LEON COBB v. COMMONWEALTH OF KENTUCKY
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RENDERED: April 30, 1999; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 1997-CA-003246-MR
LEON COBB
APPELLANT
APPEAL FROM FULTON CIRCUIT COURT
HONORABLE W. L. SHADOAN, JUDGE
INDICTMENT NO. 97-CR-25
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** ** ** **
BEFORE:
HUDDLESTON, MCANULTY and SCHRODER, Judges.
HUDDLESTON, JUDGE.
Leon Cobb appeals from a Fulton Circuit Court
judgment based on a jury verdict convicting him of two counts of
trafficking in cocaine.
He was sentenced to a total of 13 years'
imprisonment to run consecutively to a sentence imposed in an
unrelated case.
Cobb's conviction stemmed from two occasions when he
allegedly sold crack cocaine to a confidential informant.1
On
April 7, 1996, Cobb sold a rock of crack cocaine to a confidential
1
Cobb was charged in an indictment with three counts of
trafficking in cocaine, but one count was dismissed since Hickman
police officer John Gardner did not view the transaction and the
person to whom the cocaine was allegedly sold was not present to
testify at trial.
informant for the sum of $20.00.
The transaction was witnessed by
Hickman police officer John Gardner who testified at trial that he
searched the informant before the buy and gave him $20.00 and a
tape recorder.
Gardner followed the informant to the 7th Street
Apartments in Hickman and watched as the informant made the drug
buy.
Gardner testified that the informant was approximately 50 to
60 feet in front of him and was in his view at all times (Gardner
used a half-binocular), except for a "split second" when he turned
around and walked backward into a doorway at a motel directly
across from the area where the transaction took place.
After the
buy, the informant gave the cocaine to Gardner and was again
searched. Gardner then locked up the cocaine at the Hickman Police
Department and later delivered it to the Madisonville Forensic
Laboratory.
The second buy occurred on May 20, 1996, when Cobb
sold another rock of crack cocaine to the same informant.
The
facts surrounding this transaction resemble the April 7, 1996,
transaction, except that Gardner did not use the half-binocular.
After hearing the evidence, a jury found Cobb guilty of
two counts of trafficking in cocaine and recommended a 10-year
sentence on each count.
The instructions did not provide for the
jury's recommendation as to concurrent or consecutive sentences.
See Ky. Rev. Stat. (KRS) 532.055(2).
follow
the
jury's
sentencing
The trial court did not
recommendation,
but,
instead,
sentenced Cobb to eight years' imprisonment on the first count and
five years on the second count.
tively.
The sentences were run consecu-
This appeal followed.
-2-
Cobb urges this Court to reverse his conviction because,
he claims, the trial court erred when it refused to grant his
motion for a directed verdict of acquittal.
Cobb argues that no
reasonable juror could have believed that Gardner could have
identified a piece of clear plastic with tiny granules of white
powder passing from one hand to another from 40 to 50 feet away.
Ky. Rev. Stat. (KRS) 218A.1412(1) provides, in pertinent
part, that:
A
person
is
guilty
of
trafficking
in
a
controlled
substance in the first degree when he knowingly and
unlawfully traffics in: a controlled substance, . . .
classified in Schedules I or II which is a narcotic
drug;2 a controlled substance analogue; lysergic acid
diethylamide; or phencyclidine.
"Distribute," according to KRS 218A.010(9), means:
[T]o deliver other than by administering or dispensing a
controlled substance.
"Traffic," according to KRS 218A.010(28), means:
[T]o manufacture, distribute, dispense, sell, transfer,
or
possess
with
intent
to
manufacture,
distribute,
dispense, or sell a controlled substance.
2
Cocaine is a Schedule II controlled substance.
Stat. (KRS) 218A.070.
-3-
Ky. Rev.
We agree with the trial court that the issue of whether
Cobb transferred cocaine to the informant was properly submitted to
the jury and that the Commonwealth produced enough evidence to
sustain Cobb's conviction on both counts.
As the Supreme Court
said in Commonwealth v. Benham, Ky., 816 S.W.2d 186, 187 (1991):
On motion for 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.
Given Gardner's testimony, it was not clearly unreasonable for the
jury to find Cobb guilty of both counts of trafficking in cocaine.
Cobb next argues that the trial court erred by refusing
to grant a continuance or dismissal based upon the Commonwealth's
failure to provide a correct name for or the location of the
confidential informant.
Cobb insists that the Commonwealth's
failure to provide the informant's name constituted a discovery
violation which justifies setting aside his conviction under the
principles set forth in Weaver v. Commonwealth, Ky., 955 S.W.2d 722
(1997).
-4-
In Weaver, a pre-trial discovery order directed the
Commonwealth
to
"’provide
the
defendant
with
the
names
and
addresses, if known, of all persons known by the Commonwealth to
have been personally present at the scene during the commission of
the offense charged.'"
Id. at 725.
In the present case the
discovery order provided that "if all the parties agree they may
exchange with the other the list of the witnesses intended to be
called on direct at least three (3) days prior to the date
scheduled for trial."
Cobb failed to request, and the trial court
did not order, the Commonwealth to provide the name and/or address
of the informant.3
On September 22, 1997, Gardner met with the informant to
remind him that two trials were scheduled in October, including
Cobb's.
The informant told Gardner that he had been threatened by
a criminal suspect against whom he was to testify.
On September
24, 1997, Gardner attempted to subpoena the informant for Cobb's
trial, but failed to locate him.
On October 6, 1997, the Common-
3
The Commonwealth has a continuing duty to turn over
exculpatory evidence to a defendant whether or not he requests it.
Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215
(1963). The Commonwealth's failure to produce favorable evidence
amounts to a constitutional error only if there is a reasonable
probability that, had the evidence been disclosed to the defense,
the result of the proceeding would have been different.
"[A]
constitutional error occurs, and the conviction must be reversed,
only if the evidence is material in the sense that its suppression
undermines confidence in the outcome of the trial." United States
v. Bagley, 473 U.S. 667, 678, 105 S.Ct. 3375, 3381, 87 L.Ed.2d 481,
491 (1985).
During a pre-trial conference, the trial court
determined that because these were "controlled buys," the informant
would not be able to provide Cobb with any evidence essential to
his defense.
-5-
wealth notified Cobb's counsel that the informant had disappeared.
Apparently, the informant was to testify against another individual
represented by Cobb's counsel in a trial scheduled for October 8,
1997.
Ky. R. Crim. Proc. (RCr) 9.04 governs the postponement of
trials:
The court, upon motion and sufficient cause shown by
either party, may grant a postponement of the . . .
trial.
A motion by the defendant for a postponement on
account of the absence of evidence may be made only upon
affidavit
showing
the
materiality
of
the
evidence
expected to be obtained, and that due diligence has been
used to obtain it.
If the motion is based on the absence
of a witness, the affidavit must show what facts the
affiant believes the witness will prove, and not merely
the effect of such facts in evidence, and that the
affiant believes them to be true.
If the attorney for
the Commonwealth consents to the reading of the affidavit
on the . . .
trial as the deposition of the absent
witness, the . . . trial shall not be postponed on
account of his absence.
If the Commonwealth does not
consent to the reading of the affidavit, the granting of
a continuance is in the sound discretion of the trial
judge. (Emphasis supplied.)
-6-
Cobb was aware 14 days before trial that the informant
could not be located.
He did not submit the required affidavit so
that the court could determine whether the witness had relevant
testimony to offer or so that the Commonwealth might consent to its
reading as the deposition of the absent witness.
Cobb also failed
to request that the Commonwealth provide the name and address of
the informant in order to avail himself of the subpoena power
available to him to compel the informant's appearance at trial.
Thus, the trial court did not abuse its discretion when it denied
Cobb's motion for a postponement of the trial.
Morris v. Slappy,
461 U.S. 1, 103 S.Ct. 1610, 75 L.Ed.2d 610 (1983); Dishman v.
Commonwealth, Ky., 906 S.W.2d 335 (1995).4
Cobb's third ground for reversal is that the trial court
erred when it failed to grant a mistrial after Gardner testified
that the informant disappeared because he feared for his life.
During cross-examination, Cobb's counsel asked Gardner several
questions about the identity and whereabouts of the informant.
Gardner testified that he attempted to subpoena the informant but
was unable to locate him.
On redirect, Gardner testified that the
informant told him that he was in "fear of his life" and that his
fear had "nothing to do with this defendant [Cobb] whatsoever."
Cobb objected on hearsay grounds.
4
The Commonwealth, citing
that the identity of the informant
Commonwealth did not invoke and
below, we will not consider it on
Ky. R. Evid. (KRE) 508, argues
was privileged. Inasmuch as the
support its claim of privilege
appeal.
-7-
Hearsay is not admissible except as provided in the Rules
of Evidence or by rules of the Supreme Court.
803.
Ky. R. Evid. (KRE)
KRE 801(c) defines "hearsay" as "a statement, other than one
made by the declarant while testifying at the trial or hearing,
offered in evidence to prove the truth of the matter asserted."
There are a number of exceptions to the hearsay rule.
See generally David F. Binder, The Hearsay Handbook (3rd ed. 1991).
Pertinent here is the exception contained in KRE 803(3):
"A
statement of the declarant's then existing state of mind, emotion,
sensation, or physical condition (such as intent, plan, motive,
design, mental feeling, pain, and bodily health)" is not excluded
by the hearsay rule.
According to Professor Lawson,
Internal states of mind (e.g., intention, love, malice,
knowledge, fear, etc.) are frequently pertinent to issues
arising in litigation.
They are no less difficult to
prove than pain or bodily condition, not being observable
to the naked eye, and thus have long been the subject of
an important exception to the hearsay rule:
Assuming that the state of mind of a person at a
particular time is relevant, his declarations made
at that time are admissible as proof on that issue,
not withstanding they were not made in the presence
of the adverse party.
[Quoting Goin v. Goin, 313
Ky. 259, 263, 230 S.W.2d 896, 898 (1950).]
The critical element of the exception is the contemporaneity of the statement and the state of mind it manifests.
-8-
Robert G. Lawson, The Kentucky Evidence Handbook § 8.50 II (3rd ed.
1993).
See also The Hearsay Handbook, supra at § 301; Mutual Life
Ins. Co. v. Hillman, 145 U.S. 285, 12 S.Ct. 909, 36 L.Ed. 706
(1892); DeGrella v. Elston, Ky., 858 S.W.2d 698, 709 (1993); and
L.K.M. v. Department for Human Resources, Ky. App., 621 S.W.2d 38
(1981).
A statement is not admissible under the KRE 803(3)
exception to the hearsay rule unless the state of mind expressed in
the statement is relevant, The Kentucky Evidence Law Handbook,
supra at § 8.50 II, because only relevant evidence is admissible.
KRE 402.
Gardner's testimony as to the informant's state of mind,
fear for his life, that apparently led him to absent himself from
Cobb's trial was relevant because Gardner had been pressed to
account for the informant's absence and because the Commonwealth
was entitled to explain to the jury that it had not procured the
absence of a witness who might have given pertinent testimony.
Thus, the circuit court did not err in declining to grant Cobb's
motion for a mistrial when the testimony was elicited.
Cobb's next argument is that the Commonwealth failed to
establish the chain of custody of the cocaine because the Commonwealth did not offer the testimony of the informant who made the
buy. Cobb insists that the Commonwealth failed to produce evidence
which showed "Cobb hand the cocaine to the informant."
True enough, the Commonwealth had the burden of identifying and tracing the chain of custody of the cocaine admitted into
-9-
evidence.
(1987).
Commonwealth v. Hubble, Ky.App., 730 S.W.2d 532, 534
The proof must show when and where the evidence was
obtained, and in whose possession it had been since it was found.
To meet this burden, the Commonwealth introduced the testimony of
Gardner
who
observed
separate occasions.
Cobb
sell
the
informant
cocaine
on
two
Gardner also testified that he searched the
informant before and after the exchange and watched the transactions from start to finish.
After the buys, Gardner secured the
cocaine at the Hickman Police Department and later transported it
to the Madisonville Forensic Laboratory. Brandon Werry, a forensic
chemist, testified that the powder was, in fact, cocaine.5
Indeed,
there is nothing in the record to suggest that the integrity of the
evidence
was
compromised
or
opportunity to tamper with it.
S.W.2d 182, 185 (1990).
that
anyone
had
a
reason
or
an
Reneer v. Commonwealth, Ky., 784
The chain of custody was adequately
established.
Lastly, Cobb asserts that the trial court erred when it
failed to instruct the jury in the penalty phase of the trial to
recommend whether the sentences it recommended be imposed were to
run concurrently or consecutively.
Cobb concedes that this issue
was not properly preserved for appellate review, but requests that
this Court address this by finding Cobb's counsel ineffective.
5
The parties stipulated in regard to the chain of custody
that the cocaine was received at the Western Regional Laboratory by
Lonnie Henson, an employee, who turned it over to Brandon Werry.
Henson received the cocaine from the Hickman Police Department.
-10-
We first note that there is no error appropriate for
appellate
review
concerning
ineffective
assistance
of
counsel
inasmuch as that issue was not raised at the trial level by means
of a post-trial motion.
White v. Commonwealth, Ky. App., 695
S.W.2d 438, 440 (1985).
While
the
jury
should
be
given
an
opportunity
to
recommend whether two or more sentences should be served concurrently or consecutively, the trial court is not bound to accept the
jury's
recommendation.
KRS
532.110;
KRS
Commonwealth, Ky., 740 S.W.2d 930,931 (1987).
532.055;
Dotson
v.
Thus, even if the
trial court had submitted an appropriate instruction and the jury
had recommended a concurrent sentence, the court would have been
free to sentence Cobb to consecutive sentences, as it did.
Cobb
has shown no prejudice.
The error was harmless and, as a result,
it must be disregarded.
RCr 9.24.
The judgment is affirmed.
All CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Susan J. Balliet
Louisville, Kentucky
A. B. Chandler III
Attorney General of Kentucky
Dana M. Todd
Assistant Attorney General
Frankfort, Kentucky
-11-
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