JIMMY MILLER v. COMMONWEALTH OF KENTUCKY
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RENDERED: JULY 30, 1999; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1996-CA-003084-MR
JIMMY MILLER
v.
APPELLANT
APPEAL FROM ADAIR CIRCUIT COURT
HONORABLE HON. PAUL BARRY JONES, JUDGE
ACTION NO. 93-CR-022
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: GUDGEL, CHIEF JUDGE; COMBS AND JOHNSON, JUDGES.
JOHNSON, JUDGE: Jimmy Miller (Miller) appeals from the judgment
of the Adair Circuit Court entered on November 4, 1996, that
sentenced him to prison for seven years and imposed a fine of
$10,000 for his conviction for trafficking in a controlled
substance in the first degree in violation of Kentucky Revised
Statutes (KRS) 218A.1412.
Miller, an African-American, argues
that the trial court erred (1) in not finding a constitutional
violation when the Commonwealth used two peremptory challenges to
remove the only two African-Americans from the jury panel; (2) in
refusing to admit into evidence photographs of the crime scene;
and (3) in denying his motion for a directed verdict of
acquittal.
We affirm.
On April 16, 1993, Kentucky State Police (KSP)
Detective Ben Hadley (Detective Hadley) received an anonymous
drug tip regarding Miller.
Detective Hadley, along with fellow
KSP Detective J.D. Antle (Detective Antle) and KSP Trooper
Bartley1, drove to Miller’s automobile repair garage in Columbia
in a marked state police cruiser.
The police officers noticed
Miller alone in a vehicle 50 to 100 yards away driving down a
long, steep hill on Patterson Street, the dirt road where his
residence was located.
Trooper Bartley backed the police
cruiser from a driveway and proceeded towards Miller’s car.
At
that point, Miller attempted to back his vehicle up the hill.
But, heavy rain had turned the dirt road into mud and deep ruts
had developed.
into a deep rut.
The mud-slicked road caused Miller’s car to slide
Detectives Hadley and Antle testified that they
saw Miller open the driver-side door, lean out, and throw
something underneath the car.
Miller was able to pull his car
out of the rut and drove down the hill and stopped about 20 feet
in front of the police cruiser.
Trooper Bartley detained Miller
while Detectives Hadley and Antle walked up the hill to the point
where Miller had backed his car into the deep rut.
1
In that rut,
The record does not disclose the first name of Trooper
Bartley.
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the detectives found ten small plastic bags which they suspected
contained cocaine.
Miller was arrested.
The substance in the
bags was subsequently tested and found to total 2.09 grams of
cocaine, or approximately 0.209 gram per bag.
The Commonwealth
alleged that the cocaine was packaged for sale2 at $25 per bag.
The case finally went to a jury trial on September 27,
1996.3
Following voir dire, the Commonwealth used two of its
peremptory strikes to strike the only two black persons from the
jury panel.
Miller objected to the composition of the jury, and
the Commonwealth volunteered to give race-neutral reasons for
striking the two African-Americans as potential jurors.
The
trial court accepted the Commonwealth’s reasons as being racially
neutral.
Miller testified in his own defense and denied ever
possessing the cocaine.
Miller attempted to cast doubt as to
whether the detectives were located where they could have seen
him open his car door and toss something under his car.
In
support of this claim, Miller attempted to have admitted into
evidence several aerial photographs of the area as well as a
videotape of the area.
Miller argued that it was logistically
impossible for the detectives to have seen his car from the
2
KRS 218A.010(28) defines “traffic” as “to manufacture,
distribute, dispense, sell, transfer, or possess with intent to
manufacture, distribute, dispense, or sell a controlled
substance”.
3
The record discloses that the trial date was changed at
least six times from the initial trial date in November 1993, to
the final trial date in September 1996.
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location where they claimed to have been at the time.
The
Commonwealth objected to the admission of the June 1995
photographs on the grounds that they did not substantially
represent the area as it existed in April 1993, at the time of
the alleged offense.
The trial court accepted the argument that
much of the area had undergone change since 1993, and refused to
admit the pictures into evidence.
However, the trial court
allowed Miller to give limited testimony regarding this issue.
Miller testified that the area viewed in the 1995 photographs was
not similar to the area in 1993.
Several people who lived in the
area also testified that the area had changed substantially
between April 1993, and the time the photographs were taken in
June 1995.
They testified that as the area had existed in 1993,
it would have been impossible for the detectives to have observed
Miller from the detectives’ position.
The jury convicted Miller of trafficking in a
controlled substance and recommended a seven-year prison sentence
and a fine of $10,000, which the trial court imposed.
This
appeal followed.
Miller’s first argument is that the trial court erred
in ruling that the prosecutor offered race neutral reasons for
striking the only two African-Americans on the venire as required
by Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69
(1986).
The Commonwealth stated that it struck the first black
juror, Leona Ingram, because her husband was currently under
indictment in the Casey Circuit Court for theft and that he was a
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prosecutor in that case.
The Commonwealth stated that it struck
the second black woman, Jada Jones, because her first cousin,
Robbie Jones, had recently been sent to prison because he
violated the conditions of his parole when he tested positive for
drugs.
The Commonwealth Attorney stated that “...I think that it
would — if not consciously then subconsciously affect her ability
to consider some of the same issues that has [sic] directly
affected a relative of hers.”
In his brief, Miller argues that
“[t]he reasons cited by the Commonwealth merely paid lip service
to Batson v. Kentucky....When a judge lets the Commonwealth get
by with preemptory [sic] challenges in this fashion, it is merely
winking at the law.”
The United States Supreme Court’s decision in Batson,
supra, provides as follows:
[A] defendant may establish a prima
facie case of purposeful discrimination in
selection of the petit jury solely on
evidence concerning the prosecutor’s exercise
of peremptory challenges at the defendant’s
trial. To establish such a case, the
defendant first must show that he is a member
of a cognizable racial group, and that the
prosecutor has exercised peremptory
challenges to remove from the venire members
of the defendant’s race. Second, the
defendant is entitled to rely on the fact, as
to which there can be no dispute, that
peremptory challenges constitute a jury
selection practice that permits “those to
discriminate who are of a mind to
discriminate.” Finally, the defendant must
show that these facts and any other relevant
circumstances raise an inference that the
prosecutor used that practice to exclude the
veniremen from the petit jury on account of
their race. This combination of factors in
the empaneling of the petit jury, as in the
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selection of the venire, raises the necessary
inference of purposeful discrimination.
In deciding whether the defendant has
made the requisite showing, the trial court
should consider all relevant circumstances.
For example, a “pattern” of strikes against
black jurors included in the particular
venire might give rise to an inference of
discrimination. Similarly, the prosecutor’s
questions and statements during voir dire
examination and in exercising his challenges
may support or refute an inference of
discriminatory purpose. These examples are
merely illustrative. We have confidence that
trial judges, experienced in supervising voir
dire, will be able to decide if the
circumstances concerning the prosecutor’s use
of peremptory challenges creates a prima
facie case of discrimination against black
jurors.
Once the defendant makes a prima facie
showing, the burden shifts to the State to
come forward with a neutral explanation for
challenging black jurors. Though this
requirement imposes a limitation in some
cases on the full peremptory character of the
historic challenge, we emphasize that the
prosecutor’s explanation need not rise to the
level justifying exercise of a challenge for
cause. But the prosecutor may not rebut the
defendant’s prima facie case of
discrimination by stating merely that he
challenged jurors of the defendant’s race on
the assumption--or his intuitive judgment-that they would be partial to the defendant
because of their shared race. Just as the
Equal Protection Clause forbids the States to
exclude black persons from the venire on the
assumption that blacks as a group are
unqualified to serve a jurors, so it forbids
the States to strike black veniremen on the
assumption that they will be biased in a
particular case simply because the defendant
is black. The core guarantee of equal
protection, ensuring citizens that their
State will not discriminate on account of
race, would be meaningless were we to approve
the exclusion of jurors on the basis of such
assumptions, which arise solely from the
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jurors’ race. Nor may the prosecutor rebut
the defendant’s case merely by denying that
he had a discriminatory motive or
“affirm[ing] [his] good faith in making
individual selections.” If these general
assertions were accepted as rebutting a
defendant’s prima facie case, the Equal
Protection Clause “would be but a vain and
illusory requirement.” The prosecutor
therefore must articulate a neutral
explanation related to the particular case to
be tried. The trial court then will have the
duty to determine if the defendant has
established purposeful discrimination.
(citations omitted) (footnotes omitted).
Id. at 476 U.S. 79, 96-98, 106 S.Ct 1712, 90 L.Ed.2d 69, 87-89.
“[T]he trial court is in the best position to determine
the intent of peremptory challenges.”
Wells v. Commonwealth,
Ky., 892 S.W.2d 299, 303 (1995), “[T]he trial court’s decision on
the ultimate question of discriminatory intent represents a
finding of fact of the sort accorded great deference on appeal.”
Id. (quoting Hernandez v. New York, 500 U.S. 352, 364, 111 S.Ct.
1859, 1868, 114 L.Ed.2d 395[, 408-409] (1991)).
Our Supreme Court in Commonwealth v. Snodgrass, Ky.,
831 S.W.2d 176, 179 (1992), stated as follows:
The sole determination by the trial
court when it holds a Batson hearing is
whether the prosecutor exercised a peremptory
challenge on a veniremen because of his race.
Batson gives great deference to the trial
court in determining whether the prosecutor’s
strike is racially motivated. A trial court
should give appropriate weight to the
disparate impact of the prosecutor’s
criterion in its decision, but this factor is
not conclusive in the preliminary raceneutral inquiry. Hernandez, supra at 1863.
The trial court may accept at face value the
explanation given by the prosecutor depending
upon the demeanor and credibility of the
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prosecutor. Stanford v. Commonwealth, Ky.,
793 S.W.2d 112 (1990). No additional inquiry
or evidentiary hearing is required under
Batson.
There will seldom be much evidence
bearing on that issue and the best evidence
often will be the demeanor of the attorney
who exercised the challenge. As with the
state of mind of a juror, evaluation of the
prosecutor’s state of mind based on demeanor
and credibility lies “peculiarly within a
trial judge’s province.”Hernandez, supra, 111
S.Ct. at 1869.
We cannot conclude that the trial court was clearly erroneous
when it accepted the reasons the Commonwealth offered as being
non-racially motivated and not pretextual.
The second issue that Miller raises is whether the
trial court erred in not allowing into evidence aerial
photographs of the crime scene.
Miller argues that these photos
were vital to him in his effort to prove that the police could
not have seen him from the driveway, that he had a direct view of
the police from where his vehicle was located, and that because
of the distance between the police and him he had ample time to
have effectively disposed of any cocaine had it been in his
possession.
Since the road directions had remained unchanged
since 1993, the trial court allowed into evidence a city map and
a photograph of the map for the purpose of showing the direction
of the roads involved.
In an effort to lay a proper foundation
for admitting the photographs into evidence, Miller testified for
the limited purpose of describing changes made in the roads
between 1993 and 1995.
On direct examination, Miller stated that
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the road had been widened, substantial bulldozing work had been
performed, and the road had been graveled.
On cross-examination,
Miller testified that “the road here on June 28, 1995, don’t look
nothing like it looked in April --”.
Miller also called other
witnesses who described the changes that had been made to the
road.
While all the witnesses testified that the 1995
photographs were not a substantial representation of the
conditions as they existed in 1993,
Miller nonetheless argues
that since the witnesses accounted for every change since 1993,
the 1995 photographs should have been admitted into evidence.
The trial court denied the admission of the photographs because
they were not a substantial representation of the conditions of
the area as they existed in 1993.
Both parties cite Turpin v. Commonwealth, Ky., 352
S.W.2d 66 (1961), as the controlling authority in this case.
In
Turpin, the Court stated as follows:
The time at which a photograph offered
in evidence was taken is important only with
reference to the question of whether there
has been a change in the condition of the
person or object portrayed. The mere fact
that a photograph was taken at a time
different from the date of the incident in
question does not render it inadmissable if
it can be established as a substantial
representation of the conditions as they then
existed.
Id. at 67.
“Whether to admit or exclude evidence to ensure the
fairness of a trial is within the discretion of the trial court,
and its determination will not be overturned on appeal in the
absence of a showing of an abuse of such discretion.”
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Mullins v.
Commonwealth, Ky., 956 S.W.2d 210, 213 (1997).
We do not believe
the trial court abused its discretion by refusing to admit the
photographs into evidence when they admittedly were not a
substantial representation of the conditions at the time of the
crime.
Miller’s final claim of error is that the trial court erred
in refusing to enter a directed verdict of acquittal.
Our
standard of review for this issue was stated by the Court in
Commonwealth v. Benham, Ky., 816 S.W.2d 186, 187 (1991), as
follows:
On motion for a directed verdict, the
trial court must draw all fair and reasonable
inferences from the evidence in favor of the
Commonwealth. If the evidence is sufficient
to induce a reasonable juror to believe
beyond a reasonable doubt that the defendant
is guilty, a directed verdict should not be
given.
For the purpose of ruling on the
motion, the trial court must assume that the
evidence for the Commonwealth is true, but
reserving to the jury questions as to the
credibility and weight to be given to such
testimony.
On appellate review, the test of a
directed verdict is, if under the evidence as
a whole, it would be clearly unreasonable for
a jury to find guilt, only then the defendant
is entitled to directed verdict of acquittal.
Sawhill. [Commonwealth v. Sawhill, Ky., 660
S.W.2d 3 (1983)].
Miller argues that the Commonwealth failed to meet its
burden of proving that he possessed the ten bags of cocaine.
this Court held in Powell v. Commonwealth, Ky.App., 843 S.W.2d
As
908 (1992), the proper definition of “possession” for offenses
under KRS Chapter 218A is the definition provided in KRS
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500.080(14), as follows: “‘Possession’ means to have actual
physical possession or otherwise to exercise actual dominion or
control over a tangible object.”
The evidence of Miller’s guilt included the following:
three police officers in response to an anonymous drug complaint
went looking for Miller; two detectives from a distance of 50 to
100 yards observed Miller alone drive down a road near them; the
officers observed Miller stop his vehicle and attempt to back it
up in the opposite direction from their police cruiser; after
Miller’s vehicle became stuck in the mud, two detectives observed
Miller throw something under the car; when the two detectives
searched that area, they discovered ten separate packets of
cocaine in quantities believed to be packaged for sale at $25 per
package.
While the detectives did not testify that they saw
Miller throw ten bags of cocaine from his car, a reasonable
inference that the jury could draw from the evidence was that the
ten bags of cocaine found in the mud were thrown there by Miller.
Clearly, all of the above evidence was sufficient to induce a
reasonable juror to believe beyond a reasonable doubt that Miller
possessed the cocaine and that he possessed it with the intent of
trafficking.
For the foregoing reasons, we affirm the judgment of
the Adair Circuit Court.
ALL CONCUR.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Hon. A.B. Chandler III
Attorney General
Hon. Theodore H. Lavit
Lebanon, Kentucky
Hon. Rickie L. Pearson
Asst. Attorney General
Frankfort, Kentucky
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