TAMIKA M. MONTAQUE v. COMMONWEALTH OF KENTUCKY
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RENDERED:
November 20, 1998; 10:00 a.m.
TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 1997-CA-001174-MR
and
NO. 1997-CA-001255-MR
TAMIKA M. MONTAQUE
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE ERNEST A. JASMIN, JUDGE
ACTION NO. 96-CR-000840
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
VACATING SENTENCE AND REMANDING
* * * * * * *
BEFORE:
GUDGEL, Chief Judge, ABRAMSON, and COMBS, Judges.
ABRAMSON, JUDGE:
Tamika Montaque appeals from a May 15, 1997,
judgment of Jefferson Circuit Court sentencing her to ten years
in prison.1
Montaque was convicted of trafficking in a
controlled substance (cocaine) in the first degree (KRS
218A.1412) and of possession of drug paraphernalia (KRS
218A.500).
Because Montaque was found to have been in possession
of a firearm at the time of the commission of these offenses, she
was subjected to an enhanced penalty, pursuant to KRS 218A.992,
1
This is appeal No. 97-CA-1255-MR. Montaque also took an
appeal(No. 97-CA-1174-MR) from an earlier version of the same
judgment. The two appeals have been consolidated for our review.
and was denied probation, at least in part, pursuant to KRS
533.060.
On appeal, Montaque claims that the Commonwealth failed
to prove that her possession of a firearm had any bearing on or
connection with the trafficking or paraphernalia offenses and
that, consequently, she should not have been subjected to an
enhanced penalty or deemed ineligible for probation.
Having
concluded that Montaque was improperly subjected to an enhanced
penalty, we vacate her sentence and remand for re-sentencing.
The case against Montaque began on December 20, 1995,
when Louisville and Jefferson County police officers executed a
search warrant for the apartment she occupied with Ronald
Johnson.
The officers discovered approximately nine ounces of
cocaine in the apartment.
The officers also found digital
scales, knives, plastic bags, and cellular phones, some of these
items bearing cocaine residue and all suggesting that Montaque
and Johnson intended to distribute the cocaine.
Johnson were both arrested and indicted.
Montaque and
Subsequently, Montaque
admitted having received the nine ounces of cocaine from an outof-state relative and further admitted that she had planned to
sell it.
She denied, however, that an unloaded, semi-automatic
handgun the police later found in the trunk of a car owned by
Johnson’s mother and parked in the apartment building parking lot
played any part in her drug dealing.
Montaque claimed the gun
belonged to a friend who had asked her two or three weeks before
her arrest to store it for him.
She had hidden the gun, she
said, in the 1985 Cadillac, which she was then borrowing from
Johnson’s mother.
Montaque testified that she was not using the
Cadillac at the time of the search because a short time before
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she had purchased a car of her own.
The police found the
unloaded gun wrapped in a plastic shopping bag along with two
ammunition clips and a box of loose shells.
Because the bag was
located in the back of the trunk behind a speaker box, the gun
was not accessible at all from the car’s passenger compartment
and was only awkwardly accessible through the trunk.
In her motions for a directed verdict on the firearm
possession enhancement and for a new trial, Montaque argued that
KRS 218A.992 contemplates the existence of some nexus between the
firearm and the underlying offense.
Because the Commonwealth
failed to prove a nexus, Montaque insisted that the statute could
not properly be invoked.
In response, the Commonwealth claimed
both that an adequate nexus had been established--in that the
jury could reasonably surmise that Montaque would have used the
Cadillac in the course of her drug dealing--and also that KRS
218A.992 does not require proof of a nexus but only proof of
firearm possession contemporaneous with the underlying offense,
which Montaque admitted.
The trial court denied Montaque’s
motions, but did not specify whether it did so as a matter of
fact (i.e., a nexus was established) or as a matter of law (i.e.,
no proof of nexus required).
We shall therefore review both
questions, bearing in mind that in the context of directed
verdict rulings we review the trial court’s factual
determinations deferentially, Commonwealth v. Benham, Ky., 816
S.W.2d 186 (1991), but we review its statutory interpretations de
novo.
Keeton v. City of Ashland, Ky. App., 883 S.W.2d 894
(1994).
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Preliminarily, we note that Chapter 218A of the
Kentucky Revised Statutes, which is titled “Controlled
Substances,” provides for the regulation of drugs and like agents
having, among other characteristics, an “actual or relative
potential for abuse.”
KRS 218A.020.
The chapter prohibits
various acts relating to controlled substances and provides
penalties for violations of the various statutes including
property forfeiture, fines and other criminal sanctions.
218A.140, 218A.160, 218A.410, 218A.991.
KRS
A part of this
regulatory scheme, KRS 218A.992, provides in pertinent part as
follows:
Enhancement of penalty when in possession of
a firearm at the time of commission of
offense.
(1) Other provisions of law notwithstanding,
any person who is convicted of any violation
of this chapter who was at the time of the
commission of the offense in possession of a
firearm, shall:
(a) Be penalized one (1) class more severely
than provided in the penalty provision
pertaining to that offense if it is a felony;
or
(b) Be penalized as a Class D felon if the offense
would otherwise be a misdemeanor.
Although “possession” is not defined in the statute, our Supreme
Court recently held that “possession” for purposes of KRS
218A.992 includes the notion of constructive possession as well
as that of actual physical possession.
Ky., ____ S.W.2d ____ (rendered 9/3/98).
Houston v. Commonwealth,
In that case, the
defendant was convicted of drug trafficking after officers
executing a search warrant for his apartment found cocaine and
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two loaded revolvers in the kitchen and marijuana and a loaded
handgun in the living room.
The defendant disavowed ownership of
the guns but acknowledged that his fingerprints could be found on
them.
The Houston court held that “a drug violation penalty may
be enhanced under KRS 218A.992 if the violator has constructive
possession of a firearm.”
Id.
Houston was found to be in
constructive possession of the guns, all of which were “in plain
view and easily accessible.”
Id.
In this case, Montaque, who admits possessing the
firearm in question, asks us to interpret the phrase “who was, at
the time of the commission of the offense, in possession of a
firearm.” (Emphasis added).
She insists that the qualifying
language, “at the time of the commission of the offense,” refers
not only to the temporal relationship between the alleged
possession and the alleged offense, but also evidences the
General Assembly’s intent that sentence enhancement be imposed
only for firearm possession that is related to the offense in a
purposeful and not merely a coincidental way.
The Commonwealth
argues that according to the plain meaning of the statutory
language a mere temporal relationship is sufficient to justify
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sentence enhancement.2
For three reasons, we agree with
Montaque.
First, fundamental principles of statutory construction
support Montaque’s interpretation of the statute.
Generally, we
are obliged to construe a statute “in such a manner that ‘no part
of it is meaningless or ineffectual.’” Combs v. Hubb Coal
Corporation, Ky., 934 S.W.2d 250, 252 (1996)(citation omitted).
“It is an elementary rule of construction that effect must be
given, if possible, to every word, clause, and sentence of a
statute.”
Hampton v. Commonwealth, 257 Ky. 626, 78 S.W.2d 748,
750 (1934).
Unless the “at the time of the commission of
offense” language signifies some nexus between the firearm
possession and the alleged offense other than a merely temporal
one, that language is meaningless.
Clearly, no penalty
enhancement could be sustained if the possession were not even
contemporaneous with the offense.
Second, penalty enhancement on the basis of firearm
possession alone would automatically subject gun possessors as a
class to harsher penalties than non-possessors, despite the fact
that in some instances the gun possession would have no bearing
on the offense and would not increase the risk of gun-related
2
At oral argument, the Commonwealth acknowledged that a
purely temporal relationship could result in enhancement even
where the firearm was located in a different city. In the
example posed by another member of this panel, a Lexington
resident leaves his gun in his Lexington apartment and travels to
Louisville for a rock concert where he purchases and sells drugs.
Upon his conviction in Jefferson County, according to the
Commonwealth, the defendant would be subject to an enhanced
penalty because his gun ownership was contemporaneous with
commission of the drug crime, despite the lack of any connection
between the firearm and the crime.
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violence.
Our Supreme Court succinctly stated the standard for
equal protection analysis in Kentucky in Commonwealth v. Wasson,
Ky., 842 S.W.2d 487, 500 (1992):
[N]o class of persons can be discriminated
against under the Kentucky Constitution. All
are entitled to equal treatment, unless there
is a substantial governmental interest, a
rational basis, for different treatment.
Where a firearm is readily available, even if not used, during
the commission of a violation of Chapter 218A, there is certainly
a rational basis for enhancing the penalty; guns and drugs are a
dangerous combination.
However, where the firearm is not
accessible and not otherwise connected to the drug violation, the
defendant is being penalized for mere possession of a firearm.
There appears to be no rational basis for subjecting gun
possessors as a class to an enhanced penalty unless the
possession is connected in a meaningful way to the drug
violation.
Thus, a separate classification for firearm possessors
(the inevitable consequence of the Commonwealth’s position that
only a temporal relationship is necessary), would most probably
conflict with the equal protection provisions of the Kentucky
Constitution.
Commonwealth v. Howard, Ky., 969 S.W.2d 700
(1998); Commonwealth v. Wasson, supra.
Since we are obliged,
when we are reasonably able to do so, to construe a statute so as
to avoid doubts about its constitutionality, Overnite Transp. Co.
v. Gaddis, Ky. App., 793 S.W.2d 129 (1990), we conclude that the
General Assembly did not intend application of KRS 218A.992
unless the Commonwealth establishes a meaningful nexus, beyond
the possession itself, between the firearm possession and the
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violation of Chapter 218A.
See People v. Atencio, 878 P.2d 147
(Colo. App. 1994) (construing Colorado’s enhancement statute as
including a nexus requirement).
Finally, as Montaque notes, “‘. . . doubts in the
construction of a penal statute will be resolved in favor of
lenity and against a construction that would produce extremely
harsh or incongruous results. . . .’” Woods v. Commonwealth, Ky.,
793 S.W.2d 809, 814 (1990) (quoting from Commonwealth v. Colonial
Stores, Inc., Ky., 350 S.W.2d 465, 467 (1961)).
We agree with
Montaque that this so-called ‘rule of lenity’ is pertinent.
The
construction of KRS 218A.992 urged by the Commonwealth, which
advocates automatically subjecting all firearm possessors to
enhanced penalties for violations of Chapter 218A, would create a
significant risk of unduly harsh and incongruous sentences for
those violators whose firearm possession did not have any
connection to their drug offense.
As noted above, KRS 218A.992
can reasonably be understood to require proof of some nexus
between the firearm and the drug violation.
The rule of lenity
applies, therefore, and provides another reason for our
conclusion that KRS 218A.992 does include a nexus requirement.
Our decision in this case is bolstered by comparison
with federal law.
Much like KRS 218A.992, United States
Sentencing Guidelines § 2D1.1(b)(1) “directs sentencing courts to
increase the offense level . . . ‘[i]f a firearm or other
dangerous weapon was possessed during commission of [a drugrelated] offense.’” United States v. Vasquez, 874 F.2d 250, 251
-8-
(5th Cir. 1989).3
The commentary to this section of the
Guidelines explains its application as follows:
The enhancement for weapon possession
reflects the increased danger of violence
when drug traffickers possess weapons. The
adjustment should be applied if the weapon
was present, unless it is clearly improbable
that the weapon was connected with the
offense. For example, the enhancement would
not be applied if the defendant, arrested at
his residence, had an unloaded hunting rifle
in the closet.
United States v. Otero, 868 F.2d 1412, 1414 (5th Cir. 1989)
(quoting from Guidelines § 2D1.1 Application Note 3).
Accordingly, federal courts have developed standards
for determining whether § 2D1.1(b)(1) applies to a given case:
The government can prove possession in two
ways. First, the government can prove that
the defendant personally possessed the weapon
by showing that a temporal and spatial
relation existed between the weapon, the drug
trafficking activity, and the defendant
. . . . Generally, the government must
provide evidence that the weapon was found in
the same location where the drugs or drug
paraphernalia are stored or where part of the
transaction occurred. . . .
Alternatively, when another individual
involved in the commission of an offense
possessed the weapon, the government must
show that the defendant could have reasonably
foreseen that possession.
United States v. Hooten, 942 F.2d 878, 882 (5th Cir. 1991).
The
government must show both “that the weapon was ‘present’ and that
3
In 1991 the Sentencing Commission amended this guideline by
deleting the phrase “during commission of the offense.” The
amendment has been interpreted as making sentence enhancement
appropriate whenever a weapon is possessed during the charged
offense or during any act that is part of the same course of
conduct. United States v. Roederer, 11 F.3d 973 (10th Cir.
1993).
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it is probable that the weapon was ‘connected with the offense.’”
United States v. Vasquez, supra, at 251 (emphasis in the
original).
To avoid the potential constitutional problems noted
above, similar standards should govern the applicability of KRS
218A.992.
Under these standards, Montaque was entitled to a
directed verdict on the weapon possession enhancement.
Although
she admitted possessing the gun and placing it in the Cadillac,
the Commonwealth presented absolutely no evidence tending to show
that the gun was connected to Montaque’s cocaine trafficking.
Unlike the situation presented in Houston, the gun was not
present in the apartment where the drugs and paraphernalia were
discovered.
Additionally, there was no evidence that Montaque
used the Cadillac in furtherance of her illegal activities.
The
Commonwealth correctly asserts that proof of Montaque’s use of
the Cadillac for drug-related transactions, even transactions not
directly related to the cocaine seized from her apartment, could
have established the nexus required under KRS 218A.992.
Cf.
United States v. Roederer, supra (holding that a gun found in the
defendant’s apartment several miles from the charged drug
transaction supported sentence enhancement pursuant to §
2D1.1(b)(1) because there was evidence of drug-related activity,
although uncharged, in the apartment).
The Commonwealth may not,
however, rely upon mere speculation to establish such use.
The
Commonwealth’s insistence that use of the Cadillac for drug
dealing may be inferred from Montaque’s possession of the cocaine
and the gun begs the question posed by KRS 218A.992.
-10-
The Commonwealth failed to meet its burden of proof in
this case.
The trial court erred by denying Montaque’s motion
for a directed verdict on the applicability of KRS 218A.992.
As
a matter of law, the Commonwealth was obliged to prove a nexus
between the alleged firearm possession and the alleged drug
offenses; as a matter of fact, it failed to do so.
Montaque also contends that the trial court erred by
deeming her ineligible for probation pursuant to KRS 533.060.
That statute provides in pertinent part as follows:
(1) When a person has been convicted of an
offense or has entered a plea of guilty to an
offense classified as a Class A, B, or C
felony and the commission of the offense
involved the use of a weapon from which a
shot or projectile may be discharged that is
readily capable of producing death or other
serious physical injury, the person shall not
be eligible for probation, shock probation,
or conditional discharge, except when the
person establishes that the person against
whom the weapon was used had previously or
was then engaged in an act or acts of
domestic violence and abuse as defined in KRS
403.720 against either the person convicted
or a family member as defined in KRS 403.720
of the person convicted.
Montaque contends that KRS 533.060 does not preclude
her being probated.
Even if she is deemed to have possessed a
weapon for the purposes of KRS 218A.992, she argues, there was no
evidence that the commission of her offense involved that
weapon’s use.
We do not reach this issue, for our conclusion
above that Montaque did not even possess the gun within the
meaning of KRS 218A.992 renders academic this further question
concerning the “use of a weapon” as provided in KRS 533.060.
remand, Montaque is to be sentenced for her trafficking and
On
paraphernalia offenses without enhancement under KRS 218A.992.
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Her suitability for probation should be assessed accordingly,
pursuant to KRS 533.010.
Although Montaque is not barred from
probation by KRS 533.060, the trial court’s authority to grant or
to deny probation is otherwise unaffected by this opinion.
For these reasons, we vacate that portion of Jefferson
Circuit Court’s May 15, 1997, judgment sentencing Tamika Montaque
to ten years in prison and remand for re-sentencing in accordance
herewith.
ALL CONCUR.
BRIEF AND ORAL ARGUMENT FOR
APPELLANT:
BRIEF AND ORAL ARGUMENT FOR
APPELLEE:
Elizabeth Shaw
Richmond, Kentucky
Samuel J. Floyd, Jr.
Assistant Attorney General
Frankfort, Kentucky
BRIEF FOR APPELLEE:
A. B. Chandler, III
Attorney General
Frankfort, Kentucky
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