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Mundy v. Commonwealth

Court of Appeals of Kentucky

July 28, 2017

KHAMARI MUNDY APPELLANT
v.
COMMONWEALTH OF KENTUCKY APPELLEE

         APPEAL FROM CLARK CIRCUIT COURT HONORABLE WILLIAM G. CLOUSE, JR., JUDGE ACTION NO. 16-CR-00020

          BRIEF FOR APPELLANT: Erin Hoffman Yang Assistant Public Advocate Frankfort, Kentucky.

          BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Perry T. Ryan Assistant Attorney General Frankfort, Kentucky.

          BEFORE: COMBS, JOHNSON, AND J. LAMBERT, JUDGES.

          OPINION

          LAMBERT, J., JUDGE.

         Khamari Mundy appeals from a Clark Circuit Court judgment imposing a total sentence of five years for first-degree trafficking in a controlled substance; trafficking in marijuana; and being a convicted felon in possession of handgun. Mundy entered a plea of guilty to the charges conditioned on his right to appeal the trial court's denial of his motion to suppress evidence. We affirm.

         Richmond City Police Officer Monty Corbett was the sole witness at the suppression hearing. He testified that a woman named Donna Connor called 911 to report that her car had been stolen, and that she was pursuing the stolen car in another vehicle, heading westbound on the interstate. Officer Corbett drove to exit 94 of the interstate to intercept the vehicles.

         When he arrived at the exit at about 9:21 p.m., he saw two unoccupied cars parked on the shoulder. A woman, Donna Connor, and three men, one of whom was Mundy, were standing on the shoulder, talking. Officer Corbett separated these individuals and asked them to keep their hands where he could see them. They all responded in the negative when he asked whether anyone had any weapons. He told them to stay where he could see them, kept the spotlight from his cruiser on them, and then returned to the cruiser with their driver's licenses to determine whether any of them had outstanding arrest warrants.

         Several other police officers arrived at the scene and began interviewing Connor and the three men. Connor told the officers that she had lent the stolen car to her boyfriend on the assumption that only he would drive it. When she called him, she discovered that he had allowed the three other men to drive it. Because they did not have her permission, she considered the car to be stolen. She told the officers that she did not want to charge the men with theft of the vehicle but that she did not want them to use her car.

         Meanwhile, the police dispatcher informed Officer Corbett that Denzel Hill, the driver of the car, had a suspended license. Officer Larratt proceeded to arrest Hill. While Larratt was patting Hill down, Officer Corbett saw Mundy's hand move up his side to his waistband and down into his pants. Fearing that Mundy was reaching for a weapon, Officer Corbett and Sergeant Riley tackled him. Corbett reached for Mundy's hand and felt a metal object which he believed was a weapon. Corbett told the other officers that Mundy had a gun. The officers searched Mundy and found a pistol and a bag of crack cocaine inside his underwear.

         The length of time that elapsed between Officer Corbett's arrival at the scene at 9:21 p.m. and the time of Mundy's arrest is not firmly established. The Uniform Citation in the record reports that he was arrested at 9:52 p.m., whereas Officer Corbett testified that he arrested Mundy at 10:15 p.m.

         Following Officer Corbett's testimony, defense counsel conceded that the stop itself was lawful but argued Mundy should have been released immediately after Connor explained the circumstances underlying the supposed theft of her car. Although the trial court made no specific finding regarding the length of the detention, it did make an oral finding that the evidence was properly recovered in the course of a lawful protective search, and denied the suppression motion.

         The grand jury had indicted Mundy on the following charges: first-degree trafficking in a controlled substance, first offense (cocaine); trafficking in marijuana less than 8 ounces; possession of a handgun by a convicted felon; and being a persistent felony offender in the second degree.

         Following the denial of his suppression motion, Mundy accepted a plea agreement from the Commonwealth pursuant to which he entered a conditional plea of guilty to the first three charges. The charge of being a persistent felony ...


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