DARYL McINTOSH V. COMMONWEALTH OF KENTUCKY
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RENDERED: JUNE 10, 2005; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-000674-MR
DARYL McINTOSH
APPELLANT
APPEAL FROM GRANT CIRCUIT COURT
HONORABLE STEPHEN L. BATES, JUDGE
INDICTMENT NO. 02-CR-00148
V.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUIDUGLI, McANULTY, AND MINTON, JUDGES.
MINTON, JUDGE:
Daryl McIntosh pled guilty to two counts of
first-degree trafficking in a controlled substance and one count
of possession of drug paraphernalia.
The circuit court
sentenced him to seven and a half years in prison for the
charges.
Approximately one year later, McIntosh filed a motion
to alter, amend, or vacate his sentence under RCr 11.42; the
motion was summarily denied by the circuit court.
the circuit court’s decision and affirm.
We agree with
On October 14, 2002, Agent Roger Humphrey of the
Northern Kentucky Drug Strike Force (NKDSF) received an
anonymous tip that McIntosh was manufacturing methamphetamine on
a regular basis in the garage of his home.
After confirming the
location of the residence and the fact that McIntosh lived
there, Agent Humphrey began doing periodic surveillance to
verify the allegations made by the informant.
On the night of
November 4, 2002, Agent Humphrey was doing a “drive-by” of
McIntosh’s residence when he noticed several individuals in the
garage; he also noted a “very strong odor of ether.”
Upon
closer inspection, Agent Humphrey confirmed that the ether was
emanating from the garage.
Armed with his observations and the information
garnered from the anonymous tip, Agent Humphrey obtained a
search warrant.
Thomas Funk.
The warrant was reviewed and signed by Judge
Other agents from the NKDSF were called to the
Grant County Sheriff’s Office and briefed on the situation;
shortly, the search warrant was executed.
Upon arriving at McIntosh’s residence, the agents
noted that the smell of ether was still present.
And, upon
executing the warrant, the agents located items indicative of
methamphetamine manufacture.
According to Agent Humphrey’s
report, “[i]n the garage it appeared that a methamphetamine cook
had just occurred prior to our arrival due to the type of items
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located.”
Some of the items noted by Agent Humphrey included
quart mason jars, an electric hotplate, cookware, a pump garden
sprayer with salt inside, lithium batteries, an electric food
grinder containing white residue, and a .380 caliber pistol.
Inside the residence, the agents found further evidence of
methamphetamine manufacture, including “cooking dishes with what
appeared to be pseudoephedrine pills soaking in a solution to
break them down” and “mason jars with unknown liquids.”
The
agents also located numerous firearms and other narcotics
contraband.
All of the agents’ findings were recorded in an
evidence recovery log.
As the agents were concluding their search of the
residence, McIntosh was spotted driving toward his home.
McIntosh was stopped by the police and arrested.
The officers
searched his vehicle incident to arrest and uncovered a metal
tin containing plastic tubes, a razor blade, metal foil, and
“4 small plastic bags each containing an off white powder which
field tested for the presence of methamphetamine.”
On November 13, 2002, the grand jury indicted McIntosh
on one count of first-degree manufacture of methamphetamine,1 one
count of first-degree trafficking in a controlled substance,2 and
1
Kentucky Revised Statutes (KRS) 218A.1432.
2
KRS 218A.1412.
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one count of possession of drug paraphernalia.3
All of the
charges were enhanced by McIntosh’s possession of firearms.4
McIntosh eventually entered a plea of guilty.
The
agreement with the Commonwealth amended his charges to two
counts of first-degree trafficking in a controlled substance and
one count of misdemeanor possession of drug paraphernalia.
The
manufacturing charge and the firearms enhancements were dropped.
McIntosh was sentenced in accord with the plea agreement to
seven and a half years in prison and a $1,000 fine.
Later, his
motion for shock probation was denied.
McIntosh eventually filed an RCr 11.42 motion to
alter, amend, or vacate his judgment and sentence.
Specifically, McIntosh’s motion alleged that his trial counsel
was ineffective because he failed to request a suppression
hearing; failed to investigate and interview an alibi witness;
and advised McIntosh he had no choice but to plead guilty.
After conducting oral arguments on the issue, the circuit court
denied the motion.
The court’s denial was based on its belief
that McIntosh’s arguments were “clearly refuted by the face of
the record.”
This appeal follows.
3
KRS 218A.500 and KRS 218A.510.
4
KRS 218A.992.
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McIntosh’s claims on appeal repeat his claims raised
before the circuit court.
We will address each argument
separately.
STANDARD OF REVIEW FOR CLAIMS OF
INEFFECTIVE ASSISTANCE OF COUNSEL
The presumption on appeal is that counsel was
effective.5
The United States Supreme Court outlined the
requirements for sustaining a claim of ineffective counsel in
Strickland v. Washington.6
two prongs:
The test requires a movant to prove
first, he must “show that counsel’s performance was
deficient” and, second, “that the deficient performance
prejudiced the defense.”7
This test was deemed applicable to
claims of ineffective assistance of counsel arising from guilty
pleas in Hill v. Lockhart.8
To establish ineffective assistance of counsel, the
evidence must be sufficient to prove “that counsel made errors
so serious that counsel was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment.”9
This test
5
Strickland v. Washington, 466 U.S. 668, 690, 104 S.Ct. 2052,
80 L.Ed.2d 674 (1984). Accord Gall v. Commonwealth, 702 S.W.2d 37
(Ky. 1985).
6
Strickland, 466 U.S. at 690.
7
Id.
8
474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985).
9
Strickland, 466 U.S. at 687.
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does not require that a defendant be provided with “errorless
counsel.”10
Rather, counsel should be “reasonably likely to
render and rendering reasonably effective assistance.”11
When a
court reviews a claim of ineffective assistance of counsel, the
proper inquiry is “whether counsel’s performance was below
professional standards and ‘caused the defendant to lose what he
otherwise would probably have won’ and ‘whether counsel was so
thoroughly ineffective that defeat was snatched from the hands
of probable victory.’”12
COUNSEL’S FAILURE TO REQUEST A SUPPRESSION HEARING
McIntosh first argues counsel was ineffective for
failing to request a suppression hearing.
suppression hearing was necessary because:
He alleges that a
first, the search
warrant was invalid; second, the warrant did not accurately
describe the place to be searched; third, the warrant included
false and misleading information; and, fourth, the search of his
vehicle was illegal.
We disagree.
McIntosh first argues the search warrant was invalid
because it was based on an anonymous tip.
The requirements for
the issuance of a search warrant are clear:
10
McQueen v. Commonwealth, 949 S.W.2d 70, 71 (Ky. 1997).
11
Id.
12
Bronk v. Commonwealth, 58 S.W.3d 482, 487 (Ky. 2001).
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The task of the issuing magistrate is simply
to make a practical, common-sense decision
whether, given all the circumstances set
forth in the affidavit before him, including
the ‘veracity’ and the ‘basis of knowledge’
of persons supplying hearsay information,
there is a fair probability that contraband
or evidence of a crime will be found in a
particular place. And the duty of a
reviewing court is simply to ensure that the
magistrate had a ‘substantial basis
for . . . conclud(ing)’ that probable cause
existed.13
Probable cause itself is a “‘fluid concept’” that turns “‘on the
assessment of probabilities in particular factual contextsnot
readily, or even usefully, reduced to a neat set of legal
rules.’”14
The information regarding McIntosh’s illegal
activities was initially supplied to the NKDSF by an anonymous
informant; however, that information was later corroborated by
Agent Humphrey’s observations.
We believe this evidence
including the tip that McIntosh was manufacturing
methamphetamine on a regular basis and Agent Humphrey’s
detection of ether coming from the garage areawas sufficient to
allow the judge in this case to make a “practical, common-sense
13
Brown v. Commonwealth, 711 S.W.2d 488, 489 (Ky. 1986), quoting,
Beemer v. Commonwealth, 665 S.W.2d 912, 914-915 (Ky. 1984).
14
Brown, 711 S.W.2d at 489, quoting, Illinois v. Gates, 462 U.S. 213,
103 S.Ct. 2317, 76 L.Ed.2d 527, reh. den. 463 U.S. 1237, 104 S.Ct.
33, 77 L.Ed.2d 1453 (1983).
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decision” that contraband or evidence of a crime would be found
at McIntosh’s residence.
The judge clearly had a “substantial
basis . . . for conclud(ing)” there was probable cause to
search.
Therefore, the warrant was valid and McIntosh’s claim
is without merit.
Second, McIntosh argues that the search warrant did
not provide an accurate description of the place to be searched.
Specifically, McIntosh argues “[t]he warrant authorized the
search of a residence between two and three miles down Humes
Ridge Road.
It did not provide an address or identify the
residence as being McIntosh’s residence.”
Precedent establishes that a search warrant must
accurately describe the place to be searched.15
Under the Fourth
Amendment, “a search warrant is sufficient if the officer
charged with making the search is able with reasonable effort to
identify and ascertain the place intended to be searched with
certainty.”16
The anonymous tip received by the NKDSF stated that
McIntosh’s residence was “between two and three miles down Humes
Ridge Road, on the right.”
Further independent investigation by
Agent Humphrey established that the residence in question was
located at 2825 Humes Ridge Road and that McIntosh was a
15
See Commonwealth v. Smith, 898 S.W.2d 496, 500 (Ky.App. 1995).
16
Id.
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resident at that address.
The search warrant incorporated Agent
Humphrey’s findings, stating:
[Y]ou are commanded to make immediate search
of the premises known and numbered as
2825 HUMES RIDGE ROAD
and more particularly described as follows:
BEGINNING AT THE INTERSECTION OF US
HIGHWAY 25 AND HUMES RIDGE ROAD, DRIVE ALONG
AND OVER HUMES RIDGE ROAD A DISTANCE OF
2.6 MILES TO A SINGLE STORY RESIDENCE WITH
ATTACHED GARAGE ON THE RIGHT HAND SIDE OF
THE ROADWAY, SAID RESIDENCE BEING BLUISHGREY IN COLOR AND BEING OCCUPIED AS A
RESIDENCE BY DARRELL McINTOSH.
We fail to see how this description is anything but
accurate.
The initial information provided by the informant may
have been somewhat vague; however, the description provided in
the search warrant clearly identified McIntosh’s residence.
The
agents charged with executing the warrant could, with any
effort, “identify and ascertain the place intended to be
searched with certainty.”17
Therefore, McIntosh’s argument is,
again, without value.
Third, McIntosh argues the warrant contained false and
misleading information.
He claims “he was not at his residence
on November 4, 2002,” and that “he has a witness to that
effect.”
McIntosh also argues that “when the police searched
[his] residence, they failed to find any evidence of
17
Id.
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[m]ethamphetamine manufacturing.
The police found one can of
starting fluid that can emit an odor of ether.”
And, McIntosh
contends, “[i]t is probable cross-examination would establish
the officer was not telling the truth.”
These arguments are baseless.
The search warrant
states that Agent Humphrey “saw numerous individuals in the
garage of the residence.”
There is no mention of whether
McIntosh was present at his residence on the night of
November 4, 2002.
Moreover, a search warrant need only be based
on a “fair probability that contraband or evidence of a crime
will be found in a particular place”;18 whether contraband or
evidence is actually found does nothing to prove or disprove the
validity of a warrant.
Further, there is nothing in the record
that indicates Agent Humphrey was not telling the truth.
McIntosh’s claims do not prove that the search warrant contained
false or misleading information.
So we reject this argument.
Finally, McIntosh argues the search of his vehicle was
illegal.
Specifically, he claims “there was no allegation he
had committed a traffic offense.”
He further argues that
“[s]ince no evidence of [m]ethamphetamine manufacturing or
[m]ethamphetamine trafficking was found at [his] residence, the
officers did not have reasonable suspicion or probable cause to
stop [him].”
18
Id. at 504.
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We agree there was no allegation of a traffic offense.
But there was obviously sufficient evidence of methamphetamine
manufacturing and trafficking for the police to stop and arrest
McIntosh.
Agent Humphrey noted that “it appeared that a
methamphetamine cook had just occurred prior” to the agents’
arrival.
He also noted significant evidence of methamphetamine
manufacture at McIntosh’s residence, including quart mason jars,
an electric cookplate, cookware, a pump garden sprayer with salt
inside, lithium batteries, an electric food grinder containing
white residue, and pseudoephedrine pills “soaking” inside the
house.
Based on this evidence, there was sufficient reason
for the agents to arrest McIntosh; and because McIntosh was
legally arrested, the search of his vehicle was proper as a
search incident to arrest.19
So, again, we reject his argument.
McIntosh has failed to offer any proof that counsel was
ineffective for failing to request a suppression hearing.
COUNSEL’S FAILURE TO INTERVIEW AND
INVESTIGATE ALIBI WITNESS
McIntosh next argues his counsel was ineffective
because he failed to interview and investigate an alibi witness.
McIntosh claims he was at his girlfriend’s house when the agents
executed the search warrant at his residence; and because he was
19
Stewart v. Commonwealth, 44 S.W.3d 376, 379 (Ky.App. 2000).
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not at home, McIntosh argues he could not have been charged with
methamphetamine manufacturing.
KRS 218A.1432 states that a person is guilty of
manufacturing methamphetamine when he knowingly and unlawfully:
“(a) Manufactures methamphetamine; or (b) Possesses the
chemicals or equipment for the manufacture of methamphetamine
with the intent to manufacture methamphetamine.”
McIntosh does not deny that he lived at 2825 Humes
Ridge Road; nor does he deny that the equipment and chemicals
found at the home belonged to him.
KRS 218A.1432 does not
require that a person be present at the scene of the
methamphetamine manufacture in order to be charged with the
crime.
Rather, all that is required is evidence of actual
manufacturing or possession of the necessary equipment and
chemicals.
Therefore, whether or not McIntosh was at his home
on the night of November 4, 2002, is irrelevant.
Counsel’s
decision not to interview or investigate the alibi witness was
sound trial strategy since the witness would not have provided
McIntosh with a defense.
COUNSEL’S ADVICE TO PLEAD GUILTY
Finally, McIntosh argues counsel was ineffective for
advising him to plead guilty.
We disagree.
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McIntosh contends “he was advised to plead guilty
without drug results.”
He argues the advice to plead guilty
“was not sound strategy because there was no evidence of guilt.”
And, he argues, but for counsel’s flawed advice, he would not
have pled guilty.
The record reflects the results of the crime lab tests
on the materials found in McIntosh’s residence were available
over a month before McIntosh pled guilty.
There is nothing to
indicate that McIntosh and his counsel were not privy to this
information; moreover, there is nothing that establishes
McIntosh was unaware of the test results prior to entering his
guilty plea.
The record also reflects that the equipment and
chemicals seized from the residence were sufficient to establish
methamphetamine manufacture.
In Kotila v. Commonwealth, the
Kentucky Supreme Court held that “KRS 218A.1432(1)(b) applies
only when a defendant possesses all of the chemicals or all of
the equipment necessary to manufacture methamphetamine.”20
McIntosh argues that under Kotila, there was insufficient
20
114 S.W.3d 226, 240-241 (Ky. 2003) (emphasis in original). We note
that in 2005, the General Assembly amended KRS 218A.1432(1)(b) to
read that a person is guilty of manufacturing methamphetamine when
he knowingly and lawfully “(b) With intent to manufacture
methamphetamine possesses two (2) or more chemicals or two (2) or
more items of equipment for the manufacture of methamphetamine.”
However, because McIntosh was indicted in 2002, the older version of
KRS 218A.1432(1)(b) requiring possession of all chemicals or all
equipment necessary to manufacture methamphetamine applies.
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evidence to convict him under KRS 218A.1432 because “the police
found no [m]ethamphetamine”; and “they found no
[m]ethamphetamine precursors or anhydrous ammonia chemicals
required to manufacture [m]ethamphetamine.”
McIntosh’s argument here is clearly flawed.
It is
true that the NKDSF agents did not find anhydrous ammonia in the
residence.
But they did find all of the equipment and some of
the chemicals necessary to manufacture methamphetamine through
the “ephedrine reduction” method.
As stated in Kotila, examples
of equipment necessary to manufacture methamphetamine by the
ephedrine reduction method include, “spoons, dishes, glassware,
filtering material (e.g., cotton balls), funnels, hoses, and
other household items.”21
The evidence log reveals that all of
these items, along with an electric grinder, a box of aluminum
foil, a hot plate, plastic bags, a turkey baster, gloves, an
electric scale, mason jars, and tubing were found in McIntosh’s
residence.
The log and test results also reveal that lithium
batteries, starting fluid, drain cleaner, ephedrine, and
pseudoephedrine were found in the house.
Based on this
evidence, we believe there was sufficient evidence for a jury to
convict McIntosh of manufacturing methamphetamine.
Finally, the record proves there was sufficient
evidence to convict McIntosh of trafficking in methamphetamine.
21
Id. at 236-237.
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KRS 218A.1412(1) states, “[a] person is guilty of trafficking in
a controlled substance in the first degree when he knowingly and
unlawfully traffics in . . . a controlled substance that
contains any quantity of methamphetamine, including its salts,
isomers, and salts of isomers.”
Field tests proved the “white
powder” found in the truck McIntosh was driving at the time of
his arrest was methamphetamine.
Specifically, the four plastic
bags found on McIntosh’s person yielded almost 1.5 grams of
methamphetamine.
This, combined with the fact that McIntosh was
in possession of an electric scale, plastic bags, a razor blade,
and $175 in cash, was sufficient evidence to convict McIntosh
under KRS 218A.1412.
Had McIntosh gone to trial, he would have faced the
possibility of a life sentence on the manufacturing charges and
a minimum of ten years on the trafficking charges.
We do not
believe counsel’s decision to advise McIntosh to plead guilty
and accept a seven and a half year sentence amounts to
ineffective assistance.
Rather, we believe this was sound trial
strategy to protect McIntosh from the exposure to the potential
for much longer imprisonment.
Moreover, upon reviewing
McIntosh’s plea colloquy, it is clear that McIntosh knowingly
and willfully pled guilty to the charges and acknowledged his
guilt to the court.
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We do not believe McIntosh has proved his trial
counsel “was not functioning as the ‘counsel’ guaranteed . . .
by the Sixth Amendment.”22
Counsel clearly rendered “reasonably
effective assistance”23 and did not cause McIntosh “to lose what
he otherwise would probably have won.”24
Without conclusive
proof that counsel’s performance was below professional
standards, we are not compelled to second-guess his trial
strategy.
For these reasons, the decision of the Grant Circuit
Court denying McIntosh’s RCr 11.42 motion is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Barbara Anderson
Lexington, Kentucky
Gregory D. Stumbo
Attorney General of Kentucky
Jeffrey A. Cross
Assistant Attorney General
Frankfort, Kentucky
22
Strickland, 466 U.S. at 690.
23
McQueen, 949 S.W.2d at 71.
24
Bronk, 58 S.W.3d at 487.
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