EDWARD BRIAN YOUNG V. COMMONWEALTH OF KENTUCKY
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MODIFIED: SEPTEMBER 21,200O
RENDERED: AUGUST 24,200O
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EDWARD BRIAN YOUNG
V.
APPEAL FROM MUHLENBERG Cl
HON. DAVID H. JERNIGAN, JUDGE
INDICTMENT NO. Q8-CR-0085
COMMONWEALTH OF KENTUCKY
APPELLEE
MEMORANDUM OPINION OF THE COURT
A Muhlenberg County Circuit Court jury convlcted Young of manufacturing
methamphetamine In violation of KRS 218A.?432
and recommended the maxlmum
sentence of twenty (20) years. The trial court entered judgment In accordance wlth the
jury’s recommendation, and Young appeals to this Court as a matter of right, After a
review of the trial record, we afflrm the Judgment of the Muhlenberg Clrcult Court.
BACKOROUND
During an August 1998 traffic stop, Muhlenberg police officers found Lloyd
Sorrel1 in possesslon
of materials typlcally used to manufacture methamphetamlne and
arrested him. Sorrel1 subsequently entered Into a plea bargaln with the Commonwealth
Attorney which allowed him to plead guilty to a charge of trafficklng In
methamphetamlne and receive the minimum five (5) year sentence if he provided
truthful Information regarding the location of two (2) alleged methamphetamlne
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laboratories. On the basis of Sorrell’s information, the authorities obtained and
executed a search warrant for a trailer residence which Sorrel1 indicated belonged to
the appellant, Young.
At Young’s trial, the Commonwealth’s evidence consisted largely of testimony
connecting items found during the execution of the search warrant to the materials and
procedures involved in the manufacture of methamphetamine. Officer Cheyenne Albro,
the director of the Pennyrile Drug Task force and a certified methamphetamine
laboratory technician, testified that the most popular manufacturing process was the
“anhydrous lithium reduction method” because an individual can “cook”
methamphetamine with relatively common materials and equipment:
Q:
A:
Q:
A:
Would you tell us the chemicals and equipment that
are ordinarily used in the manufacture of
methamphetamine? I know there’s variations, but just
the general.
The most common one that we are encountering in
Western Kentucky at this time is---the proper name
for it is the anhydrous lithium reduction method. On
the streets, it may be called nazi dope or crank
manufacturing.
Those chemicals, in answering your earlier
question, the chemicals that are used are not illegal to
buy individually. It’s when they are put together to
process methamphetamine, they then become illegal.
And the reason for that is the majority of them are
common chemicals that we use everyday. That’s
also the reason it’s one of the most common methods
that we’re seeing now.
Would you describe some of the chemicals and
equipment that are ordinarily found in the
manufacture of methamphetamine?
In that particular method, some of the chemicals
that we encounter would be some type of a petroleum
solvent, such as Coleman fuel. We may also see
ether used. You may see anhydrous ether used.
Denatured alcohol. Methanol, which would be the
heat or gas line antifreeze, may be used.
Q:
A:
Q:
A:
Q:
A:
Q:
A:
They have to use some type of reactive metal, such
as potassium metal, sodium metal, magnesium could
probably also be used. The one we encounter the
most is lithium metal that they’re obtaining primarily
from camera batteries.
Anhydrous ammonia is a precursor---when I say
precursor that’s something that ends up being part of
the final product and in that method, it’s something
that has to be obtained and that has to be present.
Some type of pseudoephedrine or ephedrine.
Ephedrine itself is a bronchial dilator.
Where is ephedrine, the drug ephedrine,
normally-or how is that normally obtained, if you
know?
What we’re seeing primarily is they’re obtaining
ephedrine through like the mini-thins that are bought
at truck stops, things like that, though actifed, sudafed
tablets. Through the equate cold medication.
Over the counter type . . .
Yes, sir.
. . . drugs. Go ahead.
Another reason this method is so popular is
because it doesn’t take a lot of elaborate, I guess,
you would call it glassware. You know, commonly we
see things like plastic containers and quart, gallon
fruit jars, things like that. Pyrex dishes, you know,
versus the reaction vessels and things like that to
manufacture other methods.
You see a lot of like coffee filters used. They may
be using paper towels as filters. Funnels.
How are they used in that process? The coffee
filters. How are they used?
The coffee filters are used to strain products, just
the same way a coffee filter is used. They may use it
in the beginning process to strain the binding material
from the pseudoephedrine, when they break it down
and separate it.
They may use it in the final process to strain the
methamphetamine out of the end product.
Officer Albro and other law enforcement officers who helped execute the search
warrant testified that they found, inside and around the trailer, materials and equipment
indicative of methamphetamine manufacturing: a blender containing pseudoephedrine
powder, a burner unit, coffee filters, a complicated ventilation system, three glass quart
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jars, a bottle of sulfuric acid, several plastic bottles, a bulb syringe, a funnel, cans of
starting fluid, numerous empty Sudafed boxes, empty battery boxes, and a small tank
containing a substance Officer Albro identified as anhydrous ammonia. A forensic
chemist from the Kentucky State Police Crime Lab testified that he found
methamphetamine residue on the coffee filters and inside of the glass jars.
Because Young was not present at the residence at the time the officers
executed the search warrant, the Commonwealth introduced testimony indicating that
Young lived in the trailer at the time of the search. Sorrel1 testified that he had
personally observed Young “cooking” a batch of methamphetamine the day before his
arrest. The officers who executed the search warrant testified that, at the time they
arrived at the trailer, the front door stood wide open, the lights and television were on,
and they believed someone currently used the trailer as a residence because it was
furnished with living room furniture, an entertainment center and a mattress, and
clothes were scattered about the place. The Commonwealth also introduced Young’s
signed statement containing language the prosecutor argued constituted an admission
that Young lived at the trailer. Other testimony established that the trailer belonged to
Young’s parents and that, at the time of the search, electrical power was turned on and
the account was in Young’s name. The next door neighbor testified that, to her
knowledge, Young had lived with his girlfriend in the trailer since the beginning of the
year and still lived in the trailer in August 1998. Muhlenberg County Sheriffs Deputy
Charles Perry testified that he had observed Young at the residence approximately
three (3) months earlier when he was dispatched to resolve a dispute between Young
and his brother, and that he served the arrest warrant for this charge upon Young at the
address six (6) days after the search. Deputy Perry explained that, although no one
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answered when he knocked at both the front and back doors, he arrested Young when
the appellant and his ex-girlfriend attempted to “tiptoe” out the back door.
Young testified in his own defense and stated that he had left the trailer in early
May 1998 after a dispute with his brother and had left town in the middle of June and
had lived in Livermore with his girlfriend for approximately a month prior to August 12th.
Young further testified that he did not know how to manufacture methamphetamine and
had only had limited social contact with Sorrell, but that he had heard from a third party
that Sorrel1 and another man were using the trailer as a laboratory. Young explained
that he and his new girlfriend celebrated their one-month anniversary by renting a hotel
room in Central City on August 11, 12 and 13, 1998. According to Young, Deputy Perry
found him at the trailer with his ex-girlfriend on August 18 only by coincidence because
he had stopped by to “check things out” and his ex-girlfriend came to the property at
roughly the same time to remove personal items she had left behind after they
separated.
At the conclusion of the presentation of evidence, the trial court denied Young’s
motion for a directed verdict and instructed the jury regarding both the crime of
manufacturing methamphetamine and, on the basis of evidence suggesting that Young
may have allowed others to manufacture methamphetamine in the trailer, the lesser
included offense of criminal facilitation of manufacturing methamphetamine. The jury
convicted Young of the principal offense and he sought review in this Court.
DIRECTED VERDICT
Young argues that the trial court erred when it denied his motions for directed
verdict at both the close of the Commonwealth’s case-and-chief and the close of all
evidence and his motion for a new trial because “[tlhe evidence did not show beyond a
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reasonable doubt that [Young] possessed the items seized by the police” and “only the
testimony of Lloyd Sorrels directly connected [Young] with the items seized from the
premises.”
We note that Young’s argument ignores all of the evidence suggesting that
he lived in a trailer permeated with materials and equipment used for the manufacture
of methamphetamine, and we believe this evidence allowed a jury to reasonably
conclude, under either a constructive possession theory,’ or merely as a reasonable
inference from the evidence, that Young possessed the items in his home.
This Court reviews allegations of error with respect to trial court denials of
motions for directed verdict to determine whether “under the evidence as a whole, it
would be clearly unreasonable for a jury to find guilt, [and] only then the defendant is
entitled to a directed verdict of acquittal.“* The trial courts instruction tracked the
language of KRS 218A.1432 and required the jury to find that Young both possessed
the materials and intended to use them to produce methamphetamine:
You will find the defendant guilty of manufacturing
methamphetamine 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 August 13, 1998, and
before the finding of the indictment herein, he possessed
chemicals or equipment used in the manufacture of
methamphetamine;
AND
‘See Houston v. Commonwealth, Ky., 975 S.W.2d 925, 928 (1998) (“[we hold
that for offenses arising under KRS 218A, the concept of ‘constructive possession’ is
applicable.” Id.). See also Ruoard v. Commonwealth, Ky., 475 S.W.2d 473 (1972);
Franklin v. Commonwealth, Ky., 490 S.W.2d 148 (1972), -denied, 414 U.S. 858, 94
S.Ct. 66, 88 L.Ed.2d 108 (1973); Leave11 v. Commonwealth, Ky. 737 S.W.2d 695
(1987); Clay v. Commonwealth, Ky.App., 867 S.W.2d 200 (1993); Dawson v.
Commonwealth, KY., 756 S.W.2d 935 (1988); Hararove v. Commonwealth, Ky., 724
S.W.2d 202 (1986) &denied, 484 U.S. 821, 108 S.Ct. 81, 98 L.Ed.2d 43;
*Commonwealth v. Benham, KY., 816 S.W.2d 186, 187 (1991) (citing
Commonwealth v. Sawhill, KY., 660 S.W.2d 3 (1983)).
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B. That he intended to use the chemicals or equipment to
manufacture methamphetamine.
As Young essentially conceded at trial that the array of chemicals and equipment
found at the trailer could only have been used to manufacture methamphetamine, the
only factual dispute remaining was whether Young or some other person or persons
operated the methamphetamine lab. We find that the trial court properly submitted the
case to the jury for it to resolve that factual issue. The extensive evidence connecting
Young to the trailer (and the chemicals and equipment) sharply rebuts Young’s
contentions, and justified the trial court’s rulings on Young’s motions which protested
evidentiary insufficiency.
EVIDENCE OF YOUNG’S PREVIOUS METHAMPHETAMINE MANUFACTURING
Young argues that he suffered prejudice when the trial court allowed the
Commonwealth to introduce testimony from Sorrel1 indicating that he had observed
Young “cooking crank” at the trailer on somewhere between six (6) and eight (8)
previous occasions during 1998 and that Young had taught him how to perform the
procedure. Young describes this testimony as inadmissible KRE 404(a) character
evidence.
Prior to trial, the Commonwealth filed notice, pursuant to KRE 404(c), that it
intended to introduce KRE 404(b) evidence that Young had operated the
methamphetamine lab for several months and had trained others in how to
manufacture methamphetamine. Young filed a memorandum objecting to the
admission of such evidence, and the Court heard arguments on this issue in chambers
prior to trial. The trial court ruled that the Commonwealth could introduce the evidence
to prove Young’s knowledge of methamphetamine manufacturing.
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Sorrel1 testified during the Commonwealth’s direct examination of him that Young
taught him to manufacture methamphetamine in January 1998, that he had periodic
contact with Young at Young’s trailer residence, and that Young principally used a back
bedroom in the trailer to manufacture methamphetamine.
We hold that the trial court properly ruled that the evidence regarding Young’s
methamphetamine manufacturing during the preceding months was admissible to show
that Young had knowledge of this process. At trial, Young maintained that he did not
know how to manufacture methamphetamine. Under KRE 404(b):
Evidence of other crimes, wrongs, or acts is not admissible
to prove the character of a person in order to show action in
conformity therewith. It may, however, be admissible:
(1) If offered for some other purpose, such as proof of
motive, opportunity, intent, preparation, plan, knowledae,
identity, or absence of mistake or accident . . . .3
In order to prove Young guilty of methamphetamine manufacturing, the jury instructions
required the Commonwealth to demonstrate that Young possessed the chemicals and
other equipment “with the intent to manufacture methamphetamine.“4 KRS
218A.1431(1) defines “manufacture” as:
mhe production, preparation, propagation, compounding,
conversion, or processing of methamphetamine, or
possession with intent to manufacture, either directly or
indirectly by extraction from substances of natural origin or
independently by means of chemical synthesis, or by
combination of extraction and chemical synthesis . . . . 5
We hold that the trial court properly found Sorrell’s testimony relevant to the
question of whether Young knew how to manufacture methamphetamine from the
3KRE 404(b) (emphasis added).
4a KRS 218A.l432(l)(b).
‘KRS 218A.1431(1).
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materials assembled at the trailer, and we find evidence concerning Young’s knowledge
highly probative of his intent6 The trial court did not abuse its discretion in determining
that the risk of prejudice associated with this evidence did not substantially outweigh its
EVIDENCE OF ANHYDROUS AMMONIA THEFT
Young also asserts he was prejudiced by testimony that persons who “cook”
methamphetamine typically obtain the quantities of anhydrous ammonia necessary for
the procedure by stealing it from farm supply stores and by Sorrell’s testimony that he
and Young had, in fact, stolen anhydrous ammonia in this manner. Young contends
the evidence concerning theft of anhydrous ammonia “has nothing to do with any of the
facts of consequence, and only inflames a rural jury with evidence of theft from farm
supply stores.”
During the pre-trial discussion in chambers regarding this evidence, the trial court
ruled evidence relating to Young’s theft of anhydrous ammonia relevant to the extent
that it related to Young’s knowledge of the methamphetamine manufacturing process.
During the Commonwealth’s direct examination of Officer Albro, the prosecutor asked
how a person obtains anhydrous ammonia and Officer Albro responded:
What we are seeing in the Pennyrile area and what we’re
hearing from confessions of suspects that we deal with is
See State v. Scarbenv,
N.W.2d
-, 2000 WL 504589 (Iowa App. 2000)
(“The State charged Scarberry and Fry with conspiracy to manufacture
methamphetamine and possession of pseudoephedrine. Evidence that Scarberry knew
how to manufacture methamphetamine and had done so for his own personal use is
relevant to establish his knowledge about manufacturing the illegal substance.” Id.).
See also Tamme v. Commonwealth, Ky., 973 S.W.2d 13 (1998); Tucker v.
Commonwealth, KY., 916 S.W.2d 181 (1996); Jones v. Commonwealth, Ky., 554
S.W.2d 363 (1977).
‘Par-tin v. Commonwealth, Ky., 918 S.W.2d 219, 222 (1996).
-9-
that the majority of all it is stolen or bought from individual
[sic] who have stolen it. The primary source that they’re
getting this from---the farmers and the tanks in the fields, or
like the co-op crop, Southern States, places like that, where
they steal them out of larger containers.
During the Commonwealth’s direct examination of Sorrell, the prosecutor solicited
testimony concerning the manner in which Sorrel1 and Young obtained anhydrous
ammonia:
Q:
A:
Q:
A:
Q:
A:
Q:
A:
Q:
A:
Q:
A:
Q:
A:
Q:
A:
Q:
A:
Q:
A:
A:
How many times in 1998 did you personally go to his
residence in that mobile home on Highway 175
North?
Six, maybe eight. Six, eight times.
For what purpose did you go to this residence?
To get anhydrous. For him to show me where to get
anhydrous.
Why did you need anhydrous?
To cook methamphetamine.
Well, did he have anhydrous there at his house?
No.
Well, how would you get anhydrous ammonia?
We’d go to the farm supply away from his house
there on the other side of Bremen. I don’t even know
- I don’t know the name of it and get it there.
You mean you went to a business?
Yeah.
Went inside and bought some anhydrous ammonia?
No. We’d go at night and steal it out of a tank.
Well, tell us how it would be stolen out of a tank?
Hook the hose to a gas jug and turn it on and fill the
gas jug up.
And for what use was this? Why did you do this?
To cook crank.
How many different occasions did you and [Young] go
to these places and obtain anhydrous ammonia?
Me and him, I think, twice or maybe three times. It
might have been three times, I believe, that we went
there.
Tell us what was done on these occasions that you
told us about with the anhydrous ammonia.
Well, if he needed it, I’d leave some with him and I’d
take it. Whatever, you know, I’d fill me up a tank and
take it with me. If he needed some of it, or if he
-lO-
needed - I’d leave him a tank or leave him the jug,
and take a tank myself.
Following Sorrell’s testimony, the trial court admonished the jury with respect to
the permissible uses of this evidence:
You are further instructed concerning that testimony that
the defendant was with this witness and there was some
items stolen, you shall not consider the evidence of taking
the anhydrous ammonia on other occasions for any
purpose, except insofar as it may tend to show, if it does so;
a motive and intent, preparation or knowledge on the part of
the defendant to commit the offense for which the defendant
is being tried in this case.
We find that the trial court properly found evidence that Young covertly obtained
quantities of anhydrous ammonia relevant to the appellant’s intent,’ and we further find
that the trial court’s admonition prevented Young from suffering prejudice as a result of
the introduction of this evidence.g
‘We note that the 2000 General Assembly appears to have reached a similar
conclusion regarding the factual connection between anhydrous ammonia theft and
methamphetamine manufacturing, as, in House Bill 501, it created a new section of
KRS Chapter 250 to prohibit, as a Class D felony, possession of anhydrous ammonia in
an unapproved container and tampering with facilities storing or transporting anhydrous
ammonia. The same legislation amended both KRS 514.030, theft by unlawful taking,
and KRS 514.1 IO, receiving stolen property, to make the theft and knowing possession
of stolen anhydrous ammonia a Class D felony regardless of value. The penalties for
each of these offenses become a Class B felony for a first offense and a Class A felony
for a subsequent offense if the Commonwealth additionally proves that the defendant
intended to manufacture methamphetamine in violation of KRS 218A.1432. Although
this legislation had not been passed at the time of Young’s trial, we find it additional
persuasive evidence of the relevance of this testimony.
9a Alexander v. Commonwealth, KY., 862 S.W.2d 859, 859 (1993); Castle v.
Commonwealth, Ky., 1 4 S.W.2d 387, 388 (1929).
-ll-
PENALTY RANGE
During a pre-trial conference in chambers, the trial court instructed the attorneys
that he would not allow them to discuss the penalty range of Young’s charge during
closing arguments:
Alright. Now, also on the record, Mr. Barber has never
done this, but it has been done. If we get to - we should
get to the closing arguments early afternoon, neither the
Commonwealth or the defendant shall be allowed to argue
to the jury the penalty range in the guilt phase.
Young contends the jury recommended the maximum sentence of twenty (20) years in
his case as a result of his trial counsel’s failure to voir dire the jury panel to determine if
they would be able to consider the full range of penalties and by what he refers to as
prosecutorial misconduct by the Commonwealth during its sentencing phase closing
argument. While Young concedes he did not preserve these errors for appellate
review, he asks us to consider them under RCr 10.26.
Although the record indicates that Young’s trial counsel did not address the
penalty range during voir dire, we fail to see how Young’s observation of this fact states
any reviewable claim of error. The trial court merely cautioned counsel to avoid
mentioning the penalty range during closina arauments. While Young asserts that the
trial court’s “stricture” denied him “the right to gain information which would determine
whether his jury would consider the entire range of punishment,” we believe the trial
court articulated the scope of its ruling, and we can find nothing in the record to support
Young’s assertion that his counsel believed the trial court had restricted voir dire on this
topic. We hold, therefore, that this portion of Young’s argument fails to state any claim
of error, and we decline further comment.
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Young argues that the attorney for the Commonwealth committed prosecutorial
misconduct during his closing argument by appealing to the jury to “set a community
standard,” “to send a message throughout this community [that if] you start
manufacturing methamphetamine in Muhlenberg County . . . you’re gonna receive the
maximum punishment that we can give you,” and “[t]o send a message to these people
to discontinue this type of activity.” Young argues this Court has previously condemned
this type of argument in Damron v. Commonwealthlo and Payne v. Commonwealth.”
As Young made no contemporaneous objection to the prosecutor’s statements, he asks
us to find that the Commonwealth’s alleged misconduct constituted “[a] palpable error
which affect[ed]” his “substantial rights” and determine that “manifest injustice has
resulted from the error.“‘*
Although the appellate courts in this state have addressed issues relating to the
content of prosecuting attorney’s closing arguments on a number of occasions, we note
that the vast majority of these cases predated bifurcated sentencing procedures,13
address properly preserved errors, and analyze prejudice with the defendant’s
presumption of innocence as unspoken context.14
Young asks us to reverse his
“KY., 687 S.W.2d 138, 143 (1985).
“KY., 623 S.W.2d 867,870 (1981).
‘*RCr 10.26.
13KRS 532.055(2) (“Upon return of a verdict of guilty or guilty but mentally ill
against a defendant, the court shall conduct a sentencing hearing before the jury, if
such case was tried before a jury. In the hearing the jury will determine the punishment
to be imposed within the range provided elsewhere by law. The jury shall recommend
whether the sentences shall be served concurrently or consecutively.” Id.).
14See, e-a., Damron v. Commonwealth, supra note 10 at 142; Wallen v.
Commonwealth, Ky., 657 S.W.2d 232, 234 (1983); Lynem v. Commonwealth, Ky., 565
(continued.. .)
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sentence and remand his case to the trial court for a new sentencing hearing because
of allegedly improper arguments made exclusively during the sentencing phase of his
trial after the jury had already determined Young’s guilt, and to which he made no
objection at trial. RCr 10.26 review differs from review of preserved errors in that the
critical determination for this Court in a “palpable error” case is whether the defendant
suffered “manifest injustice.” The Sixth Circuit Court of Appeals noted in Cook v.
Bordenkircher,15
that errors may occur for reasons, such as gamesmanship, which we
believe to be inconsistent with a “manifest injustice” finding:
Although failure to object does not bar relief, it, too, is a
significant consideration. . . . We can only wonder whether
trial counsel erred or whether they deliberately failed to
object to prevent correction of the error and have an issue
on which to appeal in an otherwise error-free trial where
proof of guilt was compelling.‘6
Accordingly, we feel it appropriate to examine the criteria relevant for palpable error
review of alleged instances of prosecutorial misconduct in sentencing phase closing
arguments.
An appellate court’s review of alleged error to determine whether it resulted in
“manifest injustice” necessarily must begin with an examination of both the amount of
punishment fixed by the verdict and the weight of evidence supporting that
punishment.” Other relevant factors, however, include whether the Commonwealth’s
S.W.2d 141, 144 (1978); Wilson v. Commonwealth, Ky., 411 S.W.2d 33, 35 (1967).
I5602 F.2d 117, 121 (6’h Cir. 1979).
161d.
“a Abernathy v. Commonwealth, Ky., 439 S.W.2d 949, 953 (1969).
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statements are supported by facts in the recordI and whether the allegedly improper
statements appeared to rebut arguments raised by defense counsel.‘g Finally, we must
always consider these closing arguments “as a whole”2o and keep in mind the wide
latitude we allow parties during closing arguments.*’
After examining the record, we hold that Young did not suffer “manifest injustice”
as a result of the prosecution’s sentencing phase closing argument. While the jury did
recommend the maximum sentence of twenty (20) years, the Commonwealth
introduced overwhelming evidence that Young manufactured methamphetamine on a
relatively large scale. Although Young characterizes the Commonwealth’s statements
as improper comment on the consequences of the jury’s verdict by focusing on general
deterrence of drug activity, we find the prosecutor’s statements reasonably supported
by the trial record and responsive to defense counsel’s contention that the jury should
recommend the minimum sentence because, among other reasons, Young had “never
been - never sold drugs - never been convicted of selling drugs.” The full text of the
Commonwealth’s sentencing phase closing argument clarified the “send a message to
drug dealers” rhetoric and made it clear that the Commonwealth wanted the jury to
18See. e.g., Damron v. Commonwealth, suora note 14 at 142-3; Wilson v.
Commonwealth, supra note 14 at 35; Wallen v. Commonwealth, supra note 14 at 234
(“We have not engaged in any blanket condemnation of prosecutorial comment related
to deterrence. We have condemned argument only where the prosecutor suggests that
the jury convict or punish on grounds or for reasons not reasonably inferred from the
evidence.” Id.).
19$& Cook v. Bordenkircher, supra note 15 at 121.
*‘Wallen v. Commonwealth, supra note 14 at 234.
*‘Bowlina v. Commonwealth, Ky., 873 S.W.2d
v. Commonwealth, Ky., 644 S.W.2d 335 (1982).
-15
175, 178 (1993). See also William
know that Young’s methamphetamine manufacturing placed him in the drug trafficking
stream of commerce.
We also note that Kentucky’s sentencing procedures do not give juries absolute
sentencing authority. KRS 532.070(l)
leaves the final determination regarding
sentencing up to the trial court:
When a sentence of imprisonment for a felony is fixed by a
jury pursuant to KRS 532.060 and the trial court, having
regard to the nature and circumstances of the crime and to
the history and character of the defendant, is of the opinion
that a sentence of imprisonment is necessary but that the
maximum term fixed by the jury is unduly harsh, the court
may modify that sentence and fix a maximum term within the
limits provided in KRS 532.060 for the offense for which the
defendant presently stands convicted.22
Here, Young made a specific request for leniency to the trial court prior to final
sentencing, and the trial court denied his request and imposed the jury’s recommended
sentence. While KRS 532.060 does not insulate all sentencing phase errors from
palpable error review, we believe Kentucky’s sentencing procedures provide an
additional layer of protection from prejudice which we should consider in the context of
RCr 10.26 review in this case. Because of all of the above considerations, we do not
believe Young is entitled to RCr 10.26 relief.
SUPPRESSION ISSUE
Young contends that the trial court erred when it denied his motion to suppress
the fruits of the search in this case because the affidavit upon which the police officers
obtained a search warrant did not disclose the fact that the informant, Sorrells, had
entered into a plea bargain with the Commonwealth. Young, however, did not
**KRS 532.070(l).
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designate as part of the record on appeal the pre-trial hearing conducted by the trial
court on his motion to suppress. This Court explained, in Davis v. Commonwealth,23
that it will not address suppression issues without an adequate record:
Appellant has failed to show that the ruling below was not
supported by substantial evidence. “In the absence of any
showing to the contrary, we assume the correctness of the
ruling by the trial court.” It is the duty of a party attacking the
sufficiency of evidence to produce a record of the
proceeding and identify the trial court’s error in its findings of
fact. Failure to produce such a record precludes appellate
review.
. . . This Court will not entertain appellant’s claim of error
when supported only by a motion and an order.24
We apply the Davis rule in this case and do not reach Young’s alleged error.
For the reasons discussed above, we affirm the judgment of the Muhlenberg
Circuit Court.
All concur.
23Ky., 795 S.W.2d 942 (1990).
‘“u At 949 (emphasis added).
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COUNSEL FOR APPELLANT:
David E. Eucker
Department of Public Advocacy
100 Fair Oaks Lane
Suite 302
Frankfort, Kentucky 40601
COUNSEL FOR APPELLEE:
A. B. Chandler, III
Attorney General
John E. Zak
Assistant Attorney General
Criminal Appellate Division
OfFice of the Attorney General
1024 Capital Center Drive
Frankfort, Kentucy 40601
-1%
EDWARD BRIAN YOUNG
APPELLANT
APPEAL FROM MUHLENBERG CIRCUIT COURT
HON. DAVID H. JERNIGAN, JUDGE
INDICTMENT NO. 98-CR-0085
V.
COMMONWEALTH OF KENTUCKY
APPELLEE
ORDER
On the Court’s own motion, the Memorandum Opinion of the Court rendered
herein on August 24, 2000, is modified by substitution of new page 12, hereto attached,
in lieu of page 12 of the Memorandum Opinion as originally rendered. Said
modification does not affect the holding.
All concur.
ENTERED: September 21,200O.
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