CHARLES WILLIAMS THOMPKINS V. COMMONWEALTH OF KENTUCKY
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RENDERED: JUNE 14,200l
ORDERED PUBLISHED: AUGUST 23,200l
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1998-SC-096 1 -TG
CHARLES W I L L.IAMS THOMPKINS
V.
TRANSFER FROM COURT OF APPEALS
98-CA-80 1
JEFFERSON CIRCUIT COURT
HONORABLE GEOFFREY P. MORRIS, JUDGE
94-CR-2222 & 97-CR-378
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION OF THE COURT BY JUSTICE COOPER
AFFIRMING
Appellant Charles Williams Thompkins was convicted by a Jefferson Circuit
Court jury of trafficking in a controlled substance in the first degree. He then pled guilty
to being a persistent felony offender in the second degree in exchange for a sentence
of twelve years in prison. On appeal of his trafficking conviction, he asserts four claims
of error: (1) failure to instruct the jury on criminal facilitation of trafficking in a controlled
substance in the first degree; (2) deletion of addresses from juror qualification forms; (3)
limitation of cross-examination during a suppression hearing; and (4) admission of the
testimony of a co-conspirator, Michael Franklin, who had received a plea agreement in
exchange for his testimony. Finding no error, we affirm.
On September 8, 1994, Sergeant David Hogue of the Jeffersontown Police
Narcotics Unit received a “tip” from a confidential informant that a black male suspect
known as “Mario” was attempting to sell two kilograms of cocaine. The informant gave
Hogue Mario’s telephone number and advised him that Mario lived “somewhere off
Dixie Highway between the Watterson Expressway and Louisville.” Hogue determined
that the telephone number was assigned to Willie J. Morrow, 2711 Allston Avenue,
Louisville, Kentucky. Proceeding to that address, Hogue discovered a red Ford
Mustang automobile with a Kentucky license plate parked in front of the residence. The
vehicle was registered to James L. Morrow. A criminal records check revealed that
James L. Morrow had a history of prior arrests for trafficking in controlled substances.
Hogue obtained a photograph of Morrow and showed it to the informant who identified
Morrow as being “Mario.”
Hogue and Detective Greg Treadway began a surveillance of Morrow. The
record is unclear whether this occurred at the 2711 Allston Avenue residence of “Willie
J. Morrow,” or at another residence in the 1700 block of Dixdale, or both. According to
Michael Franklin, he, Morrow and Appellant spent the night of September 8 - 9 at the
Allston Avenue residence, then left the next morning and proceeded to the Dixdale
residence. Regardless, Hogue testified that three vehicles were parked in front of the
sutveilled residence, Morrow’s red Mustang, a Jeep Wagoneer with Ohio license plates,
later determined to belong to Appellant, and a Chevrolet Blazer, later determined to
belong to Jimi Che Carr. Morrow left the surveilled residence on several occasions to
use a pay telephone at. a nearby Dairy Mart. On one such occasion, Hogue
approached the pay phone and overheard Morrow say, “Are you going to get the sh-- or
not? These guys are ready to leave.” Morrow then returned to the residence.
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Approximately forty minutes later, Morrow and five other black males exited the
house carrying luggage and bags. Appellant, Michael Franklin, and Nathaniel Dancy all
entered the Jeep Wagoneer, Appellant in the driver’s seat, Dancy in the front
passenger seat, and Franklin in the back seat. Morrow entered his red Ford Mustang.
Carr and Anthony Anderson entered the Chevrolet Blazer. All three vehicles then
proceeded “convoy-style” to the intersection of Dixie Highway and Algonquin Parkway
:vhere they were stopped by Hogue, Treadway, and other officers of the Metro
F’arcotics Unit. As Treadway approached the passenger side of Appellant’s vehicle, he
n t :ed two kilograms of cocaine in an open brown grocery bag in plain view on the
flc )I board.
Michael Franklin and Nathaniel Dancy were residents of Los Angeles, California.
Purs Aant to a plea agreement, Franklin became a witness for the Commonwealth. He
testifi -?d that Dancy and a man named Charles Thompson had arranged to deliver two
kilogrz ms of cocaine to Morrow who planned to sell it to an unidentified third party.
Franklill’s job was to transport the cocaine from Los Angeles by commercial airline and
deliver i’i to Dancy, who was already in Louisville, then to return to California with
Thompscn’s share of the money from the sale. On September 8, 1994, Franklin arrived
in Louisvil!e with a suitcase containing two kilograms of cocaine and checked into a
local Holid;,y Inn. Dancy and Appellant subsequently arrived at the hotel in Appellant’s
Jeep Wagor eer. Franklin put the suitcase containing the cocaine in the Jeep and the
three then proceeded to Morrow’s residence. Once inside, Dancy opened the suitcase,
whereupon Dancy, Morrow and Appellant all examined the cocaine. On the following
morning, Franklin, Dancy, Morrow and Appellant proceeded to a McDonald’s restaurant
for breakfast, then to the house on Dixdale where they were joined by Carr and
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Anderson. According to Franklin, there seemed to be a problem with the purchase
money and Morrow left the house several times to make telephone inquiries about the
problem.
Finally, the six men departed the Dixdale residence in three different vehicles.
Appellant, Franklin and Dancy left in Appellant’s Jeep. Franklin testified that he did not
realize the cocaine was no longer in the suitcase until he saw it on the floorboard of
Appellant’s vehicle shortly before they were stopped by the police.
I. FAILURE TO INSTRUCT ON CRIMINAL FACILITATION.
The trial judge instructed the jury that Appellant could be found guilty as either
principal or accomplice to trafficking in a controlled substance in the first degree.
Appellant claims it was error for the trial judge not to instruct the jury on criminal
facilitation of trafficking as a lesser included offense of complicity.
KRS 502.020(l) (complicity) provides in pertinent part:
A person is guilty of an offense committed by another person when, with
the intention of cromotina or facilitatina the commission of the offense, he:
Solicits, commands, or engages in a conspiracy with such other
(a>
person to commit the offense; or
Aids, counsels, or attempts to aid such person in planning or
w
committing the offense. (Emphasis added.)
KRS 506.080(
1) (facilitation) provides:
A person is guilty of criminal facilitation when, acting with knowledge that
another person is committing or intends to commit a crime, he engages in
conduct which knowingly provides such oerson with means or ocbortunity
for the commission of the crime and which in fact aids such person to
commit the crime. (Emphasis added.)
Under either statute, the defendant acts with knowledge that the principal actor is
committing or intends to commit a crime. Under the complicity statute, the defendant
must intend that the crime be committed; under the facilitation statute, the defendant
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acts without such intent. Facilitation only requires provision of the means or opportunity
to commit a crime, while complicity requires solicitation, conspiracy, or some form of
assistance. Skinner v. Commonwealth, Ky., 864 S.W.2d 290, 298 (1993). “Facilitation
reflects the mental state of one who is ‘wholly indifferent’ to the actual completion of the
crime.” Perdue v. Commonwealth, Ky., 916 S.W.2d 148, 160 (1995), cert. denied, 519
U.S. 855 (1996).
“An instruction on a lesser-included offense is appropriate if and only if on the
given evidence a reasonable juror could entertain reasonable doubt of the defendant’s
guilt of the greater charge, but believe beyond a reasonable doubt that the defendant is
guilty of the lesser offense.” Skinner v. Commonwealth, supra, at 298. In Webb v.
Commonwealth, Ky., 904 S.W.2d 226 (1995), we held it was error not to instruct on
facilitation where the defendant testified that he gave his girlfriend a ride in his car
knowing that she was in the process of a drug transaction, but that he did not intend
that she commit the crime. Id. at 229. Appellant claims the same reasoning applies in
this case. Here, however, Appellant did not testify; and the only evidence the jury heard
was that Appellant and Dancy met Franklin at the Holiday Inn; that Dancy loaded the
suitcase containing the cocaine into Appellant’s vehicle; that Appellant drove Dancy and
Franklin to Morrow’s residence where Dancy, Morrow and Appellant all inspected the
cocaine; that the cocaine was apparently removed from the suitcase and placed in a
grocery bag on the floorboard of Appellant’s vehicle; and that Appellant, the two
Californians, and the cocaine were all in Appellant’s vehicle when it was stopped.
Appellant’s tendered facilitation instruction embodied a theory that Appellant
knew Franklin and Dancy were engaged in a drug transaction, but that he was
transporting these two strangers from California to the location of their intended drug
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j
deal out of the goodness of his heart, wholly indifferent to the actual completion of the
crime, i.e., without the intent that the crime be committed. Nothing in the evidence
supports such a theory. If Appellant was not involved in the drug transaction or did not
intend for Franklin and Dancy to consummate it, why were they and the cocaine in his
vehicle instead of in Morrow’s vehicle? The duty to instruct on any lesser included
offenses supported by the evidence does not require an instruction on a theory with no
evidentiary foundation. Houston v. Commonwealth, Ky., 975 S.W.2d 925, 929 (1998).
The jury is required to decide a criminal case on the evidence as presented or
reasonably deducible therefrom, not on imaginary scenarios. Appellant was not entitled
to a facilitation instruction in this case.
II. DELETION OF JURORS’ ADDRESSES.
Appellant asserts it was error for the trial judge to protect the jurors from potential
retaliation by deleting their addresses from the jury qualification forms. We have
recently decided this issue adversely to Appellant’s position. Cornelison v.
Commonwealth, Ky., 990 S.W.2d 609, 610 (1999); Samples v. Commonwealth, Ky.,
983 S.W.2d 151, 153 (1998). Our opinion of this issue is unchanged.
III. LIMITATION OF CROSS-EXAMINATION RE INFORMANT.
This alleged error occurred not at trial but at a pretrial suppression hearing, at
which the issue was whether the arresting officers had sufficient reasonable suspicion
to support a Terry stop. Ten-v v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889
(1968). One issue affecting this decision was whether the confidential informant who
provided Sergeant Hogue with the initial “tip” was a reliable informant. Since the
informant was only a “tipster” and not a material witness, the Commonwealth invoked
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its privilege not to reveal his/her identity. KRE 508. Utilizing the procedure authorized
by KRE 508(d),’ the prosecutor provided the trial judge with an affidavit regarding the
informant’s reliability. After reviewing the affidavit in camera, the trial judge concluded
that the informant was sufficiently reliable for his/her information to provide reasonable
suspicion sufficient to support the stop. (We have also reviewed the affidavit and agree
with that conclusion.)
Following the trial judge’s ruling, Appellant sought to cross-examine Hogue,
ostensibly with respect to the reliability of the informant. However, many of Appellant’s
questions pertained more to the informant’s identity than to his reliability. The trial
judge refused to permit any questions on cross-examination that might lead to the
identity of the informant and, thus, violate the privilege. Appellant claims the trial judge
thereby violated his confrontation right under the Sixth Amendment to the United States
Constitution and Section 11 of the Constitution of Kentucky. We rejected this same
argument in Tavlor v. Commonwealth, Ky., 987 S.W.2d 302, 304-05 (1998), cert.
denied, 528 U.S. 901 (1999). The right of confrontation pertains to the method by
which evidence is produced at trial. Harris v. Commonwealth, Ky., 315 S.W.2d 630,
632 (1958). The Confrontation Clause does not give a defendant the right to discover
the identity of an informant at a pretrial hearing under the guise of attacking his/her
’ KRE 508, as originally drafted, did not include a subsection (d). The procedure
for providing sealed evidence to the court for an in camera inspection was intended to
apply to both civil and criminal cases. “The rule contemplates the taking of evidence b
camera so that the court may determine the significance of the informer to the issues in
the case without first compromising the informer’s anonymity.” Commentary to KRE
508, Evidence Rules Study Commission (Final draft 1989). When the Legislative
Research Commission compiled the rules, it (presumably inadvertently) divided KRE
508(c) into two subsections so that the provision now appears to apply only to
informants in civil cases.
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“reliability.” Taylor, supra; see also McCray v. Illinois, 386 U.S. 300, 311-13, 87 S.Ct.
1056, 1062-64, 18 L.Ed.2d 62 (1967).
Appellant’s reliance on Alabama v. White, 496 U.S. 325, 110 S.Ct. 2412, 110
L.Ed.2d 301 (1990) is misplaced. There, the United States Supreme Court held that
while an anonymous telephone tip providing detailed information, standing alone, would
not justify a Terry stop, subsequent corroboration of most of the details provided by the
“tipster” created a reasonable suspicion sufficient to warrant the stop. Id. at 330, 110
S.Ct. at 2416. Here, the initial information advising of a potential drug transaction was
provided by a known informant. The telephone number supplied by the informant led
Hogue to a residence where he discovered a vehicle registered to the suspect identified
by the informant. Appellant’s vehicle was also at the residence. Hogue overheard the
original suspect engaging in a suspicious telephone conversation. Finally, Hogue
observed Appellant and the suspect exit the residence together with four other men and
depart in a “convoy” of three vehicles, including Appellant’s Jeep and the suspect’s
Mustang. Under Alabama v. White, supra, the stop in this case would have been
justified even if the initial information had been supplied by an anonymous informant
whose reliability could not be ascertained. We conclude that no error occurred with
respect to the conduct of the suppression hearing in this case.
IV. FAILURE TO SUPPRESS FRANKLIN’S TESTIMONY.
Appellant did not preserve this claimed error for review. His theory is that one
who has received a plea bargain in exchange for an agreement to testify should not be
permitted to testify. (!) In support of this novel proposal, he cites United States v.
Sinaleton, 144 F.3d 1343 (10th Cir. 1998), a decision by a three-judge panel of the
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United States Court of Appeals for the Tenth Circuit. That panel was purporting to
apply to plea agreements a federal statute that penalizes “whoever . . . gives, offers, or
promises anything of value . . . for or because of testimony.” 18 U.S.C. § 201(c)(2).
Kentucky has no similar statute. More significantly, the decision of the three-judge
panel in Sinaleton was vacated on rehearing by the full Tenth Circuit Court of Appeals
sitting en bane, United States v. Sinaleton, 165 F.3d 1297 (10th Cir. 1999), thus has no
precedential value whatsoever. As did the Tenth Circuit, we reject this proposition as
detrimental to the essential administration of justice.
Accordingly, the judgment of conviction and sentence imposed by the Jefferson
Circuit Court are affirmed.
Lambert, C.J., Graves, Johnstone, Keller and Wintersheimer, JJ., concur.
Stumbo, J., dissents by separate opinion.
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COUNSEL FOR APPELLANT:
Daniel T. Goyette
J. David Niehaus
200 Civic Plaza
719 West Jefferson Street
Louisville, KY 40202
COUNSEL FOR APPELLEE:
A. B. Chandler, III
Attorney General
State Capitol
Frankfort, KY 40601
Matthew D. Nelson
Assistant Attorney General
Office of Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, KY 40601-8204
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RENDERED: JUNE 14,200l
ORDERED PUBLISHED: AUGUST 23,200l
1998-SC-096 1 -TG
CHARLES WILLIAMS THOMPKINS
V.
APPELLANT
TRANSFER FROM COURT OF APPEALS
98-CA-80 1
JEFFERSON CIRCUIT COURT
HONORABLE GEOFFREY P. MORRIS, JUDGE
94-CR-2222 & 97-CR-378
COMMONWEALTH OF KENTUCKY
APPELLEE
DISSENTING OPINION BY JUSTICE STUMBO
Respectfully, I must dissent from the majority’s holding that Thompkins was not
entitled to an instruction on facilitation.
At the close of the evidence, Appellant tendered jury instructions that included an
instruction for criminal facilitation as a lesser included offense of complicity to drug
trafficking. The trial judge denied the instruction, maintaining that Appellant had not
presented evidence for a facilitation instruction. Appellant believes this was error, and I
agree. As we stated in Tavlor v. Commonwealth, Ky., 995 S.W.2d 355 (1999):
In a criminal case, it is the duty of the trial judge to prepare and
give instructions on the whole law of the case, and this rule
requires instructions applicable to every state of the case deducible
or supported to any extent by the testimony. A defendant has a
right to have every issue of fact raised by the evidence and
material to his defense submitted to the jury on proper instructions.
(citations omitted). u. at 360.
Complicity, the offense with which Thompkins was convicted, requires “the
intention of promoting or facilitating the commission of the offense” and that the person
“(a) Solicits, commands, or engages in a conspiracy with such other person to commit
the offense; or (b) Aids, counsels, or attempts to aid such person in planning or
committing the offense; or (c) Having a legal duty to prevent the commission of the
offense, fails to make a proper effort to do so.” KRS 502.020(l).
On the other hand, a person is guilty of facilitation if, “acting with knowledge that
another person is committing or intends to commit a crime, he engages in conduct
which knowingly provides such person with means or opportunity for the commission of
the crime and which in fact aids such person to commit the crime.” KRS 506.080(l).
As we explained in Chumbler v. Commonwealth, Ky., 905 S.W.2d 488, 499 (1995), the
main difference between facilitation and complicity is the ‘state of mind of the
defendant.” Citing Luttrell v. Commonwealth, Ky., 554 S.W.2d 75 (1977), we confirmed
the belief that a person is guilty of facilitation if he provided another with the means of
committing a crime, and also had the knowledge that the other person would commit
the crime, but the facilitator had no intent to promote or “contribute to its fruition.”
Complicity, however, requires a furnishing of the means to commit the crime, plus an
intent to aid in its commission. Chumbler, 905 S.W. 2d at 499.
The majority acknowledges the differences between facilitation and complicity,
but asserts that a facilitation instruction is only proper if a juror could entertain doubt
that the defendant was an accomplice to a crime but believes instead that he was a
facilitator. Skinner v. Commonwealth, Ky., 864 S.W.2d
290, 298 (1993). Further, the
majority argues that since Appellant did not testify, the trial court was limited to
instructing the jury on reasonable inferences drawn from the proof and nothing in the
evidence suggests that Appellant did not intend for the crime to be committed. In
support of this proposition, the majority recites evidence that Appellant and Dancy met
Franklin at the Holiday Inn; that Dancy, the alleged supervisor of the drug deal, loaded
the suitcase containing cocaine into Appellant’s car; that Appellant arrived at Morrow’s
house with Dancy; and that Appellant inspected the cocaine while at Morrow’s house.
The majority also finds it relevant that the cocaine was found on the floorboard of
Appellant’s vehicle. The majority of this evidence, however, was introduced at trial
through the testimony of Michael Franklin, an accomplice who made a deal to testify on
behalf of the Commonwealth.
While all these facts may be persuasive that Appellant Thompkins was a coconspirator, they are not dispositive of the issue. The jury could reasonably disbelieve
the testimony of Michael Franklin, especially since he was testifying to reduce his
sentence. The other evidence introduced regarding Thompkins’ conspiring to traffic is
far from compelling. In fact, Franklin conceded in his testimony that he had never heard
of Thompkins, was never given instructions that Thompkins would handle anything,
never heard Thompkins refer to the cocaine as his, ask for any money for the sale, or
say that he knew someone who would purchase the drugs. I believe the jury could have
easily found that Thompkins was merely there to drive some of the co-defendants
around, and facilitate the trafficking, but did not care one way or the other if the deal
actually happened. If that were the case, the jury should have been able to convict
Thompkins of facilitation. I would therefore hold that the trial court erred in not admitting
an instruction for facilitation, and reverse and remand Thompkins’ conviction to the
Jefferson Circuit Court for a new trial consistent with this opinion.
199%SC-096 1 -TG
APPELLANT
CHARLES WILLIAMS THOMPKINS
V.
TRANSFER FROM COURT OF APPEALS
NO. 9%CA-801
JEFFERSON CIRCUIT COURT
HONORABLE GEOFFREY P. MORRIS JUDGE
94-CR-2222 & 97-CR-378
APPELLEE
COMMONWEALTH OF KENTUCKY
ORDER
Appellee’s motion to publish the opinion and dissenting opinion rendered June
14, 2001, in the above-styled action, is granted.
ENTERED: August 2;,2001.
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