EASTERN DISTRICT OF KENTUCKY
PIKEVILLE DIVISION
UNITED STATES OF AMERICA . Docket No. CR 01-17
.
Plaintiff, . Frankfort, Kentucky
. April 17, 2001
v. . 10:13 a.m.
.
LEON COMBS .
.
Defendant .
.
. . . . . . . . . . . . . . . . . . . .
TRANSCRIPT OF PROCEEDINGS
BEFORE THE HONORABLE JOSEPH M. HOOD
UNITED STATES DISTRICT JUDGE
APPEARANCES:
For the Plaintiff: Mr. Roger West
Ms. Teresa Reed
Assistant United States Attorney
110 W. Vine Street, Suite 400
Lexington, KY 40507-1671
For the Defendant: Mr. Derek Gordon
139 Market Street
Lexington, KY 40507
Court Reporter: K. Ann (Edgington) Banta, RPR
330 W. Broadway
Frankfort, KY 40601
(502) 223-3626
Proceedings recorded by mechanical stenography, transcript produced by computer-aided transcription.
Tuesday morning session
April 17, 2000 10:13 a.m.
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THE COURT: Madam Clerk, call the matter on, please.
THE CLERK: Yes, Your Honor, Pikeville criminal action, No. 01-17, United States of America v. Leon Combs, this matter being called for hearing on motion to suppress, Your Honor.
THE COURT: Record reflect that the parties are present in the courtroom by and with counsel. Ready to proceed, Mr. West?
MR. WEST: Yes, Your Honor.
THE COURT: Mr. Gordon?
MR. GORDON: Yes, Your Honor.
THE COURT: Mr. Gordon, you want to state your motion?
MR. GORDON: Well, yeah, I�ll state my motion, Judge, it�s a � it�s a motion to suppress, obviously, and it is our position that the information that was � well, first of all, that the affidavit was not complete in that there is not a sufficient amount of information in the affidavit that the � that the judge down in Hazard could have relied on to have issued a search warrant to search my man�s residence.
There is no alleged sale of � of any drugs at the residence on or about the time that they came in on the search of this residence which would be January 22nd. The only transaction �
THE COURT: Is that the day the search warrant was executed, the 22nd?
MR. GORDON: Yes, sir. There is some question about something that may have occurred on the day before, which may have been on the 21st. However, there is no identification as to where that alleged incident took place. Doesn�t refer to the residence at all.
The only drug transaction that is mentioned that would have any relation to him is not at the residence, and it occurred some two months prior to that and, remember, at some off-beat path somewhere.
I don�t know where it happened, but they had to drive some distance away, and that � that information, even though they say they used it, is a remote in time, has nothing to do with the residence that they searched on that particular day, Judge.
THE COURT: Okay.
MR. GORDON: That�s a synopsis.
THE COURT: Okay, Mr. West?
MR. WEST: Your Honor, the affidavit�s been attached to both the motion and the response by the United States, and the very top portion of its page 2 says the affiant states there is probable, reasonable cause to believe and affiant does believe said property constitutes its use as a means of committing a crime, and also just to paraphrase some of the property being in there in the first portion of that.
In the text of it, the informant in the case�s name, Joshua Ray Miller, the date is given; information is specific as to the rifles and other weapons that were traded.
I disagree with Mr. Gordon saying that there was not a drug transaction. That�s labeled there. In fact there is.
Josh Miller says that he traded one OC 40 Sunday, January 21st, which is the day before the search warrant. He also lists the other items that were there.
Certainly Trooper Fugate in this case, based on his experience that the long guns and the compound bow that�s mentioned are kept in the residence; these certainly aren�t things that are kept on a person or concealed with the person.
Although not mentioned in the search warrant, that Josh Miller did state to Trooper Fugate that he did have the weapons at the residence of Leon Combs. That�s not stated in the search warrant. But based on the informant�s knowledge, he searched the residence.
Additionally, United States� motion contains a good faith argument, and in that case Mr. Gordon has not alleged bad faith or improper information or bear bones affidavit in this case.
United States submits that probable cause is established through the affiant, and if not, the officer is entitled to rely in good faith upon the issuance of the affidavit.
THE COURT: Okay, I don�t think there is any need for any evidence in this matter.
MR. WEST: I agree, sir.
THE COURT: Concur?
MR. GORDON: Well �
THE COURT: I mean, it�s a question of law. We are looking at the search warrant, or the affidavit.
MR. GORDON: I guess you are right, Judge.
THE COURT: Okay, The real question that was presented in the motion, because as stated by the � in the motion is that the search warrant did not contain information which would allow the issuing judge to assess the credibility of the witness.
The witness, Joshua Ray Miller is named specifically, directly, and that use of his name is a sufficient basis to conclude that he � his information was reliable and that�s the � the law of this circuit.
And I cite to the case, United States v. Callaway, 116 Fed. 3d. 1129, Sixth Circuit, 1997.
The next issue was one of �
MR. GORDON: Would the court restate the � the first issue again? I�m sorry.
THE COURT: The first issue that was raised was the affidavit did not contain information to allow the issuing judge to assess the credibility of the witness.
MR. GORDON: Right.
THE COURT: The witness, Joshua Miller, was named specifically. He was involved in the trade according to the affiant and the trade for the Oxycontin for the weapon.
MR. GORDON: But see, Judge, I mean, just to name someone, what is that?
THE COURT: That�s sufficient.
MR. GORDON: They don�t have an Oxycontin. I mean, there is no proof that � he said he traded for an Oxycontin. Well, he never gave that to anybody. He just said that.
THE COURT: I know it.
MR. GORDON: He�s never been used as informant in the past. There is no reliability, no credibility.
THE COURT: He was never used as an informant, if the affiant said he was a witness �
THE DEFENDANT: (Inaudible utterance.)
THE COURT: Now, the first thing that you are going to do is you are going to keep your mouth shut.
First off, I am telling you this for two reasons. Anything you say, whether it�s blurted out here in court, can be used against you in a court of law.
Now, you ought to be smart enough to keep your mouth shut until your attorney tells you it�s time to talk.
MR. GORDON: He will be all right. I�m sorry.
THE COURT: Now, I don�t care � you know, the law of the Sixth Circuit � contrary to what you are telling me � if an affiant names the witness and the witness says, �I traded this gun or these guns for an Oxycontin at this � with this person,� that is sufficient reliability to have that person for a search warrant.
MR. GORDON: Irrespective of the truth and veracity of that statement?
THE COURT: Is there any question that they knew � you are not saying that there was a bad faith argument. You are not making a bad faith argument.
MR. GORDON: Well, I don�t know that I am not. I am saying that the evidence �
THE COURT: Well, you haven�t said it in your plea.
MR. GORDON: I am saying the affidavit is insufficient.
THE COURT: On what � n the grounds they didn�t issue the reliability of Joshua Miller, they named him. It�s not like I have got a confidential, quote, unquote, �informant.�
If, for example, they said � if � if what�s set forth in the last paragraph of the affidavit, if they were going to use that as the basis for the � the sole basis for the search, then they would have to say the reason why they believed this person to be reliable.
MR. GORDON: You are referring �
THE COURT: With �
MR. GORDON: You are referring to the 1114? [Reference to November 14, 2000]
THE COURT: Yes, sir. Now, where they are talking about � where they are talking about giving the name of the person that he is not a confidential informant, he is a named witness and they don�t have to say the reliability. And that�s the � that is the law.
Now, the second issue raised in the motion is because the affidavit didn�t mention the defendant�s place of residence. Probably doesn�t. Doesn�t mention his residence.
But where you have possessory offenses in which the people have � have possession of illicit substances, it is �
it is relatively obvious that that person probably has them at his residence, particularly where he is talking about the long guns and the things that are being traded for Oxycontin.
Not like they have them on their person, they are liable to have them at their residence.
So I think that�s sufficient for the issuing magistrate to believe that there was evidence of a crime to be found at that residence.
MR. GORDON: Are you saying that the � that the trading of the guns is illegal? That �
THE COURT: It is for Oxycontin.
MR. GORDON: Oh, yeah, no question about that.
THE COURT: Trading the guns for Oxycontin is illegal, and the fact that they have got the guns � he�s got the guns would be evidence to support the claim that he traded Oxycontin for the guns, transacting a business for that� for that gun.
MR. GORDON: Who�s got the gun, my guy�s got the guns?
THE COURT: Yeah.
MR. GORDON: But they wouldn�t have gotten the guns had they not used this so-called affidavit to go in there and search his residence.
THE COURT: Yeah, but that�s what they were going in there to look for is those guns.
MR. GORDON: Okay, but there is nothing illegal about those guns unless they were used for something illegal.
THE COURT: And you don�t see a patent illegality in transferring Oxycontin for guns?
MR. GORDON: I do in that instance, Judge, but what I am saying is that guns in themselves are not illegal.
THE COURT: If they are traded for Oxycontin they are.
MR. GORDON: They are. But again it goes to how to they know that they were traded for Oxycontin?
THE COURT: Because Joshua Miller told the affiant trooper that.
MR. GORDON: So you are telling me � okay, so the court is saying that by him stating that he did that, that that along with the other part is sufficient to the judge to have �
THE COURT: Yeah.
MR. GORDON: To have �
THE COURT: Sure it is.
MR. GORDON: I don�t know that I agree with that. Obviously, I don�t.
THE COURT: Well � obviously you don�t, but that�s �
MR. GORDON: I didn�t get too far with that.
THE COURT: And because the information was stale, the information that was given was as recently as one day prior to the � to the search warrant, he had done that.
At least that one day prior, that�s not � that updates any stale ting from the November search, from � or from the November sales, it updates � it updates anything he sold about trading Oxycontin or bought and traded for Oxycontin several times a week, that Mr. Miller said.
So on that basis, I find no reason to suppress the search warrant.
Now, there is a motion to suppress a statement made by Mr. � Mr. Combs? You want to talk about that motion?
MR. GORDON: Well, first of all, we don�t � it�s our position that he didn�t make a statement.
THE COURT: Okay.
MR. GORDON: The other thing is, Judge, we are just � you know, we got all the discovery, and then on April 4, which is about thirteen days ago, I received an update.
And in that update, coincidentally, there happens to be some sort of confession as to why he sold these pills.
THE COURT: Yeah.
MR. GORDON: And it � Your Honor, I think there is a � there is a requirement that we are supposed to get this information, especially a statement that�s made by the defendant, you know, which is inculpatory like that; and I think �
THE COURT: And they gave it to you.
MR. GORDON: On April 4, yeah.
THE COURT: But does that make it any � is that a reason to suppress it?
MR. GORDON: Well, I mean, the other reason to suppress it is it wasn�t made. It�s our position it wasn�t made.
THE COURT: Well, then we are going to have a hearing on that, and we�ll determine whether it was made.
Whether it is sufficient � the fact that Mr. Combs said it wasn�t made, if that was the case there would never be a confession.
MR. GORDON: But I have someone else to say it wasn�t made as well.
THE COURT: That�s fine, but that goes to the weight. So let�s �
MR. GORDON: So you are going to rule that that goes toward the admissibility.
THE COURT: Yeah, but if it�s established that he made it, then it was made � you know, there is reason to believe that, you know, that�s �
MR. GORDON: I just have � and I am just talking in general terms, Judge, not specifically with regard to the statement right now.
But I just have problems with how � how a judge in a court can rely on some individual, and I may be � that may be the law, you know.
So but it�s still a problem, Judge, in that how you can rely on somethig from some guy who has had no �
THE COURT: Because they named him.
MR. GORDON: Well, just naming him, you could name anybody.
THE COURT: A person who is willing to give his name and his name is to be used in an affidavit has an aura of trustworthiness as a result of that.
If the person didn�t want to use his name, then they could always make up something and say that that was said. You know? By confidential informant. So that�s the reason why.
MR. GORDON: Do we know he exists?
THE COURT: Well, I expect he will because he is going to have to testify at the trial. He will testify at the trial if � under those circumstances.
Now, the question is the voluntariness of the confession, to the alleged confession.
MR. WEST: Yes, Your Honor, for the record, we have Mr. Miller at the courthouse today; and he will testify at the trial.
THE COURT: He doesn�t have to testify here �
MR. WEST: Yes.
THE COURT: �because there is no reason for it.
Now, the confession, you want to put on a witness?
MR. WEST: We can, sir, Detective Keith Napier, please.
(Witness Sworn)
THE COURT: You may ask.
MR. WEST: Thank you, Your Honor.
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MR. WEST: Would you state your name and your occupation, please, sir?
KEITH NAPIER: Keith Napier, Hazard Police Department.
MR. WEST: And how long have you been with the Hazard Police Department?
KEITH NAPIER: About nine years.
MR. WEST: What is your current assignment, Detective?
KEITH NAPIER: I am currently working joint effort with drugs in Perry County with Kentucky State Police.
MR. WEST: Is that the Hazard post also?
KEITH NAPIER: Yes, sir.
MR. WEST: And how long have you been involved in that joint operation?
KEITH NAPIER: About nine months.
MR. WEST: On the 22nd of January of this year, did you have occasion to come in contact with the defendant, Mr. Leon Combs, who sits in the courtroom today?
KEITH NAPIER: I did.
MR. WEST: How did you come in contact with him?
KEITH NAPIER: I went with some other officers to execute a search warrant.
MR. WEST: Where did you first see Mr. Combs?
KEITH NAPIER: He was backing his car out of his driveway when we arrived at the residence.
MR. WEST: What happened at that time, sir?
KEITH NAPIER: As we pulled in, he stepped out of the car and started walking back toward our vehicle.
MR. WEST: Did you participate in the search of his physical person yourself?
KEITH NAPIER: I was present during the search. I did not physically search him.
MR. WEST: Do you recall the officer that searched him, sir?
KEITH NAPIER: Yes, sir, I do; it was Trooper Scott Sandlin.
MR. WEST: After the search of Mr. Combs took place, what was the next thing that happened in regard to Mr. Combs� physical residence? Was he outside or was he taken inside the residence?
KEITH NAPIER: After the search, he was taken back inside the residence.
MR. WEST: Was he under arrest at that time?
KEITH NAPIER: He was not under arrest.
MR. WEST: Was he handcuffed?
KEITH NAPIER: No.
MR. WEST: At some point during the � going back inside the residence � was this a trailer or was this a house?
KEITH NAPIER: It was a double-wide trailer.
MR. WEST: Did you have occasion to participate in the search of that structure?
KEITH NAPIER: I did.
MR. WEST: During the course of the search, was Mr. Combs placed in a chair, told not to move about?
KEITH NAPIER: No, sir.
MR. WEST: Was he � was he moving about inside the residence?
KEITH NAPIER: He was moving back and forth, the different rooms in the residence.
MR. WEST: Was there anyone else inside the residence other than law enforcement officers?
KEITH NAPIER: His wife.
MR. WEST: During the time that you were involved in the search of that residence, did you hear Mr. Combs make any statements?
KEITH NAPIER: Yes, I did.
MR. WEST: And what did he say?
KEITH NAPIER: He stated that he only sold the pills to support his family. He could not live off the money that he drew each month.
MR. WEST: Money drew from where?
KEITH NAPIER: From the government.
MR. WEST: Now, was this in response to a question by any officer there?
KEITH NAPIER: Yes, it � no, it was not.
MR. WEST: Was it � were any statements being made to Mr. Combs at that time that he made the resonse?
KEITH NAPIER: I said to Mr. Combs, �You know better than this.� And then he made the statement.
MR. WEST: Were any other officers present when the statement was made, Detective?
KEITH NAPIER: Trooper Scott Sandlin was present and Trooper Chris Fugate.
MR. WEST: That�s all of this witness, Your Honor.
THE COURT: Mr. Gordon?
MR. GORDON: Thank you
�
MR. GORDON: Officer Napier, you are saying that you brought him back into the residence, is that what you are saying?
KEITH NAPIER: Yes, sir.
MR. GORDON: And � and he was not under arrest.
KEITH NAPIER: No, sir.
MR. GORDON: Wasn�t handcuffed?
KEITH NAPIER: No, sir.
MR. GORDON: Did you escort him back into the residence or did he just walk back in himself?
KEITH NAPIER: He walked back in with us.
MR. GORDON: So he was free to go then at that point?
KEITH NAPIER: He would have � I guess he could have went, if he wanted.
MR. GORDON: Excuse me?
KEITH NAPIER: I guess he could have left had he wanted. He was not placed under arrest.
MR. GORDON: Would he have been able to leave?
KEITH NAPIER: I guess he could have.
MR. GORDON: Now, I have �
KEITH NAPIER: I had not placed him under arrest, had not detained him.
MR. GORDON: Did you have his car keys?
KEITH NAPIER: No, sir. I didn�t.
MR. GORDON: Did any of them have his car keys?
KEITH NAPIER: No, sir.
MR. GORDON: So he could have walked back in and shut the door and said, �I don�t want to talk to you guys; leave.�
KEITH NAPIER: We were there to execute a search warrant inside the residence.
MR. GORDON: Okay, so while you were executing your search warrant, he could have taken off himself is what you are saying.
KEITH NAPIER: He wasn�t physically detained. I guess he could have left.
MR. GORDON: Okay, I know he wasn�t physically detained, you didn�t have handcuffs on him; and you didn�t say, �You are under arrest,� but was he free to go?
Did the situation, as it arose, was he free to go in that situation?
KEITH NAPIER: I didn�t make the call to decide whether or not he would actually have been free to go.
MR. GORDON: Who did?
KEITH NAPIER: I think Trooper Chris Fugate would actually have been the one to make that call.
MR. GORDON: When you escorted him back � when you went back into the residence with him, you were standing on one side of him, weren�t you?
KEITH NAPIER: I believe I was in front of him.
MR. GORDON: Okay, and there were officers on each side of him, too, weren�t there?
KEITH NAPIER: I don�t remember if there were officers on both sides or not.
MR. GORDON: But Fugate and Sandlin were with him?
KEITH NAPIER: Inside the residence?
MR. GORDON: Yes, sir.
KEITH NAPIER: Yes, sir.
MR. GORDON: And you were all talking to him, weren�t you?
KEITH NAPIER: Probably at different points during the search.
MR. GORDON: Did you read him his rights at any time?
KEITH NAPIER: His rights were read to him.
MR. GORDON: When?
KEITH NAPIER: Initially when we first pulled up outside the vehicle.
MR. GORDON: So he wasn�t under arrest, but you Mirandized him?
KEITH NAPIER: Trooper Scott Sandlin did Mirandize him in my presence.
MR. GORDON: What did he say, �You are not under arrest, but let me read you your Miranda rights?�
KEITH NAPIER: He said, �I need to read you your Miranda rights.�
MR. GORDON: Isn�t that a little inconsistent with � I mean, if the individual is not under arrest, do you normally read him the rights? I mean, you say, I don�t know.
MR. WEST: Objection, Your Honor, calls for speculation.
MR. GORDON: Well, if you know.
THE COURT: Speculation. Let�s move on to the subject, Mr. �
MR. GORDON: Okay
�
MR. GORDON: Now, this statement that you say that was made inside the residence, whereabouts inside the residence?
KEITH NAPIER: When the statement occurred, sir?
MR. GORDON: Yes, sir.
KEITH NAPIER: In the kitchen.
MR. GORDON: In the kitchen?
KEITH NAPIER: Yes, sir.
MR. GORDON: So that�s right when you walk in the residence, isn�t it?
KEITH NAPIER: There is like a dining area when you first walk in, and then on beyond that is the � the kitchen.
MR. GORDON: Well, when you opened the door to the side there, you know, you walk up the stairs there, those wooden stairs and you walk in the residence, that�s the kitchen right there, is it not?
KEITH NAPIER: I guess it could be considered the kitchen/dining area.
MR. GORDON: And you say there was a table there as well?
KEITH NAPIER: Yes.
MR. GORDON: And that�s where you are saying the statement was made?
KEITH NAPIER: No, sir, it was on the other side of the kitchen.
MR. GORDON: Okay, where there is another table?
KEITH NAPIER: Kind of like an island, I believe.
MR. GORDON: Okay, and where was the wife? Was she there?
KEITH NAPIER: She was in the residence, but I am not sure where she was at at that point.
MR. GORDON: Well, was she out there in the front area, if you remember?
KEITH NAPIER: She could have been. I don�t know.
MR. GORDON: Would she have been in position to hear this statement that was made?
KEITH NAPIER: I don�t know.
MR. GORDON: Is this a taped statement?
KEITH NAPIER: It was not a taped statement.
MR. GORDON: And you are saying that this statement was made to you and who else?
KEITH NAPIER: Trooper Chris Fugate and Trooper Scott Sandlin.
MR. GORDON: And he just blurted this statement out. You weren�t asking him questions, he just blurted it out?
KEITH NAPIER: I said � no, I did not ask him questions?
MR. GORDON: Did he at any time say he wanted to talk to an attorney or anything?
KEITH NAPIER: He did not.
MR. GORDON: Okay, So it was just a � according to your recollection just a voluntary statement made by him?
KEITH NAPIER: Yes, sir.
THE COURT: Well, didn�t you previously ask him or make a statement saying to the effect, that, �You know better than this?�
KEITH NAPIER: Yes, sir, I did say, �You know better than this.�
THE COURT: Then he made that statement and response.
MR. GORDON: Well, when the judge made the statement that you said, �You know better than this,� what did you mean by that?
KEITH NAPIER: Trafficking in the Oxycontin.
MR. GORDON: Did you specifically tell him what you meant?
KEITH NAPIER: No, I did not. I said, �Leon, you know better than this.� That�s the exact wording.
MR. GORDON: He could have thought maybe you were referring to guns, he could have thought, well, maybe you were � but you
MR. WEST: Objection, calls for speculation of the witness.
THE COURT: Sustain.
MR. GORDON: Evidently, based on the statement, you are saying he thought it was drugs then, right? Based on the statement?
KEITH NAPIER: Yes.
MR. GORDON: And you are saying that � that either you or Fugate or Sandlin were in such a position with him in that residence that you didn�t have him detained in a certain area that he was unable to go?
KEITH NAPIER: He was in several of the rooms in the residence during the � during the search.
MR. GORDON: Excuse me?
KEITH NAPIER: He was in several of the different rooms in the residence while we were there.
MR. GORDON: So he was walking around you are saying?
KEITH NAPIER: Yes, sir.
MR. GORDON: And each room that he walked in, was he walking around with an officer?
KEITH NAPIER: I � I don�t know, I wasn�t with him the entire time of the search.
MR. GORDON: Okay.
�
MR. GORDON: That�s all.
THE COURT: Any further questions?
MR. WEST: Not of this witness, Your Honor. I have one more witness, please.
THE COURT: You may step down. Next witness, please?
MR. WEST: Trooper Sandlin, please.
_________________________________
(Witness sworn.)
THE CLERK: Thank you.
THE COURT: You may ask.
MR. WEST: Thank you, Your Honor.
�
MR. WEST: State your name and your occupation, please, sir?
SCOTT SANDLIN: Gary Scott Sandlin. Employed by the Kentucky State Police.
MR. WEST: How long have you been with the Kentucky State Police?
SCOTT SANDLIN: Five months.
MR. WEST: What is your current assignment?
SCOTT SANDLIN: Assigned as trooper, post 13, Hazard.
MR. WEST: On the 22nd of January of this year, did you participate in the execution of a search warrant at the residence of the defendant, Leon Combs?
SCOTT SANDLIN: Yes, I did.
MR. WEST: When did you first come in contact with Mr. Combs?
SCOTT SANDLIN: Outside his residence there.
MR. WEST: What was he doing when you first saw him?
SCOTT SANDLIN: When I first saw him, he was sitting in his car in his driveway.
MR. WEST: All right, what happened then, sir?
SCOTT SANDLIN: As we pulled across the bridge, he got out of his car, started waling back toward us. That�s when we identified ourselves as the State Police, and I asked Mr. Combs to place his hands on the hood of our Blazer and �
MR. WEST: Prior to that � I�m sorry, did you see him doing anything with his hands?
SCOTT SANDLIN: Yes, sir, he had them in front like he was fixing his pants.
MR. WEST: Now, did you participate in a search of Mr. Combs� physical person?
SCOTT SANDLIN: Yes, I did.
MR. WEST: What did you find, sir?
SCOTT SANDLIN: As I was patting him down, I found a .22 pistol in his right front coat pocket; and as I searched, he also had some money on him, cash money.
I had him empty his pockets, then I asked him to step away from the Blazer and asked him to � asked him if he had anything in his pants, and he said no.
And I asked to search his pants, and that�s when we found a little pill bottle down in his crotch.
MR. WEST: What was in the pill bottle,sir?
SCOTT SANDLIN: Twenty-five pills.
MR. WEST: Now, after � at some point did you have conversation with Mr. Combs, did you read him his rights, sir?
SCOTT SANDLIN: Yes.
MR. WEST: Did you read him his rights outside or inside the residence?
SCOTT SANDLIN: Outside.
MR. WEST: Did Mr. Combs ask for an attorney at that time?
SCOTT SANDLIN: No, sir.
MR. WEST: Did he indicate he understood his rights?
SCOTT SANDLIN: Yes, sir.
MR. WEST: Did he make any statements to you at that time after the rights were read?
SCOTT SANDLIN: No, sir.
MR. WEST: At a later point inside the residence, were you present when Mr. Combs made a statement?
SCOTT SANDLIN: Yes, sir.
MR. WEST: To your recollection, what did he say, sir?
SCOTT SANDLIN: Well, Trooper � I mean, Officer Napier asked Mr. Combs why he was selling the pills, and he said he was doing it because he only drawed $400 a month; and he couldn�t make it on what he drawed.
MR. WEST: That�s all of this witness, Your Honor.
THE COURT: All right, Mr. Gordon? Cross examination.
Mr. Gordon: Thank you, Judge.
�
MR. GORDON: So you are saying that Officer Napier, was he asking him a series of questions?
SCOTT SANDLIN: Trooper Fugate had initiated the conversation with Mr. Combs inside the residence. I am not sure what all Trooper Fugate had asked him.
And then Officer Napier asked him why he was selling the pills, and then that�s when he made the statement that he made.
MR. GORDON: And you are saying that prior to that he had never indicated that he wanted an attorney?
SCOTT SANDLIN: No. sir.
MR. GORDON: And was he free to go then?
SCOTT SANDLIN: To go? After I � after we read him his rights, we asked him to step inside the residence so we � so he could be in there when we searched the house.
MR. GORDON: Did you escort him in there?
SCOTT SANDLIN: Yes.
MR. GORDON: Was he free to say, �I am going up the street to have a cup of coffee,� or anything?
SCOTT SANDLIN: No, sir.
MR. GORDON: He wasn�t free to do that?
SCOTT SANDLIN: Not at that time.
MR. GORDON: Okay, well, even though you hadn�t physically placed him under arrest by putting handcuffs on him, he was being physically detained, was he not?
SCOTT SANDLIN: Yes, sir.
MR. GORDON: So he had gotten in a custodial situation then; is that right?
SCOTT SANDLIN: Yes, sir.
MR. GORDON: All right. And that would have been the � the same situation that he would have been in when he � when he in fact did go into the residence; is that right?
SCOTT SANDLIN: Yes, sir.
MR. GORDON: Okay, and the � that would have been with you, Napier and Fugate; is that right?
SCOTT SANDLIN: Yes, sir.
MR. GORDON: All right. And he did not � he did not volunteer that information until he was � until you all started asking questions, is that right?
SCOTT SANDLIN: I never � I never asked him no questions.
MR. GORDON: I understand you did not, but one of the officers you were with began to ask him questions, did he not?
SCOTT SANDLIN: Yes, sir.
MR. GORDON: Okay, and specifically it was Fugate, initially, and then ultimately it was � it was Napier?
SCOTT SANDLIN: Yes, sir.
MR. GORDON: All right. And then at that point he blurted this statement out; is that right?
SCOTT SANDLIN: As he was sitting there at the table talking, yes.
MR. GORDON: Any other questions that you remember that were asked of him?
SCOTT SANDLIN: We asked him if he had anything there that he had taken off � off our witness, and he stated that there were several guns and stuff there.
MR. GORDON: That he had taken off your witness?
SCOTT SANDLIN: Yeah.
MR. GORDON: Okay, and � okay, now, you are talking this witness, are you talking about Josh Miller?
SCOTT SANDLIN: Yes, sir.
MR. GORDON: And did you put that in your report?
SCOTT SANDLIN: I never made a report. I never made a � wrote a statement or nothing concerning it.
MR. GORDON: Did Chris Fugate hear that statement?
SCOTT SANDLIN: I�m assuming he did, yes, sir.
MR. GORDON: You are assuming him and Napier heard the statement because they were there with you?
SCOTT SANDLIN: Yep.
MR. GORDON: Now, when he was making the statement, were you in front of him or were you like sitting next to him?
SCOTT SANDLIN: He was sitting in one chair, Trooper Fugate was sitting in a chair, Officer Napier was sitting in another chair there; I was standing.
MR. GORDON: So you sort of had him surrounded at that point?
SCOTT SANDLIN: Yes, sir.
MR. GORDON: That�s all.
THE COURT: Mr. West?
MR. WEST: Yes, Your Honor.
�
MR. WEST: Trooper, do you recall whether or not anyone else was present in that area, in that kitchen area besides Mr. Combs and law enforcement officers?
SCOTT SANDLIN: His wife was in the living room. It joins the kitchen, but �
MR. WEST: And how far away was she, if you can recall, from where the conversation was taking place?
SCOTT SANDLIN: Probably about from me to you.
MR. WEST: That�s all. No further witnesses, no further questions.
�
MR. GORDON: There is no door between the kitchen and living room now, is there?
SCOTT SANDLIN: A door that closes?
MR. GORDON: Yes.
SCOTT SANDLIN: No, sir.
MR. GORDON: As a matter of fact, you can see if you are sitting in that chair there, that one chair, you can see right into the kitchen, can�t you? You may not can see it all, but you can see a part of it, can�t you?
SCOTT SANDLIN: Yes, sir.
MR. GORDON: And as a matter of fact where � where his wife was sitting, she could see you all, couldn�t she?
SCOTT SANDLIN: I assume she could, yes, sir.
MR. GORDON: And you would have assumed that she could hear you, too?
SCOTT SANDLIN: Yes, sir.
MR. GORDON: That�s all.
MR. WEST: Nothing further, sir.
THE COURT: Okay, thank you, Trooper, you may step aside. Any witnesses on behalf of the defendant?
MR. GORDON: Call Michelle Combs.
____________________________________
(Witness Sworn)
THE CLERK: Thank you.
MR. GORODN: State your full name for the court, please.
MICHELLE COMBS: Michelle Alice Combs.
MR. GORDON: And where do you live?
MICHELLE COMBS: 201 High Rock Road, Hazard, Kentucky.
MR. GORDON: And obviously you know Leon Combs?
MICHELLE COMBS: Yes, I do.
MR. GORDON: Okay, he is your husband?
MICHELLE COMBS: Yes, he is.
MR. GORDON: Bringing your attention to the 22nd day of January of the year 2001, did you have occasion to be at your residence at that time?
MICHELLE COMBS: Yes, I was.
MR. GORDON: And you remember getting some company that day?
MICHELLE COMBS: Oh, yes, I do.
MR. GORDON: And that would have been the police?
MICHELLE COMBS: Right.
MR. GORDON: Okay, Officer Fugate, Sandlin and Napier?
MICHELLE COMBS: Yes.
MR. GORDON: Do you know these individuals?
MICHELLE COMBS: Personally, no.
MR. GORDON: Okay, I mean, but have you seen them before or is that the only time?
MICHELLE COMBS: That was the first time I had ever seen them.
MR. GORDON: You know who they are now though, don�t you?
MICHELLE COMBS: Yes, I do.
MR. GORDON: Were you in or outside of the home when they approached the residence?
MICHELLE COMBS: I was inside.
MR. GORDON: Okay. So what took place outside the residence you are not familiar with?
MICHELLE COMBS: No, I am not.
MR. GORDON: Did there come a time when your husband and some other individuals came into the home?
MICHELLE COMBS: Well, actually, some came in before they came in. Very briefly.
MR. GORDON: Do you remember a time when your husband actually came in?
MICHELLE COMBS: I remember haring them come in, yes.
MR. GORDON: So you didn�t actually see them come in?
MICHELLE COMBS: No, I didn�t.
MR. GORDON: Do you remember where they went when they came in?
MICHELLE COMBS: They came directly into the kitchen.
MR. GORDON: All right. Now, when you came in the kitchen � I have been there before, you know this.
MICHELLE COMBS: Right.
MR. GORDON: Is there a table when you first walk in?
MICHELLE COMBS: At � at that time there was.
MR. GORDON: When I came there?
MICHELLE COMBS: No, when you came there the tables had been removed.
MR. GORDON: There was?
MICHELLE COMBS: Right.
MR. GORDON: All right. Is that the table that is beyond the kitchen now?
MICHELLE COMBS: Yes.
MR. GORDON: But that table was right when you walked in initially?
MICHELLE COMBS: Yes.
MR. GORDON: Okay, now, where did the officers and � well, where did you first see your husband when he finally came in?
MICHELLE COMBS: When I came from the bedroom to � into the living room, I could see where he was standing.
MR. GORDON: Okay, and where was that?
MICHELLE COMBS: He was standing with his back to the kitchen stove.
MR. GORDON: All right. And when his back was to the kitchen stove, that is fairly close to the entrance to where you walk into the living room, is it not?
MICHELLE COMBS: Yes.
MR. GORDON: It�s a lot closer to the entrance to the living room than it would be to the door that you come in on the side there?
MICHELLE COMBS: Oh, yes, yes.
MR. GORDON: So were you in a position that you could see � could you see him in there?
MICHELLE COMBS: I � when I sat down I couldn�t see him, but when I walked from my bedroom into the living room I could see exactly where he was.
MR. GORDON: Okay, and did you see the officers in there as well?
MICHELLE COMBS: Yes, I did.
MR. GORDON: And there is no door there that would block the view from the kitchen �
MICHELLE COMBS: No.
MR. GORDON: � to the living room, is there?
MICHELLE COMBS: No.
MR. GORDON: All right, now, do you remember that the officers were talking to him? Or what do you remember? Under the circumstances what you remember?
MICHELLE COMBS: The officers were talking to him; to the left of the stove � the stove sits kitty-corner. To the left of the stove is the kitchen sink. In the center of that area is an island.
Keith Napier was standing in front of the kitchen sink. So he would have been to the left of � of my husband.
Because of the position of the island, Chris Fugate couldn�t be directly in front of him, so he was to this � kind of to the side kitty-corner to him. And that�s how they were standing.
MR. GORDON: Okay, and do you remember hearing any conversation?
MICHELLE COMBS: They were talking about the guns.
MR. GORDON: All right.
MICHELLE COMBS: And I was � in the position I was sitting in � I was sitting on the end of the couch �I could see Keith Napier directly. And they were talking about guns.
And I heard Leon say, �I don�t like what I have to do, but I do what I can to support my family.�
And when he said that, I had not heard any statement prior to that other than � than talking about the guns. Keith looked at Officer Fugate and gave him a little grin.
MR. GORDON: Who looked at Officer
MICHELLE COMBS: Keith did, it was Trooper Fugate.
MR. GORDON: So you heard the statement, �I don�t like� �
MICHELLE COMBS: �I don�t like what I do,� it was something to the effect of �I don�t like everything that I do, but I do what I can to support my family.�
MR. GORDON: Okay, and that�s what you � that�s your recollection of what you heard?
MICHELLE COMBS: Yes, and at that point I had not heard anything mentioned about drugs. And I had not seen�I was standing where I could see Keith Napier, and I did not see him say anything or that I wouldn�t have been able to hear.
MR. GORDON: What about Chris Fugate?
MICHELLE COMBS: I did not hear him say anything other than at the time talking about the guns.
MR. GORDON: Do you remember a statement being made to � to such an extent, �You know better than this, Leon�?
MICHELLE COMBS: No, I didn�t.
MR. GORDON: But you never heard the � the comment about �I sold pills.�
MICHELLE COMBS: No, he did not say, �I sold pills.�
MR. GORDON: You � you specifically do not remember that statement being made?
MICHELLE COMBS: I specifically do not remember that statement being made.
MR. GORDON: All right. And do you remember if your husband, he wasn�t handcuffed or anything, was he?
MICHELLE COMBS: No, he wasn�t.
MR. GORDON: And did it appear that h was free to leave, or you wouldn�t know that?
MICHELLE COMBS: It really didn�t appear that way.
MR. GORDON: Okay, and other than you, your husband and those police officers that you made mention of, there was no one else in the residence, is that right?
MICHELLE COMBS: Other than �
MR. GORDON: Maybe your kids, were they there?
MICHELLE COMBS: No, they were not there.
MR. GORDON: Okay. So no one else other than other officers that might have been �
MICHELLE COMBS: That�s it.
MR. GORDON: �finagling around. All right.
MR. GORDON: That�s all.
THE COURT: Mr. West?
MR. WEST: Yes, Your Honor.
�
MR. WEST: Miss Combs, you weren�t aware they had searched your husband outside and found 25 pills on him, were you?
MICHELLE COMBS: No, I was not.
MR. WEST: So you had � you have no idea what took place outside the residence?
MICHELLE COMBS: No, I do not.
MR. WEST: Your husband doesn�t work, does he?
MICHELLE COMBS: No.
MR. WEST: Draw government?
MICHELLE COMBS: No, at that time he was getting government compensation.
MR. WEST: How much does he get?
MICHELLE COMBS: Biweekly he got a check for $153.
MR. WEST: So monthly he got a little over $300.
MICHELLE COMBS: Correct.
MR. WEST: When he says he didn�t like what he had to do to support his family, do you know what he was referring to?
MICHELLE COMBS: He was referring to trading, because generally that�s what he � he traded guns.
MR. WEST: Traded guns?
MICHELLE COMBS: That�s how we met twenty-four years ago.
MR. WEST: You don�t know what he traded those guns for?
MICHELLE COMBS: Money.
MR. WEST: That�s all.
THE COURT: He didn�t trade those guns for you, did he?
MICHELLE COMBS: Well, to help us maybe.
THE COURT: No, when he met yu, I was just wondering whether he traded a gun for you.
MICHELLE COMBS: No, he did not.
THE COURT: And you are not originally from Perry County, are you?
MICHELLE COMBS: No, I am not.
THE COURT: I can tell that by your accent.
MICHELLE COMBS: I am going to take that as a compliment.
THE COURT: That�s okay. Mr. Gordon, anything further?
MR. GORDON: No, nothing further of this witness.
THE COURT: All right, you may step aside.
MICHELLE COMBS: Thank you.
THE COURT: Next witness?
MR. GORDON: Of course, I can put my client on for the limited purpose of this question.
THE COURT: Yes.
MR. GORDON: And I�ll put him on for the limited purpose of that.
THE COURT: All right.
_______________________________________
(Defendant sworn)
THE CLERK: Thank you.
MR. GORDON: You know, Judge, before he � he commences on this, can � can I have a moment with him? I feel I should explain something to him.
THE COURT: Yes, sir, you may.
MR. GORDON: Just for a moment. I can approach the witness, if that�s all right with you.
THE COURT: Yes, sir.
(Counsel for the defendant conferring with the defendant.)
MR. GORDON: All right, thank you, Your Honor.
____
MR. GORDON: State your full name for the court, please.
LEON COMBS: Ramah Leon Combs
MR. GORDON: Where do you reside, Leon?
LEON COMBS: 201 High Rock Road, Hazard.
MR. GORDON: Okay, and that�s the same address that your wife just testified to; is that right?
LEON COMBS: Yes.
MR. GORDON: And how long have you lived there?
LEON COMBS: Since April of � well, it�s been about four years now.
MR. GORDON: Okay. Now, I want to bring your attention to the 22nd day of January of the year 2001. Do you remember that day specifically?
LEON COMBS: Yes, sir.
MR. GORDON: Okay, Was that the day that you � you know, that you had some business?
LEON COMBS: Yes, sir.
MR. GORDON: All right. And you were outside additionally [perhaps a typo and should have been �initially.�], were you not?
LEON COMBS: Yes, sir.
MR. GORDON: Well, just tell the court � well, just tell us what happened, if you would.
LEON COMBS: I was getting in my car to go get my girls, and a vehicle pulled across the bridge behind me, and I got out of my car, walked back to see who it was.
Upon approaching the vehicle, officers stepped out and identified theirself and told me not to move.
And when they got out, they came up; and Keith Napier started pulling on latex gloves and looked at me and said, �If I stick my hand in your pocket, I am not going to stick myself with a hypodermic needle.�
MR. GORDON: All right.
LEON COMBS: And he �
MR. GORDON: Leon �
LEON COMBS: He searched me.
MR. GORDON: Yeah, we are just trying to deal with this issue, we are not going to get into all the facts here. Okay?
Now, did there come a time when � when ultimately, as testified earlier, that they found something on you, is that right?
LEON COMBS: Yes.
MR. GORDON: And do you remember at that point were you read your rights?
LEON COMBS: No, sir, I wasn�t read my rights until I was at Post 13 in Hazard and they were getting ready to take me to jail. Then Chris Fugate read me my rights. I was not read my rights until then.
MR. GORDON: Prior to being taken to jail were you informed that you were under arrest?
LEON COMBS: No, sir. Well, yes, Chris Fugate told me when we were starting to leave my house, he said, �I am going to have to take you in.�
He never actually said that I was under arrest, he just said that he was going to have to take me in.
MR. GORDON: Okay, prior to that, were you � after they had found that stuff on you and you went into the residence, were you free to go?
LEON COMBS: �They just looked at me outside and said, �We need to go inside, it�s cold out here.�
And they escorted me into the house and placed me in front of the stove, and that�s where I stood while they were doing the investigation.
MR. GORDON: Okay, was it your position that you were fee to go?
LEON COMBS: Yes.
MR. GORDON: Excuse me?
LEON COMBS: Yes.
MR. GORDON: Oh, you thought you could just walk out?
LEON COMBS: No, I didn�t think I could just � they were standing all around me. I assumed that I wasn�t supposed to go anywhere.
MR. GORDON: You never asked?
LEON COMBS: I never asked, no, sir.
MR. GORDON: You just assumed you were not �
LEON COMBS: I just assumed that I was not �
MR. GORDON: You were not free to go �
LEON COMBS: That I was not allowed to go anywhere.
MR. GORDON: All right, and I take it that that environment, that situation was the same throughout your stay in the residence as well?
LEON COMBS: Yes, sir.
MR. GORDON: Now, when you were in the residence, the testimony has been that � I take it you would not differ from that � Officer Fugate was in there, Officer Sandlin and Officer Napier, is that right?
LEON COMBS: Officer Fugate and Officer Napier pretty much stayed right beside me, but Trooper Sandlin was in and out of different rooms and outside looking for the guns and stuff.
MR. GORDON: Did there become some conversation in there at some point?
LEON COMBS: Yes, sir, they were questioning me about the guns.
MR. GORDON: Okay, and did � do you remember the statement that I believe Officer Napier asked, �You know better than this�?
LEON COMBS: I never heard that statement.
MR. GORDON: Did you at any time make a � make a statement that you only sold pills to support your family and that �
LEON COMBS: I never, ever made a statement about selling pills.
MR. GORDON: Okay. Did you ever make a statement about selling anything?
LEON COMBS: We were talking about guns. I never even said anything about selling guns. I just made the comment that I did what I had to do to support my family.
MR. GORDON: But you at no time ever said anything about selling any pills?
LEON COMBS: No, sir.
MR. GORDON: To make money to support your family?
LEON COMBS: No, sir.
MR. GORDON: That you couldn�t get enough from the government?
LEON COMBS: No, sir.
MR. GORDON: And I take it that this statement that you say you made was made inside the kitchen?
LEON COMBS: Yes, sir.
MR. GORDON: And in response to something that either Napier or Fugate had asked you?
LEON COMBS: Yes, sir.
MR. GORDON: And during that situation while you were there, you were of the opinion that you were not free to go?
LEON COMBS: I thought that I had been confined because they stood on both sides of me at all times.
MR. GORDON: Okay. Well, you weren�t confined, I guess, technically because you weren�t in jail, but you felt detained.
LEON COMBS: Yes.
MR. GORDON: Okay, that�s all.
THE COURT: Mr. West?
MR. WEST: Yes, Your Honor.
�
MR. WEST: Mr. Combs, your statement is, that, �I did what I had to do to support my family.�
LEON COMBS: Yes, sir.
MR. WEST: And that�s been involving, you are saying, selling firearms?
LEON COMBS: Yes, sir, I have traded guns literally all my life.
MR. WEST: Sold guns, right?
LEON COMBS: Yes, sir.
MR. WEST: And you don�t have a Federal firearms license, do you?
LEON COMBS: I do not, but it is a common practice in Hazard for a whole lot of people.
MR. WEST: And many places?
LEON COMBS: I guess so, yeah.
MR. WEST: When this conversation took place, that took place pretty quick after you got into the trailer, didn�t it?
LEON COMBS: No, sir, they had already went all through my house, and another trooper had walked into my kitchen and made the comments, �I am tired of being jacked around, I am getting ready to get serious.�
And I looked at him and told him �I gave him everything that I had and cooperated the best I could.�
And I looked up and Chris Fugate was shaking his head no, and Keith Napier walked over and said, �He is cooperating, he is not causing any trouble, why should we?�
And he walked back over and made another comment about the guns, and I said, �I do what I have to do to support my family.�
MR. WEST: Was that the only place inside the residence that you were at with those officers?
LEON COMBS: Yes.
MR. WEST: Did you not show them around and show them different items?
LEON COMBS: They asked me where the guns were, and I told them, �Sitting in the corner of my gun case.�
MR. WEST: Did you also show them where a Browning bow was at?
LEON COMBS: No, sir, they were searching outside and found the bow hanging in my outbuilding.
MR. WEST: What about a Karaoke machine that was there?
LEON COMBS: They came through the house carrying it and asked me if it came from Josh Miller. I told them I didn�t know.
MR. WEST: What about a Black & Decker tool kit and a Moby Dick case � knife kit and case?
LEON COMBS: They were in my China � in my gun cabinet, China cabinet, whatever you want to call it.
MR. WEST: You didn�t show them that?
LEON COMBS: No, they picked it up, asked me if I got that from Josh Miller. I told them yes.
MR. WEST: And the only pills that were found, Mr. Combs, during the course of the search were found in your waistband crotch area, there was none found in your residence?
LEON COMBS: Well, I didn�t know that there were any in there, but according to Chris Fugate he found nine more inside my residence and a prescription bottle, too.
MR. WEST: But you didn�t know that, did you?
LEON COMBS: I didn�t know that, no.
MR. WEST: But you know about the ons they found inside your waistband?
LEON COMBS: Yes, I did.
MR. WEST: That�s all of this witness.
THE COURT: Mr. Gordon?
MR. GORDON: That�s all, Judge.
THE COURT: Thank you, You may stand aside, Mr. Combs.
THE COURT: Any further evidence on behalf of the United States?
MR. WEST: No, Your Honor.
MR. GORDON: Judge �
THE COURT: Oh, Mr. Gordon, I assumed I asked you, did you have something else you wanted to offer?
MR. GORDON: No, you didn�t ask.
THE COURT: That�s why I was saying, Mr. Gordon.
MR. GORDON: I thought you said the government.
THE COURT: I asked the government first, then you.
MR. GORDON: No, sir. Your Honor.
THE COURT: Mr. West?
MR. WEST: No. sir.
THE COURT: Section 3501 of Title 18 covers a determination as to what I must decide when I am confronted with an issue of voluntariness of a statement made by a defendant.
There is case law that goes on to say in regard to this that I am not to determine whether the statement was truthful, I think the language is, I am not to consider the truthfulness of the alleged confession. That�s exactly what I am being asked to do right here.
I have a city detective and a state police officer who said that this statement was made by Mr. Combs.
Mr. Combs says he didn�t make the precise statement that was attributed to him by Mr. Napier and � or Detective Napier and Trooper Sandlin.
But he made a statement to the effect that he did what he had to do to support his family.
So that requires me to make a determination � would require me to make a determination as to which was telling the truth, and that�s what I am told that I necessarily shouldn�t do.
I think the statement that was made, if any, was made voluntarily. There wasn�t any question as to that raised in any � to any degree.
The statement � question is whether the statement was made and what was the content of the statement.
There was a statement made, then it turns to what was the content of the statement; and that is something that the jury must � must decide on hearing all the evidence and make the determination.
The other aspect if that this was made shortly after he was confronted by the police. The police say he was Mirandized, he said he wasn�t.
But that�s � but he felt he was under detention, but there was no interrogation; this was just a statement that he made.
So this is a volunatry statement as far as I�m concerned, and it should go to the jury.
This matter will stand in recess until 9:00 tomorrow moring. We�ll select the jury.
Court will be in recess until that time.
(Matter concluded at 11:10 a.m.)