JAMES L. REEVES v. COMMONWEALTH OF KENTUCKY
Annotate this Case
Download PDF
RENDERED: MARCH 23, 2001; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 2000-CA-000356-MR
JAMES L. REEVES
APPELLANT
APPEAL FROM LEWIS CIRCUIT COURT
HONORABLE LEWIS D. NICHOLS, JUDGE
INDICTMENT NO. 96-CR-00050
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
HUDDLESTON, KNOPF and MILLER, Judges.
HUDDLESTON, Judge:
his
probation.
James L. Reeves appeals from an order revoking
The
circuit
court
concluded
that
Reeves
had
violated his probation by using marijuana.
A
Lewis
County
Grand
Jury
returned
a
three-count
indictment against Reeves charging him with one count of Promoting
Contraband in the First Degree (marijuana)1 and one count of
Promoting Contraband (Xanax and marijuana).2
Reeves was also
charged with being a Persistent Felony Offender in the Second
1
See Ky. Rev. Stat. (KRS) 520.050.
2
Id.
Degree.3
Reeves eventually pled guilty to one count of Promoting
Contraband (Xanax and marijuana)4 and was sentenced to five years
in prison.
Some three months after sentencing, the circuit court
granted Reeves’s motion for shock probation and he was placed on
supervised probation for five years.
On December 17, 1999, almost eighteen months after being
released on shock probation, the court entered a revocation hearing
order in which Reeves was notified that he had allegedly violated
the conditions of his probation by testing positive for marijuana
on October 21, 1999.
On January 21, 2000, the court conducted a
probation revocation hearing and concluded that Reeves had violated
the conditions of his probation by using marijuana. On February 4,
2000, the court revoked Reeves’s probation and reinstated his
sentence.
Reeves makes a five-pronged attack on the order revoking
his probation.
First, Reeves contends, the court abused its
discretion by summarily rejecting his explanation that he had
tested positive for marijuana due to exposure to second-hand
marijuana smoke.
Reeves asserts that in doing so the court
violated his due process rights as guaranteed by the Fifth, Sixth
and Fourteenth Amendments to the United States Constitution and
Sections 2 and 11 of the Kentucky Constitution.
3
See KRS 532.080. Reeves had previously been convicted in
Lewis Circuit Court, Indictment No. 92-CR-00037, of Cultivating
Marijuana for Purposes of Sale and was sentenced one year’s
imprisonment.
4
The other two counts of the indictment were dismissed.
-2-
Second, Reeves argues that revoking his probation for
reasons beyond his control was fundamentally unfair.
Third, Reeves asserts that the court could not have found
that a preponderance of the evidence offered by the Commonwealth
supported revocation since a blood test revealed only a small
amount of marijuana in his system.
Fourth, Reeves contends that the court erred in allowing
the Commonwealth to introduce the drug test laboratory report
without laying a proper foundation.
Reeves frames this attack as
an impermissible admission of hearsay evidence and, therefore, a
denial of his right to confront and cross-examine witnesses in
violation of his due process rights as guaranteed by the Fifth,
Sixth and Fourteenth Amendments to the United States Constitution
and Sections 2 and 11 of the Kentucky Constitution.
Finally, Reeves contends that the court deprived him of
his right to due process of law when it refused to grant a
continuance when his counsel requested time to review the drug test
laboratory report.
Credibility
The circuit court found that Reeves’s statement about
second-hand smoke was not credible and said that it did not believe
that second-hand marijuana smoke was the cause of Reeves’s positive
marijuana
test.
discretion.
Reeves
We disagree.
argues
that
this
was
an
abuse
of
“Findings of fact shall not be set aside
unless clearly erroneous, and due regard shall be given to the
opportunity of the trial court to judge the credibility of the
-3-
witnesses.”5
This is merely a question of credibility; and it is
the function of the circuit court to assess credibility.
Reeves’s testimony was not the only evidence before the
court.
The court relied on the field and laboratory test results
confirming that Reeves’s urine had tested positive for marijuana.
Findings
of
fact
are
substantial evidence.6
not
clearly
erroneous
if
supported
by
There was substantial evidence to support
a finding that Reeves had violated the terms of his probation.
Thus, there was no violation of Reeves’s due process rights as
guaranteed by the Kentucky or United States constitutions.
Revocation for Reasons Beyond His Control
Reeves’s second argument is that it was fundamentally
unfair for the court to revoke his probation for reasons beyond his
control.
We do not find in the record any evidence that supports
this argument.
According to Reeves’s testimony, a woman gave
Reeves a ride to his sister’s house.
According to Reeves, the
woman smoked marijuana in the car while driving Reeves to Vanceburg
from Tollesboro, Kentucky.7
Reeves directs our attention to the case of Keith v.
Commonwealth8
in
which
the
probationer,
as
a
condition
of
probation, was to voluntarily commit himself to Eastern State
5
6
Ky. R. Civ. P. (CR) 52.01.
Janakakis-Kostun v. Janakakis, Ky. App., 6 S.W.3d 843
(1999).
7
The same woman who drove Reeves to Vanceburg on about
October 15, 1999, was indicted with Reeves following their arrest
in July 1999 in Hamilton County, Ohio, for possession of cocaine.
8
Ky. App., 689 S.W.2d 613 (1985).
-4-
Hospital for a term of treatment for as long as the hospital
authorities believed he needed to stay.
While the court, the
parties and their attorneys anticipated Keith would be hospitalized
for several months, the admitting psychiatrist determined that
hospitalization
was
not
appropriate
for
the
probationer.
Subsequently, the court revoked Keith’s probation.
In reversing
the circuit court, this Court said that it was “clear that Keith
did everything he possibly could to comply with the requirement
that he admit himself to the mental hospital.”9
We also said that
“having conferred the status [of probationer] on the appellant it
is fundamentally unfair to deprive him of his liberty for reasons
beyond the appellant’s control[.]”10
Keith is not an appropriate analogue for the case under
consideration.
If Reeves is to be believed, he accepted a ride
with a woman he knew to be associated with illegal drug activity.
When she decided to smoke marijuana in his presence, Reeves chose
to remain in the vehicle.
Unlike Keith, Reeves’s exposure to a
probation violation risk was voluntary - his future was not in the
hands of another.
jeopardy.11
Reeves was responsible for putting himself in
Reeves
will
not
be
heard
to
complain
that
the
revocation of his probation was unfair under these circumstances.
Amount of Marijuana
9
10
Id. at 615.
Id.
11
See also Temple v. Helton, Ky. App., 571 S.W.2d 647, 650
(1978) (Park, J., concurring) (a reasonably prudent person would
not ride with a driver who was smoking marijuana).
-5-
Reeves argues that the small amount of marijuana found in
his system cannot support revocation.
In making this argument,
Reeves correctly states that the standard for revocation hearings
is that the court must find a violation of the conditions of
probation by a preponderance of the evidence.12
We
have
found
no
Kentucky
case
that
supports
the
proposition that a drug test that is positive for a controlled
substance must reveal a minimum level of the substance to justify
a finding of exposure to the substance.
Admittedly, a federal
court in Massachusetts recognized that one who was exposed to
second-hand marijuana smoke could show a distinguishable level of
marijuana in his blood as compared with exposure by inhaling.13
However, Reeves presented no scientific evidence that would assist
the fact-finder in determining whether the level of marijuana found
in his system was consistent with second-hand smoke exposure. Once
the Commonwealth established that Reeves had tested positive for
marijuana, the burden of going forward with the evidence shifted to
Reeves and it was up to him to show that his story about exposure
to second-hand smoke was credible.
findings,
sufficient
evidence
of
In light of the drug test
Reeve’s
violation
conditions of his probation is present in the record.
of
the
The court
was not required to believe Reeves’s version of how the marijuana
got in his system.
12
See Rasdon v. Commonwealth, Ky. App., 701 S.W.2d 716, 719
(1986); Murphy v. Commonwealth, Ky. App., 587 S.W.2d 838, 840
(1977).
13
See United States v. Rivera, 104 F.Supp. 2d 159 (D. Mass.
2000).
-6-
Laboratory Report
Reeves argues that the court erred in allowing the
Commonwealth to introduce through the testimony of a person who did
not conduct the test the drug test laboratory report without laying
a proper foundation.
Reeves contends that this ruling admitting
hearsay testimony deprived him of the opportunity to confront and
cross-examine the laboratory technician.
“Hearsay is not admissible except as provided by [the
Kentucky Rules of Evidence] or by rules of the Supreme Court of
Kentucky.”14
However, the Rules of Evidence, while applicable to
most proceedings in the courts of the Commonwealth, do not apply in
probation revocation hearings.15
an informal process.16
A probation revocation hearing is
“[T]he full panoply of rights due the
defendant in criminal prosecutions do not apply to parole [or
probation] revocations.”17
“There is no absolute right to confront
witnesses, especially when the reliability of witnesses . . . can
be
easily
ascertained.”18
Here,
the
chain
of
custody
and
reliability of the urine test are apparent on the face of the
report and are confirmed by the field test.
Therefore, we find no
error in the admission of the report; nor do we find a violation of
14
Ky. R. Evid. (KRE) 802.
15
KRE 1101(d)(5); see also Rasdon, supra, n. 12; Marshall v.
Commonwealth, Ky. App., 638 S.W.2d 288 (1982).
16
Marshall, supra, n. 15 at 289.
17
Id.
18
Id.
-7-
Reeves’s due process rights as guaranteed by the Kentucky or United
States Constitutions.
Failure to Grant Continuance
Reeves
moved
for
a
continuance
for
the
purpose
of
reviewing the drug test laboratory report which he says he received
on the day of the revocation hearing.
“A trial court has broad
discretion in granting or refusing to grant a continuance and that
ruling will not be disturbed absent an abuse of discretion."19
Reeves was on notice that his probation was subject to
revocation because he had tested positive for marijuana on October
21, 1999.
The laboratory test results, obtained at Reeves’s
request, confirmed the alleged violation.
The motion to revoke
Reeves’s probation was filed in mid-December 1999, and the order
scheduling a revocation hearing for January 21, 2000, was entered
on December 17, 1999.
Reeves had ample time to employ an expert to
review the evidence contained in the laboratory report. This would
not necessarily have required a continuance.
The only prejudice
Reeves suffered is due to his lack of diligence.
We find no abuse
of discretion on the part of the circuit court in refusing to grant
a continuance under these circumstances.
Conclusion
“One may retain his status as a probationer only as long
as the trial court is satisfied that he has not violated the terms
Thorcconditionsroffthedprobation.”20 had violated a condition of his
e ircu
cou t oun that Reeves
19
Walker v. Farmer, Ky., 428 S.W.2d 26, 28 (1968).
20
Tiryung v. Commonwealth, Ky. App., 717 S.W.2d 503, 504
(1986) (citations omitted).
-8-
probation and properly revoked his probation.
Its order revoking
Reeves’s probation is affirmed.
ALL CONCUR.
BRIEF AND ORAL ARGUMENT
FOR APPELLANT:
BRIEF FOR APPELLEE:
Albert B. Chandler III
Attorney General of Kentucky
Paul J. Neel, Jr.
Appellate Public Advocate
Louisville, Kentucky
Rickey L. Pearson
Assistant Attorney General
Frankfort, Kentucky
ORAL ARGUMENT FOR APPELLEE:
George G. Seelig
Assistant Attorney General
-9-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
