MICHAEL KERNS v. COMMONWEALTH OF KENTUCKY
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RENDERED:
February 6, 1998; 2:00 p.m.
NOT TO BE PUBLISHED
NO. 96-CA-001743-MR
MICHAEL KERNS
v.
APPELLANT
APPEAL FROM RUSSELL CIRCUIT COURT
HONORABLE EDDIE C. LOVELACE, JUDGE
ACTION NO. 94-CR-0019
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
* * * * * * * *
BEFORE:
DYCHE, EMBERTON and GUIDUGLI, Judges.
EMBERTON, JUDGE.
The appellant, Michael Kerns, appeals from an
order revoking his probation and the trial court's denial of his
motion to vacate and set aside the revocation.
Appellant was convicted of cultivating marijuana for
the purpose of sale on March 16, 1995, and sentenced to a period
of one year incarceration, sixty days to be served, and the
balance probated for two years.
One of the conditions of his
probation was his submission to random drug and alcohol testing.
On June 28, 1995, after appellant's transfer to another
county, he came under the supervision of probation officer Mikki
Flowers.
Pursuant to the order of probation, he reported twice
per month for the purpose of drug and alcohol testing.
January 2, 1996, he gave a urine sample.
On
An in-house test, known
as a "verdict kit," was performed and the specimen was also sent
to Smith, Kline & Beecham Laboratory in Lexington, Kentucky.
Officer Flowers testified that, upon receiving the sample, the
vial was sealed and initialed by her and the appellant.
The vial
was then placed in a locked box and stored in the refrigerator
until collected by the courier from Smith, Kline & Beecham the
same day.
Two days later, Flowers received the results which
detected marijuana metabolites in the appellant's urine.
Appellant's probation was not immediately revoked.
Instead,
Flowers recommended that he attend alcohol and drug counseling.
Prior to his completion of the program, however, appellant
requested a transfer to Campbellsville and was given a new
supervisor, Kathy Arnold.
Arnold informed appellant that she
would reject the transfer request if his urine test was positive
for drugs.
On March 25, 1996, appellant gave Arnold a urine
specimen.
Arnold testified that appellant went to the rest room
and gave the specimen.
The vial was sealed in appellant's
presence, initialed, and placed in an insulated container until
collected by Smith, Kline & Beecham later that day.
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The results
received on April 1, 1996, were positive for marijuana
metabolites.
The trial court sustained appellant's objection to the
April 1, 1996, report on the basis that the Commonwealth failed
to amend its motion to revoke to state that the sample was given
on March 25, 1996, rather than its original statement that the
test was administered on March 29, 1996.
The basis for the
revocation was that appellant failed to refrain from the use of
marijuana on January 2, 1996.
Appellant objects to the admission of the test results
because there was not a representative from Smith, Kline &
Beecham available to testify as to the procedures used, the chain
of custody, and the meaning of the word "metabolites."
Probation
revocation hearings are informal procedures and a defendant is
not entitled to the same due process consideration as he is in a
criminal trial.
Hearsay testimony, although inadmissible at a
criminal trial, is admissible especially where, as here, trained
personnel are available to testify.
Ky. App., 638 S.W.2d 288, 289 (1982).
Marshall v. Commonwealth,
The trial court was aware
of Smith, Kline & Beecham's reputation as a reliable laboratory
and the testimony of Flowers established the chain of custody
from the time the specimen was given until retrieved by the
courier.
The report issued by Smith, Kline & Beecham established
the internal chain of custody and the tests administered.
-3-
Flowers testified that she did not take the temperature
of the sample prior to it being shipped to Smith, Kline &
Beecham.
Appellant has not offered any information regarding the
significance of this fact.
Although the temperature of the
sample soon after it is received by Flowers could have some
relevance if there was a dispute as to its origins, we see no
relevance as to the results of the test.
Appellant emphasizes that the verdict test kit
administered was negative which contradicts the Smith, Kline &
Beecham results.
The standard of proof necessary to revoke
probation is whether there is probable cause to believe that a
condition of probation is violated.
App., 551 S.W.2d 838 (1977).
Murphy v. Commonwealth, Ky.
Despite the contradiction in the
test results there was sufficient evidence to affirm the trial
court's finding.
Appellant complains that the term metabolites was never
defined for the trial court and suggests that metabolites can be
present in the system from exposure to marijuana prior to the
date of probation or in some manner other than direct use of the
drug.
He alleges that if his counsel would have permitted him to
testify, he could have explained the presence of metabolites in
his urine.
We do not believe the court, nor appellant's counsel,
was required to speculate as to how the metabolites entered
appellant's system.
The mere presence of marijuana metabolites
is sufficient to sustain a probation revocation.
-4-
Murphy, supra.
In view of the test results, we do not find that counsel's
representation was so deficient as to require reversal.
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984).
The order of the Russell Circuit Court is affirmed.
ALL CONCUR.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Joel R. Smith
Jamestown, Kentucky
A. B. Chandler III
Attorney General
Vickie L. Wise
Assistant Attorney General
Frankfort, Kentucky
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