TIMOTHY E. MACKEY v. COMMONWEALTH OF KENTUCKY
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RENDERED:
AUGUST 31, 2001; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-002235-MR
TIMOTHY E. MACKEY
APPELLANT
APPEAL FROM MUHLENBERG CIRCUIT COURT
HONORABLE DAVID H. JERNIGAN, JUDGE
ACTION NO. 99-CR-00043
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BUCKINGHAM, JOHNSON AND MILLER, JUDGES.
JOHNSON, JUDGE:
Timothy E. Mackey has appealed from the judgment
of the Muhlenberg Circuit Court that convicted him of the
offenses of possession of a controlled substance
(methamphetamine),1 possession of drug paraphernalia,2 and as a
1
Kentucky Revised Statutes (KRS) 218A.1415.
2
KRS 218A.500.
persistent felony offender in the second degree (PFO II).3
Having concluded that any errors that occurred at trial were
either harmless or were not preserved and not palpable, we
affirm.
On March 10, 1999, a Muhlenberg County grand jury
indicted Mackey for possession of methamphetamine, possession of
drug paraphernalia, and PFO II.
At the jury trial held on July
30, 1999, the Commonwealth’s evidence in the guilt phase of the
trial included the testimony of Muhlenberg County Sheriff Jerry
Mayhugh; Deputy Charles Perry; Assistant Police Chief Darren
Harvey; and Forensic Chemist William E. Bowers.
witness was Deputy Perry.
Mackey’s only
The jury convicted Mackey of all three
charges and recommended five-year sentences for each of the two
underlying convictions, which were then enhanced based on the PFO
II conviction to six years each, with the sentences to run
consecutively for a total of 12 years.
The trial court entered a
final judgment on August 24, 1999, and ordered a 12-year
sentence.
This appeal followed.
Mackey claims the Sheriff, the Deputy, and the
prosecutor improperly referred to an anonymous tip that led the
police to investigate allegations of possession of
methamphetamine.
While Mackey concedes that no objection was
made concerning the references to the anonymous tip and that the
issue was not otherwise preserved for appellate review, he claims
3
KRS 532.080.
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that the reference to and admission of this evidence constituted
palpable error under RCr 10.26.4
Sheriff Mayhugh, the Commonwealth’s first witness,
testified that on November 27, 1998, the Muhlenberg County
Sheriff’s Office received an anonymous tip that illegal drug
activity was taking place in the Bremen area of Muhlenberg
County.
The tipster claimed that methamphetamine could be found
in a truck owned by Larry Edmonds.
Sheriff Mayhugh and Deputy
Perry responded to the tip by going to the Bremen area in a
patrol car.
The officers testified that while they were
conducting a patrol of the Bremen area, they observed Edmonds’
truck and followed it.
Sheriff Mayhugh testified he was familiar with both
Edmonds and Mackey; and he was able to observe Edmonds driving
the truck and Mackey as a passenger.
As they were following the
truck, the officers detected the smell of ether, a chemical that
Sheriff Mayhugh knew to be associated with the manufacturing of
methamphetamine.
4
Based upon the tip and the ether odor, the
RCr 10.26 provides:
A palpable error which affects the
substantial rights of a party may be
considered by the court on motion for a new
trial or by an appellate court on appeal,
even though insufficiently raised or
preserved for review, and appropriate relief
may be granted upon a determination that
manifest injustice has resulted from the
error.
-3-
officers stopped the truck.
After stopping the truck and approaching it, the
officers noticed that the smell of ether was becoming
increasingly stronger.
Sheriff Mayhugh testified that after
Mackey exited the passenger side of the truck, he noticed an
oblong hole in the floorboard on the passenger side of the truck
and beside the hole was a fruit jar which contained a liquid he
believed to be ether. Sheriff Mayhugh also discovered a
camouflage jacket in the bed of the truck directly behind the
passenger seat where Mackey had been sitting.
The camouflage
jacket matched the camouflage pants Mackey was wearing.5
The
camouflage jacket found in the truck bed contained
methamphetamine, syringes, and rolling papers.
In the Commonwealth’s opening statement, the
Commonwealth’s Attorney told the jury:
This will not be either a lengthy or
complicated trial. The evidence will
establish that on November the 27th, last
year, Deputy Perry received a telephone call
concerning possible methamphetamine being in
a truck that was owned by Larry Matthew
Edmonds.
Mackey claims this statement by the Commonwealth’s Attorney was
improper because it was in reference to the following testimony
from Sheriff Mayhugh and Deputy Perry, which he argues
constituted inadmissible hearsay:
Commonwealth’s Attorney:
5
Another jacket, which was found in the cab of the truck,
belonged to Edmonds.
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Would you tell us the circumstances
leading up to the initial stop of this
vehicle?
Sheriff Mayhugh:
We received an anonymous phone call
saying that Mr. Edmonds would be going
from point “A”, which I think was in
Gishton, to somewhere in Bremen, point
“B”, and we would find him driving down
the road with probably a meth lab in his
vehicle.
. . .
Commonwealth’s Attorney:
Deputy, in that capacity, back on
November 27, 1998, were you
involved in a traffic stop in which
Defendant Timothy Mackey was a
passenger
Deputy Perry:
Yes. I was.
Commonwealth’s Attorney:
Would you just tell us briefly what
happened on that day and why - what
occurred and what you did?
Deputy Perry:
Yeah. I got a call into the
office that there had been
some illegal drug activity in
a drug [sic] driven by Larry
Edmonds.
Mackey argues that this testimony concerning the
anonymous tip deprived him of his right to confront the witnesses
against him pursuant to the Sixth and Fourteenth Amendments to
the United States Constitution and Section 11 of the Kentucky
Constitution.
Mackey relies on Gordon v. Commonwealth,6 where
our Supreme Court held it to be reversible error to allow
6
Ky., 916 S.W.2d 176 (1995).
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testimony over the objection of the defendant which implicated
the defendant as a drug dealer.
However, we believe this case is
both legally and factually distinguishable from Gordon, where the
Court’s analysis did not involve the palpable error rule.
In
Gordon, the testimony directly implicated the defendant; whereas
the anonymous tip in this case did not mention Mackey.
The police in Gordon used a paid informant to make a
controlled drug buy from a suspected dealer.
The informant “had
been ‘wired’ with a tape recorder [, but] this device essentially
failed and produced a tape recording of poor quality.
the evidence at trial was hotly disputed.”
As such,
The informant
“testified for the Commonwealth that he had made the cocaine
purchase and [Gordon], testifying on his own behalf, denied it.
Jury assessment of the witnesses’ credibility was crucial.”7
The Supreme Court discussed the hearsay testimony as
follows:
Appellant claims reversible error
arising out of hearsay testimony given by
Detective Robert Link on direct examination.
The Commonwealth’s first witness was
Detective Link, a narcotics officer for the
City of Russellville Police Department.
Without objection, he testified that in the
course of a county-wide investigation, he had
reason to suspect appellant of drug
trafficking. He was then asked how he
proceeded to further investigate appellant.
In response, Detective Link replied,
On June 4 we did what’s called
preliminary surveillance of the area
around Sportman’s Lounge at Fifth and
7
Id. at 178.
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Morgan, which we had had quite a bit of
drug activity go on in that area. Mr.
Gordon was suspected to be selling
narcotics from the Fifth and Morgan
Area.
Appellant, by counsel, objected on
hearsay grounds and an extensive colloquy
then ensued between counsel for the parties
and the trial court. In essence, appellant
claimed that the answer was based on hearsay
statements and indeed, upon voir dire of the
witness, established that the witness had
relied in part on information from others
including confidential informants. The
Commonwealth contended that the testimony was
not hearsay because it was not offered for
the truth of the matter asserted; that it was
only to show the course of the investigation.
The trial court overruled the objection.8
In reversing Gordon’s conviction and ordering a new
trial, the Supreme Court cited Lawson, The Kentucky Evidence Law
Handbook,9 Releford v. Commonwealth,10 Sanborn v. Commonwealth,11
and Hughes v. Commonwealth.12
The Court noted that “hearsay may
be admissible to prove why the police acted in a certain manner,
but not to prove the facts given to the officer” and that “such
information is admissible only if there is an issue about the
action of the police officer.”13
The Supreme Court concluded:
8
Id.
9
§8.05 (3d ed., 1993).
10
Ky., 860 S.W.2d 770, 771 (1993).
11
Ky., 754 S.W.2d 534 (1988).
12
Ky., 730 S.W.2d 934 (1987).
13
Gordon, supra at 179.
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In the case at bar, it was not improper
to admit evidence that appellant had become a
suspect in the county-wide drug
investigation. This avoided any implication
that appellant had been unfairly singled out
and explained why the police equipped an
informant with a recording device and money
with which to attempt a drug buy from
appellant. The next question, however, was
utterly unnecessary and unfairly prejudicial.
There was no legitimate need to say or imply
that appellant was a drug dealer or that he
was suspected by the police department of
selling drugs in a particular vicinity. Such
testimony was admittedly based in part on
hearsay and was thus unassailable by
appellant. Admission of this evidence
branded appellant a drug dealer, violated his
right to confront and cross-examine
witnesses, denied his right to be tried only
for the crime charged, and in general,
bolstered the credibility of the police
informant to the point where appellant’s
denial of criminal conduct would have
appeared preposterous.14
Applying Gordon to the case sub judice, we believe the
testimony from Sheriff Mayhugh and Deputy Perry was proper.
This
testimony was not offered to prove that Mackey was involved in
illegal drug activity, but instead it was used to show why the
police acted in a certain manner and to show the course of the
investigation.
Furthermore, even if we were to conclude that
this testimony was inadmissible hearsay which should have been
excluded if properly objected to, we cannot conclude that this
unpreserved error meets the palpable error test.
As our Supreme Court has stated:
[T]he requirement of ‘manifest injustice’ as
used in RCr 10.26 (formerly RCr 9.26) [ ]
14
Id.
-8-
mean[s] that the error must have prejudiced
the substantial rights of the defendant,
Schaefer v. Commonwealth, Ky., 622 S.W.2d 218
(1981), i.e., a substantial possibility
exists that the result of the trial would
have been different. Partin v. Commonwealth,
Ky., 918 S.W.2d 219, 224 (1996). One federal
court has interpreted FRE 103(e), which is
identical to KRE 103(e), as requiring that
the error must seriously affect the fairness,
integrity or public reputation of judicial
proceedings. United States v. Filani, 74
F.3d 378 (2d Cir. 1996).15
In Partin, supra, the Supreme Court stated that “upon
consideration of the whole case, the reviewing court must
conclude that a substantial possibility exists that the result
would have been different in order to grant relief.
Jackson v.
Commonwealth, Ky.App., 717 S.W.2d 511 (1986).”16
Based on all of the evidence in the case sub judice, we
hold that there is not a substantial possibility that without
this testimony from Sheriff Mayhugh and Deputy Perry concerning
the anonymous tip that the result of the trial would have been
any different.17
While Mackey contends that the Commonwealth was
attempting to use evidence of a tip to have the jury unfairly
draw a conclusion that he had been implicated by reliable
information in a drug deal, we do not believe that this isolated
testimony was so persistent and prejudicial to cause a manifest
15
Brock v. Commonwealth, Ky., 947 S.W.2d 24, 28 (1997).
16
See also Byrd v. Commonwealth, Ky., 825 S.W.2d 272, 276
(1992).
17
See Renfro v. Commonwealth, Ky., 893 S.W.2d 795, 796
(1995).
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injustice.18
As Mackey readily concedes in his brief, the
central issue at trial was whether the jacket found in the bed of
the truck containing illegal drugs and drug paraphernalia
belonged to Mackey.
Even if the testimony concerning the tip
were viewed as improper hearsay evidence, we cannot conclude that
this isolated testimony was so prejudicial as to constitute a
manifest injustice.
Upon consideration of the whole case, we
cannot conclude that a substantial possibility exists that the
result would have been any different.19
Mackey claims he was prejudiced during the penalty
phase of his trial when the circuit clerk testified that he had
been charged with a felony that was later amended to a
misdemeanor.
Once again, no objection was made to this testimony
and Mackey claims palpable error.
During the penalty phase of the trial, the Commonwealth
presented evidence of Mackey’s previous convictions through the
testimony of the circuit clerk.
The following colloquy between
the Commonwealth’s Attorney and the circuit clerk occurred:
Commonwealth’s Attorney:
Now direct [sic] your attention to
95-CR-108. Would you tell us the
name of the defendant in that
particular case?
Circuit Court Clerk:
Timothy E. Mackey
Commonwealth’s Attorney:
18
Cf. Schaefer, supra at 219.
19
Cf. Jackson, supra at 514.
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And the date of the charge?
Circuit Court Clerk:
He was indicted on October 3, 1995.
Commonwealth’s Attorney:
And what was the charge?
Circuit Court Clerk:
Theft over three hundred.
Commonwealth’s Attorney:
And was there a conviction obtained
in that particular case?
Circuit Court Clerk:
Yes, sir. There was.
Commonwealth’s Attorney:
And I believe, for the record, the
conviction was under three hundred,
is that correct.
Circuit Court Clerk:
That is correct.
Commonwealth’s Attorney:
And what was the sentence that he
was given in that charge?
Circuit Court Clerk:
Twelve months in the county jail.
Mackey relies on Perdue v. Commonwealth,20 where
several reversible errors occurred, including the introduction of
testimony from the circuit clerk that Perdue had been charged
with four counts of murder which had been amended to
manslaughter.
The Supreme Court stated:
During the penalty phase the circuit court
clerk was called by the Commonwealth to
testify as to appellant’s prior criminal
convictions. In the course of his testimony,
the clerk stated that appellant had been
20
Ky., 916 S.W.2d 148 (1996).
-11-
convicted of “murder, four counts.” In fact,
appellant had been charged with four counts
of murder arising out of a vehicular homicide
but the charges had been amended and
appellant had pled guilty to manslaughter in
the second degree for which he was sentenced
to seven years on each count.
When this error was brought to the
attention of the trial court, and after
appellant’s motion for a mistrial had been
overruled, the trial court admonished the
jury to disregard the reference to murder.
The court explained that the jury should
consider only the conviction for manslaughter
in the second degree and make no presumptions
as to murder. The effect of the admonition
was to inform the jury that appellant had
been permitted to plea bargain four counts of
murder into four convictions for manslaughter
in the second degree.
It is difficult to conceive of
information which would have been more
prejudicial than that which came to the jury
here. By that time, appellant had been
convicted of what may be the most heinous of
all crimes, murder for hire, and the jury
which was about to fix his punishment was
informed that he had been previously charged
with four counts of murder but had escaped
with second degree manslaughter. Inevitably,
such information would lead the jury to
conclude, notwithstanding the court’s
inartful admonition to disregard any
reference to murder, that appellant had
previously escaped just punishment and
motivate it to see that it did not happen
again.21
In the case before us, the circuit clerk testified
during the sentencing phase of the trial to Mackey’s 11 prior
convictions, five of which were drug related.
We believe as a
matter of degree that the case sub judice is distinguishable from
21
Id. at 164-65.
-12-
Perdue and that it more closely resembles Taylor v.
Commonwealth,22 where the Supreme Court stated:
It was not reversible error when a court
clerk witness erroneously testified in the
penalty phase that Taylor previously had been
convicted of trafficking in cocaine. The
deputy clerk immediately corrected himself
and testified that it had been amended to
illegal possession of a controlled substance.
The trial judge overruled the defense motion
and allowed the prosecution to proceed. The
clerk then testified that Taylor had been
convicted of trafficking in a controlled
substance, operating on a suspended license
and wanton endangerment in other cases.
Citation to Perdue, supra, to support
the arguments for a new trial is without
merit. Perdue is easily distinguishable from
this case because Taylor did not receive the
maximum penalty for either offense, and the
situation is not one involving a heinous
crime or the death penalty, as was the case
in Perdue. There was no error.23
Similarly, we believe the case sub judice is
distinguishable from Perdue.
In the present case, Mackey did not
receive the maximum sentence as a PFO II for either the drug
possession conviction or the drug paraphernalia conviction.
Also, unlike Perdue, Mackey’s charges did not involve a heinous
crime or the death penalty.
It is much more likely that Mackey
was adversely affected by his long history of drug-related
convictions than by the claimed error.
Since we hold that there
was no error, obviously there was no palpable error.
Finally, Mackey argues that a jury instruction which
22
Ky., 987 S.W.2d 302 (1998).
23
Id. at 305-06.
-13-
required the jury to determine that the Commonwealth
intentionally destroyed evidence before it could infer that the
missing evidence would have been favorable to Mackey and
unfavorable to the Commonwealth was erroneous.
As stated
previously, the critical factual determination the jury had to
make in this case was the ownership of the camouflage jacket
found in the bed of the truck.
While it is unclear why the
police officers did not confiscate the camouflage jacket and
Mackey’s camouflage pants, Sheriff Mayhugh and Deputy Perry did
take a picture of Mackey standing beside the jacket.
Since this
picture was lost before trial, Mackey asked the trial court to
give the following missing evidence instruction:
If you believe from the evidence that
there existed [p]hotographs of a coat that
Sheriff’s Deputy’s identify as [c]ontaining
methampetamine [sic] and syringes, and that
agents or [e]mployees of the Commonwealth
destroyed or lost said photographs, [y]ou
may, but are not required to, infer that the
photographs [w]ould be, if available, adverse
to the Commonwealth and favorable [t]o the
Defendant.
The instruction given by the trial court stated:
There existed a photograph of a jacket.
If you believe from the evidence that agents
or employees of the Commonwealth
intentionally destroyed it, you may, but are
not required to, infer that the photograph
would be, if available, adverse to the
Commonwealth and favorable to the Defendant.
The main difference in these two instructions is that the
instruction proposed by Mackey would have allowed the jury to
infer that the missing evidence was adverse to the Commonwealth,
-14-
since the photograph had been lost; whereas the instruction that
was given allowed for an inference only upon a finding that
agents or employees of the Commonwealth intentionally destroyed
the photograph.
In Johnson v. Commonwealth,24 physical evidence was
lost after it had been examined by the Kentucky State Police and
then returned to the victim’s family.
The trial court rejected
the defendant’s tendered instruction which would have required
the jury to assume that the missing evidence would have been
favorable to Johnson.
Instead, the trial court gave a missing
evidence instruction which was very similar to the one used in
the case sub judice.
The Johnson instruction read:
If you believe from the evidence that
there existed certain items that were
potential evidence, and that the agents or
employees of the Commonwealth intentionally
destroyed the same, you may, but are not
required to, infer that these items would be,
if available, adverse to the Commonwealth and
favorable to the defendant.25
As in the present case, in Johnson there was absolutely no
evidence of any bad faith on the part of the police or the
Commonwealth.
In Collins v. Commonwealth,26 our Supreme Court adopted
a standard which requires the defendant to show that the evidence
was missing as a result of bad faith on the part of the
24
Ky., 892 S.W.2d 558 (1994).
25
Id. at 561.
26
Ky., 951 S.W.2d 569 (1997).
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government and it approved a jury instruction similar to the one
given here.
Collins was convicted of raping his step-daughter
and sentenced to life in prison.
He claimed the Commonwealth
violated his due process rights by failing to collect and
preserve a towel in which he allegedly ejaculated.
In rejecting Collins’ argument that his due process
rights had been violated, the Court cited a United States Supreme
Court opinion with approval:
[T]he Due Process Clause requires a different
result when we deal with the failure of the
State to preserve evidentiary material of
which no more can be said than it could have
been subjected to tests, the results of which
might have exonerated the defendant. . . .
We think that requiring a defendant to show
bad faith on the part of the police both
limits the extent of the police’s obligation
to preserve evidence to reasonable bounds and
confines it to that class of cases where the
interests of justice most clearly require it,
i.e., those cases in which the police
themselves by their conduct indicate that the
evidence could form a basis for exonerating
the defendant. We therefore hold that unless
a criminal defendant can show bad faith on
the part of the police, failure to preserve
potentially useful evidence does not
constitute a denial of due process.27
The Supreme Court held that the failure to collect and to
preserve the towel did not meet this standard.
The Court stated:
The Commonwealth concedes, and we agree,
that it was negligent in failing to collect
and preserve the towel. Nonetheless, mere
negligence simply does not rise to the level
of bad faith required by Youngblood, supra.
Appellant cannot substantiate any ill motive
27
Id. at 572 (citing Arizona v. Youngblood, 488 U.S. 51, 109
S.Ct. 333, 102 L.Ed.2d 281 (1988)).
-16-
or intention on the part of the Commonwealth
in failing to collect the towel.28
Similarly, in the case sub judice, Mackey has not
claimed that the Commonwealth acted in bad faith in not
preserving the photograph.
In fact, the Commonwealth has
contended throughout the proceedings that the photograph would
have supported the arresting officers’ testimony that the
camouflage jacket matched Mackey’s pants.
Since there was no
evidence that the Commonwealth intentionally destroyed or lost
the photograph, the jury instruction that was given was proper.
For these reasons, the judgment and sentence of the
Muhlenberg Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Christopher F. Polk
Louisville, KY
A.B. Chandler, III
Attorney General
Gilbert L. Busby, III
Assistant Attorney General
Frankfort, KY
28
Id. at 573.
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