ROY ELMER WHITE v. COMMONWEALTH OF KENTUCKY
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RENDERED: DECEMBER 23, 1999; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-002509-MR
ROY ELMER WHITE
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE JOHN ADAMS, JUDGE
ACTION NO. 94-CR-00834
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GARDNER, HUDDLESTON AND KNOX, JUDGES.
GARDNER, JUDGE:
Roy Elmer White appeals from an order of the Fayette
Circuit Court denying his motion to vacate, alter, amend or correct
sentence brought pursuant to Kentucky Rule of Criminal Procedure
(RCr) 11.42.
After reviewing the record, we affirm.
On August 24, 1994, Fayette County Police Detective
Ronald Compton obtained a warrant to search the residence at
221 B Creekside Court in Lexington, Kentucky.
On August 24,
1994, the police executed the search warrant and seized small amounts
of cocaine and marijuana, drug paraphernalia, a loaded .380 caliber
semi-automatic handgun, approximately $30,000 cash, and various
miscellaneous papers.
When the police entered the apartment, White
was the only person inside and was in the bed in the bedroom.
White
was arrested and charged with various drug offenses.
In October 1994, the Fayette County Grand Jury indicted
White on one felony count of trafficking in a controlled substance
(cocaine) in the first degree (KRS 218A.1412), one felony count of
trafficking in marijuana within 1,000 yards of a school (KRS
218A.1411), one felony count of possession of a
handgun by a
convicted felon (KRS 527.040), one misdemeanor count of possession of
drug paraphernalia (KRS 218A.500), and one count of being a
persistent felony offender in the first degree (PFO I)(KRS 532.080).
On October 28, 1994, White’s attorney filed a motion to
suppress the evidence seized during execution of the search warrant.
On November 23, 1994, the trial court conducted a hearing on the
motion to suppress.
The only witnesses who testified at the hearing
were Detective Compton and Detective Mark Simmons, who had
participated in surveillance of an undercover drug buy from the
residence on Creekside Court.
During the hearing, defense counsel
asked Detective Compton if he knew the identity of the person who had
leased the Creekside Court apartment, and why he did not include in
the affidavit the fact that the apartment was not leased in White’s
name.
Detective Compton responded that he had not investigated who
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had officially leased the Creekside Court apartment because that fact
was not particularly relevant.
He stated that based on his
experience, persons involved in illegal drug activity often register
items through innocent persons in order to avoid detection and to
conceal the identify of the responsible party from the police.
Following counsel’s argument that the affidavit was insufficient to
support a valid search warrant, the trial court denied the motion to
suppress.
On May 11, 1995, White was tried before a jury.
The
Commonwealth’s witnesses included several of the police officers who
participated in the search of the Creekside location.
Detective
Compton testified that White was in the bedroom and was the only
person in the apartment when the police executed the search warrant.
He said that the police found marijuana, cocaine, drug paraphernalia,
all of the cash, and the handgun in the bedroom.
Compton also stated
that upon questioning White at the time of the search, he had
identified 221 B Creekside Court as his place of residence.
Defense
counsel cross-examined Detective Compton about whether he had
attempted to procure White’s driver’s license and car registration to
ascertain his place of residence.
Detective Compton responded that
White did not have his driver’s license at the time of his arrest,
and that he did not attempt to independently obtain information about
White’s driver’s license registration, but that he did obtain the car
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registration for White’s 1988 Peugeot, which listed 432 Smith Street
as White’s address.
The defense witnesses included White and his uncle, Calvin
Archie.
White testified that he had lived at 432 Smith Street with
his father for over four years prior to his arrest.
During White’s
testimony, the defense introduced a copy of the automobile title
registration for White’s 1988 Peugeot and his Kentucky State driver’s
license, both of which listed his place of residence as 432 Smith
Street.
He stated that his girlfriend, Linda Leach, leased the
Creekside apartment and lived there with the couple’s young daughter.
White testified that he visited the Creekside apartment frequently
and occasionally stayed there overnight, but that because his father
had serious medical problems, he had to spend most of his time at the
Smith Street location.
He stated that he had spent the night before
the search at the Creekside apartment, that he was asleep when the
police entered the apartment, but that none of the drug related items
in the apartment belonged to him.
On cross-examination, White
admitted that he received mail addressed to him at the Creekside
location and that the utilities bill for that apartment was in his
name.
Archie also testified that White lived at 432 Smith Street
with his father.
White’s attorney called Linda Leach as a witness but
before she could take the stand, the prosecutor raised the issue of
whether she had been advised of her Fifth Amendment right against
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self-incrimination.
Defense counsel told the judge that he expected
Leach to testify that the marijuana and handgun belonged to her and
that he had advised her of the consequences of that testimony.
The
trial judge then advised Leach of her right against selfincrimination and appointed a public defender to represent her for
purposes of discussing with her whether she still wanted to testify.
The prosecutor stated that he intended to bring criminal charges
against her if she admitted possession of illegal drugs in her
testimony.
The court recessed the trial for a short period while
Leach consulted with an attorney.
Upon resumption of the trial,
Leach invoked her Fifth Amendment right and decided not to testify.
White’s attorney then moved for a mistrial alleging the prosecutor
had coerced Leach and caused her to not testify.
The trial court
held that the prosecution did not improperly coerce Leach and denied
the motion for a mistrial.
In his closing argument, defense counsel argued that the
Commonwealth failed to show that White possessed any of the illegal
drugs or the firearm recovered in the search.
He stated that if the
police had interviewed the landlord, they would have discovered that
White was not the legal lessee.
He contended that there was
insufficient evidence that White lived at the apartment, rather than
merely visited there frequently.
Counsel argued that White actually
lived with his father at a different residence.
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The jury found White guilty of trafficking in a controlled
substance (cocaine), possession of marijuana, and possession of drug
paraphernalia.
White waived sentencing by the jury and pleaded
guilty to being a PFO I.
The Commonwealth recommended that White be
sentenced to ten years on trafficking enhanced to twenty years on the
status offense of being a PFO I.
In July 1995, the trial court
sentenced White to ten years on trafficking in cocaine, enhanced to
twenty years for being a PFO I, twelve months and a $500 fine on
possession of marijuana, and a $500 fine for possession of drug
paraphernalia.1
In May 1995, defense counsel filed a motion for a new
trial and a motion for judgment notwithstanding the verdict (JNOV).
In the motions, counsel argued that the trial court erred in failing
to grant the pretrial suppression motion.
He also asserted that the
court erred by failing to declare a mistrial because the Commonwealth
intimidated White’s girlfriend by threatening to prosecute her if her
testimony at trial included evidence that she had committed a crime.
The court denied these motions following a hearing on July 21, 1995.
White filed a direct appeal of his conviction.
In his
appeal, White challenged the validity of the search warrant on
several grounds including the truthfulness of the information in the
affidavit supporting the search warrant.
1
The Kentucky Supreme Court
The charge of possession of a handgun by a convicted felon
subsequently was dismissed by agreed order.
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rejected White’s challenges, held the trial court properly denied the
motion to suppress the evidence seized in the search, and affirmed
the conviction.
White v. Commonwealth, 95-SC-689-MR (unpublished
opinion rendered August 29, 1996).
On August 4, 1998, White filed an RCr 11.42 motion raising
several issues including, inter alia, the validity of the search
warrant, obstruction of his ability to call witnesses by the
prosecution, error by the court in giving any instructions on
trafficking, and ineffective assistance of counsel.
requested a hearing on his motion.
to the motion.
White also
The Commonwealth filed a response
On September 22, 1998, the trial court summarily
denied the motion without a hearing.
This appeal followed.
RCr 11.42 provides persons in custody under sentence a
procedure for raising collateral challenges to the judgments entered
against them.
A movant, however, is not automatically entitled to an
evidentiary hearing on a motion.
Wilson v. Commonwealth, Ky., 975
S.W.2d 901, 904 (1998), cert. denied, ___U.S. ____, 119 S. Ct. 1263,
143 L. Ed. 2d 359 (1999).
An evidentiary hearing is not required on
an RCr 11.42 motion where the issues raised in the motion are refuted
on the record, or where the allegations, even if true, would not be
sufficient to invalidate the conviction.
Harper v. Commonwealth,
Ky., 978 S.W.2d 311, 314 (1998), cert. denied, ___U.S. ___, 119 S.
Ct. 1367, 143 L. Ed. 2d 527 (1999);
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Sanborn v. Commonwealth, Ky.,
975 S.W.2d 905, 909 (1998), cert. denied, ___U.S. ___, 119 S. Ct.
1266, 143 L. Ed. 2d 361 (1999).
White raises several arguments on appeal.
First, he
contends that the evidence seized during the search was inadmissible
at trial because the search warrant was issued for the wrong address.
Second, he maintains that the police infringed his constitutional
rights by obtaining a search warrant based on fraudulent and false
information contained in the affidavit.
Third, White argues that he
was denied his constitutional right of compulsory process for
obtaining witnesses because the prosecutor prevented his girlfriend,
Linda Leach, from testifying through intimidation.
Fourth, he
asserts that defense counsel was constitutionally ineffective for
failing to challenge the search warrant.
White’s first three arguments are not subject to review by
way of RCr 11.42, and therefore, are procedurally barred.
In Gross
v. Commonwealth, Ky., 648 S.W.2d 853 (1983), the Kentucky Supreme
Court delineated the procedure for challenging a criminal conviction.
The Court stated as follows:
The structure provided in Kentucky for
attacking the final judgment of a trial court
in a criminal case is not haphazard and
overlapping, but is organized and complete.
That structure is set out in the rules related
to direct appeals, in RCr 11.42 and in CR
60.02.
*
*
*
*
We hold that the proper procedure for a
defendant aggrieved by a judgment in a criminal
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case is to directly appeal that judgment,
stating every ground of error which it is
reasonable to expect that he or his counsel is
aware of when the appeal is taken.
Next we hold that a defendant is required
to avail himself of RCr 11.42 while in custody
under sentence or on probation, parole or
conditional discharge, as to any ground of
which he is aware, or should be aware, during
the period when this remedy is available.
Id. at 856.
See also Commonwealth v. Ivey, 599 S.W.2d 456 (1980).
RCr 11.42 is not a substitute for a direct appeal.
Clay v.
Commonwealth, Ky., 454 S.W.2d 109, 110 (1970), cert. denied, 400 U.S.
943, 91 S. Ct. 245, 27 L. Ed. 2d 247 (1970);
Cinnamon v.
Commonwealth, 455 S.W.2d 583, 584 (1970), cert. denied, 401 U.S. 941,
91 S. Ct. 942, 28 L. Ed. 2d 221 (1971).
RCr 11.42 is limited to
issues that were not and could not be raised on direct appeal.
Sanborn, 975 S.W.2d at 908-09;
Brown v. Commonwealth, Ky., 788
S.W.2d 500, 501 (1990).
White raised several issues concerning the validity of the
search warrant and the sufficiency of the supporting affidavit in his
direct appeal.
In the current appeal, White raises several of the
same grounds challenging the search warrant that he presented in his
direct appeal.
The Kentucky Supreme Court rejected his arguments and
affirmed the trial court’s decision to deny the motion to suppress.
We believe White’s complaints concerning the search warrant either
have been or
could have been raised on direct appeal, and thus, are
not cognizable pursuant to RCr 11.42.
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Similarly, White’s third argument dealing with Linda
Leach’s failure to testify was raised at trial by defense counsel’s
motion for a mistrial.
Counsel presented the same argument in his
oral motion that White asserts on appeal in alleging the prosecution
intimidated Leach.
Clearly, this issue could and should have been
included in the direct appeal.
White’s final issue involves a claim of ineffective
assistance of counsel in violation of the Sixth Amendment.
White
argues that his attorney was ineffective for failing to challenge the
search warrant based on the fact that he lived at 432 Smith Street.
White contends that if counsel had investigated his residence and
challenged the search warrant on the grounds that he resided at the
Smith Street location, rather than the Creekside Court location, the
warrant would have been found invalid.
In order to establish ineffective assistance of counsel, a
person must satisfy a two-part test showing both that counsel’s
performance was deficient and that the deficiency caused actual
prejudice resulting in a proceeding that was fundamentally unfair.
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d
674 (1984);
accord Gall v. Commonwealth, Ky., 702 S.W.2d 37 (1985),
cert. denied, 478 U.S. 1010, 106 S. Ct. 3311, 92 L. Ed. 2d 724
(1986);
Lockhart v. Fretwell, 506 U.S. 364, 113 S. Ct. 838, 112 L.
Ed. 2d 180 (1993).
Attorney performance is based on an objective
standard of reasonableness under the prevailing professional norms.
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Strickland, 466 U.S. at 688, 104 S. Ct. at 2065; Harper v.
Commonwealth, Ky., 978 S.W.2d at 315.
In order to establish
prejudice, a defendant must show a reasonable probability that the
outcome of the proceeding would have been different.
U.S. at 694, 104 S. Ct. at 2068;
Strickland, 466
Bowling v. Commonwealth, Ky., 981
S.W.2d 545, 551 (1998), cert. denied,
___U.S. ___, 119 S. Ct. 2375,
144 L. Ed. 2d 778 (1999).
White has not demonstrated either that counsel was
deficient or that he suffered actual prejudice.
The record
unambiguously reveals that White’s attorney knew that White
maintained a residence at 432 Smith Street.
He raised this fact
during the suppression hearing and at trial.
Both White and his
uncle testified that White lived with his father at the Smith Street
location.
Counsel introduced White’s driver’s license and car
registration which listed 432 Smith Street as his residence.
Counsel
challenged the validity of the search warrant at the suppression
hearing based in part on the fact that the police did not know that
Leach had leased the Creekside apartment and White allegedly lived
elsewhere.
Therefore, White has not demonstrated that counsel was
deficient by acting outside the wide range of professionally
competent assistance.
Even assuming counsel was deficient, White has not shown
actual prejudice.
The Kentucky Supreme Court held on direct appeal
that the affidavit established sufficient probable cause to support
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the search warrant.
The fact that White may have resided at the
Smith Street location would not render the search warrant invalid.
It did not conflict with or negate the other information in the
affidavit indicating that White was selling narcotics from the
Creekside location and that evidence of illegal drug activity
reasonably could be found there.
See Commonwealth v. Smith, Ky.
App., 898 S.W.2d 496 (1995)(affidavit invalid only if defendant can
show that the police omitted facts with the intent to make or in
reckless disregard of whether the omission made, the affidavit
misleading and the affidavit supplemented by the omitted information
would not have been sufficient to support a finding of probable
cause).
The existence of probable cause to search a building is not
contingent on the identity of the persons occupying the place to be
searched.
Id. at 502, 504.
Constructive possession of an object
need not be exclusive to a single person.
Ky., 475 S.W.2d 473, 475 (1971).
Rupard v. Commonwealth,
White’s admission at the trial that
he visited the Creekside location frequently, stayed overnight there
occasionally, and paid the utilities bills in his name belies his
claim that he did not exercise dominion and control over items within
the apartment.
See Houston v. Commonwealth, Ky., 975 S.W.2d 925
(1998)(applying constructive possession principle for person staying
in an apartment with others);
Dawson v. Commonwealth, Ky., 756
S.W.2d 935 (1988)(finding constructive possession of drugs in
apartment even though defendant claimed to have moved several months
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prior to search).
Consequently, White has not established that he
suffered prejudice in that the search warrant would have been
declared invalid and the evidence seized would have been held
inadmissible at trial based on the fact that he maintained a
residence at the Smith Street location.
White’s reliance on Coker v. Commonwealth, Ky. App., 811
S.W.2d 8 (1991) is misplaced.
In Coker, the police obtained a search
warrant for the defendant’s old residence but did not prepare a
second petition and affidavit before searching his new residence.
The court held that the second search conducted without any warrant
petition and accompanying affidavit describing the premises to be
searched was invalid.
In the case at bar, the police submitted a
petition for a search warrant for the location at 221 B Creekside
Court.
The affidavit presented information to support a search of
that location.
White’s argument that the police could not search the
Creekside location and could only search his residence on Smith
Street merely because he was the object of the investigation is
erroneous.
Coker is clearly distinguishable from the current case.
For the foregoing reasons, we affirm the Fayette Circuit
Court’s denial of White’s RCr 114.2 motion without a hearing.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Roy E. White, Pro Se
West Liberty, Kentucky
A. B. Chandler III
Attorney General
Michael L. Harned
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Assistant Attorney General
Frankfort, Kentucky
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