TIM WAYNE BROCK v. COMMONWEALTH OF KENTUCKY
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September 28, 2001; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-001047-MR
TIM WAYNE BROCK
APPELLANT
APPEAL FROM BELL CIRCUIT COURT
HONORABLE JAMES L. BOWLING, JUDGE
ACTION NO. 99-CR-00089
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
JOHNSON, MILLER AND SCHRODER, JUDGES.
JOHNSON, JUDGE:
Tim Wayne Brock has appealed from a judgment and
sentence pursuant to jury verdict entered in the Bell Circuit
Court on April 27, 2000.
Brock was convicted of two counts of
trafficking in controlled substance in the first degree
(cocaine)1, and one count of trafficking in controlled substance
in the first degree (ocxycodone).2
The jury recommended a
1
Kentucky Revised Statutes (KRS) 218A.1412.
2
KRS 218A.1412.
sentence of ten years on each conviction to run consecutively,
but the trial court ordered that the sentences run concurrently.
Brock has raised the following claims of error: (1) the
trial court erred when it failed to grant Brock’s request to
change counsel and refused to grant a continuance to allow his
replacement counsel adequate time to prepare; (2) the
Commonwealth’s Attorney made highly improper, unfair, and
prejudicial opening and closing statements; (3) the Commonwealth
failed to established the proper chain of custody of the drugs;
(4) the Commonwealth did not lay the proper foundation for the
introduction of the video and audio recordings of the drug
transactions; (5) Brock was prejudiced by members of the jury
sleeping during the trial; (6) the Commonwealth failed to show
that the proper venue was Bell County; (7) the trial court
committed error when it failed to dismiss the case when it became
apparent that all of the evidence had been submitted to the
Kentucky State Police Laboratory before the purported occurence
of the last transaction.
Having concluded that none of these
claimed errors warrant any relief on appeal, we affirm.
At trial, the evidence showed that in October of 1998,
Detective Mickey Hatmaker of the Kentucky State Police began a
drug trafficking investigation in Bell County with the aid of
paid informants.
Det. Hatmaker used former drug users Jackie
Miller and Chris Bailey as confidential informants and paid them
each $100.00 for every successful drug purchase.
Miller had
prior years of experience as a paid informant and had been
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working with Det. Hatmaker from October 1998 until May 1999.
Bailey worked with Det. Hatmaker from January 1999 to May 1999.
On February 10, 1999, Det. Hatmaker met with Miller and
Bailey in Pineville, Bell County, Kentucky.
After a thorough
search of their vehicle and their persons, Det. Hatmaker followed
Miller and Bailey to Kentucky Avenue in Pineville, where they
stopped at a bar named the Wildcat Den.
The vehicle driven by
Miller had been previously equipped with a hidden video and audio
recorder.
When Miller and Bailey went to the Wildcat Den, they
had no particular drug seller in mind as being the person from
whom they would seek to purchase drugs.
After sitting in the
parking lot for a few minutes, Brock approached their vehicle.
Det. Hatmaker was parked nearby in an unmarked car monitoring the
transaction.
After approaching Miller and Bailey’s car, Brock
questioned them as to what types of drugs they were interested in
purchasing.
Brock told them that he would sell them two
Percocets for $25.00.
On the video tape Miller can be seen
handing Brock something which appears to be money, and then
Miller and Bailey drive off.
A few minutes later, Miller and
Bailey returned to the parking lot of the Wildcat Den; and Brock
approached the car and discreetly put his hand into the car and
handed Miller an item.
It is not clear from the video tape what
this item was, but Miller testified that it was the two Percocets
that she had previously agreed to purchase.
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On February 12, 1999, Det. Hatmaker met with Miller and
Bailey in Pineville and again searched both of their persons and
their vehicle, and then followed them back to the Wildcat Den.
After arriving, Brock approached their vehicle and asked them
what drugs they wanted to purchase.
Brock got into their vehicle
and told them to drive to another location.
stop at the residence of Kenneth Jarvis.
Brock asked them to
Brock got out of the
car and said he was going into the house to get cocaine.
After
getting back in the car, Brock sold Miller and Bailey one gram of
cocaine for $100.00.
Miller and Bailey drove Brock back to the
Wildcat Den and dropped him off.
On February 16, 1999, Det. Hatmaker again met with
Miller and Bailey in Pineville.
After Det. Hatmaker searched
their vehicle and their persons, they drove back to the Wildcat
Den to purchase more drugs.
Upon arrival, Brock spoke with
Miller and Bailey and then got into their vehicle and they drove
off.
Brock led them to a nearby residence where he went into the
house and returned with one-half gram of cocaine which he sold to
them for $60.00.
On August 23, 1999, Brock was indicted by the Bell
County grand jury on three counts of trafficking in a controlled
substance in the first degree.
On April 6, 2000, a jury trial
was held in the Bell Circuit Court.
Brock was convicted on all
three counts and sentenced to serve ten years on each count to
run concurrently.
This appeal followed.
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Brock’s first claim of error is that trial court failed
to allow him to substitute counsel and refused to grant a
continuance on the morning of the trial.
Before the trial began,
Cotha L. Van Doren, Brock’s appointed counsel, Barbara E. Yeager,
private counsel, and Commonwealth’s Attorney Karen Blondell,
approached the bench.
The following colloquy occurred:
Trial Court: What is going on here?
Barbara E. Yeager: Good Morning.
Cotha L. Van Doren: Judge, I am completely in
the dark.
Trial Court: Who is the lawyer here?
Yeager: Your Honor, I was out-of-town
yesterday and last night until 9:00. A
present client had contacted my secretary.
She had been in touch with Mr. Brock and he
had indicated that he would like for me to
come over here this morning, with the
potential of representing him. I got word
back to him that there was not any way that I
could really talk to him, since he was
already represented by an attorney, and that
would be an ethical violation. However, I
did pass along word that I would be over here
this morning. I indicated to him just
briefly out in the hall that I cannot and
will not represent him, if I am unable to
obtain a continuance in the case, because it
goes without saying that I could not try the
case today. I spoke briefly with Mrs.
Blondell about it. And she has indicated the
Commonwealth would object to a continuance,
so it is purely at your discretion.
Van Doren: Your Honor, I have heard nothing
from Mrs Yeager at all, not a courtesy call
or a thing. I spoke with Mr. Brock most of
yesterday afternoon in a sufficient amount of
time. He has been in my office many times to
prepare for trial; however, in various states
of intoxication, but yesterday, he was sober.
I don’t feel, given the fact that he has gone
to another attorney and if he feels that I
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cannot do my job, that I can possibly go
forward today.
Trial Court: Are you prepared for trial
today?
Van Doren: Yes.
Trial Court: Okay.
Yeager: Your Honor, with regards to her
comments, I called her office, after I got
over here and talked with Mrs. Blondell. She
was not in, but they indicated she would be
along shortly.
Karen Blondell: I asked Mrs. Yeager if she
had talked with Mrs. Van Doren, and suggested
that she call her, before we proceed.
Yeager: Right.
Trial Court: Mr. Brock contacted you when?
Yeager: He did not contact
members, through a present
were attempting to contact
was out-of-town. I didn’t
until 9:00 last night.
me. Family
client of mine
me yesterday and I
know about it,
Trial Court: Well, it would appear that — is
the Commonwealth ready to proceed to trial
today?
Blondell: Yes, Your Honor.
Van Doren: But, Your Honor, again, I don’t
think I can represent this man. We had
differences yesterday. We have had
differences in the past, because he would not
come to my office sober. Yesterday, he asked
me to do something, but I told him that I
valued my law license way too much. And I do
not feel that I can represent Mr. Brock.
Trial Court: Well, but you told me you were
prepared for trial?
Van Doren: Your Honor, I was as prepared for
this drug case, as I have been for all of
them, but I cannot represent Mr. Brock, I do
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not believe. I can prepare his defense, but
it should be his decision.
Trial Court: Well, we are going to trial
today. We are not going to switch horses the
day before the trial. The only— the only
possible reason for this, would be for the
purposes of delay. And this thing has been
here since August, he was indicted in August
of last year, I believe.
The trial judge is vested with wide discretion in the
conduct of trial.3
The granting of a motion for a continuance
rests within the sound discretion of the trial court, and the
action will not be disturbed except where it is clearly shown to
be an abuse of discretion and results in manifest injustice.4
The present case closely resembles Snodgrass v.
Commonwealth.5
On the afternoon before trial, Snodgrass
telephoned his attorney and left a message requesting a
continuance so he could replace his public defender with a
private attorney.
The public defender did not get the message
until late in the afternoon and made the request for a
continuance on the morning of the trial.
The trial court
questioned the public defender as to whether he was ready and
prepared for trial.
The public defender stated that he was ready
for trial, but he admitted that there was several pieces of
3
Davidson v. Commonwealth, Ky., 555 S.W.2d 269, 271 (1977)
(citing Kentucky Rules of Criminal Procedure (RCr) 9.04).
4
Id. (citing Cornwell v. Commonwealth, Ky., 523 S.W.2d 224
(1975)). See also, Adams v. Commonwealth, Ky., 424 S.W.2d 849,
850 (1968) (citing Toler v. Commonwealth, 295 Ky. 105, 173 S.W.2d
822 (1943); Dunn v. Commonwealth, Ky., 350 S.W.2d 709 (1961); and
Bagby v. Commonwealth, Ky., 424 S.W.2d 119 (1968)).
5
Ky., 814 S.W.2d 579 (1991).
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evidence that he had not viewed and there was a potential witness
that he had not contacted.
The trial court denied the motion for
a continuance.
Reviewing that decision, the Supreme Court of Kentucky
stated:
RCr 9.04 allows a trial to be postponed
upon a showing of sufficient cause. The
decision to delay trial rests solely within
the court’s discretion. Williams v.
Commonwealth, Ky., 644 S.W.2d 335 (1982);
Cornwell v. Commonwealth, Ky., 523 S.W.2d 224
(1975). Whether a continuance is appropriate
in a particular case depends upon the unique
facts and circumstances of that case. Ungar
v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841,
849, 11 L.Ed.2d 921 (1964). Factors the
trial court is to consider in exercising its
discretion are: length of delay; previous
continuances; inconvenience to litigants,
witnesses, counsel and the court; whether the
delay is purposeful or is caused by the
accused; availability of competent counsel;
complexity of the case; and whether denying
the continuance will lead to identifiable
prejudice. Wilson v. Mintzes, 761 F.2d 275,
281 (6th Cir.1985). To warrant substitution
of counsel, appellant must show: (1) complete
breakdown of communications between counsel
and himself, (2) a conflict of interest, or
(3) that his legitimate interests are being
prejudiced. Baker v. Commonwealth, Ky.App.,
574 S.W.2d 325, 327 (1978).6
We believe Brock has failed to meet the requirements
set forth in Snodgrass. In the case sub judice, there is no
evidence that Van Doren was not prepared to go forward with
Brock’s defense.
The record reflects that Van Doren was
adequately prepared for Brock’s defense.
The record further
reflects that as of the morning of the trial Van Doren and Brock
6
Id. at 581.
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were still communicating with each other and there is no evidence
of a conflict of interest.
Finally, there is no evidence that
Brock’s rights were being violated by failing to grant his motion
for a continuance.
The record reflects that the trial court made
the necessary determinations under Snodgrass that Van Doren was
prepared to proceed.
Brock alleges several other grounds for reversal.
While he freely acknowledges that these claims have not been
preserved for appellate review, he argues that the alleged errors
should be considered on appeal under the palpable error standard
as set forth in RCr 10.26:
A palpable error which affects the
substantial rights of a party may be
considered by the court on motion for a new
trial or by an appellate court on appeal,
even though insufficiently raised or
preserved for review, and appropriate relief
may be granted upon a determination that
manifest injustice has resulted from the
error.
This approach to attacking a judgment was addressed by
our Supreme Court in Humphrey v. Commonwealth,7 with Justice
Lambert writing for a unanimous Supreme Court and stating,
“[a]ppellant’s wholly unpreserved claims will not be considered
on this direct appeal but this does not preclude their
consideration in a proper collateral attack proceeding.”
The
Supreme Court went on to state, however, that unpreserved errors
7
Ky., 962 S.W.2d 870, 872 (1998).
-9-
may be presented on direct appeal “if such could [be] done in
good faith, as palpable error under RCr 10.26.”8
The palpable error test is a very strict standard.
As our Supreme Court has stated,
the requirement of ‘manifest injustice’ as
used in RCr 10.26 (formerly RCr 9.26) [ ]
means[s] that the error must have prejudiced
the substantial rights of the defendant,
Schaefer v. Commonwealth, Ky., 622 S.W.2d 218
(1981), i.e., a substantial possibility
exists that the result of the trial would
have been different. Partin v. Commonwealth,
Ky., 918 S.W.2d 219, 224 (1996). One federal
court has interpreted FRE 103(e), which is
identical to KRE 103(e) as requiring that the
error must seriously affect the fairness,
integrity or public reputation of judicial
proceedings. United States v. Filani, 74
F.3d 378 (2nd Cir.1996).9
In Partin, supra, the Supreme Court of Kentucky stated that “upon
consideration of the whole case, the reviewing court must
conclude that a substantial possibility exists that the result
would have been different in order to grant relief.”10
We will address Brock’s alleged errors in the order
they appear in his brief.
First, Brock claims that the
Commonwealth’s Attorney made statements regarding “incompetent”
evidence.
Specifically, Brock alleges that the Commonwealth’s
Attorney improperly stated in both opening and closing statements
8
Id. at 873.
9
Castle v. Commonwealth, Ky.App., 44 S.W.3d 790, 793-94
(2000) (citing Brock v. Commonwealth, Ky., 947 S.W.2d 24, 28
(1997)).
10
See also Byrd v. Commonwealth, Ky., 825 S.W.2d 272, 276
(1992); and Jackson v. Commonwealth, Ky.App., 717 S.W.2d 511, 514
(1986).
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that he was “jonesin bad.”
Furthermore, Brock alleges that the
Commonwealth’s Attorney improperly stated that each of the
offenses occurred in Bell County, a statement that it failed to
sufficiently prove.
Brock’s claims fail to meet the first prong of the
palpable error test.
The alleged errors in the Commonwealth’s
opening and closing statements did not cause a manifest
injustice.
The statement that Brock was “jonesin bad” was proven
by competent evidence during the trial.
First, Brock makes the
statement on the video tape that was introduced at trial.
Second, Det. Hatmaker stated that “jonesin” means “coming down”,
or that he has not used drugs recently.
As a matter of fact,
Brock stated on the video tape that he had not used drugs for two
days.
Det. Hatmaker testified that “jonesin is going through
DT’s when they are coming off, or having withdrawal from coming
off the drugs.”
We believe that there was credible and sufficient
evidence as to what “jonesin bad” means to allow the Commonwealth
to mention it in opening and closing arguments.
We also do not
believe that the Commonwealth erred by stating that the charges
against Brock occurred in Bell County.
We will address this
issue separately later in this Opinion in relation to Brock’s
argument that Bell County was not the proper venue for the trial.
Next, Brock claims that the trial court erred by
admitting into evidence against him the alleged seized drugs and
video recordings because their chain of custody was not
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sufficiently established.
Initially, we must observe that these
two issues were not properly preserved for appellate review
because defense counsel failed to object to their introduction on
improper chain of custody grounds.
However, it is
inconsequential because Brock also loses on the merits of this
argument.
Brock argues that the Commonwealth introduced the
alleged drugs he sold Miller and Bailey and the video and audio
recordings of the transactions without laying the proper
foundation of the chain of custody.
We believe that the chain of
custody for both the recordings and the drugs seized was
sufficiently established to allow their introduction into
evidence.
In Reneer v. Commonwealth,11 the defense counsel
objected to introduction of drug-related evidence because the
officer who originally collected the items was deceased at the
time of the trial.
Ruling that the evidence was admissible, the
Supreme Court stated:
Here the pillbox and the morphine
exhibit were in secure police custody and in
the same condition, except for the necessary
consumption of part of the morphine in
laboratory testing. The evidence was checked
into the collection unit by the deceased
officer and taken from the unit the following
month by his successor for analysis and
returned to the unit. The integrity of the
evidence was not compromised. Pendland v.
Commonwealth, Ky. 463 S.W.2d 130 (1971).
There was no showing that anyone could have a
reason or opportunity to tamper with the
evidence. The proof was reasonable under the
circumstances.
11
Ky., 784 S.W.2d 182, 185 (1990).
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Det. Hatmaker testified at trial that he delivered the
drug samples to the Kentucky State Police Lab.
Under direct
examination he testified:
Det. Hatmaker: At night, when we come back in
the evening, I collected the evidence. I got
the tapes, the drugs and everything from the
vehicle.
Commonwealth’s Attorney: Did you secure all
those items into evidence?
Det. Hatmaker: Yes, ma’am, I did.
Commonwealth’s Attorney: On the drugs, we are
testifying about and filing, did you submit
all those items to the Kentucky State Police
Lab for analysis?
Det. Hatmaker: Yes, ma’am, I hand delivered
them to Carl Lawson where he signs as
received, and then I have his analysis there
and the results.
In Poteet v. Commonwealth,12 the Supreme Court,
addressed a similar chain of custody argument regarding tape
recordings and stated:
Tape recordings, on the other hand, are
unique and readily identifiable. In this
case, Stocking recorded the conversations
between him and Poteet. The tapes were
delivered to Agent Neihaus. Neihaus sent
them to a laboratory in Washington. They
were returned. The cassettes introduced in
evidence were audible. Where then was the
broken link in the chain of evidence?
In the case sub judice, Brock identified himself on the video and
audio recordings. We believe that Det. Hatmaker sufficiently
established the chain of custody for both the drugs seized and
the video and audio recordings.
12
Ky., 556 S.W.2d 893, 895 (1977).
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Brock claims that he was prejudiced by three jurors
sleeping during the trial.
In his brief, Brock states that “it
has been reported by observers that three of the jurors slept
through much of the trial.”
We note that this error has not been
preserved and Brock claims that we should review his claim under
the palpable error rule.
The first problem for Brock is that he
makes a bare allegation without any support in the record.
Such
a claim of juror misconduct must first be properly presented to
the trial court for its consideration.13
This Court cannot
review an issue the trial court has not even considered.14
Brock also claims that it was error to permit a finding
of guilt, when the Commonwealth failed to prove that the alleged
drugs sales took place in Bell County, Kentucky.
Initially, we
note that this error was not preserved for appellate review.
KRS
452.650 states:
The venue of the prosecution may be
waived by the defendant and the failure to
make a timely motion to transfer the
prosecution to the proper county shall be
deemed a waiver of the venue of the
prosecution.
Moreover, in Sebree v. Commonwealth,15 the Supreme
Court stated:
While it is necessary to prove the venue
of the offense as laid in the indictment,
yet, since it does not affect the issue of
13
Sanborn v. Commonwealth, Ky., 975 S.W.2d 905, 911 (1998).
14
Regional Jail Authority v. Tackett, Ky.App., 770 S.W.2d
225, 228 (1989).
15
200 Ky. 534, 255 S.W. 142, 144 (1923).
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guilt or innocence, this court and others
have said that -‘Slight evidence will be sufficient
to sustain the venue, and slight
circumstances from which the jury
might infer the place where the
crime was committed are held to
sufficient’ [citations omitted].
In the case sub judice, Det. Hatmaker and Miller
testified that the transactions took place at the Wildcat Den in
Pineville, which is located in Bell County, Kentucky.
On two of
the occasions Brock entered the car with Miller and Bailey and
drove to “Flat Lick” and “Four Mile Hollow.”
There was no
evidence of record that these two locations were in Bell County.
However, KRS 452.550 states:
Where an offense is committed partly in
one and partly in another county, or if acts
and their effects constituting an offense
occur in different counties, the prosecution
may be in either county in which any of such
acts occurs.
After reviewing the record it is clear that at least
part of each transaction, if not the entire transaction, took
place in Bell County.
Thus, venue would have been proper in Bell
County under KRS 452.550, even if Brock had made a timely
objection.
Finally, Brock claims that the trial court erred when
it failed to dismiss the case because all of the evidence against
had been was submitted to the Kentucky State Police Laboratory
before the occurrence of the last transaction.
error was not preserved for appellate review.
Brock states:
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Once again, this
In his brief,
Carl Lawson, of the Kentucky State Police
Lab, testified that he received the physical
evidence on February 16, 1999, at 15:00
hours, from Detective Micky Hatmaker.
However, in his preliminary hearing
testimony, Det. Hatmaker, testified that the
allegations contained in Count III, of the
Indictment occurred on February 16, 1999, at
6:45 p.m. That is approximately 3 hours and
45 minutes after the evidence was logged in
by Mr. Lawson at the Kentucky State Police
Lab. Also, the audio tape recording of the
February 16, 1999, purported “transaction”
shows that the events commenced at 6:00 p.m.
[citations to record omitted].
In his argument, Brock is assuming that the evidence of
all three transactions were received at 3:00 p.m. on February 16,
1999.
However, it is clear after reviewing the record that
Lawson stated the evidence from the first two transactions were
received by him at 3:00 p.m. on February 16, 1999.
Although
Lawson is questioned as to his analysis of the evidence seized
during the third transaction, he does not state what time he
received the evidence at the Kentucky State Police Lab.
At
trial, Brock’s counsel failed to object to this evidence.
We
believe any error that occurred was harmless and certainly does
not rise to the palpable error standard previously discussed.
For these reasons, the judgment of the Bell Circuit
Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Barbara Eliott Yeager
Barbourville, KY
Albert B. Chandler, III
Attorney General
John E. Zak
Assistant Attorney General
Frankfort, KY
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