CHESTER SHIPP v. COMMONWEALTH OF KENTUCKY
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RENDERED:
November 7, 1997; 10:00 a.m.
NOT TO BE PUBLISHED
NO. 96-CA-1594-MR
CHESTER SHIPP
v.
APPELLANT
APPEAL FROM MARION CIRCUIT COURT
HONORABLE WILLIAM M. HALL, JUDGE
CRIMINAL ACTION NO. 95-CR-000063
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
* * * * *
BEFORE:
GARDNER, GUIDUGLI and HUDDLESTON, Judges.
GUIDUGLI, JUDGE.
Chester Shipp (Shipp) appeals from a judgment
of the Marion Circuit Court entered on May 24, 1996, following a
jury trial, finding Shipp guilty of trafficking in a controlled
substance, first degree, and persistent felony offender, first
degree.
We affirm.
Officer Danny Triplett (Officer Triplett), of the
Kentucky State Police, conducted an undercover narcotics
investigation at the Galaxy Nightclub (the nightclub) in Lebanon,
Kentucky.
Triplett visited the nightclub on March 11, 1994,
March 17, 1994, and March 24, 1994.
On the third visit, Triplett
approached Shipp and asked if he knew where he could buy some
"powder," meaning cocaine.
Shipp indicated that his niece, Cathy
Harlow (Harlow) might have some, but Triplett told Shipp that he
did not want to buy from her because he did not know her.
Triplett then went to the rest room.
When he came out,
Shipp approached him by the rest room and asked him if he was
still interested in buying some cocaine.
Triplett looked down
into Shipp's cupped hands and saw several packets of white
powder.
When Triplett indicated that he wanted to buy the
cocaine, Shipp called Harlow over again.
Shipp passed two
packets behind his back to Harlow, who reached behind her back
and took the packets.
Harlow handed the packets to Triplett, and
Triplett paid Harlow $100.
Harlow gave the money to Shipp.
Triplett turned the packets over to the Kentucky State
Police Crime Lab.
The substance in the packets was tested and
found to be cocaine.
Shipp was indicted by the Marion County
Grand Jury on June 5, 1995.
Additional facts will be developed
as warranted.
Shipp argues on appeal that the trial court erred in
allowing Officer Triplett to testify regarding his undercover
investigation at the nightclub.
Characterizing Officer
Triplett's testimony as "investigative hearsay", Shipp contends
that Officer Triplett's testimony was both irrelevant and
prejudicial.
Shipp's argument is entirely without merit as there is
no investigative hearsay in Officer Triplett's testimony.
The
rule regarding investigative hearsay is that an officer "may
testify about information furnished to him only where it tends to
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explain the action that was taken by the police officer as a
result of this information and the taking of that action is an
issue in the case."
(emphasis in original).
Sanborn v.
Commonwealth, Ky., 754 S.W.2d 534, 541 (1988).
Where there is no
extrajudicial statement relayed to the court by the officer's
testimony, there is no investigative hearsay.
Releford v.
Commonwealth, Ky., 860 S.W.2d 770, 771 (1993).
As pointed out by the Commonwealth, Officer Triplett
did not testify as to any extrajudicial statements made to him
regarding Shipp's activities at the nightclub.
Instead, Officer
Triplett testified as to what he personally observed at the
nightclub and as to the events which led to Shipp's indictment.
This testimony in no way can be characterized as investigative
hearsay and is clearly admissible.
Shipp also contends that the trial court erred in
denying his pretrial motion to allow the jury to view the
nightclub.
Shipp contends that the trial court abused its
discretion in denying the motion because the basis of his defense
was that due to the layout and dim lighting of the nightclub
Officer Triplett's testimony was not credible.
Under Kentucky Revised Statutes (KRS) 29A.310(3), the
trial court may permit the jury to view the place where an
offense was allegedly committed "if necessary."
However, a trial
court's decision denying a request for a jury view does not
amount to an abuse of discretion where the scene of the crime can
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be adequately described by witness testimony.
Dawes v.
Commonwealth, Ky., 349 S.W.2d 191, 193 (1960).
At the trial, the layout and lighting of the nightclub
was described in depth by Officer Triplett, Shipp, Harlow, Corine
Mattingly, who is the manager of the nightclub, and Jo Lynn
Deering, the bartender.
Furthermore, all of the aforementioned
witnesses drew diagrams of the interior of the nightclub as they
testified.
We also agree with the Commonwealth's statement that
the prosecutor presented sufficient evidence to refute Shipp's
contention that Officer Triplett could not have seen everything
he testified to due to poor lighting.
Thus, the trial court did
not abuse its discretion in denying Shipp's motion for a view.
Shipp further argues that the trial court erred in
denying his motion for independent testing of the remainder of
the substance in the packets given by Officer Triplett to the
crime lab.
In support of his argument, Shipp relies on Green v.
Commonwealth, Ky., 684 S.W.2d 13 (1985).
This argument is also
entirely devoid of any merit.
Shipp filed a motion for testing pursuant to Green on
June 28, 1995.
In his brief on appeal, Shipp alleges that
hearings were held on this motion on July 3, 1995 and July 17,
1995.
We have reviewed the transcript of the proceedings before
the trial court on July 17, 1995, and find it to be devoid of any
mention of Shipp's Green motion.
There is no transcript of the
hearing allegedly held on July 3, 1995.
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Our review of the record and transcripts in this matter
also shows that Shipp never formally requested a ruling on the
Green motion.
As Shipp's failure to request the trial court to
rule on his motion constitutes a waiver of the matter, we cannot
consider the issue on appeal.
S.W.2d 286, 290 (1994).
Brown v. Commonwealth, Ky., 890
See also, Bell v. Commonwealth, Ky., 473
S.W.2d 820 (1971).
Finally, Shipp contends that the trial court erred in
denying his pro se verified motion for a new trial dated
April 15, 1996 and filed with the trial court on April 16, 1996.
As the jury's verdict was rendered on April 8, 1996, Shipp's
motion was not timely as Kentucky Rules of Criminal Procedure
(RCr) 10.06 requires all motions for a new trial be filed within
five days after the return of the jury's verdict.
Having considered the parties' arguments on appeal, the
judgment of the Marion Circuit Court is affirmed.
ALL CONCUR.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Michael M. Losavio
Louisville, KY
A. B. Chandler, III
Attorney General
Courtney A. Jones
Assistant Attorney General
Frankfort, KY
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