GREGORY BOYD v. COMMONWEALTH OF KENTUCKY
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RENDERED:
November 22, 2002; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2001-CA-000992-MR
GREGORY BOYD
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE ANN O'MALLEY SHAKE, JUDGE
ACTION NO. 00-CR-000286, 99-CR-001841 & 99-CR-001841
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: COMBS, DYCHE, AND MILLER, JUDGES.
MILLER, JUDGE:
Gregory Boyd brings this appeal from a May 1,
2001 judgment of the Jefferson Circuit Court.
We affirm.
Boyd was a passenger in a car pulled over for a moving
violation by Officer Kelly Hammond of Louisville Police
Department.
While Officer Hammond questioned the driver, Boyd
and the other passenger in the car both attempted to exit the
vehicle into oncoming traffic.
Officer Hammond ordered Boyd and
the other passenger back into the vehicle, then requested
“backup.”
After backup arrived, Officer Hammond patted down the
driver of the vehicle.
During the pat down, Officer Hammond
noticed a small piece of plastic protruding from the driver’s
pocket, which he believed to be narcotics.
to be a small bag of marijuana.
The item turned out
Boyd and the other passenger
were then taken from the vehicle and searched.
Although no
contraband was found on Boyd, a cell phone case containing a cell
phone and approximately $1,300.00 in cash was.
A drug dog brought to search the vehicle alerted at the
rear seat.
At this time, Officer Hammond became aware of a
strong odor of marijuana in the rear of the car.
Ultimately, a
small amount of marijuana was discovered in the vehicle’s arm
rest, and approximately ten pounds of marijuana was found under
and behind the rear seat.
Inside one of the bundles of marijuana
was a large quantity of cocaine.
The driver, Boyd, and the other
passenger were arrested.
On July 28, 1999, Boyd was indicted by the Jefferson
County Grand Jury for trafficking in a controlled substance in
the first degree, Kentucky Revised Statutes (KRS) 218A.1412 and
trafficking in marijuana, five pounds or more, KRS 218A.1421.
On
February 8, 2000, the Jefferson County Grand Jury returned
another indictment against Boyd for second degree persistent
felony offender (PFO II), KRS 532.080(2).
Upon trial by jury,
Boyd was found not guilty of trafficking in cocaine, but guilty
of trafficking in marijuana.
Boyd waived his right to have the
jury determine his sentence, and accepted the Commonwealth’s
offer of five years’ imprisonment.
He additionally entered a
plea to the PFO II charge, thereby enhancing his sentence to a
total of ten years’ imprisonment.
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The circuit court entered its
judgment of conviction and sentence on May 1, 2001.
This appeal
follows.
Boyd maintains the circuit court erred by denying his
motion for directed verdict.
“If the evidence is sufficient to
induce a reasonable juror to believe beyond a reasonable doubt
that the defendant is guilty, a directed verdict should not be
given.”
Commonwealth v. Benham, Ky., 816 S.W.2d 186, 187 (1991).
Boyd was convicted for violation of KRS 218A.1421(1), which
provides in pertinent part: “[a] person is guilty of trafficking
in marijuana when he knowingly and unlawfully traffics in
marijuana.”
“Traffic” is defined in KRS 218A.010(28) as “means
to manufacture, distribute, dispense, sell, transfer, or possess
with intent to manufacture, distribute, dispense, or sell a
controlled substance.”
Boyd was present in a vehicle that had approximately
ten pounds of marijuana hidden under the backseat.
Officers at
the scene testified there was a strong odor of marijuana in the
vehicle.
Additionally, air fresheners were found over several
vents in the car.
Boyd attempted to exit the vehicle by opening
his door into oncoming traffic before police finished their
investigation.
Boyd was found to be in possession of
approximately $1,300.00 in cash.
Drawing all fair and reasonable
inferences from the above evidence in favor of the Commonwealth,
we believe that a reasonable juror could believe beyond a
reasonable doubt that Boyd was guilty of trafficking in marijuana
over five pounds.
As such, we are of the opinion the circuit
court did not err in denying Boyd’s motion for directed verdict.
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Boyd contends the trial court erred by denying his
motion to suppress evidence.
Specifically, Boyd complains the
approximately $1,300.00 found on him during the traffic stop was
improperly seized and thus should have been suppressed.
In
Stewart v. Commonwealth, Ky. App., 44 S.W.3d 376, 380 (2000),
this Court held:
Our standard of review of a circuit
court’s decision on a suppression motion
following a hearing is twofold. First, the
factual findings of the court are conclusive
if they are supported by substantial
evidence. The second prong involves a de
novo review to determine whether the court’s
decision is correct as a matter of law.
(footnotes omitted).
“[U]nlawfully obtained evidence will be admissible if
ultimately, or inevitably, it would have been discovered by
lawful means.”
Commonwealth v. Elliott, Ky. App., 714 S.W.2d
494, 496 (1986) (citing Nix v. Williams, 467 U.S. 431, 104 S. Ct.
2501, 81 L. Ed. 2d 377 (1984)).
In the case sub judice, Boyd was
detained after the traffic stop.
After attempting to leave the
scene, Boyd was searched; the search yielded a cell phone case
containing approximately $1,300.00.
Shortly thereafter, Boyd was
arrested upon discovery of substantial quantities of marijuana
and cocaine in the vehicle in which he was a passenger.
We
harbor grave doubt as to whether the initial search of Boyd was
proper.
Nevertheless, we are of the opinion the cash was
properly admitted.
We think the cash would have been inevitably
discovered and seized incident to Boyd’s arrest.
Under the
authority of Elliott, we must conclude the circuit court did not
err in denying Boyd’s motion to suppress evidence.
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Boyd maintains the court erred by allowing the
prosecutor to introduce evidence of his post-Miranda1 silence.
In support of his argument, Boyd cites us to Doyle v. Ohio, 426
U.S. 610, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976), in which the
United States Supreme Court held that “it would be fundamentally
unfair and a deprivation of due process to allow the arrested
person’s silence to be used to impeach an explanation
subsequently offered at trial.”
Id. at 618.
In the present case, the arresting officer was asked on
direct examination whether any of the defendants made any
statements, to which the officer replied, “Not to me.”
Counsel
for Boyd’s co-defendant objected and Boyd’s counsel moved for a
mistrial.
The circuit court denied Boyd’s motion for a mistrial,
but instructed the Commonwealth to “move on.”
Officer Hammond was not the only officer involved in
Boyd’s arrest; thus, Hammond’s testimony did not foreclose the
possibility Boyd made a statement elsewhere.
The exchange
between the Commonwealth and Hammond was brief, and immediately
redirected by the circuit court.
As such, we cannot say the
testimony rises to the level of being used to impeach an
explanation subsequently offered at trial as set out in Doyle.
Thus, we are of the opinion the circuit court did not improperly
allow evidence of Boyd’s post-Miranda silence.
Boyd contends the circuit court erred by allowing
inadmissible expert testimony.
Specifically, Boyd asserts that
1
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed.
2d 694 (1966).
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Officer Hammond was not competent to offer expert testimony
concerning behavior that indicated drug activity.
The admission
of expert testimony lies within the sound discretion of the trial
court, and will not be disturbed absent an abuse of discretion.
See Goodyear Tire & Rubber Company v. Thompson, Ky., 11 S.W.3d
575 (2000).
Officer Hammond was an officer on the Louisville
Police Department.
He testified he had received training to
identify drug activity.
He further testified to the application
of that training to the case at hand.
As Officer Hammond was a
police officer, specially trained to identify drug activity, we
cannot say he was not competent to offer expert testimony
concerning behavior that indicated drug activity.
Hence, we are
of the opinion the circuit court did not abuse its discretion by
allowing Officer Hammond’s testimony.
Boyd also contends the court erroneously allowed expert
opinion testimony from one Detective David James.
Boyd complains
the court should not have recognized Detective James as an
“expert in narcotics.”
The circuit court expressly recognized
Detective James as an expert in narcotics based upon, inter alia,
thirteen years’ experience in a narcotics unit, extensive
classroom training in narcotics, and his participation in
instructing and training numerous law enforcement agencies in
narcotics.
In light of Detective James’ experience and other
qualifications, we are of the opinion the circuit court properly
recognized Detective James as an expert in narcotics.
As such,
we do not believe the circuit court abused its discretion in
allowing expert testimony from him.
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Id.
In sum, we are of the opinion the circuit court did not
err in allowing expert testimony from Officer Hammond or
Detective James.
Boyd asserts the circuit court erred in denying his
motion for mistrial.
Specifically, Boyd complains that the
Commonwealth failed to disclose a statement Boyd allegedly made
to Drug Enforcement Agency (DEA) Agents.
“In order to grant a
mistrial, there must appear in the record a manifest necessity
for such action.”
75-76 (2001).
Kirkland v. Commonwealth, Ky., 53 S.W.3d 71,
The standard for reviewing the denial of a
mistrial is abuse of discretion.
S.W.3d 375 (2002).
Bray v. Commonwealth, Ky., 68
Discovery of oral incriminating statements
made by defendant is governed by Ky. R. Crim. P. (RCr) 7.24,
which reads in pertinent part:
[T]he Commonwealth shall disclose the
substance of any oral incriminating statement
known . . . to have been made by a defendant
to any witness. . . .
The remedy for noncompliance is found in RCr 7.24(9) which reads
in pertinent part:
If at any time during the course of the
proceedings it is brought to the attention of
the court that a party has failed to comply
with this rule. . ., the court may direct
such party to permit the discovery or
inspection of materials not previously
disclosed, grant a continuance, or prohibit
the party from introducing in evidence the
material not disclosed, or it may enter such
other order as may be just under the
circumstances.
In the instant case, the circuit court prohibited the
Commonwealth from entering the statement into evidence.
The
court allowed Boyd to inspect the statement and offered him the
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option of using it.
We believe the circuit court properly
applied RCr 7.24(9), and that there existed no “manifest
necessity” for mistrial.
Thus, we are of the opinion the circuit
court did not abuse its discretion in denying Boyd’s motion for
mistrial.
Boyd also maintains the circuit court erred in failing
to instruct the jury on the lesser included offense of criminal
facilitation.
A “lesser included offense” is defined in KRS
505.020(2), which reads in pertinent part:
A defendant may be convicted of an offense
that is included in any offense with which he
is formally charged. An offense is so
included when:
(a) It is established by proof of the same
or less than all the facts required to
establish the commission of the offense
charged;
. . . .
In Houston v. Commonwealth, Ky., 975 S.W.2d 925, 930 (1988), the
Supreme Court held:
[C]riminal facilitation requires proof not of
the same or less than all the facts required
to prove the charged offenses of trafficking
in . . . a controlled substance, but proof of
additional and completely different facts . .
. . [I]t is not a lesser included offense
when the defendant is charged with committing
. . . the object offenses.
As criminal facilitation is not a lesser included offense of
trafficking in a controlled substance, we are of the opinion the
circuit court did not err in failing to instruct the jury on the
lesser included offense of criminal facilitation.
Boyd contends he “was denied his constitutional rights
by the prosecutor’s misconduct during closing arguments.”
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Specifically, Boyd complains that during closing arguments the
Commonwealth referred to the odor of the confiscated marijuana,
which was present in the courtroom.
Boyd further laments the
Commonwealth’s asking the jury whether the doubt created by the
defense was “reasonable” constituted a shift in the burden of
proof.
As this issue was not preserved below, we are asked to
review it as palpable error.
RCr 10.26.
Relief may be granted
on an issue unpreserved for review if manifest injustice has
resulted.
See Schuttemeyer v. Commonwealth, Ky. App., 793 S.W.2d
124 (1990).
We cannot say either of Boyd’s complaints concerning
closing arguments resulted in manifest injustice to Boyd.
Thus,
we do not believe the Commonwealth’s closing arguments formed a
basis for invoking the palpable error rule.
Boyd argues the circuit court erred by not dismissing
his indictment.
Specifically, Boyd asserts the Commonwealth used
grand jury subpoenas to obtain evidence approximately a year
after Boyd’s original indictment.
The use of grand jury subpoena
power to conduct post indictment investigation is improper.
Wilson v. Commonwealth, Ky., 37 S.W.3d 745 (2001).
A court,
however, may not dismiss an indictment for errors in grand jury
proceedings unless such errors prejudiced defendant.
Bank of
Nova Scotia v. United States, 487 U.S. 250, 108 S. Ct. 2369, 101
L. Ed. 2d 228 (1988).
In the instant case, while it appears the
Commonwealth misused the grand jury subpoena power in an attempt
to gather evidence, the evidence was not introduced at trial.
As
the evidence was not introduced at trial, we do not believe Boyd
suffered prejudice.
As such, we are of the opinion the circuit
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court did not err in refusing to dismiss the indictment against
Boyd.
Boyd contends the circuit court erred by failing to
allow him to withdraw his guilty plea.
Specifically, Boyd
asserts that the circuit court “pressured” him, and that his own
counsel “[misstated] the law.”
Further, he alleges his counsel’s
“misstatement” was not “corrected” by the circuit court.
As
such, he argues, his plea was not knowingly, intelligently, and
voluntarily entered.
Withdrawal of a guilty plea is a matter
within the sound discretion of the trial court.
Hurt v.
Commonwealth, Ky., 333 S.W.2d 951 (1960).
In the instant case, the record indicates Boyd was
questioned at length by the circuit court concerning his
understanding of the charges against him and his rights thereon.
Further, the circuit court specifically found on the record that
Boyd’s guilty plea was knowingly, understandingly and voluntarily
entered.
We think the court properly informed Boyd concerning
his guilty plea.
We simply do not believe the court abused its
discretion in refusing to allow Boyd to withdraw his guilty plea.
Finally, Boyd asserts he was “denied his constitutional
rights as a result of cumulative error.”
Upon the foregoing, we
deem this assignment of error to be without merit.
For the foregoing reasons, the judgment of the
Jefferson Circuit Court is affirmed.
ALL CONCUR.
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BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Christopher N. Lasch
Louisville, Kentucky
Albert B. Chandler III
Attorney General of Kentucky
Frankfort, Kentucky
William Robert Long, Jr.
Assistant Attorney General
Frankfort, Kentucky
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