HENDRIX (TRAVIS) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: JANUARY 14, 2011; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2010-CA-000305-MR
TRAVIS HENDRIX
v.
APPELLANT
APPEAL FROM LYON CIRCUIT COURT
HONORABLE CLARENCE A. WOODALL, III, JUDGE
ACTION NO. 09-CI-00129
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: COMBS AND DIXON, JUDGES; ISAAC,1 SENIOR JUDGE.
COMBS, JUDGE:
Travis Hendrix, an inmate at Western Kentucky
Correctional Complex, appeals from an order of the Lyon Circuit Court dismissing
his petition for a declaration of rights arising from a prison disciplinary action.
After our review, we affirm.
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Senior Judge Sheila R. Isaac sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
In 2003, Hendrix was indicted for arson for starting a fire with the intent to
destroy or damage the home of a bi-racial couple. The arson was prosecuted as a
“hate crime” pursuant to Kentucky Revised Statute(s) (KRS) 532.031. Following a
jury trial, Hendrix was convicted of second-degree arson. He was sentenced to
serve thirteen-years’ imprisonment. His judgment of conviction was affirmed on
appeal. He is currently serving his sentence at the Western Kentucky Correctional
Complex.
On May 20, 2009, Hendrix was charged with violating Kentucky
Corrections Policies and Procedures (CPP) 15.2: possession or promoting of
dangerous contraband. A disciplinary hearing was held before the prison’s
Adjustment Committee on June 2, 2009. The evidence presented against Hendrix
during the hearing tended to show that he had arranged for the delivery of 28
narcotic pain-reliever capsules (Lortab) and a bottle of vodka to a location along a
fence on the prison’s farm. Incriminating statements related to the date of delivery
and the specific location of the contraband were captured on a recording of
Hendrix’s telephone conversation with a third party. Following an inspection of
the site referenced in the telephone conversation, the contraband was intercepted
by prison staff members.
After the contraband had been secured in an evidence locker, Hendrix was
given a copy of the disciplinary report that had been prepared against him. Since
criminal charges appeared likely, Hendrix also received Miranda warnings in
accordance with Kentucky Corrections Policies and Procedures (CPP) 15.6. The
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pertinent statute upon which CPP 15.6 is premised is KRS 320.050, which
prohibits the knowing possession of dangerous contraband within a detention
facility. KRS 520.010(1) defines contraband as “any article or thing which a
person confined in a detention facility is prohibited from obtaining or possessing
by statute, departmental regulation, or posted institutional rule or order.” KRS
520.010(3) defines dangerous contraband as:
contraband which is capable of use to endanger the safety or
security of a detention facility or persons therein, including, but
not limited to, dangerous instruments as defined in KRS
500.080, any controlled substances, any quantity of alcoholic
beverage, and any quantity of marijuana, and saws, files, and
similar metal cutting instruments[.]
Hendrix declined to waive his rights and pled not guilty, and a hearing was
scheduled. During the Adjustment Committee’s hearing and in accordance with
the requirements of CPP15.6, Hendrix was advised that his silence could be held
against him in the administrative proceeding. Nevertheless, Hendrix elected not to
testify.
After considering the evidence against him, the Adjustment Committee
determined that Hendrix was guilty of possession or promoting of dangerous
contraband. He was assigned to disciplinary segregation for a period of 90 days
and was required to forfeit 180 days of good-time credit. On appeal, Warden
Pancake concurred with the Adjustment Committee’s decision and concluded that
Hendrix had received due process.
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Hendrix sought judicial review in the Lyon Circuit Court under the
provisions of the Declaratory Judgment Act. KRS 418.040 – 418.090. He alleged
that prison officials had violated his constitutional rights by imposing punishment
without adequate proof of the charge against him. Hendrix challenged the
adequacy of the institution’s investigation and its decision to use his silence as
evidence against him at the disciplinary proceeding. After reviewing the record
before it, the circuit court rejected Hendrix’s arguments and dismissed the petition.
The circuit court concluded that the adjudication was supported by sufficient
evidence and that the institution was permitted to consider Hendrix’s decision to
remain silent in the face of the allegation against him. This appeal followed.
Before us, Hendrix argues that the circuit court erred in dismissing his action
since he was punished without due process of law. Hendrix contends that the
evidence presented against him during the disciplinary proceedings was unreliable,
that the use of his silence against him was unconstitutional, and the tribunal’s
decision to prohibit him from calling a witness was arbitrary and capricious. We
shall address each of these contentions.
Prisoners possess a liberty interest in their statutorily provided good-time
credits. See Wolff v. McDonnell, 418 U.S. 539, 557, 94 S.Ct. 2963, 41 L.Ed.2d 935
(1974). The government may not deprive a prisoner of those credits without due
process. Id. However, “[p]rison disciplinary proceedings are not part of a criminal
prosecution, and the full panoply of rights due a defendant in such proceedings
does not apply.” Wolff, 418 U.S. at 556, 94 S.Ct. 2963; see also Webb v. Sharp,
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223 S.W2d 113 (Ky.2007). The decision to revoke a prisoner's good-time credits
need only be supported by “some evidence” – even if that evidence might be
characterized as meager. Superintendent, Mass. Corr. Inst., Walpole v. Hill, 472
U.S. 445, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985).
Ascertaining whether this standard is satisfied does not require
examination of the entire record, independent assessment of the
credibility of witnesses, or weighing of the evidence. Instead,
the relevant question is whether there is any evidence in the
record that could support the conclusion reached by the
disciplinary board…. The fundamental fairness guaranteed by
the Due Process Clause does not require courts to set aside
decisions of prison administrators that have some basis in fact.
Id. at 455, 456, 105 S.Ct. 2768. Thus, a decision to revoke good-time credits
violates due process if and only if the record is wholly devoid of evidence and
provides no support for the decision of a disciplinary board. Id. at 457, 105 S.Ct.
2768.
After considering the evidence of the reporting staff member in this
case, the Adjustment Committee found that “there is more than some evidence
combine[d] with the fact that [inmate] Hendrix wished to remain silent to find
[inmate] Hendrix guilty of . . . [p]ossession or promoting of dangerous contraband
while conspiring with another to commit the violation.” Hendrix, however,
contends that the evidence upon which the committee relied was unreliable. He
alleges that the “incident date and time” as recorded in the disciplinary report
“happened fifteen (15) minutes after the discovery of evidence” and that there was
no indication as to how the investigating staff member verified that it was he
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(Hendrix) on the telephone making incriminating statements. He argues that the
confiscated pills were not reliably identified and that an adequate chain of custody
for the pills was not established. Since Hendrix presents an argument only with
respect to the last two contentions, we will limit our discussion to an analysis of
those issues.
“Although a prison inmate facing administrative disciplinary proceedings
does not have the same procedural safeguards as does a person facing criminal
prosecution, fundamental fairness dictates that the evidence relied upon to punish
him at least be reliable.” (Internal citation omitted). Byerly v. Ashley, 825 S.W.2d
286, 288 (Ky.App.1991). In Byerly, we held that test results from urine samples
could be used against an inmate only if a sufficient chain of custody was
established as part of the evidentiary foundation. Id. at 288. Byerly required
proof: (1) that the sample tested was the same as that taken from a particular
individual and (2) that the sample was in the same condition at the time of the
testing as when it was taken. These criteria were deemed by Byerly to be critical in
insuring the fundamental fairness of the process.
Similarly, in Webb v. Sharp, supra, the Supreme Court of Kentucky
addressed the requirement that a proper evidentiary foundation be laid by a
prison’s Adjustment Committee. In Webb, at issue was a field test used for the
detection of marijuana. In order for its results to be used as “some evidence” of an
inmate’s violation, Webb required the evidentiary foundation while simultaneously
reciting that “common sense must not be a stranger in the house of the law.”
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Cantrell v. Kentucky Unemployment Ins. Comm’n, 450 S.W.2d 235, 236-237 (Ky.
1970). The court analyzed the circumstances surrounding the recovery of the
suspected marijuana from prison inmates and concluded that “even with the field
test results excluded” there was “some evidence” of record to support the
administrative finding that the inmates had been in possession of dangerous
contraband -- marijuana. Webb 223 S.W.3d at 121. The court observed as
follows:
In addition to the officers’ impressions as to the nature of the
substance recovered, the hearing officer heard evidence as to
the way the inmate reacted when the substance was discovered.
In each case the inmate attempted to conceal the substance. In
all three of the incidents, the inmates went to great lengths to
destroy the substance either by flushing it down the toilet or by
swallowing it. In fact, in two of the incidents the inmates
openly scuffled with the officers in an attempt to prevent the
officers from recovering the substance. Finally, in each of the
three incidents involving marijuana, the inmates elected not to
testify or assert that the substance was not what the officers
believed it to be. As a result, the inmates neither denied
ownership nor challenged the nature of the substance recovered.
Id. at 120.
In the case before us, the circuit court noted that a member of the prison’s
nursing staff had identified the pills as “Lortab” based on the description of the
capsules’ shape, color, and unique imprint. Despite Hendrix’s assertions to the
contrary, the court observed that the record included a complete chain of custody
with respect to the suspected contraband. We conclude that the standard requiring
“some evidence” was met.
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Reinforcing that standard of “some evidence” are addition facts regarding
the recovery of the pills and the bottle of vodka. The prison’s investigation
indicated that on May 19, 2009, Hendrix placed two telephone calls (separated in
time by more than four hours) to an individual identified by staff members as
Charity Cullen. Cullen had visited with Hendrix in person on May 17, 2009. In
the second call, it was clear that Cullen was reassuring a frustrated Hendrix that
indeed “it was there;” she proceeded to identify a specific location. Her words
were transcribed as follows:
the first double post, you know down there on the farm they put
the rain gauge, you know, from like the corner of the fence to
the first set of double posts where they are close together, they
set the rain gauge there.
Based on the telephone conversations, prison staff members were able to precisely
locate the bag of pills and bottle of vodka.
The pills were found in a plastic bag – not in their original container.
There was no indication that Hendrix had a prescription for any controlled
substance. The vodka would not have been permitted on the premises under any
circumstance. The content of the telephone conversations directly linked Hendrix
to the intercepted contraband. Finally, Hendrix elected not to testify. He did not
deny that he had arranged for the delivery of the contraband; nor did he claim that
the items were not what the investigating staff members had concluded them to be.
We now address Hendrix’s contention that he was unfairly made to
choose between his constitutional right to remain silent and the necessity of
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defending himself under circumstances where his silence could – and likely would
– be used against him. Hobson’s choice though it may be, there is nothing
unconstitutional in Hendrix’s having to elect a course of conduct. The
circumstances and the evidence produced amply sufficed to serve as a basis for his
punishment. He cannot premise his punishment on his silence alone.
Consequently, we conclude that he was not deprived of due process.
Additionally, although the self-incrimination privilege of the Fifth
Amendment (made applicable to the States through the Fourteenth Amendment) is
relevant in prison disciplinary hearings, it does not preclude an adverse inference
from an inmate’s failure to testify at such a hearing. See Baxter v. Palmigiano,
425 U.S. 308, 96 S.Ct. 1551, 47 L.Ed.2d 810 (1976); see also Welch v.
Commonwealth, 149 S.W.3d 407 (Ky.2004); Webb v. Sharp, supra. “[A]side from
the privilege against compelled self-incrimination, [the Supreme Court of the
United States] has consistently recognized that in proper circumstances silence in
the face of accusation is a relevant fact not barred from evidence by the Due
Process Clause.” Baxter at 425 U.S. 308, 319, 47 L.Ed.2d 810, 822. (internal
citations omitted).
Finally, Hendrix complains that he was not permitted to call as a witness at
his hearing the nurse who identified the contraband as Lortab. However, the
administrative record indicates that Hendrix did not request the presence of any
witness at his hearing. There is no indication that this issue was presented on
appeal to Warden Pancake after the disciplinary hearing was concluded. The
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failure to raise an issue before the administrative body precludes an inmate-litigant
from presenting that issue in an action for judicial review of the agency’s action.
O’Dea v. Clark, 883 S.W.2d 888 (Ky.App.1994), citing Personnel Board v. Heck,
725 S.W.2d 13 (Ky.App.1986). Consequently, this argument is not properly
preserved for our review.
We affirm the order of the Lyon Circuit Court.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Travis Hendrix, pro se
Central City, Kentucky
J. Todd Henning
Justice & Public Safety Cabinet
Frankfort, Kentucky
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