent felony offender. The jury trial commenced on May 19, 2009.

At the trial, Appellant testified that he was attacked and robbed several times at the halfway house by other residents. He stated that the first attack occurred in the house’s “quiet room” where the assailants forced his head into a sofa and robbed him of money given to him by his daughter. Appellant testified that a second attack occurred in the bathroom during which he was beaten with a floor mop.

The third attack occurred on the day before Appellant’s dental appointment. Appellant testified that during this attack the assailants beat him and stole property from his personal locker while one of the attackers held a towel over his head. Appellant testified that the men threatened to kill him unless he brought them $200 after his trip to the dentist. Appellant had no way to get the $200. Because of this threat, Appellant claims that he believed he had to leave the halfway house or he would be killed. Thus, the next day during the trip to the dentist, Appellant escaped.

Appellant was scheduled to meet with the parole board a few weeks after his escape. He testified that he feared that if he fought back during each of these attacks he would be given a “write-up” that might result in his being denied parole. Appellant claimed he could not sleep at night due to his fear of being attacked.

The Commonwealth presented the testimony of several witnesses that Undermined Appellant’s story. Appellant’s halfway house counselor testified that Appellant never reported any of the attacks he said occurred. The counselor testified that if Appellant had reported any of the attacks he could have been transferred to another halfway house facility. A fellow halfway house inmate who was to go to the dentist with Appellant testified that on the day of the escape Appellant did not seem upset or nervous. Other testimony was presented that the attacks alleged by Appellant never appeared on any of the thirty security cameras located around the halfway house facility. However, other testimony indicated that there were not security cameras in the “quiet room” or bathroom where two of the alleged attacks occurred.

After hearing all of the evidence, the jury convicted Appellant of second-degree escape and of being a first-degree persistent felony offender. Appellant was sentenced to five years’ imprisonment on the second-degree escape conviction, escalated to twenty years’ imprisonment because of the persistent felony offender conviction.

I. THE EVIDENCE PRESENTED AT TRIAL DID NOT SUPPORT AN INSTRUCTION ON THE “CHOICE OF EVILS” DEFENSE

Appellant first argues that the trial court erred by not providing a jury instruction on the “choice of evils” defense. This issue is preserved for review by Appellant’s request for this instruction at trial.

The principle of justification known as “choice of evils” is codified in KRS 503.030, and provides in relevant part:

conduct which would otherwise constitute an offense is justifiable when the defendant believes it to be necessary to avoid an imminent public or private injury greater than the injury which is sought to be prevented by the statute defining the offense charged....

(emphasis added). The term imminent is defined in KRS 503.010(3) as “impending danger.” The Commentary to KRS 503.030 notes that to qualify for the “choice of evils” defense “a defendant need only to have such a belief’ in the necessity of his actions to avoid an imminent injury.

Appellant argues that he should have received a “choice of evils” instruction because he believed that if he did not flee the halfway house, he would be robbed again, or even killed. Appellant cites to Pittman v. Commonwealth, 512 S.W.2d 488 (Ky. 1974), for the proposition that a prisoner who is in imminent danger from other inmates can escape from the prison and be entitled to a “choice of evils” instruction. However, we believe that the facts of this case are not analogous to Pittman, and that the trial court correctly denied Appellant’s request for the instruction.

In Pittman, the defendant was cornered by four prisoners in a prison farm dormitory. Pittman did not believe that he could get to a prison guard in time for protection, so he fled the farm. After Pittman was recaptured he stated “I had but one choice. Leave, stay there, kill somebody, or get killed.” Id. at 489. Key to our predecessor court’s determination that Pittman was entitled to a “choice of evils” defense was that Pittman fled his attackers at the moment they confronted him. The danger of Pittman either being seriously injured or seriously injuring one of his attackers was truly “imminent.”

In this case, the danger of Appellant being seriously injured or killed was not “imminent.” Appellant testified that after his attackers initially threatened him, they left him alone. Hours later, Appellant undertook his escape without ever reporting the alleged attacks or the threat to the halfway house authorities or to the police.

Had Appellant reported the attack to the proper authorities, they could have prevented the harm he feared. Thus, a jury could not reasonably conclude that Appellant’s conduct was “necessary to avoid an imminent public or private injury.” See Montgomery v. Commonwealth, 819 S.W.2d 713 (Ky.1991) (holding that a “choice of evils” jury instruction was not supported by the evidence when the defendant escaped from a prison facility based on the fear he may be harmed when released into the general prison population). We affirm the trial court’s denial of Appellant’s request for a “choice of evils” instruction because it is unsupported by the evidence.

II. THE TRIAL COURT DID NOT ERR BY PROVIDING THE ADMONITION TO THE JURY OVER APPELLANT’S OBJECTION

Appellant next argues that the trial court erred in giving what he considers an improper and overreaching admonition to the jury immediately prior to instructing the jury on the law of the case. While conferring with counsel about proposed jury instructions, the trial court denied Appellant’s tendered “choice of evils” instruction, and expressed concern that Appellant’s focus on the “choice of evils” defense may result in jury nullification. To make sure that the jurors understood they could not create their own “choice of evils” defense, the trial court reasoned that he should expressly admonish the jury to follow the jury instructions he would provide.

Appellant objected, arguing that the trial court’s proposed admonition was “too much weight from the bench,” and deprived him of a fair trial by treating his case differently from other criminal cases. The trial court overruled Appellant’s objection and gave the following admonition to the jury prior to reading the instructions:

Ladies and gentlemen we are close in time, since you’ve heard all the evidence now, we’re close in time to the point where all that remains for me to do is instruct you as to the law, for you to begin ... for you to hear arguments of counsel and for you to begin your deliberations.
I’ll remind you of a couple of things as we go through this. First thing, I’ll remind you of is that the argument of counsel while it may be important is not evidence. To the extent that they say something that is different than your independent recollection or collective recollection of the evidence you are to go with what you recall and not what they say.
Moreover, the decision in this case is yours and yours alone. The argument is intended to help you see it from the respective parties’ perspective and they will tell you what they believe the evidence showed and how you should apply the law to that evidence. But that’s your job and the fact that they think it should be one way, while important, is not determinative. What you think is determinative. What you think is what rules the day.
So I’ll also remind you that no question asked by either counsel at any time is evidence for you to consider. Nor is anything that I specifically told you not to consider, which I think I did on a couple of occasions, I don’t recall specifically, but if I told you that you are not to consider that, then you are not to consider it and you need to police yourself and each other if something is otherwise verboten comes up in the jury room.
That also holds true with respect to the admonition I gave you about any prior history, criminal history, on [Appellant’s] part. He’s not being tried for that today. The only thing he’s being tried for is whether he escaped from the [halfway house] or not, period. The fact that he, whether he has a million prior convictions or won the Congressional Medal of Honor twice, it doesn’t make any difference. He’s either guilty or not guilty based on the application of the law that I’m going to instruct you on to the facts as you determine them.
The ... you are to decide this case based solely on the application of the law to the facts as you determine. Along with the application of your individual and collective common sense. You have to make that decision in your own mind, but you do have a duty to consult with your fellow jurors in forming your opinion.
You should deliberate with a view toward reaching a verdict if you can do so without doing violence to your individual conscience and you must reach that decision dispassionately. That means without being influenced by any prejudice, any passion, sympathy, or emotions that you feel for one side or the other. This is essentially an intellectual enterprise. It’s what you think, not what you feel. And to the extent that you are influenced by how you feel, there is an opportunity for you to display that in a criminal case but that is generally speaking during the sentencing phase. What you feel is perfectly appropriate and the way that you give into that is in picking the appropriate penalty within the range of applicable penalties, assuming that the Commonwealth has proven the case beyond a reasonable doubt and if they have not you’ll never get to the penalty. And considerations of penalty can play no part in your deliberations as to whether a person is guilty or not guilty, it’s just not part of the equation. Does everybody understand that?
If at anytime during these proceedings, and this is a standard instruction I don’t think I’ve said or done anything but just to make sure. If anything that I have said or done leads you to believe that I have an opinion about how this case should come out or about what you should do, I can assure you, you are mistaken. But even if you weren’t, what I think doesn’t matter either. It’s only what you think that matters. I decide the law you, you all decide the facts, and you all apply that law to those facts and tell us what the answer is, period.
The bench conferences and how I have ruled with respect to various objections is not a sign of ... I favor one side or the other. It is merely an indication of how I believe the law should be applied with respect to that specific question in that specific instance.
I’m going to instruct you as to the law now. And I will remind you that this is the law. It is not optional. There is ... it is the same law that protects everyone of us. It is the same law that binds everyone of us inside and outside this courtroom. To the extent that it is different that what you thought the law of escape was or different from ... what you expected the law to be in this case after listening to the proof, you are to disregard those notions in favor of applying the law as I instruct you. Does everybody understand that? That being the case, I’ll instruct you as follows....

The trial court then read the guilt phase instructions to the jury.

Appellant argues that the admonition violated the “bare bones” principle which guides our approach to jury instructions. See Peak v. Commonwealth, 197 S.W.3d 536, 545 (Ky.2006). He also argues that the long admonition made it difficult for the jury to independently exercise its judgment. In effect, Appellant argues that the admonition served as a directed verdict of guilt — that the admonition told the jury that the judge believed Appellant was guilty. We disagree.

While the trial court’s admonition was lengthy, we do not conclude that it was inappropriate. It told the jurors to review the facts as they remembered them, to exercise their own independent judgment, and to apply the facts to the law as instructed. It was not slanted toward the Commonwealth, and did not amount to a “directed verdict of guilt” as Appellant claims. We do not regard the trial court’s admonition as improper or prejudicial because it only served to reinforce the principle that the jury must comply with the jury instructions. See Johnson v. Commonwealth, 105 S.W.3d 430, 441 (Ky.2003) (stating that a jury is presumed to follow an admonition given by the trial court). There is no error here.

CONCLUSION

Thus, for the foregoing reasons, Appellant’s convictions and sentences are affirmed.

All sitting. All concur.


author: Justice SCOTT.

text:
    Heather ROSE, Appellant/Cross-Appellee, v. COMMONWEALTH of Kentucky, Appellee/Cross-Appellant.
    Nos. 2007-SC-000123-DG, 2007-SC-000603-DG.
    Supreme Court of Kentucky.
    Sept. 23, 2010.

      Joseph Brandon Pigg, Assistant Public Advocate, Department of Public Advocacy, Frankfort, KY, Counsel for Appellant/Cross-Appellee.
    Jack Conway, Attorney General of Kentucky, Jeffrey Allan Cross, Criminal Appellate Division, Office of the Attorney General, Frankfort, KY, Counsel for Ap-pellee/ Cross-Appellant.
   Opinion of the Court by

Justice SCOTT.

On May 17, 2005, the Estill Circuit Court entered an order suppressing the fruits of a vehicle search conducted incident to the arrest of Heather Rose, Appellant. The evidence directly implicated Appellant in four counts of Possession of Stolen Mail Matter and three counts of Criminal Possession of a Forged Instrument in the second degree. On direct appeal to the Kentucky Court of Appeals, the Commonwealth successfully argued that the trial court’s order ran awry of established Fourth Amendment precedent of the United States Supreme Court. The Court of Appeals issued an opinion reversing the Estill Circuit Court’s suppression order, finding the search reasonable as incident to an arrest. We granted discretionary review to determine the correctness of that opinion, and now reverse the Court of Appeals.

Facts

On November 19, 2003, Estill County Deputy Sheriff, Kevin Hardy, proceeded to Appellant’s home, intending to arrest her pursuant to two arrest warrants and to question her regarding certain stolen checks. En route, Hardy noticed a vehicle driven by Danny Rose, Appellant’s spouse, and recognized the passenger in the vehicle as Appellant. As he observed the vehicle, he witnessed Appellant’s “head go down into the seat.”

After stopping the vehicle, Hardy discovered that Appellant was no longer in the passenger compartment and that “the back seats of the vehicle had a little gap between them and the trunk.” Hardy further testified that he “thought she probably had laid those seats down and climbed into the trunk.” Hardy’s suspicions were confirmed when Appellant’s spouse admitted that his wife was in the trunk of the vehicle. Hardy then removed Appellant via the back seat entrance to the trunk, and executed the two outstanding warrants for her arrest.

Upon securing Appellant in the back of his cruiser, Hardy obtained Mr. Rose’s consent to search the vehicle where he found a purse, a little leather bag, and a change purse. A further search of these items yielded checks, which Appellant admitted derived from stolen mail.

Subsequently, the Commonwealth charged Appellant with various counts of Possession of Stolen Mail Matter and Criminal Possession of a Forged Instrument in the second degree, violations of KRS 514.150 and KRS 516.060. After pleading not guilty, Appellant moved to suppress the contents of the purse, bag, and change purse, arguing that they were the products of an unconstitutional search under the Fourth Amendment of the United States Constitution and under Section Ten of the Kentucky Constitution. Appellant specifically asked the trial court to find the search unreasonable because, among other reasons, Appellant was not near the vehicle at the time of the search and because Hardy testified that he never felt that he was in danger. The Commonwealth reasoned that the search was incident to an arrest and, furthermore, was constitutional because Appellant’s spouse consented to Hardy’s request to search the vehicle.

After ordering the parties to brief the issue, the trial court held the search unreasonable and granted Appellant’s motion to suppress. In support of its decision, the trial court reasoned that the search was not incident to arrest because “that is not what the Deputy testified to.” The trial court further found that although Mr. Rose consented to the search of the vehicle, there was no evidence to support the notion that Mr. Rose possessed the authority to give Hardy permission to search his wife’s possessions. The Commonwealth sought review as a matter of right in the Kentucky Court of Appeals.

Aptly relying on New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), the Court of Appeals reversed the E still Circuit Court, reasoning that the search in this case was incident to Appellant’s lawful arrest because she was a recent occupant of the vehicle. We subsequently granted discretionary review.

After we granted review, but before we decided the issue, the United States Supreme Court granted a writ of certiorari in State v. Gant, 216 Ariz. 1, 162 P.3d 640 (2007). That case involved facts markedly similar to those here — the search of a vehicle, allegedly incident to an arrest, after officers secured the arrestees in the back of a patrol car. In light of the factual and legal similarities, we ordered this matter held in abeyance pending a ruling from our federal counterpart.

In the mean time, however, we rendered an opinion in Henry v. Commonwealth, 275 S.W.3d 194 (Ky.2008). There, this Court, like the Court of Appeals in this case, rejected the appellant’s argument that because “he was in the back of the police cruiser and could not reach into his vehicle either to arm himself or to destroy evidence, the grounds for a Belton search did not exist and the search of his vehicle was therefore unlawful.” Henry, 275 S.W.3d at 200-01. Indeed, in Henry, we relied upon several previous decisions from this Court which rejected identical arguments to those made here. See, e.g., Rainey v. Commonwealth, 197 S.W.3d 89 (Ky.2006); Penman v. Commonwealth, 194 S.W.3d 237 (Ky.2006).

Following Henry, the United States Supreme Court decided Arizona v. Gant, — U.S. -, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009), redefining the constitutional analysis surrounding the search of a vehicle incident to the arrest of a recent occupant. This approach, as discussed below, directly contradicts our existing jurisprudence on the subject. Thus, we now find it necessary to bring the jurisprudence of this Commonwealth into compliance with that of our nation’s highest court.

In Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), the United States Supreme Court held “that a search incident to arrest may only include the arrestee’s person and the area within his immediate control—construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.” Gant, 129 S.Ct. at 1716 (citing Chimel, 395 U.S. at 763, 89 S.Ct. 2034) (internal quotations omitted). Just over a decade later, the Supreme Court expanded the scope of Chimel, reading it to encompass not only vehicle searches incident to the arrest of a recent occupant, but searches of any containers enclosed therein. Belton, 453 U.S. 454, 101 S.Ct. 2860. And in a more recent case, the Supreme Court interpreted its Belton decision to mean: “when a police officer makes a lawful custodial arrest of an automobile’s occupant, the Fourth Amendment allows the officer to search the vehicle’s passenger compartment as a contemporaneous incident of arrest.” Thornton v. United States, 541 U.S. 615, 615, 124 S.Ct. 2127, 158 L.Ed.2d 905 (2004). In Thornton, the Supreme Court, citing a need for a bright-line rule, held that Belton applies even when the officers do not make contact with the arrestee until after he has exited the vehicle. Id. at 617, 124 S.Ct. 2127. As a result of Chimel’s progeny, a plethora of courts have now construed the Fourth Amendment of the United States Constitution and Belton as allowing a vehicle search incident to the arrest of a recent occupant “even if there is no possibility the arrestee could gain access to the vehicle at the time of the search.” Gant, 129 S.Ct. at 1718.

Concerned with the “clarity” of Belton and questioning its “fidelity to Fourth Amendment principles,” a chorus of voices, including many courts and scholars, implored the Supreme Court to revisit the line of. cases controlling vehicle searches incident to arrest. Id. at 1716, 129 S.Ct. 1710. Among them was Arizona in the matter of State v. Gant, 216 Ariz. 1, 162 P.3d 640.

In Gant, police officers arrested a defendant for driving on a suspended license, handcuffed him, and placed him in the back of a patrol car. 129 S.Ct. at 1714. After securing Gant, the police searched his vehicle and discovered incriminating evidence in the pocket of a jacket on the backseat. Id. Following various lower court rulings, the Arizona Supreme Court ordered the evidence suppressed, relying on the fact that Gant “could not have accessed his car to retrieve weapons or evidence at the time of the search.” Id. In support of its decision, that court distinguished Belton “as a case concerning the permissible scope of a vehicle search incident to arrest and concluded that it did not answer the threshold question whether the police may conduct a search incident to arrest at all once the scene is secure.” Id. at 1715 (internal quotations and citations omitted).

On certiorari, and agreeing with the Arizona court, the United States Supreme Court noted Justice O’Connor’s observation in Thornton that: “lower court decisions seem now to treat the ability to search a vehicle incident to the arrest of a recent occupant as a police entitlement rather than as an exception justified by the twin rationales of Chimel.” Gant, 129 S.Ct. at 1718 (citing Thornton, 541 U.S. at 624, 124 S.Ct. 2127 (O’Connor, J., concurring in part)). In rejecting the notion that police possessed such entitlement, the Court noted that the central concern of the Fourth Amendment was to prevent “giving police officers unbridled discretion to rummage at will among a person’s private effects.” Gant, 129 S.Ct. at 1720. With this concern in mind, the Court held that a broad application of Belton, which allows vehicle searches incident to any arrest, as “anathema to the Fourth Amendment.” Id. at 1722. The Court reasoned that the exceptions created in Belton were for “genuine [officer] safety or evidentiary concerns encountered during the arrest of a vehicle’s recent occupant” and concluded that where “there is no possibility that an arrestee could reach into the area that law enforcement officers seek to search, both justifications for the seareh-incident-to-ar-rest exception are absent and the rule does not apply.” Id. at 1716.

However, just short of ending its analysis, the Court found it pertinent to note that when considering the constitutionality of a vehicle search incident to the arrest of a recent occupant, a court may find the search constitutional even where the arres-tee is secured if “it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.” Id. at 1714 (emphasis added). With these principles in mind, we turn to the case at bar.

In this case, at the time of the search, Appellant was secured in the back of Hardy’s cruiser. As a result, there was no possibility Appellant could have gained access to the vehicle to destroy evidence or to access a weapon. Therefore, in light of the Supreme Court’s ruling in Gant, we hold the search unconstitutional. To the extent that our decisions in Rainey, Henry, Penman, or any other cases promulgated by this Court conflict with Gant, they are expressly overruled.

With regard to Gant’s alternative rule— that an officer may search a vehicle even when the arrestee is secured if he has a reasonable suspicion that the vehicle harbors evidence of the crime of arrest — we are satisfied that Hardy did not possess the requisite reasonable suspicion. As the record reveals, Hardy directly testified that he was not searching the vehicle in an attempt to locate evidence relating to the two warrants. Thus, we cannot conclude that the search satisfies constitutional muster under Gant’s alternative analysis. Therefore, we hold that the search in this case was unconstitutional and the evidence procured the fruit of a poisonous tree.

For the foregoing reasons, the opinion of the Court of Appeals is reversed and the order suppressing the evidence is reinstated.

All sitting. All concur.

      . After granting Appellant’s motion for discretionary review to decide whether the Court of Appeals correctly determined that the search was valid as a search incident to arrest, the Commonwealth filed a cross-appeal which we also granted. However, both address essentially the same issue disposed of herein.

      . Although there was testimony regarding one of the warrants (issued for traffic fines), the record is unclear regarding the second warrant.

      . Although Appellant argued lack of consent before the trial court and it was mentioned in the Court of Appeals' opinion, neither the Commonwealth nor the Appellant raised this issue before this Court.