RENDERED: JULY 7, 2023; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-0922-MR
JACKIE LAMONT NEAL APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE ERIC J. HANER, JUDGE
ACTION NO. 14-CR-002357
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CALDWELL, DIXON, AND TAYLOR, JUDGES.
TAYLOR, JUDGE: Jackie Lamont Neal brings this appeal from an August 3,
2021, order of the Jefferson Circuit Court denying Neal’s Kentucky Rules of
Criminal Procedure (RCr) 11.42 motion to vacate his sentence of imprisonment.
We affirm.
In August 2014, five separate robberies occurred at four different
Speedway stores in Louisville, Kentucky. Shortly after one of the robberies and in
close proximity thereto, an officer with the Louisville Metro Police Department
(LMPD) stopped a white truck driven by Neal.1 The officer informed Neal that a
robbery had just occurred at a Speedway store. The officer questioned Neal and
quickly investigated the truck’s cabin. Neal was then allowed to leave. On the
following day, the officer reviewed the surveillance video from the Speedway store
and the video of the stop. The officer then believed that Neal was, in fact, the
robber.2 LMPD eventually obtained a search warrant to search the apartment and
motor vehicle of Neal’s fiancée. The police seized clothing similar to those worn
by the robber and a package of cigarillos similar to those stolen from the Speedway
store.
On September 11, 2014, the Jefferson County Grand Jury indicted
Neal upon five counts of robbery in the first degree, one count of possession of a
controlled substance, and with being a persistent felony offender in the first degree.
The jury ultimately found Neal guilty of five counts of second-degree robbery and
one count of illegal possession of a controlled substance. At the penalty phase of
the trial, the jury recommended a total sentence of seventeen and one-half years’
imprisonment, upon finding Neal to be a first-degree persistent felony offender.
1
The encounter was recorded by a dash camera in the police cruiser.
2
The robber wore a facial covering to obscure his face.
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By a Judgment of Conviction entered on December 16, 2015, the circuit court
sentenced Neal to seventeen and one-half years in prison.3
Subsequently, on March 11, 2019, and June 25, 2020, Neal filed a
motion to vacate and a supplemental motion to vacate pursuant to RCr 11.42.
Therein, Neal argued that trial counsel rendered ineffective assistance, thus
entitling him to RCr 11.42 relief. In an August 3, 2021, order, the circuit court
denied the RCr 11.42 motion without an evidentiary hearing. This appeal follows.
Neal initially contends that trial counsel was ineffective for failing to
file a motion to suppress evidence obtained as a result of the purported illegal stop
of his motor vehicle. In particular, Neal argues:
The August 18, 2014, traffic stop of Jackie Neal by
Officer Raifsnider was a warrantless and unreasonable
seizure and search of Jackie Neal and his effects. As
such, a motion to suppress the traffic stop was
meritorious and should have been filed. . . .
....
Mr. Neal was “seized” during the August 18, 2014,
traffic stop. The driver of a vehicle is considered
“seized” when law enforcement conducts a traffic
stop. . . .
The “event chronology” associated with the
August 18, 2014, 911 call appears to show the 911 call
coming in at 1:27:52 a[.]m. The description of the
3
Jackie Neal pursued a direct appeal, and the Court of Appeals affirmed the judgment of
conviction in Neal v Commonwealth, No. 2016-CA-000076-MR, 2017 WL 3951899 (Ky. App.
Sep. 8, 2017).
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assailant given at 1:28:38 a.m. as a black male wearing a
white shirt, shorts, with a brown bag over a gun. At
1:29:20 [a.m.] it is reported that the assailant fled on foot
towards the east.
The dash cam video recording of the August 18,
2014[,] traffic stop of Jackie Neal by Officer Raifsnider
was introduced at trial as Commonwealth’s Exhibit No.
20. The video begins with Officer Raifsnider pulling
onto Blowing Tree Road from the Speedway parking lot
at 4547 Taylorsville Road and driving north. A white
pickup truck passes Officer Raifsnider traveling south on
Blowing Tree Road. Officer Raifsnider immediately
turns around in the middle of Blowing Tree Road to
follow it. Officer Raifsnider follows the white pickup
truck onto Taylorsville Road traveling west, and
immediately initiates a felony traffic stop using his
emergency lights and siren.
Officer Raifsnider orders the driver to put both of
his hands out of the window. He then orders the driver to
step out of the white pickup truck. Officer Raifsnider
commands the driver to keep his hands up and to walk to
the back of the white pickup truck.
Officer Raifsnider asks the driver where he was
coming from before ordering him to turn around. Officer
Raifsnider then pats the driver down and finds nothing.
The driver is Jackie Neal.
Officer Raifsnider asks Mr. Neal a second time
where he was coming from. Mr. Neal is cooperating.
Officer Raifsnider can be heard advising the dispatcher
on his radio that he had stopped a white truck and that he
doesn’t know if the driver was going to be the suspect or
not.
Officer Raifsnider asks Mr. Neal a third time
where he was coming from and proceeds to search the
cab of the white pickup truck. Officer Raifsnider tells
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Mr. Neal, “Here’s the deal, we just had a robbery up at
Speedway, so you were the first vehicle coming out right
there.”
Officer Raifsnider then asks for Mr. Neal’s
identification and follows him to the cab of the white
pickup truck to retrieve it. Before Mr. Neal hands
Officer Raifsnider his operator’s license, Officer
Raifsnider can be heard telling dispatch, “It’s not our
vehicle.”
The traffic stop obviously constituted a warrantless
seizure and eventual search of Mr. Neal. It was also
unsupported by a reasonable and articulable suspicion
that either Mr. Neal was unlicensed, that the truck was
unregistered, or that Mr. Neal or the truck were involved
in criminal activity as required by Bauder v.
Commonwealth, 299 S.W.3d 588 (Ky. 2009).
Neal’s Brief at 7-10 (citations omitted). Neal maintains that trial counsel was
deficient for failing to file a motion to suppress as the stop was conducted without
reasonable suspicion of criminal activity. Neal points out that the search warrant
was issued based upon the officer’s identification of him from the dash camera
video of the stop. Thus, Neal believes that trial counsel rendered ineffective
assistance, and he is entitled to relief under RCr 11.42.
To prevail upon a claim of ineffective assistance of counsel, movant
must demonstrate that counsel’s performance was deficient and that such deficient
performance was prejudicial. Strickland v. Washington, 466 U.S. 668, 687 (1984).
Prejudice is satisfied by showing there is a reasonable probability that, but for
counsel’s deficient performance, the result of the proceeding would have been
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different. Commonwealth v. Crumes, 630 S.W.3d 630, 636 (Ky. 2021).
Additionally, an RCr 11.42 motion is properly denied without an evidentiary
hearing if the allegations raised are conclusively refuted upon the face of the
record. Commonwealth v. Searight, 423 S.W.3d 226, 231 (Ky. 2014).
In its August 3, 2021, order summarily denying the RCr 11.42 motion,
the circuit court concluded that the police officer possessed reasonable suspicion of
criminal activity to justify an investigatory stop of Neal’s motor vehicle; therefore,
the court believed that trial counsel was not deficient by failing to file a motion to
suppress evidence:
At approximately 1:30 a.m. on August 18, 2014,
Louisville Metro Police Officer Tucker Raifsnider
responded to a report of a robbery at the Speedway store
at the intersection of Taylorsville Road and Blowing Tree
Road. The clerk reported that the robber was wearing a
white shirt and shorts and had fled on foot in the
direction of Blowing Tree Road, which is a service road
that primarily provides access to a large apartment
complex across the street from the store. After receiving
the clerk’s report, Officer Raifsnider returned to his
cruiser and turned onto Blowing Tree Road. He saw a
white Ford F-150 truck in the oncoming land [sic]
heading towards Taylorsville Road. After following the
truck a short way on Taylorsville Road, Officer
Raifsnider activated his lights and stopped the truck.
During the stop, Officer Raifsnider observed that Mr.
Neal, who was driving the truck, was wearing a grey
work shirt, shorts, and a baseball cap. Officer Raifsnider
ordered Mr. Neal out of his truck, conducted a pat-down
search, took Mr. Neal’s identifying information, and
performed a cursory search of the interior of the truck.
The stop then concluded with Officer Raifsnider
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releasing Mr. Neal without seizing any evidence either
from his person or his truck. Given that the stop
occurred within minutes after the robbery, in close
proximity to the scene of the robbery and to the location
where the robber had fled, and at a time of night when
few other people or vehicles were on the roadways, the
Court finds that Officer Raifsnider had a reasonable,
articulable suspicion that Mr. Neal had engaged in
criminal activity and, therefore that the stop was lawful.
The brief stop was no more intrusive than necessary to
promote the legitimate governmental interest in
investigating and apprehending the individual who had
committed the robbery shortly before at the nearby
Speedway store. Because Mr. Neal never had a
meritorious claim under the Fourth Amendment or its
counterpart under the Kentucky Constitution, his trial
counsel could not have been ineffective in failing to file a
motion to suppress evidence flowing from the stop.
August 3, 2021, Order at 5-6 (citations omitted). We agree with the circuit court.
It is well-established that a stop of a motor vehicle by police
implicates the ban on unreasonable search and seizure found in the Fourth
Amendment of the United States Constitution and Section 10 of the Kentucky
Constitution. Commonwealth v. Bucalo, 422 S.W.3d 253, 257-58 (Ky. 2013).
However, “police may briefly detain someone for investigative purposes if ‘the
police officer [can] point to specific and articulable facts’ which lead him to
reasonably conclude ‘that criminal activity may be afoot.’” Ward v.
Commonwealth, 568 S.W.3d 824, 829 (Ky. 2019) (quoting Terry v. Ohio, 392 U.S.
1, 21 (1968)). To determine whether an investigatory stop is justified, the
articulable and reasonable suspicion of criminal activity must be gleaned from the
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totality of circumstances. Bauder v. Commonwealth, 299 S.W.3d 588, 590-91 (Ky.
2009).
Considering the totality of circumstances of this case, we conclude
there existed an articulable and reasonable suspicion of criminal activity to justify
the brief stop of Neal’s motor vehicle. The stop of Neal’s vehicle took place
within minutes of the Speedway’s robbery and in close proximity to the Speedway
store. It was late at night, and the officer first encountered Neal’s vehicle on a
service road. Moreover, the officer was aware that the suspect had fled on foot, so
it was likely that the suspect would still be in the area. Taken together, the officer
possessed articulable and reasonable suspicion of criminal activity to initiate an
investigatory stop of Neal’s vehicle. As the stop of Neal’s vehicle was legally
permissible, we conclude that trial counsel was not deficient for failing to file a
motion to suppress. Likewise, given that Neal’s argument is refuted on its face by
the record in this case, there was no necessity for an evidentiary hearing.
Neal next asserts that trial counsel was ineffective for failing to object
to incorrect and misleading statements regarding good-time credit made by a
witness for the Commonwealth and by the prosecutor during the penalty phase
closing argument. Neal specifically maintains that the Commonwealth’s witness,
Officer Michele Butts,4 and the prosecutor in closing argument made inaccurate
4
Michele Butts was a probation and parole officer.
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and misleading statements concerning good-time credit and that trial counsel was
deficient for failing to object to same:
As extensive and thorough as Officer Butts’
testimony regarding good time credits appeared, it was
incorrect in several important ways. One of the most
significant is her testimony that good time credit was
“granted under statute.” Another mischaracterization
involved statutory and meritorious good time being
automatically given to all prisoners. In addition, the
version of [Kentucky Revised Statutes] KRS 197.045 in
effect at the time of Mr. Neal’s sentencing did not award
ninety days of good time credit for completing mere
“college credits.”
....
During penalty phase closing argument the
prosecutor made numerous and extensive references to
the “good time credits” to be applied against Mr. Neal’s
sentence. As proof of this, she relied partially on the
testimony given by Officer Butts. The prosecutor also
relied on assumptions and assertions concerning good
time credit that weren’t included in Officer Butts’
testimony specifically or introduced into evidence
generally.
[The prosecutor] emphasized that prisoners could get a
lot of credits and told the jury that Mr. Neal “could
‘hypothetically’ get one hundred and twenty (120) days
statutorily and eighty[-]four (84) days meritorious.”
After explaining how she had done some “simple
math” the prosecutor told the jury that Mr. Neal could
receive more than three hundred (300) days of credit for
every three hundred and sixty five (365) day year he was
in prison. This was not testified to by Officer Butts.
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After returning the jury’s attention the power point
slides, which were described as showing the jury “how
those credits work;” the prosecutor reminded everyone
that Mr. Neal would also receive three months of
educational credit “every time he does some certificate.”
...
Neal’s Brief at 18, 20-21 (citations and footnote omitted). Neal argues that had
trial counsel objected to the incorrect and misleading comments concerning his
entitlement to good-time credit, such information would have been excluded, and
he would have received a shorter sentence of imprisonment. Neal claims that the
jury’s recommended sentence of seventeen and one-half years’ imprisonment
directly arose from the inaccurate information and inflated calculation of good-
time credit presented by the Commonwealth.
As to evidence concerning good-time credit, our Supreme Court has
recognized that “[t]he use of incorrect, or false, testimony by the prosecution is a
violation of due process when the testimony is material.” Robinson v.
Commonwealth, 181 S.W.3d 30, 38 (Ky. 2008). Additionally, “the test for
materiality is whether ‘there is any reasonable likelihood that the false testimony
could have affected the judgment of the jury.’” Robinson, 181 S.W.3d at 38
(quoting United States v. Agurs, 427 U.S. 97, 103 (1976)).
At the penalty phase of trial, the jury heard evidence that Neal’s
minimum sentence of imprisonment was ten years and maximum sentence of
imprisonment was twenty years, if he were found to be a first-degree persistent
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felony offender. Also, the jury was properly informed that any credits, excluding
jail-time credit, would only be triggered after Neal served a minimum of ten years.
While some of the Commonwealth’s comments concerning credits were
misleading and trial counsel should have objected thereto, we are unable to
conclude that absent such error by trial counsel, the result of the proceeding would
have been different. Accordingly, we are of the opinion that the circuit court
properly denied Neal’s RCr 11.42 motion.
For the foregoing reasons, the order of the Jefferson Circuit Court is
affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
David L. Stewart Daniel J. Cameron
Assistant Public Advocate Attorney General of Kentucky
LaGrange, Kentucky Frankfort, Kentucky
Ken W. Riggs
Assistant Attorney General
Frankfort, Kentucky
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