RICKIE LEE CLAY v. COMMONWEALTH OF KENTUCKY
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RENDERED:
JANUARY 12, 2007; 10:00 A.M.
ORDERED NOT PUBLISHED BY SUPREME COURT: AUGUST 15, 2007
(FILE NO. 2007-SC-0111-D)
Commonwealth Of Kentucky
Court of Appeals
NO.
2006-CA-000411-MR
RICKIE LEE CLAY
v.
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE THOMAS L. CLARK, JUDGE
INDICTMENT NO. 05-CR-01277
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER1 AND DIXON, JUDGES; PAISLEY,2 SENIOR JUDGE.
PAISLEY, SENIOR JUDGE:
Rickie Lee Clay appeals from a judgment
of conviction entered by the Fayette Circuit Court.
After a
jury trial, Clay was convicted of solicitation of prostitution,
possession of drug paraphernalia, trafficking in a controlled
substance in the first degree, and being a persistent felony
offender in the first degree.
On appeal, Clay argues that the
1
Judge David A. Barber concurred in this opinion prior to the expiration of
his term of office on December 31, 2006. Release of the opinion was delayed
by administrative handling.
2
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.
Commonwealth failed to present sufficient evidence to sustain a
conviction for trafficking; that the jury instruction for
trafficking presented multiple theories of guilt that were not
supported by the evidence, thereby violating Clay’s right to a
unanimous verdict, and that the Commonwealth solicited
inadmissible opinion testimony.
We affirm.
On August 5, 2005, Stacy Shannon, an officer with the
Lexington Police Department, along with other Lexington police
officers, was conducting an undercover operation targeting
individuals who solicit prostitutes.
To carry out the
clandestine operation, Officer Shannon posed as a prostitute and
stationed herself on a street corner in an area of Lexington
known for prostitution.
While Shannon played the role of
prostitute, her fellow officers monitored and recorded her
conversations via a radio transmitter hidden on her person.
A
few minutes after 9:00 p.m., Officer Shannon observed a man
drive by and make eye contact with her.
Clay.
This man was Rickie Lee
Officer Shannon used a hand gesture to let Clay know that
he should return, and Clay did so, pulling his car into a
parking lot across the street from Officer Shannon.
exited his vehicle and went to a pay phone.
Clay then
At that time,
Officer Shannon approached Clay, and she and Clay had a brief
conversation.
During the conversation, Officer Shannon inquired as
to what Clay wanted, and he stated that he liked oral sex.
Clay
then asked the officer if she smoked crack, and she replied that
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she did.
Clay told the officer that he had some crack, that he
had a hotel room, and that he wanted to have sexual intercourse
and oral sex.
The officer asked how much he had, and Clay
replied that he had ten dollars.
At this point, Officer Shannon
signaled the other officers to arrest Clay.
After the officers arrested Clay, they searched him
and his vehicle pursuant to the arrest.
During the search, the
officers found 3.12 grams of crack cocaine on Clay’s person.
The crack consisted of eight pieces or “rocks”.
Six of the
rocks had been individually packaged in a plastic bag.
the rocks had been placed in one plastic bag.
Two of
Inside Clay’s
car, the police found a used crack pipe.
On October 3, 2005, a Fayette County grand jury
indicted and charged Clay with trafficking in a controlled
substance in the first degree; possession of drug paraphernalia;
prostitution (this charge was later amended to solicitation of
prostitution); and being a persistent felony offender in the
first degree.
On January 19, 2006, Clay proceeded to trial.
The Commonwealth presented several police officers as witnesses
including Officer Shannon and Detective Ford.
Officer Shannon
testified to the facts previously set forth.
After Officer Shannon had testified, Detective Ford,
who was not present when the officers arrested Clay, testified
in general about the methodology used by drug dealers who
traffic in crack.
According to the detective, when the police
suspect a person of being a crack dealer, they look for certain
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indicators associated with trafficking, such as: scales used to
weigh crack for sale; drug paraphernalia such as crack pipes;
quantities of crack that would be greater than what one person
would personally use; and, most importantly, whether the crack
had been packaged for sale.
With great detail, Detective Ford
explained that crack dealers usually cut a large piece of crack
into several smaller pieces or rocks with each rock weighing
between 0.2 and 0.5 grams.
Then, the detective explained, a
crack dealer will package each smaller, individual rock in a
plastic bag, a cellophane wrapper, or in paper.
Detective Ford
explained that if the police find a crack pipe, then the suspect
is most certainly a crack user and that if the police find crack
but do not find drug paraphernalia, then the suspect is most
likely a drug dealer.
However, the detective explained that if
the police find crack and drug paraphernalia, it does not
preclude the suspect from being a crack dealer since many crack
dealers are also users.
In such a situation, the most important
factor, according to the detective, is whether the crack has
been packaged for sale.
Later, Detective Ford examined the
crack the police had confiscated from Clay, and he stated that
the eight rocks of crack were approximately the same size and
weight and had been packaged for sale.
The detective further
testified that 3.12 grams of crack were probably more than one
person could consume in one evening, although one person could
possibly consume that much crack in one or two days.
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After the Commonwealth presented its case-in-chief,
Clay took the stand in his own defense.
Clay admitted that he
asked Officer Shannon if she smoked crack and that he and the
officer had a conversation regarding sex.
However, he denied
that he offered to exchange either money or crack for sex.
According to Clay’s testimony, prior to his encounter with
Officer Shannon, he had merely been trying to locate some of his
friends, and he did not pull into the parking lot in response to
Shannon’s hand gesture.
Instead, he pulled into the parking lot
to call his friends but was unable to contact them.
Clay later
testified that he pulled into the parking lot to wait for his
friends.
In addition, Clay insisted that he had bought the 3.12
grams of crack for his own personal use and that he had intended
to share it with his friends.
After the close of the evidence,
the jury convicted Clay on all counts, and the trial court
sentenced Clay to ten years in prison.
Now, Clay appeals his
conviction to this Court.
Clay insists that the trial court erred when it denied
his motion for directed verdict regarding the trafficking
charge.
According to Clay, Officer Shannon never testified that
Clay offered to exchange crack for sex; thus, Clay reasons that
Officer Shannon’s testimony does not prove that he possessed the
crack with the intent to traffic in it.
Regarding Detective
Ford’s testimony, Clay states that the detective’s testimony was
both stupid and meaningless; thus, it was not sufficient to
support his conviction for trafficking.
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A leading case addressing directed verdicts in
criminal cases is Commonwealth v. Benham, 816 S.W.2d 186 (Ky.
1991).
According to Benham, when considering a motion for
directed verdict, the trial court must draw from the evidence
all fair and reasonable inferences in favor of the Commonwealth.
Id. at 187.
Additionally, the trial court is prohibited from
granting a directed verdict if the evidence is sufficient to
induce a reasonable juror to believe that the defendant is
guilty beyond a reasonable doubt.
Id.
Also, the trial court
must assume that the Commonwealth’s evidence is true, although
it must leave questions of credibility and weight for the jury.
Id.
When we review the trial court’s decision, we must
consider, given the totality of the evidence, whether it would
be clearly unreasonable for a jury to find guilt.
Id.
When considering Officer Shannon’s testimony, a juror
could logically and reasonably infer from the conversation
between Clay and the officer that Clay was offering to exchange
both crack and money for sex.
In addition, when considering
Detective Ford’s testimony and the physical evidence that Clay
possessed several individually packaged rocks of crack, a juror
could logically and reasonably infer that Clay had packaged the
crack in order to sell it and that he possessed the crack with
the intent to do so.
Despite Clay’s insistence to the contrary,
the Commonwealth presented ample evidence to support Clay’s
guilt.
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While ample evidence existed to support a conviction
under one of the Commonwealth’s theories of trafficking, Clay
argues that he was denied a unanimous verdict since the
instruction regarding trafficking included multiple theories,
and at least one of those theories was not supported by the
evidence.
To understand Clay’s argument, we must first look at
the instruction that the trial court submitted to the jury
regarding trafficking in a controlled substance in the first
degree.
The instruction read:
You will find the Defendant guilty of FirstDegree Trafficking in a Controlled Substance
under this Instruction if, and only if, you
believe from the evidence beyond a
reasonable doubt all of the following:
A. That in this county on or about 5th [sic]
day of August 2005 and before the finding of
the Indictment herein, he had in his
possession a quantity of cocaine;
B. That he knew the substance so possessed
by him was cocaine;
AND
C. That he had the cocaine in his possession
with the intent of distributing, dispensing,
and/or selling it to another person.
Pursuant to the instructions, the trial court defined “traffic”
as “[m]eans to manufacture, distribute, dispense, sell,
transfer, or possess with intent to manufacture, distribute,
dispense, or sell a controlled substance.”
The trial court also
defined “dispense” as “[m]eans to deliver a controlled substance
to an ultimate user.”
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Clay points out that Kentucky Revised Statutes (KRS)
218A.010(8) defines “dispense” as “means to deliver a controlled
substance to an ultimate user or research subject by or pursuant
to the lawful order of a practitioner, including the packaging,
labeling, or compounding necessary to prepare the substance for
that delivery.”
In light of the correct definition for
“dispense”, Clay argues that “dispensing” a controlled substance
refers to dispensing a prescription drug by a medical
practitioner which has nothing to do with crack cocaine or the
trafficking in crack.
Clay reasons that the Commonwealth
presented no evidence that he possessed cocaine with the intent
to dispense it.
When the Commonwealth presents multiple theories of
guilt in one instruction, the evidence must support all of the
various theories.
If one or more of the theories is not
supported by the evidence, then the criminal defendant’s right
to a unanimous verdict has been violated.
Whitmore, 92 S.W.3d 76 (Ky. 2002).
Commonwealth v.
Clay argues that the jury
instruction in this case clearly violated his right to a
unanimous verdict under Sections 2, 7, and 11 of the Kentucky
Constitution, under Kentucky Rules of Criminal Procedure (RCr)
9.82(1), and under the Federal Constitution.
Clay admits that he did not preserve this assignment
of error for review, but argues that, pursuant to RCr 10.26, it
rises to the level of palpable error.
And, relying on Burnett
v. Commonwealth, 31 S.W.3d 878 (Ky. 2000), Clay argues that
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denial of a unanimous verdict is not subject to harmless error
analysis.
Thus, Clay requests this Court to vacate his
conviction.
Since Clay failed to preserve this issue for appeal,
the threshold question becomes: does it rise to the level of
palpable error?
The Kentucky Supreme Court defines palpable
error as an irregularity which affects a party’s substantial
rights and, if the appellate court does not address the
irregularity, it will result in a manifest injustice to the
party.
Schoenbachler v. Commonwealth, 95 S.W.3d 830, 837 (Ky.
2003).
In other words, after considering the whole case, if the
appellate court does not believe that there is a substantial
possibility that the result would have been any different, then
the irregularity will be deemed non-prejudicial.
Id.
In resolving the question of palpable error, we find
the holding in the recent case Commonwealth v. Rodefer, 189
S.W.3d 550 (Ky. 2006) to be dispositive.
In Rodefer, the
defendant was charged with trafficking in a controlled substance
in the first degree, cocaine.
Id. at 551.
At the subsequent
trial, the trial court submitted the following instruction to
the jury:
You will find the Defendant guilty of FirstDegree Trafficking in a Controlled Substance
under this Instruction if, and only if, you
believe from the evidence beyond a
reasonable doubt all of the following
A. That in this county on or about July 3,
2002 and before the finding of the
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Indictment herein, he had in his possession
a quantity of cocaine;
AND
B. That he knew the substance so possessed
by him was cocaine;
AND
C. That he had the cocaine in his possession
wit[h] the intent to sell, transfer,
dispense, or distribute to another.
Id.
The Supreme Court held that the instruction was improper
since it allowed the jury to convict the defendant under the
theory of possession with intent to transfer, which is not
trafficking as defined by KRS 218A.1412(1). Id. at 552-553.
Since the defendant had failed to object, the error was not
preserved.
The Court deemed that the defective instruction did
not constitute palpable error under RCr 10.26.
Id. at 553.
At
trial, the defendant testified that he “shared” cocaine with two
accomplices on the night he was arrested.
Id.
Based on this
evidence, the Supreme Court concluded that:
[The defendant’s] own testimony would have
supported a conviction of trafficking under
the “transfer” alternative of KRS
218A.010(34), though not under the
“possession with intent to [traffic]”
alternative. In view of [the defendant’s]
own testimony that he, in fact, committed
the offense of which he was convicted,
albeit by an alternative method, we conclude
that the faulty instruction did not result
in manifest injustice, much less seriously
affect the fairness, integrity, or public
reputation of judicial proceedings.
Id.
As we previously stated, the Commonwealth presented more
than sufficient evidence to support Clay’s conviction under the
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theory that he possessed cocaine with the intent to sell it,
and, as in Rodefer, the evidence in this case shows that Clay
committed the offense he was convicted of, albeit pursuant to
one of the alternate theories set forth in the jury instruction.
So, like in Rodefer, we conclude that the defective instruction
did not result in manifest injustice.
Thus, it does not
constitute palpable error.
We find some difficulty in reconciling the holdings of
our Supreme Court in Burnett and Rodefer.
In Burnett, the court
held that an error in the instructions such as the one in this
case, if preserved, could not constitute harmless error and
required reversal.
See also Commonwealth v. Whitmore, supra.
In Rodefer, the court held that essentially the same error,
unpreserved, is not palpable error.
If Clay had objected to the
instructions in this case, we would be required under Burnett to
reverse.
However, since he failed to object, we are required
under Rodefer to determine if the error rose to the level of
being palpable.
Under these cases, this error cannot be
harmless if preserved, yet is not necessarily palpable if
unpreserved.
Although the facts in this case are not exactly
those in Rodefer, they are very similar.
We can find no
reasonable basis to distinguish this case from Rodefer.
In the alternative, Clay insists that he was denied a
fair trial due to inadmissible testimony.
As Clay points out,
during direct examination, the prosecutor asked Detective Ford,
“So in your estimation these [referring to the bags of crack
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confiscated from Clay] were packaged for sale?”
answered, “Yes.”
Detective Ford
Citing Cooper v. Sowders, 837 F.2d 284 (6th
Cir. 1988), Clay argues that, during this exchange, the
Commonwealth solicited inadmissible opinion testimony from the
detective, and that this testimony was inadmissible because it
gave the jury an “insider’s” opinion as to his guilt.
Clay did
not preserve this error for appeal but insists that it
constituted palpable error under RCr 10.26.
As we previously stated, according to Schoenbachler v.
Commonwealth, supra at 837, palpable error is an irregularity
which affected a party’s substantial rights and resulted in a
manifest injustice.
If, upon consideration of the whole case,
we do not believe that there was a substantial possibility that
the result would have been any different, then we will consider
the irregularity to be non-prejudicial.
Id.
Given the ample
evidence presented by the Commonwealth, we do not believe that
there is a substantial possibility that the result would have
been different absent Detective Ford’s allegedly improper
testimony.
Therefore, we hold any irregularity to be non-
prejudicial and decline to address the merits of Clay’s
assignment of error.
The judgment of conviction is affirmed.
ALL CONCUR.
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BRIEF AND ORAL ARGUMENT
FOR APPELLANT:
Gene Lewter
Lexington, Kentucky
BRIEF FOR APPELLEE:
Gregory D. Stumbo
Attorney General of Kentucky
ORAL ARGUMENT FOR APPELLEE:
David W. Barr
Assistant Attorney General
Frankfort, Kentucky
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