JAMES RANDEL SALLEE AND TERESA WADDELL v. COMMONWEALTH OF KENTUCKY
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RENDERED: APRIL 6, 2007; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2005-CA-001672-MR
AND
NO. 2005-CA-001686-MR
JAMES RANDEL SALLEE AND
TERESA WADDELL
v.
APPELLANTS
APPEALS FROM MUHLENBERG CIRCUIT COURT
HONORABLE DAVID H. JERNIGAN, JUDGE
ACTION NO. 05-CR-00038 & 05-CR-00040
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: COMBS, CHIEF JUDGE; WINE, JUDGE; PAISLEY,1 SENIOR JUDGE.
PAISLEY, SENIOR JUDGE: Teresa Waddell appeals from a judgment of conviction
entered by the Muhlenberg Circuit Court on July 29, 2005. The trial court sentenced
Waddell to serve two and half years in prison after a jury convicted her of possession of a
controlled substance in the first degree, possession of drug paraphernalia, and possession
Senior Judge Lewis G. Paisley sitting as Special Judge by assignment of the Chief Justice pursuant to
Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
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of marijuana. On appeal, Waddell argues that the trial court prejudiced her by
consolidating her case with the case against James Randel Sallee; argues that the
evidence presented by the Commonwealth was insufficient to sustain her conviction; and
argues that the trial court erred when it denied her motion to suppress the evidence
garnered from the execution of a search warrant. Finding no merit to any of Waddell's
claims, we affirm her conviction.
Waddell's co-defendant, James Randel Sallee, also appeals from a judgment
of conviction entered by the Muhlenberg Circuit Court. The trial court sentenced Sallee
to serve twelve years in prison after a jury convicted him of possession of controlled
substance in the first degree, subsequent offense, and possession of drug paraphernalia,
subsequent offense. Furthermore, after the guilt phase of the trial, Sallee pleaded guilty
to being a persistent felony offender in the second degree. On appeal, Sallee also argues
that the trial court erred when it denied his motion to suppress the evidence garnered
from the execution of a search warrant. As with Waddell's appeal, we find no merit to
Sallee's arguments and affirm his conviction.
FACTS
According to the record, the events which ultimately led to these appeals
began on the night of December 21, 2004 when, at approximately 10:30 p.m., Detective
Kenneth Wayne Perkins of the Kentucky State Police received a cell phone call from
James Martir, a confidential informant. According to Detective Perkins's later testimony,
during the phone conversation, Martir told the detective that he and another individual
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entered Waddell's house, and, while there, he had observed the individual purchase a
gram of methamphetamine. Based on this information, Detective Perkins drafted an
affidavit to obtain a search warrant for Waddell's residence. The pertinent part of the
affidavit read:
That at approximately 10:30 p.m. on December 21, 2004, the
Affiant did have a telephone conversation with the a [sic]
confidential informant at which time the confidential
informant informed Affiant that on December 22, 2004, he
(confidential informant) along with a male subject entered the
hereinafter described premises. The confidential informant
observed the male subject purchase one (1) gram of
methamphetamine from a female subject known to the
confidential informant as Terrie Lott, 503 North Second
Street, Central City, Kentucky. That the confidential
informant informed the Affiant that the substance that the
male subject purchased was methamphetamine.
Based on this affidavit, Detective Perkins obtained a search warrant for
Waddell's home, and he and his partner, Detective Jermaine Savage, executed the warrant
on December 22, 2004. Upon executing the warrant, the detectives found Waddell, her
roommates, Sallee and William Ricks, and three other individuals in the house. The
detectives allowed the three other individuals to leave. Detective Savage spoke with
Waddell, reading her the search warrant and informing her of her rights pursuant to
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2D 694 (1966). After being
informed of her rights, Waddell told the detective that there might be either marijuana or
methamphetamine in a filing cabinet in her bedroom. Detective Savage searched
Waddell's bedroom and found, in the filing cabinet, a security box that contained
marijuana, methamphetamine and drug paraphernalia. The detective also found over
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$1,000.00 in cash in the cabinet and found more drug paraphernalia in an adjacent
computer desk. The detective discovered, in Waddell's bedroom, a woman's jacket.
Inside this jacket, he found a syringe that contained a white substance. In addition, the
detective spoke with Sallee, and he admitted that he had drugs in his bedroom. Detective
Savage searched Sallee's bedroom and found two bags of methamphetamine and drug
paraphernalia. The detectives arrested Waddell, Sallee and William Ricks.
On February 11, 2005, Sallee was indicted and charged with possession of a
controlled substance in the first degree, second or subsequent offense; possession of drug
paraphernalia, second or subsequent offense; and as a persistent felony offender in the
first degree, which was later amended to persistent felony offender in the second degree.
On the same day, Waddell was indicted and charged with possession of a controlled
substance in the first degree, possession of a controlled substance in second degree,
possession of a controlled substance in the third degree, possession of drug paraphernalia
and possession of marijuana. The second and third degree possession charges were later
dismissed. Ricks was also charged with drug offenses, but he pleaded guilty.
Waddell and Sallee decided to proceed to trial, and, in March of 2005, over
the defendants' objection, the trial court ordered the defendants' cases consolidated. In
May of 2005, the defendants filed motions to suppress the fruits of the search. The
defendants argued that the affidavit stated that the confidential informant witnessed a
drug purchase on December 22nd, yet the informant told Detective Perkins about this
purchase on December 21st. According to the defendants, this was a physical
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impossibility which rendered the affidavit and the subsequent search warrant defective,
requiring suppression. They also argued that the affidavit lacked probable cause since the
detective failed to independently investigate Martir's tip. On May 16, 2005, the trial
court held an evidentiary hearing regarding the defendants' suppression motions. At the
hearing, the Commonwealth called only one witness, Detective Perkins. The detective
testified to the facts previously mentioned and also explained that the December 22nd date
found in the affidavit was merely a typographical error. Detective Perkins further
testified about the confidential informant, Martir. According to the detective, Martir had
participated in approximately 30 to 40 previous controlled drug buys under the detective's
supervision. Given Martir's experience as a confidential informant, Detective Perkins
testified that Martir was very knowledgeable about methamphetamine, and, since they
had worked closely together, the detective opined that Martir had always been very
reliable.
After hearing the detective's testimony, the trial court found that the
affidavit contained a typographical error regarding the date of the drug transaction and
concluded that Detective Perkins had adequately explained away the error. The trial
court also found that, under the totality of the circumstances, the affidavit provided a
substantial basis to support a finding of probable cause and denied the defendants'
motions to suppress.
At the time of the first suppression hearing, the Commonwealth refused to
reveal the identity of the confidential informant, James Martir. However, prior to trial,
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the Commonwealth informed the defendants that the confidential informant was Martir
and gave notice of its intention to call him as a witness. While preparing for trial, the
prosecutor interviewed Martir. During this interview, Martir claimed that he had never
been inside Waddell's home, and he insisted that he never observed a drug transaction
there. After the interview, the Commonwealth informed the defendants about Martir's
latest claims.
The trial court held another hearing on June 16, 2005. At the hearing, the
defendants moved to suppress the fruits of the search, arguing that Detective Perkins
included fabricated statements in the affidavit. Detective Perkins testified and reiterated
his previous testimony. He also testified that on the morning of December 22nd, he,
Detective Savage and Martir drove to Waddell's neighborhood and that Martir pointed
out Waddell's house. According to the detective, Martir told both detectives that, on the
night of December 21st, he had observed a drug transaction take place in Waddell's house,
and he told the detectives that Waddell had placed surveillance cameras in and around her
home.
Detective Savage testified that on the night of December 21st, his partner,
Detective Perkins, had called him and had told him about Martir's phone conversation.
Detective Savage stated that he accompanied Detective Perkins to obtain the search
warrant and that, on the morning of December 22nd, he accompanied Detective Perkins
and Martir to Waddell's neighborhood. According to Detective Savage, Martir reiterated
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that he had observed a drug transaction, and he told the detectives about the surveillance
cameras at Waddell's house.
After Detective Savage testified, the Commonwealth called James Martir to
the stand. Martir testified that he began working as a confidential informant to secure
dismissal of some drug charges. According to Martir, after he had participated in two or
three drug transactions, he had completed his obligation to the police, but he continued to
work as a paid confidential informant. Martir testified that, on the morning of December
21st, not on the 22nd, he had accompanied Detectives Perkins and Savage to Waddell's
neighborhood and had told them about Waddell's surveillance cameras. Martir alleged
that, on that morning, he told Detective Perkins that Waddell would not allow him in her
house, but he claimed he told the detectives that he knew David Tabb and Waddell would
allow Tabb in her home. Martir testified that, on the evening of December 21st, he called
Detective Perkins and told him that he and Tabb went to Waddell's home but Waddell
would not allow him in but did allow Tabb inside and that Tabb never left Waddell's
home. Martir testified that he had never been inside Waddell's house and had never
observed a drug transaction there; furthermore, he insisted that he never told Detective
Perkins that he did. Martir also testified that his brother, Daniel O'Bannon, had called
and told Martir that Sallee had contacted O'Bannon and requested that O'Bannon tell
Martir to call Sallee regarding money. Martir insinuated that Sallee had attempted to
bribe him. The Commonwealth then called O'Bannon to the stand, but O'Bannon denied
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that Sallee had ever contacted him, and O'Bannon testified that he and Martir never had
such a conversation.
After the second hearing, the trial court issued, on June 16, 2005, the
following findings of fact and conclusions of law:
Detective Perkins was told by his confidential informant,
James Martir, on December 21, 2004, that he (Martir) and a
male subject did enter the residence of Defendant, Teresa
Waddell, and that he (Martir) did observe a male subject
purchase one gram of methamphetamine from a female
subject known to Martir as Terrie Lott. James Martir on the
next day repeated this information to both Detective Perkins
and Detective Savage and did so while in the process of
pointing out said residence which is now known to be the
residence of Defendant, Teresa Waddell.
Whether that information given to the Detectives was true and
correct and informant Martir is now fabricating his testimony
at the hearing cannot be determined. The information given
to Detectives could have been made up or it could have been
truthful. The Detectives, especially Detective Perkins,
believed what Martir said was true and they had a basis in
which to depend on his credibility.
This Court's prior ruling dated May 19, 2005, denying the
motions of the Defendants to suppress evidence remains
unchanged. The good faith exception to the exclusionary rule
found in United States v. Leon, 468 U.S. 897 (1984) still
controls. The affidavit in the case at bar does not contain
false or misleading information in that what Detective Perkins
stated was told to him is in fact a true statement. There is not
a knowing or reckless falsity in the affidavit signed by
Detective Perkins and he did act in good faith in obtaining a
search warrant. Accordingly, the renewed motions of the
Defendants to suppress evidence are all DENIED and
OVERRULED.
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T.R. at 101-102. After the trial court denied the defendants' motions, they proceeded to
trial and, as previously stated, were convicted. Now, both Waddell and Sallee appeal to
this Court seeking relief.
WADDELL'S APPEAL
To support her first argument, Waddell claims that, during the execution of
the search warrant, Sallee admitted to Detective Savage that he had drugs in his bedroom.
Waddell insists that the trial court, by consolidating the defendants' cases, prejudiced her
since Sallee's admission, which was introduced at trial, weakened her defense. Citing
Crawford v. Washington, 541 U.S. 36, 68, 124 S. Ct. 1354, 158 L. Ed. 2D 177 (2004),
Waddell argues that Sallee's admission to Detective Savage was testimonial in nature and
was inadmissible against her since she had no opportunity to cross-examine Sallee since
he failed to testify at trial. In addition, she argues that Detective Savage's testimony
regarding Sallee's admission was neither relevant nor competent evidence against her and
was highly prejudicial to her. According to Waddell, the evidence against Sallee was
much stronger than the evidence against her, so the combination of the strong evidence
against Sallee and his admission bolstered the weak case against her and inflamed the
jury against her. Therefore, Waddell concludes she was prejudiced.
According to Kentucky Rules of Criminal Procedure (RCr) 9.12, a trial
court has the authority to order two or more indictments to be joined together for trial if
the offenses and the defendants could have been joined together in one indictment.
According to RCr 6.20, “two . . . or more defendants may be charged in the same
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indictment . . . if they are alleged to have participated in the same act or transaction or in
the same series of acts or transactions constituting an offense or offenses.” RCr 9.12
notwithstanding, a defendant may be granted a separate trial “[i]f it appears that a
defendant or the Commonwealth is or will be prejudiced by a joinder . . . of defendants.”
In addition, the trial court possesses broad discretion regarding joinder, and we will not
disturb its decision absent an abuse of discretion. Berry v. Commonwealth, 84 S.W.3d
82, 87 (Ky.App. 2001).
As the Commonwealth pointed out in its brief, Sallee's admission did not
implicate Waddell. In fact, Sallee's admission to Detective Savage did not mention
Waddell at all; therefore, the holding in Crawford v. Washington, supra simply does not
apply to this case. While Waddell may claim that the evidence against her was weak,
such a claim is not supported by the record and is not sufficient to show that she was
prejudiced when the trial court consolidated the cases. The record demonstrates that the
indictment against Waddell and the indictment against Sallee both arose from the
execution of the search warrant; thus, the trial court did not abuse its discretion when it
consolidated the cases.
In her second argument, Waddell avers that William Ricks pleaded guilty to
drug offenses that arose from the search of her house, and she argues that he took
responsibility for the drugs and drug paraphernalia found in her bedroom although she
admits that he did not take responsibility for the drugs found in the woman's jacket that
had been found in her bedroom. According to Waddell, the woman's jacket and the drugs
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in it belonged to David Tabb. She also insists that Detective Savage's testimony was
inconsistent and lacked credibility. Thus, the evidence, Waddell contends, was
insufficient to support her conviction.
Commonwealth v. Benham, 816 S.W.2d 186 (Ky. 1991) is one of the
leading cases addressing directed verdicts in criminal cases. According to Benham, when
a trial court considers a motion for directed verdict, it must draw from the evidence all
fair and reasonable inferences in favor of the Commonwealth. Id. at 187. Furthermore, a
trial court is prohibited from granting a directed verdict if the evidence is sufficient to
persuade a reasonable juror to believe that the defendant is guilty beyond a reasonable
doubt. Id. In addition, the trial court must accept the Commonwealth’s evidence as true;
however, it must reserve questions of credibility and weight for the jury. Id. When we
review the trial court’s decision, we must determine, given the totality of the evidence,
whether it would be clearly unreasonable for a jury to find guilt. Id.
Since the detectives did not find either drugs or paraphernalia upon
Waddell's person at the time they executed the search warrant, the Commonwealth would
have to rely upon the theory of constructive possession to convict Waddell of the
possession charges. Constructive possession may be established if the the contraband in
question was subject to the accused's dominion and control. Clay v. Commonwealth, 867
S.W.2d 200, 202 (Ky.App. 1993). In her brief, Waddell contends that the drugs found in
her bedroom by the detectives belonged to either William Ricks or David Tabb.
However, we point out that the jury was not required to believe either of these
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contentions. See Gillispie v. Commonwealth, 212 Ky. 472, 279 S.W. 671 (Ky. 1926). In
addition, at trial, Waddell did not deny that she owned the house that the detectives had
searched and did not deny that they found marijuana, methamphetamine and drug
paraphernalia in her bedroom. Furthermore, during the execution of the search warrant,
Waddell admitted to Detective Savage that drugs, specifically marijuana and
methamphetamine, might be found in her bedroom inside the filing cabinet. Given these
facts, there was ample evidence from which a reasonable juror could conclude that the
drugs and paraphernalia found in Waddell's bedroom were in her control. So, given the
totality of the evidence, the trial court properly denied Waddell's motions for directed
verdict.
In her final argument, Waddell revisits the suppression issue. According to
Waddell, the affidavit in support of the search warrant did not meet the “totality of the
circumstances” test set forth in Illinois v. Gates, 462 U.S. 213, 238-239, 240, 103 S. Ct.
2317, 76 L. Ed. 2D 527 (1983), since Detective Perkins knowingly or recklessly included
false statements in the affidavit. Thus, she concludes the search warrant was invalid.
When we review suppression issues, we first review whether the trial
court's findings of fact were supported by substantial evidence. Commonwealth v. Neal,
84 S.W.3d 920, 923 (Ky.App. 2002). If the trial court's findings are supported by
substantial evidence, then we will deem those findings conclusive. RCr 9.78. Second,
we review, de novo, whether the trial court correctly applied the law to the facts.
Commonwealth v. Neal, supra.
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After the second suppression hearing, the trial court made a finding of fact
that Martir told the detectives that he witnessed a drug transaction in Waddell's home on
the night of December 21, 2004. The trial court stated that the truth of this statement was
indeterminable, but it found that, despite this, Detective Perkins had reason to believe
Martir's statement. These findings were based upon and supported by Detective Perkins's
testimony and Detective Savage's testimony. We recognize that Martir's testimony
contradicts the detectives; however, the trial court was acting as the fact-finder and had
the best opportunity to judge the credibility of the witnesses. See Kentucky Rules of
Civil Procedure (CR) 52.01. The trial court decided that the detectives were credible and
Martir was not. We will not disturb this decision and will not substitute our judgment
regarding the credibility of the witnesses for that of the trial court. CR 52.01. So, we
must abide by the trial court's findings of fact since Detective Perkins's testimony and
Detective Savage's testimony constituted substantial evidence which supported the trial
court's findings. Thus, we are left to determine if the trial court properly applied the law
to its findings of fact. The trial court recognized that Martir's statement to the detectives
may have been fabricated but concluded that the good faith exception to the exclusionary
rule set forth in U.S. v. Leon, supra applied. We agree with the trial court that good faith
exception applied and that the search warrant was valid.
In the alternative, Waddell contends that Detective Perkins made reckless
misrepresentation regarding Martir's credibility and did nothing to corroborate Martir's
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information. Citing Beemer v. Commonwealth, 665 S.W.2d 912 (Ky. 1984), Waddell
reasons that the search warrant was not supported by probable cause.
At the first suppression hearing Detective Perkins testified that he found
Martir to be credible. We find nothing in the record to suggest that this was a reckless
misrepresentation. At the second suppression hearing, the detective testified that he had
accompanied Detective Savage and Martir to Waddell's neighborhood and, at that time,
Martir indicated which house belonged to her. While this action may not have
constituted a great deal of independent investigation, it, along with the detailed
information found in the affidavit, was sufficient given the totality of the circumstance to
support a finding of probable cause. See Illinois v. Gates, supra. The trial court's finding
that the affidavit was sufficient to support a finding of probable cause was supported by
substantial evidence, and it correctly applied the law to the facts.
SALLEE'S APPEAL
According to Sallee, the information contained in the affidavit was not
sufficient to demonstrate probable cause since Detective Perkins failed to do any
independent investigation to corroborate Martir's story. In the alternative, Sallee argues
that Detective Perkins included false information in the affidavit. Sallee acknowledges
the good faith exception to the exclusionary rule set forth in U.S. v. Leon, supra, but
argues that if an affidavit to obtain a search warrant contains false information, then the
police who execute the subsequent warrant could not have reasonably relied on it.
Crayton v. Commonwealth, 846 S.W.2d 684, 687-688 (Ky. 1992). Since, according to
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Sallee, Detective Perkins knowingly included false information in the affidavit, he argues
the good faith exception does not apply.
For the reasons previously stated, we find that the search warrant was valid.
CONCLUSION
The judgment of conviction against Teresa Waddell and the judgment of
conviction against James Randel Sallee are affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT, SALLEE:
BRIEFS FOR APPELLEE:
Angela Johnson
Assistant Public Advocate
Department of Public Advocacy
Frankfort, Kentucky
Gregory D. Stumbo
Attorney General of Kentucky
BRIEF FOR APPELLANT, WADDELL:
Roy A. Durham
Assistant Public Advocate
Department of Public Advocacy
Frankfort, Kentucky
Ken W. Riggs
Assistant Attorney General
Frankfort, Kentucky
Clint E. Watson
Assistant Attorney General
Frankfort, Kentucky
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