GREGORY HENDERSON v. COMMONWEALTH OF KENTUCKY
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RENDERED: JUNE 3, 2005; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-000925-MR
GREGORY HENDERSON
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE GEOFFREY P. MORRIS, JUDGE
ACTION NOS. 03-CR-003036 AND 04-CR-000653
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BUCKINGHAM, KNOPF, AND TAYLOR, JUDGES.
TAYLOR, JUDGE:
Gregory Henderson brings this appeal from an
April 8, 2004, judgment of the Jefferson Circuit Court upon a
jury verdict finding him guilty of first-degree trafficking in a
controlled substance, public intoxication, and with being a
first-degree persistent felony offender.
We affirm.
On November 18, 2003, the Jefferson County Grand Jury
indicted appellant upon first-degree trafficking in a controlled
substance and alcohol intoxication in a public place.
On
February 24, 2004, the Jefferson County Grand Jury indicted
appellant with being a first-degree persistent felony offender.
The matter went to a jury trial on March 5, 2004.
The jury
ultimately returned a verdict of guilty upon all indicted
offenses, and appellant was sentenced to a term of twelve years’
imprisonment.
This appeal follows.
Appellant first contends the trial court committed
reversible error by admitting the testimony of Detective Robert
O’Neal.
Detective O’Neal was called by the Commonwealth as an
expert witness in the field of narcotics.
Detective O’Neal
opined that appellant was trafficking in cocaine based upon the
amount of crack cocaine found (2.68 grams) and based upon the
fact that appellant had no paraphernalia for use of the cocaine
in his possession.
Appellant objected to this testimony “on the
basis that Detective O’Neal was not listed in discovery nor did
the defense have notice as to what the expert’s testimony would
be.”
While it is true that the Commonwealth gave notice of
intent to call an expert witness in the filed of narcotics,
appellant contends that it failed to specifically identify
Detective O’Neal as an expert witness.
Appellant seems to be arguing that such notice is
required under Ky. R. Crim. P. (RCr) 7.24.
In so doing,
appellant relies upon Barnett v. Commonwealth, 763 S.W.2d 119
(Ky. 1988) as authority.
We view Barnett as distinguishable.
In that case, the Commonwealth tendered a report by a testifying
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expert witness; however, the report was deficient as it failed
to include a “significant piece of . . . the expert’s opinion
. . . .”
In the case at hand, appellant makes no argument that
Detective O’Neal possessed results or reports of physical/mental
examinations or of scientific tests or experiments.
Upon a
reading of RCr 7.24(1)(b), it is clear that the Commonwealth
need only disclose “results or reports of physical or mental
examinations, and of scientific tests or experiments made in
connection with a particular case, or copies thereof, that are
known by the attorney for the Commonwealth . . . .”
Thus, we do
not believe RCr 7.24(1)(b) mandated disclosure of Detective
O’Neal as an expert witness.
Additionally, appellant argues that Detective O’Neal
was not qualified as an expert witness and that the trial court
erred by failing to hold a Daubert hearing on the reliability of
Detective O’Neal’s expert testimony.
See Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed.
2d 469 (1993).
We, however, observe that defense counsel did
not object to Detective O’Neal’s testimony upon this basis, and
the trial court did not have the opportunity to rule upon this
issue.
Where a party fails to specifically object to the
reliability of the expert testimony and request a Daubert
hearing, we are of the opinion that the issue of the reliability
of expert testimony has been waived.
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See R. Lawson, The
Kentucky Evidence Law Handbook §6.20[6] (4th ed. 2003).
Upon
the whole, we hold the trial court did not commit reversible
error by admitting the expert testimony of Detective O’Neal.
Appellant next asserts the trial court committed
reversible error by denying his motion to suppress evidence.
Appellant sought to suppress as evidence the cocaine found in
his mother’s automobile.
The events leading to the search and
seizure of the cocaine from his mother’s automobile are rather
straight forward.
The police responded to a call concerning several
people in a rear parking lot of Turners Liquor Store and Tavern.
When the police officers arrived, they observed appellant
leaning into a car.
his mother.
The car was later determined to be owned by
It appears that appellant stepped away from the
vehicle and tried to walk away from the police officers.
The
officers testified that appellant appeared to be intoxicated and
was acting nervously.
The officers further testified that
appellant appeared “agitated and belligerent in a loud voice.”
The keys were in the ignition of the automobile, and appellant
was questioned concerning the ownership of the automobile.
Appellant denied owning or possessing the automobile several
times and even suggested that he observed a person park the
automobile sometime in the past.
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During jury trial, appellant’s
mother testified that she had given him permission on the night
in question to drive the automobile.
The trial court concluded that appellant did not have
standing to object to the search of the automobile.
Appellant
contends the trial court committed error by concluding that he
did not have standing to object to the search.
Although there is no Kentucky case directly on point,
we are persuaded that an individual has standing to challenge
the search of a motor vehicle even though he does not own that
vehicle if he had permission from the owner to drive the
vehicle.
See Maysonet v. State of Texas, 91 S.W.3d 365
(Tex.Ct.App. 2002).
Here, appellant had permission from his
mother to drive the vehicle.
If our inquiry ended here, we
would have to conclude that appellant had standing.
However, we
think it pivotal that appellant disavowed ownership or
possession of the vehicle to the police officers.
It is generally recognized that “disclaimer by a
person of ownership of property results in an abandonment
thereof or the loss of a reasonable expectation of privacy
therein, so that such person cannot challenge a search or
seizure . . . .”
79 C.J.S. Search and Seizures §38 (1995).
See
People v. Exum, 382 Ill. 204, 47 N.E.2d 56 (1943); Bevans v.
State, 180 Md. 443, 24 A.2d 792, (1942).
Under the facts of
this case, we are of the opinion that appellant abandoned any
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expectation of privacy in the automobile by his disclaimer of
possession thereof and thus, cannot challenge the
constitutionality of the search and seizure.
Accordingly, we
hold the trial court did not commit reversible error by denying
appellant's motion to suppress the cocaine seized from his
mother’s vehicle.
Appellant’s final argument is that the trial court
committed error by denying his motion for directed verdict of
acquittal upon first-degree trafficking in a controlled
substance.
A directed verdict of acquittal is proper if under
the evidence as a whole it would have been clearly unreasonable
for a jury to have found appellant guilty of first-degree
trafficking in a controlled substance.
Commonwealth v. Benham,
816 S.W.2d 186 (Ky. 1991).
First-degree trafficking in a controlled substance is
codified in Kentucky Revised Statutes (KRS) 218A.1412(1) and
reads as follows:
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 is
classified in Schedules I or II which is a
narcotic drug; a controlled substance
analogue; lysergic acid diethylamide;
phencyclidine; a controlled substance that
contains any quantity of methamphetamine,
including its salts, isomers, and salts of
isomers; gamma hydroxybutyric acid (GHB),
including its salts, isomers, salts of
isomers, and analogues; or flunitrazepam,
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including its salts, isomers, and salts of
isomers.
The term trafficking is defined is KRS 218A.010(28) as meaning
“to manufacture, distribute, dispense, sell, transfer, or
possess with intent to manufacture, distribute, dispense, or
sell a controlled substance.”
Appellant particularly maintains
there was insufficient direct evidence of intent to traffic and
the circumstantial evidence of intent introduced through
Detective O’Neal was insufficient to sustain the conviction.
We
disagree.
The facts developed at trial indicate that appellant
was leaning into his mother’s vehicle when the police officers
arrived and there were other people in the parking lot.
Appellant was acting nervous and tried to avoid the police
officers.
The police seized 2.68 grams of cocaine from his
mother’s automobile and seized $187.00 in cash from appellant.
Of particular significance is that appellant possessed no
paraphernalia with which to use the cocaine seized from the
automobile.
We think the above evidence coupled with Detective
O’Neal’s expert testimony was sufficient to induce a reasonable
juror to find appellant guilty of first-degree trafficking in a
controlled substance.
In sum, we are of the opinion the trial
court did not commit reversible error by denying appellant’s
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motion for a directed verdict of acquittal upon first-degree
trafficking in a controlled substance.
For the foregoing reasons, the judgment of the
Jefferson Circuit Court is affirmed.
BUCKINGHAM, JUDGE, CONCURS.
KNOPF, JUDGE, CONCURS AND FILES SEPARATE OPINION.
KNOPF, JUDGE, CONCURRING:
I agree with the reasoning and the
result of the majority opinion.
However, I share the trial
court’s concern about the Commonwealth’s conduct in this case.
The majority correctly notes that RCr 7.24 does not specifically
require the Commonwealth to disclose the names and opinions of
experts that it intends to call at trial.
But RCr 7.24(1)(b)
does require that, on motion, the Commonwealth must produce
"results or reports of physical or mental examinations, and of
scientific tests or experiments made in connection with the
particular case."
The trial court’s pre-trial order did require
disclosure of expert witnesses.
Where there is an order
requiring the Commonwealth to disclose the substance of expert
testimony, the defendant is entitled under RCr 7.24 to be
confronted with the fact that this opinion would be presented
against him before the trial started so that he has a reasonable
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opportunity to defend against the premise.1
Pre-trial disclosure
of the substance of expert testimony in a criminal trial is a
matter of fundamental fairness that goes to the very heart of
the adversarial process.
Where the Commonwealth is not required
to comply with the court’s pre-trial discovery orders, the
result is trial by ambush.2
In this case, the Commonwealth’s response that it
intended to call “an expert in the field of narcotics” was so
vague that it provided no meaningful notice to Henderson
regarding the substance of Detective O’Neil’s testimony.
However, the Commonwealth did provide notice that it intended to
call a witness.
Despite the clearly inadequate notice,
Henderson’s counsel did not move for additional discovery about
the proposed expert witness.
Rather, he waited until trial to
challenge the sufficiency of the Commonwealth’s response.
Furthermore, when faced at trial with the
Commonwealth’s inadequate response, the trial judge had the
discretion to: 1) grant a continuance; 2) exclude material not
disclosed; or 3) issue "any other order as may be just under the
1
Barnett v. Commonwealth, 763 S.W.2d 119, 123 (Ky. 1988).
2
Id. See also Vires v. Commonwealth, 989 S.W.2d 946, (Ky.
1999), and James v. Commonwealth, 482 S.W.2d 92 (Ky. 1972).
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circumstances".3
Henderson only asked for exclusion of the
evidence, but he did not attempt to set out how Detective
O’Neil’s testimony would be otherwise inadmissible.
In
hindsight, Henderson now presents several reasonable bases on
which he could have challenged the admissibility of the
evidence, but he presented none of these grounds to the trial
court.
While this is a close case, I would conclude that the
trial court did not abuse its discretion by denying the motion
to exclude.
And since Henderson failed to ask for any other
remedy short of exclusion of the evidence, he has waived any
claim of error in that regard.
BRIEFS AND ORAL ARGUMENT FOR
APPELLANT:
Franklin P. Jewell
Louisville, Kentucky
BRIEF FOR APPELLEE:
Gregory D. Stumbo
Attorney General of Kentucky
Samuel J. Floyd, Jr.
Assistant Attorney General
Frankfort, Kentucky
ORAL ARGUMENT FOR APPELLEE:
Samuel J. Floyd, Jr.
Assistant Attorney General
Frankfort, Kentucky
3
RCr 7.24(9); Neal v. Commonwealth, 95 S.W.3d 843, 848 (Ky.
2003); Berry v. Commonwealth, 782 S.W.2d 625, 627-28 (Ky. 1990).
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