CURTIS DANSBY v. COMMONWEALTH OF KENTUCKY
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RENDERED: August 6, 1999; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-000532-MR
CURTIS DANSBY
v.
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE GARY D. PAYNE, JUDGE
ACTION NO. 97-CR-001112
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GARDNER, HUDDLESTON, AND JOHNSON, JUDGES.
JOHNSON, JUDGE: Curtis Dansby (Dansby) has appealed from the
judgment of the Fayette Circuit Court entered on February 23,
1998, which found him guilty of the crimes of trafficking in a
controlled substance (cocaine), first degree, (Kentucky Revised
Statutes (KRS) 218A.1412), possession of marijuana, (KRS
218A.1422), selling alcoholic beverages without a license, (KRS
243.020), and being a persistent felony offender in the first
degree, (KRS 532.080), and which sentenced him to prison for a
term of fifteen years.
We affirm.
On August 31, 1997, after receiving information from a
confidential informant that a person named “Tiny” was conducting
a bootlegging operation at 246 Warnock Street, Detective Guy
Greene (Detective Greene), of the Lexington-Fayette Urban County
Division of Police (Division of Police), obtained a warrant to
search the dwelling located at that address.
The warrant
provided that police could search for “any writings, documents,
safes, alcoholic beverages, monies, or any other items that may
indicate proof of a bootlegging operation.”
When Detective
Greene and other officers arrived that same day to conduct the
search, Dansby identified himself as “Tiny.”
The officers found
in the house a large quantity of products containing alcohol,
including nearly 300 cans and/or bottles of various brands of
beer.
They also found over $1,000 in cash, several 1" x 1" zip-
lock bags, two bags containing marijuana, and a bag of cocaine.
Detective Greene found the bag of cocaine in a small
zippered compartment of a duffle bag. Detective Greene testified
that Dansby identified the duffle bag as his “work bag”, and the
bag was located in a bedroom which Dansby identified as the
bedroom he shared with his girlfriend.
One of the bags of
marijuana was found in Dansby’s bedroom and the other was
discovered in the bedroom identified as belonging to the son of
Dansby’s girlfriend.
Detective Greene testified that he asked
Dansby how much cocaine was in the bag and that Dansby responded,
“an eight-ball,” that is, about 3.5 grams.
The detective also
stated that Dansby told him that he had paid about $150 for the
cocaine.
As a result of the search, Dansby was arrested and
ultimately indicted on the various drug and alcohol charges.
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Prior to trial, Dansby attempted to suppress the
evidence discovered in his work bag by arguing that the police
exceeded the scope of the search by looking in the bag’s small
compartments.
After a hearing, the trial court denied the motion
to suppress on the grounds that the large amount of alcohol
seized gave the officers justification for looking in the bag for
money, receipts, or other records related to the bootlegging
operation.
Dansby’s trial was held in January 1998.
The
Commonwealth offered the testimony of Laura Sudkamp from the
state police crime lab, who stated that the white powder seized
from Dansby’s work bag was cocaine.
However, she also testified
that it weighed 6.63 grams, nearly twice the amount Dansby told
Detective Greene he purchased.
In addition to the testimony of
Detective Greene and the other officers involved in executing the
search warrant, the Commonwealth, through Lieutenant Michael
Bosse (Lt. Bosse) of the narcotics unit of the Division of
Police,
offered expert testimony about the various forms and
uses of cocaine and its means of distribution.
Lt. Bosse
testified that the cocaine had a street value of over $600 and
that the amount Dansby possessed exceeded that which an
individual user would keep for personal use.
Lt. Bosse also
opined that other circumstances, such as the lack of
paraphernalia or containers with residue, were indicative of
possession with intent to sale.
Dansby did not testify.
At the conclusion of the guilt phase, the jury found
Dansby guilty on all three underlying charges and recommended his
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punishment on the two misdemeanors be set at 90 days in jail and
a fine of $250.
Dansby pled guilty to the persistent felony
charge in exchange for the Commonwealth’s recommendation that he
serve 10 years on the trafficking count, enhanced to 15 years on
the persistent felony count.
At sentencing, the trial court
imposed the recommended 15-year sentence and the two 90-day
sentences, all to run concurrently.
It did not impose the fines.
Dansby has raised three issues in this appeal from the final
judgment and sentence.
He first argues that his conviction is
tainted by certain alleged improper comments made by the
prosecutor in her closing argument.
Specifically, he objected to
the following argument made by the prosecutor:
There’s absolutely no proof to the contrary
that that marijuana belonged to Curtis
Dansby. None. He told them, “That’s my work
bag.” He never said anything else. There
was never any proof put on by the defense to
say, “This was somebody else’s.” This was
clearly Curtis Dansby’s marijuana and he
possessed marijuana.
And finally, you look at the issue
cocaine. Again this is clearly his.
Bradbury1 wants you to think that the
is whether or not its [Dansby’s]. It
And how do we know that? Again, it’s
work bag. It’s in his bedroom and he
Detective Green how much he thinks is
and how much he paid for it.
of the
Mr.
issue
is his.
in his
tells
there
Dansby insists that this closing argument, in effect, placed the
burden of proof on him and as a result denied him due process of
the law.
We disagree and discern no error in the trial court’s
ruling.
1
Attorney Todd Bradbury was Dansby’s trial counsel.
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Initially, we note our agreement with the
Commonwealth’s observation that Dansby’s objection, coming at the
end of the prosecutor’s closing argument and not
contemporaneously to the alleged offensive comment, was not
properly preserved for appellate review.
See Stringer v.
Commonwealth, Ky., 956 S.W.2d 883, 888 (1997) (an objection to
testimony contained four pages prior to the objection did not
“timely inform the trial judge of the alleged error and request
the relief to which [the defendant] consider[ed] himself
entitled”).
However, even if the issue were properly preserved
for review, we would find no reversible error in the trial
court’s refusal to grant Dansby any relief.
The standard for determining if the prosecutor has made
an impermissible comment on a defendant’s right not to testify is
whether or not the comment was “manifestly intended to reflect on
the accused’s silence or [was] of such a character that the jury
would naturally and necessarily take it as such to constitute
prejudice.”
Byrd v. Commonwealth, Ky., 825 S.W.2d 272, 275
(1992)(citation omitted); see also Bowling v. Commonwealth, Ky.,
873 S.W.2d 175, 178 (1993).
It is apparent from a review of both
closing arguments that the prosecutor was merely responding to
the possibility, raised in Dansby’s closing argument, that the
cocaine might have belonged to one of the other four people in
the house at the time of the search, two of whom actually lived
there, and that one of them might have planted the drug in
Dansby’s bag when the police arrived.
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The prosecutor’s remarks did not directly address
Dansby’s failure to testify, nor suggest that contrary evidence
of ownership of the cocaine would necessarily come from him.
Further, although Dansby argued that the “jury was misled into
thinking that [he] had failed to prove an element of the crime,”
the prosecutor’s argument did not impermissibly shift the burden
of proof.
Instead, the prosecutor’s comments merely highlighted
the defense’s failure to produce any evidence to contradict the
Commonwealth’s proof concerning the ownership of the work bag and
its contents.
This type of argument has long been determined as
“proper,” in this jurisdiction.
Haynes v. Commonwealth, Ky., 657
S.W.2d 948, 953 (1983); see also, Tamme v. Commonwealth, Ky., 973
S.W.2d 13, 38 (1998) (prosecutor did not “‘shift the burden of
proof’ by arguing during the guilt phase that the defendant
failed to rebut the Commonwealth’s evidence”).
Next, Dansby contends that the trial court erred in
allowing Lt. Bosse to testify as an expert witness for the
Commonwealth.2
The prosecutor convinced the trial court that Lt.
Bosse’s testimony was needed to inform the jury that the amount
of cocaine found in Dansby’s possession was a sufficient quantity
from which it could reasonably infer that Dansby was involved in
the sale of the drug rather than its mere use.
The thrust of
Dansby’s argument is that Lt. Bosse’s testimony was improper
2
We will assume that Dansby objected to Lt. Bosse’s
appearance as an expert witness as there was a bench conference
immediately prior to Lt. Bosse’s testimony, although most of it
is inaudible. However, the location of his counsel’s objection
to which this Court was referred in Dansby’s brief is not even
close to Lt. Bosse’s actual testimony, and in fact, refers to a
time when the jury was deliberating.
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because Lt. Bosse was not personally involved in the
investigation of Dansby or his arrest, and because Lt. Bosse was
unable to be “independent and objective” considering that “his
testimony [was] solicited to bolster prosecution of a defendant
arrested by his fellow officers.”
This Court’s standard of review of a trial court’s
decision to admit evidence is whether the trial court abused its
discretion.
(1995).
Mitchell v. Commonwealth, Ky., 908 S.W.2d 100, 102
case.
Clearly, there was no abuse of discretion in the instant
Dansby makes no argument concerning Lt. Bosse’s
qualifications as an expert in narcotics.
Further, it has
frequently been held in this jurisdiction that police officers
may offer expert testimony on the issue of whether the quantity
of drugs in a defendant’s possession is indicative of trafficking
as opposed to mere use.
Sargent v. Commonwealth, Ky., 813 S.W.2d
801, 802 (1991); Kroth v. Commonwealth, Ky., 737 S.W.2d 680, 681
(1987); Jett v. Commonwealth, Ky.App., 862 S.W.2d 908, 911
(1993).
More recently, in a case involving the same expert
witness, Lt. Bosse, our highest court reiterated the relevance of
the type of testimony offered in this case “to help the jury
understand the nature and uses of cocaine” and “to prove that
[the defendant] possessed the cocaine for the purpose of sale.”
Burdell v. Commonwealth, Ky., 990 S.W.2d 628, 634 (1999).
The
fact that Lt. Bosse was not personally involved in the
investigation of Dansby’s illegal activity has no bearing on his
credentials to testify as an expert.
Further, his association
with the officers who arrested Dansby would go to the issue of
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Lt. Bosse’s credibility, an issue for the jury, and not to the
admissibility of his testimony.
Finally, Dansby argues that the trial court erred in
failing to suppress the evidence found in the small compartments
of his work bag.
He insists that a “small pocket” is “not a
likely place to find bootlegged alcohol.”
merit to this argument.
Again, there is no
Because evidence of bootlegging could
include items other than alcohol, the warrant specifically stated
that the officers could search for such items as money, writings,
and receipts at the address to be searched.
The trial court
found that the pockets in the work bag could contain such items
as contemplated by the search warrant.
was not clearly erroneous.
The trial court’s ruling
See, Kentucky Rules of Criminal
Procedure 9.78; Harper v. Commonwealth, Ky., 694 S.W.2d 665
(1985).
Accordingly, we find no error in the trial court’s
denial of Dansby’s motion to suppress the evidence found in the
bag.
For the foregoing reasons, the judgment of the Fayette
Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Hon. Sally Wasielewski
Lexington, KY
Hon. A. B. Chandler, III
Attorney General
Hon. Ian G. Sonego
Assistant Attorney General
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