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McCleery v. Commonwealth

Supreme Court of Kentucky

September 26, 2013

Randy McCLEERY Jr., Appellant
v.
COMMONWEALTH of Kentucky, Appellee.

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Steven Jared Buck, Assistant Public Advocate, Department of Public Advocacy, Frankfort, KY, Counsel for Appellant.

Jack Conway, Attorney General, Jason Bradley Moore, Assistant Attorney General, Office of Criminal Appeals, Office of the Attorney General, Frankfort, KY, Counsel for Appellee.

OPINION

NOBLE, Justice.

Randy McCleery, Jr., the Appellant, was convicted of first-degree fleeing or evading the police and several other crimes. He challenges his conviction for fleeing or evading, claiming that he was entitled to a directed verdict. He also claims the trial court erred in not allowing the jurors to use their notes during deliberations. Finding no reversible error, his convictions are affirmed.

I. Background

On the morning of November 28, 2011, Tina Ball went to her son's trailer after a neighbor called and told her that a strange car was parked there. Tina saw a gray Ford Explorer parked in front of the trailer and called her son, Justin, to ask if he knew anyone with a similar vehicle. Justin replied that he did not.

Tina honked the horn of her car a couple of times, and eventually a man wearing a black toboggan walked from behind the trailer. Tina asked who he was, and he replied that he was " Thomas." Tina asked what he was doing, and he replied that he was " looking for guns." The man then got into the passenger seat of the Explorer as Tina called 911. Tina could not see who was sitting in the driver's seat, but she later identified McCleery, both from a photo line-up and at trial, as the man wearing the black toboggan outside the trailer.

The Explorer was driven through the yard onto the street. Breckinridge County Deputy Sheriff Jimmy Gilpin responded to a dispatch request and soon located the vehicle. He activated his lights to make a traffic stop, but the driver did not stop the vehicle. The Explorer traveled at a speed of 45 to 50 miles per hour in a 45-miles-per-hour zone during the pursuit, running three stop signs in the process. It was a rainy morning and traffic was heavy because of the wet roads.

After driving for a mile or two, the Explorer pulled into a residential circular drive and the passenger jumped out of the vehicle and ran. The Explorer resumed driving, still followed by Deputy Gilpin. Soon after, the Explorer stopped, and the driver was arrested and identified as Patrick Darcy. Police searched the vehicle with Darcy's consent and found a shotgun, a rifle, ammunition, and a paint can containing money. (The paint can had been taken from the trailer.) Darcy admitted that he had been at Justin Ball's trailer earlier that day.

Meanwhile, Deputy Sheriff Timothy Henley received a call stating that a man had recently emerged from the woods near the caller's home. The man was soaking wet and wearing a toboggan. The caller

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had given the man a ride to a nearby gas station. Deputy Henley went to the gas station and took the man in the toboggan, McCleery, into custody in connection with the burglary investigation.

Darcy and McCleery were both indicted. At trial, the jury found McCleery guilty of first-degree burglary, first-degree fleeing and evading the police, theft by unlawful taking of property under $500, and being a second-degree persistent felony offender. He was sentenced to thirty-five years for the burglary conviction, enhanced by his status as a persistent felony offender, and five years for the fleeing and evading conviction, to be served consecutively for a total of forty years in prison. (The misdemeanor theft sentence was run concurrently.)

McCleery appeals to this Court as a matter of right. See Ky. Cons. ยง 110(2)(b).

II. Analysis

McCleery raises two issues: (1) whether the trial court erred in denying McCleery's motion for a directed verdict of acquittal on the charge of first-degree fleeing and evading police; and (2) whether the trial court's error in prohibiting the jurors from taking their notes into deliberations resulted in substantial prejudice to McCleery.

A. The trial court did not err in denying the motion for a directed verdict of acquittal on the charge of first-degree ...


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