BRUCE PLUMB, JR. v. COMMONWEALTH OF KENTUCKY
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RENDERED:
SEPTEMBER 23, 2005; 2:00 P.M.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2004-CA-002115-MR
BRUCE PLUMB, JR.
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE JAMES ISHMAEL, JUDGE
ACTION NO. 03-CR-00505
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
DYCHE, KNOPF, AND TACKETT, JUDGES.
KNOPF, JUDGE:
Bruce Plumb, Jr., appeals from a judgment of the
Fayette Circuit Court, entered September 8, 2004, convicting him
pursuant to his conditional guilty plea of the following crimes:
being a felon in possession of a firearm, 1 first-degree
1
KRS 527.040.
possession of a controlled substance, 2 and driving a motor
vehicle under the influence of intoxicants (DUI). 3
The trial
court probated Plumb’s five-year sentence for a period of five
years.
Plumb’s guilty plea reserved his right to seek review of
the trial court’s rulings refusing to suppress evidence
allegedly derived from an illegal motor vehicle stop, refusing
to suppress drug evidence allegedly rendered unreliable by an
inadequate chain of custody, and granting the Commonwealth’s
motion to introduce evidence concerning Plumb’s alleged prior
drug dealing.
Convinced that Plumb is entitled to relief on
none of these grounds, we affirm.
Shortly after 1:00 a.m. on March 1, 2003, an officer
of the Lexington Division of Police traveling southbound on the
New Circle Road between North Broadway and Bryan Station Road
observed a northbound white Isuzu traveling at what appeared to
be an excessive speed.
The officer’s radar indicated that the
Isuzu was going fifty-seven miles per hour in a forty-five mileper-hour zone.
The officer promptly crossed the median, pursued
the Isuzu, and pulled it over as it approached Russell Cave
Road.
When the driver, Plumb, who smelled of alcohol and
otherwise appeared intoxicated, failed all six field sobriety
tests, the officer arrested him for DUI.
2
KRS 218A.1415.
3
KRS 189A.010.
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In the ensuing search,
the officer found, among other evidence, what eventually proved
to be one small plastic packet and three small paper bindles of
cocaine in the pocket of Plumb’s jacket and, in the Isuzu’s
glove compartment, a loaded .38 pistol.
In May 2003, a Fayette County grand jury indicted
Plumb for being a felon in possession of a handgun, for
trafficking in a controlled substance, for possession of
marijuana, for possession of drug paraphernalia, for DUI, for
various traffic violations, and for being a second-degree
persistent felon.
Plumb moved to suppress the evidence the
arresting officer discovered and on appeal contends that the
trial court erred by denying the motion because the officer
lacked a sufficient basis for the vehicle stop.
We disagree.
An officer with probable cause to believe that a
traffic violation has occurred may stop the suspected vehicle. 4
Plumb maintains that the officer in this case did not have
probable cause to believe that he (Plumb) was speeding because
the radar upon which the officer relied may have malfunctioned
or may have been registering the speed of some vehicle other
than Plumb’s.
As Plumb concedes, however, in Honeycutt v.
Commonwealth, 5 Kentucky’s highest court recognized the general
4
Wilson v. Commonwealth, 37 S.W.3d 745 (Ky. 2001); United States
v. Burns, 298 F.3d 523 (6th Cir. 2002).
5
408 S.W.2d 421 (Ky. 1966).
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reliability of police radar detectors and held that radar
evidence in a particular case may be deemed accurate if there is
evidence that the device had been recently tested and that the
operator had been adequately trained.
At the suppression hearing in this case, the officer
testified that his squad car was equipped with a Custom HR 12
moving radar which was capable of registering the speed of
oncoming cars even when the squad car was moving.
The officer
had tested the device at the beginning of his shift that night
and had determined, by means of a built-in test, that the
display lights were functioning and, by means of dual tuning
forks, that the device was reading accurately.
fork test is widely accepted as adequate. 6
The dual-tuning-
The officer repeated
these tests soon after Plumb’s arrest and again confirmed that
the device was working properly.
The officer also testified
that in his fourteen years as a policeman he had been
extensively trained and had acquired considerable experience in
the use of radar detectors.
Finally, the officer testified that
generally the radar registered the speed of the nearest vehicle.
On the morning of Plumb’s arrest, the New Circle Road traffic
had been moderate, he said, but at the time the radar settled on
the fifty-seven miles-per-hour reading the white Isuzu had been
6
Thomas J. Goger, Proof, by Radar or Other Mechanical or
Electronic Devices, of Violation of Speed Regulations, 47 ALR3d
822 (1973).
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the nearest vehicle to him and was traveling by itself.
The
radar confirmed, moreover, the officer’s unaided observation
that the Isuzu was speeding.
In the absence of any countervailing evidence, this is
more than substantial proof supporting the trial court’s finding
that the radar accurately measured the Isuzu’s speed.
finding is thus conclusive. 7
That
That speed, in turn, amounted to
probable cause of a traffic violation, which justified the stop
of Plumb’s vehicle.
Plumb, therefore, is not entitled to relief
on this ground.
In a second suppression proceeding, Plumb moved to
suppress the cocaine seized from his coat pocket on the ground
that the items tested at the state crime lab may have been
contaminated or may not have been the items removed from Plumb’s
possession.
As Plumb notes, to ensure that evidence is not
shuffled or tainted during testing the Commonwealth is required
to establish a chain of custody from the time of seizure until
introduction of the evidence at trial.
Even with respect to
fungible materials such as cocaine, however,
it is unnecessary to establish a perfect
chain of custody or to eliminate all
possibility of tampering or
misidentification, so long as there is
persuasive evidence that “the reasonable
probability is that the evidence has not
been altered in any material respect.” . . .
7
RCr 9.78.
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Gaps in the chain normally go to the weight
of the evidence rather than to its
admissibility. 8
Here, Plumb has not identified any gaps in the chain
of custody.
On the contrary, at the suppression hearing the
arresting officer identified a small plastic bag with white
powder and three small paper bindles as the packages he had
removed from Plumb’s pocket, sealed in an evidence envelope, and
submitted for testing at the crime lab.
A chemist from the lab
identified the same evidence envelope and the same four
packages.
She testified that the contents of all four of the
packages had tested positive for cocaine.
Plumb contends that the arresting officer might have
contaminated the contents of the plastic package when he fieldtested it, because he could not remember where he obtained the
tiny scoop he used.
As the trial court observed, however, even
if this fact be thought to raise more than a de minimis
possibility of contamination, the officer did not field-test the
contents of the paper bindles and so could not have contaminated
them.
They too tested positive for cocaine and would have been
sufficient to support the trafficking charge against Plumb.
Plumb next argues, however, that the bindles, too, are
suspect because when the officer weighed them, including their
8
Rabovsky v. Commonwealth, 973 S.W.2d 6, 8 (Ky. 1998) (citations
omitted).
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packaging, he obtained masses of .2, .2, and .1 grams, whereas
the lab chemist obtained masses without the packaging of 210,
227, and 181, milligrams respectively. 9
If both individuals
weighed the same, unadulterated bindles, Plumb asks, how could
the masses without packaging be more than those with packaging?
As the chemist explained, however, the triple-beam balance at
the police station is far less accurate than the electronic
balance at the lab so that minor discrepancies such as these are
unavoidable and very common.
Together with the officer’s and
the chemist’s positive identification of the bindles, the
measurements were close enough, the trial court found, to be
persuasive evidence that the bindles had not been altered in any
material respect.
We are (willingly) bound by this finding,
which is supported by substantial evidence. 10
Accordingly, the
trial court did not err by denying Plumb’s motion to suppress
the cocaine.
Finally, Plumb contends that the trial court abused
its discretion by granting the Commonwealth’s motion to
introduce KRE 404(b) evidence of Plumb’s prior drug dealing.
That rule provides that evidence of other crimes or wrongs is
not admissible as proof of the defendant’s character or his
criminal disposition, but that it may be admissible “[i]f
9
10
One-tenth of a gram equals 100 milligrams.
RCr 9.78.
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offered for some other purpose, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident.”
Plumb, who was charged with
trafficking in cocaine, denied knowing how the four small
packages of cocaine had gotten into his jacket pocket.
The
Commonwealth sought to introduce testimony by Plumb’s former
girlfriend that between December 2002 and the night of Plumb’s
arrest on the first of March 2003 she had on several occasions
observed Plumb sell small packets of cocaine to employees and
patrons of various Lexington bars.
This evidence should be
admissible, the Commonwealth argued, because it tended to show
that Plumb knew the cocaine was in his pocket and that it was
there because he intended to sell it.
Plumb concedes that the
girlfriend’s testimony concerning alleged transactions on the
night of the arrest would be admissible, but maintains that the
trial court abused its discretion by admitting her evidence of
earlier transactions because that evidence was too remote and
too prejudicial.
Evidence of other crimes is admissible under KRE
404(b)
only if it satisfie[s] the three-part test
of Bell v. Commonwealth, Ky., 875 S.W.2d 882
(1994), viz: (1) Is the evidence relevant?
(2) Does it have probative value? (3) Is its
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probative value substantially outweighed by
its prejudicial effect? 11
In Walker v. Commonwealth, 12 our Supreme Court held that evidence
of prior drug sales is indeed relevant to a trafficking charge
because such evidence tends to show that the defendant intended
to sell the drugs found in his possession.
The other-crime evidence has probative value if it
provides sufficient assurance that the other crime actually
occurred. 13
Here the girlfriend’s eyewitness testimony would
meet this standard.
Even if the other-crime evidence is relevant for a
proper purpose and is sufficiently probative, however, such
evidence is inherently prejudicial and should be excluded if the
prejudice substantially outweighs its probative value. 14
Factors
bearing on this balance include the similarity between the other
crime and the charged crime, the time between them, whether the
other crime was particularly egregious, whether the Commonwealth
has available to it other means of proof which would reduce the
11
Purcell v. Commonwealth, 149 S.W.3d 382, 399-400 (Ky. 2004).
12
52 S.W.3d 533 (Ky. 2001).
13
Purcell v. Commonwealth, supra.
14
Bell v. Commonwealth, 875 S.W.2d 882 (Ky. 1994).
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need for the other-crime evidence, and the nature of any
limiting instruction provided by the trial court. 15
Here, of course, the trial court had no occasion to
provide a limiting instruction, but the other factors do not
suggest that the trial court abused its discretion.
The other
crimes were very similar to the charged crime and were not so
egregious as to shock or appall the jury.
In United States v.
Myers, 16 moreover, the Sixth Circuit did not consider other drug
sales more than six months apart from the charged sale too
remote.
Here the other sales were only two or three months
apart from the charged trafficking.
It is true that the
Commonwealth’s need for the earlier-sale evidence was not as
strong in this case as in some others, since the girlfriend was
apparently prepared to testify about a sale on the night of the
arrest and since the bindles seized from Plumb’s jacket appeared
packaged for distribution.
There may also have been evidence
that at the time of the arrest Plumb was in possession of a
large amount of cash.
This evidence was not so compelling,
however, as to render the earlier-sale evidence merely
cumulative.
Notwithstanding the arguably reduced need for the
other-crime evidence, given its substantial probativeness we are
15
Walker v. Commonwealth, supra; United States v. Myers, 123 F3d
350 (6th Cir. 1997).
16
supra.
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not persuaded that the trial court abused its discretion by
deciding to admit it.
In sum, the officer validly stopped Plumb for
speeding; the Commonwealth’s chain of custody adequately
accounted for the cocaine seized from him; and the trial court
permissibly decided to admit evidence of Plumb’s prior drug
sales.
Accordingly, we affirm the September 8, 2004, judgment
of the Fayette Circuit Court.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Herbert T. West
Fayette County Legal Aid
Lexington, Kentucky
Gregory D. Stumbo
Attorney General of Kentucky
Bryan D. Morrow
Assistant Attorney General
Frankfort, Kentucky
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