Opinion of the Court by Justice SCOTT.
A Christian Circuit Court jury found Appellant, Derryl Dewayne Blane, guilty of two counts of first-degree trafficking in a controlled substance (cocaine); one count of trafficking in marijuana, eight ounces or more; one count of possession of drug paraphernalia, second or subsequent offense; and of being a first-degree Persistent Felony Offender (PFO). For these crimes, Appellant received a thirty-year prison sentence.
He now appeals as a matter of right, Ky. Const. § 110(2)(b), alleging that the trial court (1) erroneously denied his motion to suppress, (2) erroneously denied his Batson motion, (3) erroneously permitted the Commonwealth to amend the indictment after granting a directed verdict of acquittal on the marijuana charge, (4) erroneously admitted testimony during the penalty phase concerning prior charges of which he had not been convicted, (5) erroneously imposed a thirty-year sentence, (6) that his conviction as a first-degree PFO is invalid as to Count 1 of the indictment, and (7) that he should be permitted to request retroactive application of the amended penalty for possession of drug paraphernalia.
On June 27, 2006, the Hopkinsville Police Department's (HPD) Special Investigations Unit set up a controlled narcotics purchase from Appellant at his home. HPD sent a confidential informant, Jason Alexander, equipped with a camera, audio monitoring device, and documented money, to purchase crack cocaine from Appellant. Jason went to Appellant's home and purchased two rocks of crack cocaine from him for twenty dollars.
On May 17, 2007, HPD sent another confidential informant—this time Jason's wife, Connie Alexander—to purchase drugs from Appellant.
Connie's purchase served as the probable cause basis for a search warrant issued later that day, and executed the next morning at Appellant's home. The search yielded $11,452.74 in cash, approximately fifteen and one-half grams of crack cocaine, and approximately two pounds and thirteen ounces of marijuana.
Appellant was charged by information in Christian Circuit Court with two counts of first-degree trafficking in a controlled substance
At the close of the Commonwealth's case-in-chief, Appellant moved for a directed verdict on the charge of trafficking in marijuana within 1,000 yards of a school. Because the Commonwealth had introduced no evidence with respect to Appellant's home being within 1,000 yards of a school, the trial court indicated that it was going to "in essence" grant Appellant's motion for a directed verdict on this count. However, the court then granted the Commonwealth's motion to amend Count 3 of the indictment from trafficking in marijuana within 1,000 yards of a school to trafficking in marijuana, eight ounces or more.
The jury found Appellant guilty of the three underlying charges, and recommended the maximum sentences for each conviction. The Commonwealth then called a deputy circuit clerk to testify as to Appellant's prior convictions to establish his PFO status. Specifically, the Commonwealth elicited testimony from the clerk regarding two separate prior incidents involving Appellant. With respect to both incidents, the clerk testified as to the original charges and the charges as amended.
Appellant sets forth seven separate arguments: one alleging error in the investigation, one alleging error in voir dire, one alleging mid-trial error, and four concerning the penalty phase of his trial. We will discuss them in that order.
Appellant argues that the trial court erroneously denied his motion to suppress the evidence collected at his home during the execution of the search warrant. He alleges that the affidavit in support of the search warrant contained false and misleading information, and therefore was issued in violation of his rights under the United States and Kentucky Constitutions. Specifically, he contends that the HPD officer's description of the confidential informant for the May 17, 2007 controlled buy as "reliable" was false and misleading.
The Fourth Amendment to the United States Constitution states, in relevant part, that "... no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and
438 U.S. 154, 164-65, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978) (quoting United States v. Halsey, 257 F.Supp. 1002, 1005 (S.D.N.Y.1966)). Moreover, "[i]f an informant's tip is the source of information, the affidavit must recite `some of the underlying circumstances from which the informant concluded' that relevant evidence might be discovered, and `some of the underlying circumstances from which the officer concluded that the informant ... was "credible" or his information "reliable."'" Id. at 165, 98 S.Ct. 2674 (quoting Aguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964)).
When an affidavit supporting a search warrant is challenged, it is presumptively valid. Id. at 171, 98 S.Ct. 2674. The challenger must allege deliberate falsehood or reckless disregard for the truth, "and those allegations must be accompanied by an offer of proof." Id. If the challenger establishes this by a preponderance of the evidence, "and, with the affidavit's false material set to one side, the affidavit's remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit." Id. at 156, 98 S.Ct. 2674.
On appeal, we engage in a two-step analytical review. "First, [we] review the factual findings of the circuit judge to see if they are supported by substantial evidence, RCr 9.78, and then review the ruling on the motion to suppress de novo to see whether the decision was correct as a matter of law." Commonwealth v. Pride, 302 S.W.3d 43, 49 (Ky.2010) (citing Ornelas v. United States, 517 U.S. 690, 698-99, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996)). However, "[i]n doing so, all reviewing courts must give great deference to the warrant-issuing judge's decision." Id. (citing Illinois v. Gates, 462 U.S. 213, 236, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)).
With respect to the first step, the trial judge ruled from the bench that the affidavit's description of the informant as "reliable" did not rise to the level of a Franks issue and therefore denied Appellant's motion. This appears to be the extent of his "factual findings" on the record. Implicitly, though, this means that the trial judge found that the affiant's assertion that the confidential informant was "reliable" was not a deliberate falsehood,
The affidavit states, in relevant part, that "Affiant received information from/observed a reliable confidential informant that she had made a successful controlled purchase of crack cocaine at [Appellant's address]." The officer corroborated this evidence by "[l]isten[ing] to the audio of the buy and confirm[ing] that a controlled purchase had occurred, field test[ing] the drugs and confirm[ing] the location of the buy as described by the C.I."
Appellant contends that the "reliable" status assigned to the confidential informant was deliberately or recklessly false or misleading because this was the first and only time that Connie Alexander was used as a confidential informant in a controlled buy. Reliability, Appellant contends, implies a pattern of behavior or history; according to him, reliability cannot be established by the mere fact that she was reliable in this case alone. We disagree.
The confidential informant told HPD that she could purchase cocaine from Appellant. On the day of the purchase she went to the police station and met with an HPD officer who searched her person, while another officer searched her vehicle. No drugs were found. An officer equipped the informant with an audio recorder and transmission device. She was given forty dollars with which to purchase drugs.
In short, the informant told the officer that she could purchase drugs from Appellant, and that proved to be true. In other words, the informant proved to be reliable, and that is supported by substantial evidence. See Taylor v. Commonwealth, 987 S.W.2d 302, 305 (Ky.1998) (concluding that findings of trial court with respect to its denial of a motion to suppress were supported by substantial evidence when "the very specific information from the informer which was confirmed in every detail by independent police observation, reasonably led the police to believe that the tip was sufficiently truthful and reliable to justify" a vehicle stop). Some of that evidence was detailed in the affidavit itself as required by Franks, 438 U.S. at 165, 98 S.Ct. 2674. Moreover, the affidavit includes "some of the underlying circumstances from which the officer concluded that the informant... was credible or [her] information reliable."
Gates, 462 U.S. at 238-39, 103 S.Ct. 2317. It is clear that in this case, the trial court had a substantial basis for its conclusion.
As noted above, the affidavit stated that the officer received information from "a reliable confidential informant that she had made a successful controlled purchase of crack cocaine at [Appellant's address]." The affidavit further states that the swearing officer "[l]istened to the audio of the buy and confirmed that a controlled purchase had occurred, field tested the drugs and confirmed the location of the buy as described by the [informant]." This information provides a substantial basis upon which a trial court could conclude that there was "a fair probability that contraband or evidence of a crime [would] be found" at Appellant's residence. Id. at 238, 103 S.Ct. 2317. Thus, we conclude that the trial court's ruling on Appellant's motion was correct as a matter of law. See Lovett v. Commonwealth, 103 S.W.3d 72, 78 (Ky.2003) (holding that "while a court may question an informant's motives, an `explicit and detailed description of alleged wrongdoing, along with a statement that the event was observed first-hand, entitles [the informant's] tip to greater weight than might otherwise be the case'" (quoting Gates, 462 U.S. at 234, 103 S.Ct. 2317)).
Appellant next argues that the trial court erred when it denied his Batson motion which objected to the removal of Reginald Dooley, an African American, from the jury pool. Appellant contends that the Commonwealth's striking of Dooley from the venire constituted racial discrimination in violation of the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution. See Batson v. Kentucky, 476 U.S. 79, 89, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) (declaring that "the Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the State's case against a black defendant").
Claims of racial discrimination in jury selection are analyzed in a threestep process. Id. at 96-98, 106 S.Ct. 1712. First, the defendant must make a prima facie showing that the prosecutor has exercised a peremptory challenge on the basis of race. Id. at 96, 106 S.Ct. 1712. The defendant does this by: (1) "show[ing] that he is a member of a cognizable racial group, and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race"; (2) "rely[ing] on the fact ... that peremptory challenges constitute a jury selection practice that permits `those to discriminate who are of a mind to discriminate'"; and (3) showing "that these
During voir dire of this case, members of the jury pool were asked if they knew Don Morehead, Appellant's attorney. Dooley responded that he and Morehead were high school basketball teammates in 1979, and that he had had no contact with Morehead since then. He further stated that the fact that they were teammates in 1979 would not render him more favorable to the defense, and that he would be fair and impartial. Nevertheless, the prosecutor used a peremptory strike on Dooley.
We first note that Appellant made the requisite prima facie showing of racial discrimination necessary for a Batson challenge: (1) Appellant is African American, (2) Dooley is African American, (3) Dooley stated that his prior acquaintance with Morehead would not render him more favorable to the defense, (4) that he would be fair and impartial, and (5) the prosecutor struck him from the jury pool. This is sufficient to raise an inference of racial discrimination.
Next, we are satisfied that the prosecution met its burden of asserting a race-neutral explanation for striking Dooley. First, the prosecutor asserted that the fact that Dooley had been a high school basketball teammate of Morehead's gave her cause for concern about the potential for bias. Second, the prosecutor stated that Dooley had been on a jury the week prior to Appellant's trial and had found the accused not guilty.
Finally, the trial court found that the race-neutral reasons offered by the prosecution overcame Appellant's Batson challenge—that is, that Appellant had not proven intentional discrimination.
Appellant argues next that the trial court erred when, after granting his motion for a directed verdict on the charge of trafficking in marijuana within 1,000 yards of a school, it permitted the Commonwealth to "amend the indictment"
RCr. 6.16 states, in relevant part: "The court may permit an indictment, information, complaint or citation to be amended any time before verdict or finding if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced." (Emphasis added). By the rule's plain language, a trial court may not permit an amendment after it has granted a directed verdict on a count.
With respect to the original charge of trafficking in marijuana within 1,000 yards of a school, the trial court ruled as follows:
Counsel for the defense then objected to the amendment; his objection was overruled but noted for the record.
The parties disagree as to whether a motion for directed verdict was actually granted. The Commonwealth argues that the trial judge's use of the phrase "in essence" prevents the ruling from being a directed verdict. We disagree.
A trial judge cannot in essence grant a directed verdict but not actually grant it. Counsel for the defense moved for a directed
Appellant next argues that the penalty phase introduction of the original dismissed charges from his prior convictions was erroneous. Specifically, the
During the penalty phase of a jury trial, KRS 532.055(2)(a)(2) allows the jury to hear "[t]he nature of prior offenses for which [the defendant] was convicted." Appellant argues that this does not include the original charges of an indictment that was amended prior to final judgment and conviction. We agree.
Nothing in KRS 532.055(2)(a) permits a jury to hear evidence during the penalty phase of prior charges that have been amended—it is only permitted to hear evidence of "the nature of the prior offenses for which [the defendant] was convicted." KRS.055(2)(a)(2) (emphasis added). And we have recognized that "it is also well settled that the Commonwealth cannot introduce evidence of charges that have been dismissed or set aside." Cook v. Commonwealth, 129 S.W.3d 351, 365 (Ky.2004) (citations omitted); see also Robinson v. Commonwealth, 926 S.W.2d 853, 854 (Ky. 1996) (holding that "KRS 532.055(2)(a) permits the introduction of prior convictions of the defendant, not prior charges subsequently dismissed"). For purposes of the penalty phase, criminal charges that have subsequently been amended are the functional equivalent of dismissed charges, which we have established to be impermissible as evidence in a sentencing hearing. See Chavies v. Commonwealth, 354 S.W.3d 103, 115 (Ky.2011) (holding that "the introduction of the indictment showing the charges that were later dismissed and amended was erroneous") (emphasis added). The prosecution may only introduce evidence of the nature of a defendant's prior offenses, including the charges for which he was convicted, and the trial court erred by permitting introduction of the pre-amended charges.
However, for Appellant to be successful on this issue we must also find that this error was palpable. In arguing that the error was indeed palpable, Appellant contends that he was prejudiced as evidenced by the jury's recommendation of the maximum sentence on each of the underlying charges. As such, he argues, prejudice can be presumed. Under the facts presented in this case, we agree.
We recently addressed a very similar issue in Chavies, where the defendant's indictment, showing dismissed and amended charges, was introduced during the penalty phase of his trial. In that case we concluded that the error was not palpable. In support of that conclusion, we noted that (1) the defendant did not receive the maximum penalty for one of the convictions for which he was being sentenced, and (2) "the dismissed and amended offenses were never pointed out to the jury by the trial judge, the Commonwealth, or
To be sure, there is no way of knowing whether or to what extent the introduction of the original charges influenced the jury to recommend the maximum penalty on all convictions. However, in reversing a similar decision we noted the following: "It has been observed that the maximum sentence has been imposed by the verdict, and it would be pure speculation for us to ponder what, if any, portion of the punishment stemmed from the improper argument of counsel." Taulbee v. Commonwealth, 438 S.W.2d 777, 779 (Ky.1969) (reversing and granting defendant new trial after the prosecutor made improper comments during closing arguments).
We conclude that introducing the original charges of Appellant's prior convictions constitutes palpable error in that it affected a substantial right to due process, resulting in a manifest injustice. See RCr 10.26. We therefore reverse and remand to the trial court for a new penalty phase, with instructions that the trial court not permit the Commonwealth to introduce prior amended charges for which Appellant was not convicted.
Appellant next argues, and the Commonwealth agrees, that his conviction as a first-degree PFO is invalid as to Count 1 of the indictment because the evidence established that he had only one prior felony conviction at the time he committed the offense charged in Count 1. Although this issue is not preserved, we invoke our authority to review for palpable error under RCr 10.26.
Under KRS 532.080, the Kentucky PFO statute, to be found guilty of being a first-degree PFO, a defendant must stand "convicted of a felony after having been convicted of two (2) or more felonies ... at the time of commission of the felony for which he now stands convicted." Here, Appellant had only been convicted of one felony before the commission of the offense stated in Count 1 of his indictment—i.e., the trafficking in cocaine charge for the June 27, 2006 controlled purchase. He was convicted of possession of a controlled substance (cocaine) on November 6, 2002. Appellant's second conviction did not come until November 29, 2006—some five months after the commission of the offense charged in Count 1. Thus, the jury should have been instructed on second-degree PFO
Our decision to remand for a new penalty phase renders Appellant's remaining allegations of error moot. However, we address them because they are likely to recur on remand.
Appellant alleges that the trial court erred when it imposed a sentence of thirty years' imprisonment, which he argues exceeds the maximum aggregate allowable by Kentucky law. Specifically, Appellant contends that the maximum allowable sentence under KRS 532.110(1)(c) is twenty years' imprisonment.
We agree that the longest sentence of imprisonment that Appellant could have received is twenty years. KRS 532.110(1)(c) provides:
KRS 532.080(6)(b) provides, in relevant part, that a first-degree PFO who presently stands convicted of a Class C or D felony "shall be sentenced to an indeterminate term of imprisonment, the maximum of which shall not be less than ten (10) years nor more than twenty (20) years." And a second-degree PFO "shall be sentenced to an indeterminate term of imprisonment pursuant to the sentencing provisions of KRS 532.060(2) for the next highest degree than the offense for which
Accordingly, as to Count 1, under KRS 532.080(5) and KRS 532.060(2), Appellant could have been sentenced to ten to twenty years' imprisonment.
This conclusion is clearly supported by the plain language of the statute, its commentary, and our case law. KRS 532.110(1)(c) limits consecutive sentences to "the longest extended term which would be authorized by KRS 532.080 for the highest class of crime for which any of the sentences is imposed"—here, twenty years for the Class C felony for which Appellant was found guilty in Count 2, enhanced by his first-degree PFO conviction pursuant to KRS 532.080(6)(b).
Moreover, the Commentary to KRS 532.110 supports our conclusion.
This is precisely the situation presented by this case.
We discussed this issue squarely in Sanderson v. Commonwealth, 291 S.W.3d 610 (Ky.2009) and came to the same conclusion. In that case, the defendant was convicted of two Class C felonies and three Class D felonies, and was sentenced to thirty-five years in prison. Although we reversed his convictions and remanded for a new trial, we stated that "if he is convicted of the same felonies after another trial, his maximum sentence cannot exceed twenty years' imprisonment."
Because the plain language of the statute, its commentary, and our case law all prohibit the imposition of a sentence of more than twenty years' imprisonment for the crimes for which Appellant was convicted, on remand he cannot be sentenced to more than twenty years in prison.
Appellant's final argument is that he should be permitted to invoke KRS 218A.500 as amended to eliminate second or subsequent offender enhancement for possession of drug paraphernalia.
KRS 218A.500 is the statutory provision that deals with the definitions, offenses, and penalties associated with drug paraphernalia. As amended, subsection (5) of that statute provides that "[a]ny person who violates any provision of this section shall be guilty of a Class A misdemeanor." The effective date for this statute as amended was April 13, 2010.
Citing KRS 446.110,
Lawson v. Commonwealth, 53 S.W.3d 534, 550 (Ky.2001). Thus, the trial court did not err in instructing the jury on the pre-amended possession of drug paraphernalia penalties. However, KRS 446.110 also provides an exception: "If any penalty, forfeiture or punishment is mitigated by any provision of [a] new law, such provision may, by the consent of the party affected, be applied to any judgment pronounced after the new law takes effect."
Accordingly, KRS 446.110 requires that the "penalty, forfeiture, or punishment" be mitigated by a provision of the new law. The maximum penalty for a Class D felony is five years' imprisonment. KRS 532.060(d). The maximum penalty for a Class A misdemeanor is one year's imprisonment. KRS 532.090(2). Clearly, the asamended version of KRS 218A.500 mitigates the penalty or punishment for a conviction of possession of drug paraphernalia.
Moreover, judgment was "pronounced after the new law [took] effect." KRS 446.110. Appellant's trial was in March 2010; the amendment to the drug paraphernalia statute took effect on April 13, 2010;
Although Appellant did not bring the asamended version of the drug paraphernalia statute to the attention of the trial court, and therefore did not "consent" to its retroactive application before judgment of sentence, we see no reason not to permit him to request it on remand during the new penalty phase.
In conclusion, we: (1) reverse Appellant's conviction for trafficking in marijuana, eight ounces or more, and vacate his sentence for that conviction; (2) reverse Appellant's conviction for first-degree PFO as to Count 1 of the indictment, and vacate the enhanced sentence for that count; (3) affirm Appellant's remaining convictions; and (4) remand this case to the Christian Circuit Court for a new penalty phase consistent with this opinion.
All sitting. All concur.
Also, the amendment in this case is markedly different than the amendments we have permitted in the past, where we have found the following not to qualify as "additional or different" offenses: an allegation that the defendant is guilty of the underlying charge by complicity, because "one who is found guilty of complicity to a crime occupies the same status as one being guilty of the principal offense," see, e.g., Commonwealth v. Combs, 316 S.W.3d 877, 880 (Ky.2010) (quoting Parks v. Commonwealth, 192 S.W.3d 318, 326-27 (Ky.2006) (internal alterations omitted)); amending an assault charge to change the mental state required to be proven from "intentionally" to "wantonly," Owens v. Commonwealth, 329 S.W.3d 307, 314 (Ky.2011); amending a charge of possession of drug paraphernalia to include additional paraphernalia not included in the original indictment, because "[identifying additional items of paraphernalia did not charge Appellant with an `additional or different' offense," Johnson v. Commonwealth, 105 S.W.3d 430, 442-43 (Ky. 2003); amending an indictment from second-degree PFO to first-degree PFO, because "PFO is a status, not a criminal offense," Riley v. Commonwealth, 120 S.W.3d 622, 631 (Ky.2003); designating a different subsection of the statute under which the defendants were originally charged, because the offense was the same and no additional evidence was required to prove the amended offense, Schambon v. Commonwealth, 821 S.W.2d 804, 810 (Ky.1991); amending a PFO count to list additional previous crimes, because "the only `offense' charged in [that] count of both the original and amended indictment is that of charging the Appellant of being a [PFO] in the first degree," Henderson v. Commonwealth, 636 S.W.2d 648, 651 (Ky.1982); and amending the indictment to change the date of the occurrence of the alleged offense, Stephens v. Commonwealth, 397 S.W.2d 157, 158 (Ky.1965). But see Frizzell v. Commonwealth, 511 S.W.2d 200, 200 (Ky.1974) (holding that forgery and uttering a forgery are different offenses); and Maum v. Commonwealth, 490 S.W.2d 748, 749-50 (Ky.1973) (finding that amending a charge of public nuisance by permitting trafficking in narcotics to also include public nuisance by permitting persons to be under the influence of narcotics, to engage in fights, to park and congest the public ways, and to be under the influence of intoxicating beverages and/or to engage in disorderly conduct constituted additional or different offenses). Notably, all of these amendments were made before a verdict was rendered.
