TOMMY RITCHIE v. COMMONWEALTH OF KENTUCKY
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RENDERED: JULY 26, 2002; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2001-CA-000854-MR
TOMMY RITCHIE
APPELLANT
APPEAL FROM BREATHITT CIRCUIT COURT
HONORABLE LARRY MILLER, JUDGE
ACTION NO. 00-CR-00054
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER, COMBS AND JOHNSON, JUDGES.
JOHNSON, JUDGE:
Tommy Ritchie has appealed from a judgment of
conviction and sentence entered by the Breathitt Circuit Court on
March 24, 2001, which convicted him of trafficking in a
controlled substance in the first degree.1
Having concluded that
any error committed by the trial court was harmless, we affirm.
On October 6, 2000, a Breathitt County grand jury
returned an indictment against Ritchie for the offense of
1
Kentucky Revised Statutes 218A.1412.
trafficking in a controlled substance in the first degree.
At a
jury trial held on February 13, 2001, Ritchie was convicted of
the trafficking offense and the jury recommended a sentence of
five years’ imprisonment.
On March 24, 2001, the trial court
entered a final judgment confirming the jury’s verdict and
sentenced Ritchie in accordance with the jury’s recommendation.
This appeal followed.
On January 9, 2000, Beverly Little assisted the
Kentucky State Police (KSP) in making a controlled drug buy from
Ritchie that was videotaped by the KSP.
Little testified that
Ritchie called her unannounced and indicated that he knew where
he could get some oxycodone pills for the two of them.
Little
testified that she was involved in several controlled buys with
the KSP that were recorded on audio tape, but that she was not
expecting Ritchie’s call and that she did not tape it.
Little
testified that Ritchie asked if he could borrow $40.00 from her
to buy some pills for himself.
She agreed to give Ritchie $40.00
plus another $200.00 to use to purchase pills for her.
Ritchie
went to Little’s house and picked up the $240.00 and returned
shortly thereafter with oxycodone pills.
Ritchie testified that Little had repeatedly attempted
to contact him by telephone on January 9, 2000, and that he did
not initiate the contact with her.
Ritchie testified that after
Little gave him the $240.00 he went to purchase the drugs from a
man identified as Chester.
Ritchie testified that he purchased
five “forties” of oxycodone from Chester.
-2-
Ritchie claimed that
he did not use the $40.00 that Little gave him to purchase drugs
for himself, but instead kept that money as payment for a prior
debt that Little owed him.
As rebuttal to Ritchie’s defense that he was entrapped
by Little and the KSP on January 9, 2000, the Commonwealth called
as a witness Detective Dan Smoot of the KSP.
Det. Smoot
testified that he and Little had made several telephone calls on
January 9, 2000, about potential drug deals but that Ritchie had
not been contacted.
Det. Smoot testified that Ritchie called
Little and that they had no idea he was going to call.
Det.
Smoot also testified that most of Little’s telephone calls were
recorded but Ritchie’s call was not recorded because he was not
expected to call and the recording machine was not connected.
Det. Smoot claimed that at the time Ritchie called, he had
unhooked the recorder to review tapes of previously recorded
conversations involving Little.
On appeal, Ritchie claims that the trial court abused
its discretion by excusing members of the venire who knew a man
named Philip Lovins.
The issue arose during voir dire when the
Commonwealth asked the venire whether anyone knew Ritchie or any
of his family who was with him.
A woman stepped forward and
stated that she knew Philip Lovins, and she asked if he was
related to Ritchie.
Apparently, Lovins was sitting with
Ritchie’s family members.
After a series of questions, it was established that
this potential juror would have difficulty convicting Ritchie
-3-
because Lovins was there in support of him.
excused her for cause.
The trial judge
This occurrence prompted the Commonwealth
to ask the venire the following question:
We are back, just one last time, ladies
and gentlemen -- as I remember, Mr. Ritchie
had a brother named Dale Ritchie. I don’t
know if any of you know him or not. As I
said, that’s the last name that I can give
you, as far as the Ritchie family. Do any of
you know him? Okay -- one of the jurors came
forward and mentioned Mr. Philip Lovins, who
is sitting here. Do any of you know him?
Your Honor, I would ask that they come to the
bench individually.
Several jurors raised their hands and one by one they
approached the bench.
Four jurors indicated that their
relationship with Lovins would cause them difficulty in giving
the Commonwealth a fair trial.
Ritchie’s counsel did not object
to the venire being questioned about Lovins; and following voir
dire, the jury was sworn without objection by either party.
We do not believe that Ritchie has properly preserved
this issue for our review.2
During voir dire, Ritchie had ample
opportunity to object to potential jurors being questioned about
Lovins.
In fact, on each occasion the trial court gave Ritchie’s
counsel the opportunity to ask questions and his counsel
declined.
trial.
Ritchie’s counsel accepted the jury and proceeded with
Since Ritchie made no specific objection during the voir
2
Kentucky Rules of Criminal Procedure (RCr) 9.22. See also
Murphy v. Commonwealth, Ky., 50 S.W.3d 173, 182 (2001).
-4-
dire and accepted the jury, he cannot raise this objection for
the first time on appeal.3
Regardless of the lack of preservation, we note that
the trial court has discretion in seating a jury and a judge’s
decision to excuse a juror for cause will only be reversed on
appeal if it was clearly erroneous and an abuse of discretion.4
As we noted previously, each member of the venire that was
excused for cause expressed an inability to determine the case
fairly in light of Lovins’s apparent support for the defendant.
Although it was unusual that Lovins, someone who was not a member
of the defendant’s family and someone who was not going to
testify, was causing such a concern, it is clear from our review
of the record that several members of venire expressed serious
concern that they would not have been able to judge the case
fairly due to his presence.
Thus, we cannot say the trial court
abused its discretion by excusing members of the venire who
stated that they could not consider the case fairly.
Ritchie also argues that the Commonwealth failed to
prove an essential element of the case because it failed to lay
the proper foundation in support of its proof that the pills
Ritchie gave Little were in fact oxycodone.
To prove that the
pills were oxycodone, the Commonwealth called John Harris as a
3
Hicks v. Commonwealth, Ky.App., 805 S.W.2d 144, 148
(1990)(citing Anastasi v. Commonwealth, Ky., 754 S.W.2d 860
(1988); and McDonald v. Commonwealth, Ky., 554 S.W.2d 84 (1977)).
4
Foley v. Commonwealth, Ky., 953 S.W.2d 924, 932 (1997);
Peters v. Commonwealth, Ky., 505 S.W.2d 764 (1974).
-5-
witness.
Harris was employed by the KSP laboratory and worked as
an analytical chemist/forensic chemist, specializing in drug
analysis.
In his brief Ritchie argues:
However, a proper foundation was never
established for the witness’ testimony
identifying the “drugs” as oxycontin. In
fact, the minimum foundation required would
necessarily involve testimony regarding the
witness’ laboratory and scientific analysis
of the “drug” for identification purposes
according to accepted standards in the
scientific community and profession; however,
the expert witness never attempted to address
this essential element of any expert
chemist’s opinion and his failure to do so
should have been fatal to his ability to give
an expert opinion as to the identity of the
“drug” as oxycontin. Accordingly, the
Commonwealth failed to prove an essential
element of the charge against the appellant.
From our review of Harris’s testimony, we believe that it was
sufficient to establish that he had tested the pills and that he
had determined that they contained the drug oxycodone.
He
testified that he initially identified the tablets by looking at
the markings on them and that he then used a medical data base to
determine what they were supposed to be.
Harris testified that
he then proceeded to perform the actual testing on the tablets:
I examined them by gastroentography (sic) and
massdextrocity (sic) to size them up in a
medical data base. I am going to get that
out -- that’s a method I use to identify the
Oxycodone in -- I am a chemist, and I am
asked to do a chemical identification on it.
So, I used acceptable instrumental testing -chemical testing procedures to identify the
narcotic itself.
-6-
While we acknowledge that this is not the most
convincing expert testimony that we have ever reviewed, we
believe that it sufficiently established that Harris examined the
tablets using acceptable methodology.
It should be noted that
Ritchie’s counsel chose not to challenge Harris’s methodology.
In fact, Ritchie’s counsel stipulated to Harris’s education
credentials.
We hold that the evidence submitted by the
Commonwealth through Harris’s testimony sufficiently established
that he performed the necessary tests to determine that the
tablets contained the drug oxycodone.
Furthermore, since
Ritchie’s defense was entrapment, the identity of the substance
that he transferred to Little was never really an issue.
Ritchie also claims that the trial court erred by
denying his motion for a directed verdict of acquittal.
In his
brief, Ritchie argues that the evidence is clear that Little
“hoodwinked” him into obtaining drugs for her in an attempt to
gain favorable treatment in her own case.
When a trial court
considers a motion for a directed verdict of acquittal, it must
draw all fair and reasonable inferences from the evidence in
favor of the Commonwealth.5
“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.”6
In reviewing the trial court’s decision, an appellate
court should not disturb the trial court’s denial of a motion for
5
Commonwealth v. Benham, Ky., 816 S.W.2d 186, 187 (1991).
6
Id.
-7-
a directed verdict of acquittal unless it would be clearly
unreasonable for a jury to find guilt.7
With this standard in
mind, we will review the evidence presented to prove the charge
of trafficking in a controlled substance in the first degree.
Ritchie’s defense at trial was entrapment.
KRS 505.010
provides in pertinent part:
(1)
A person is not guilty of an
offense arising out of proscribed
conduct when:
(a)
He was induced or encouraged to
engage in that conduct by a public
servant or by a person acting in
cooperation with a public servant
seeking to obtain evidence against
him for the purpose of criminal
prosecution; and
(b)
At the time of the inducement or
encouragement, he was not otherwise
disposed to engage in such conduct.
(2)
The relief afforded by subsection
(1) is unavailable when:
(a)
The public servant or the person
acting in cooperation with a public
servant merely affords the
defendant an opportunity to commit
an offense[.]
The obvious issue at trial was whether Ritchie was
induced to sell drugs by the Commonwealth, and if so, whether he
was already disposed to do so.
The Commonwealth’s evidence
consisted primarily of the testimony of Little, who testified
that Ritchie contacted her about the drug transaction; and the
testimony of Det. Smoot, who corroborated most of her story.
7
Id.; Commonwealth v. Sawhill, Ky., 660 S.W.2d 3 (1983).
-8-
Ritchie testified that Little contacted him and said
that she needed some pain medicine.
He claimed that she said
that her pain from an injury was so severe that she was crying.
He also testified that Little owed him money and that the $40.00
she gave him was for the prior debt and was not used by him to
purchase drugs for himself.
Apparently, the jury rejected
Ritchie’s version of the events, and believed Little’s testimony.
From our review of the evidence, we hold that the evidence was
sufficient for a reasonable juror to find beyond a reasonable
doubt that Ritchie was not entrapped into trafficking in
oxycodone.
Ritchie’s final claim of error is that the trial court
abused its discretion by disallowing his testimony as to the
reason that Little called him and what he did as a result of her
telephone call.
The following questioning occurred at trial:
Defense Attorney: What did she [Little] call
you for?
Ritchie:
. .
She would call and try to get me .
Prosecutor: I am going to object, Your
Honor, to the hearsay. . .
Trial Court:
Sustained.
. . .
Defense Attorney: As a result of the
telephone call that night, what did you do?
Ritchie: She called me and said that she
needed some medicine. . .
Prosecutor: I am going to object, You Honor,
to the hearsay.
-9-
Trial Judge:
Sustained.
We hold that the trial court erred by ruling that the
Ritchie’s testimony concerning what Little told him was hearsay.
“‘Hearsay’ is 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.”8
The statement by
Little was not being offered in evidence by Ritchie “to prove the
truth of the matter asserted.”
Any statement allegedly made by
Little to Ritchie that she wanted him to get her some pain
medicine was not being offered by Ritchie to prove that Little
actually wanted the pain medicine.
The statement was being
offered to show that the statement was actually made and that
Ritchie acted upon it, not that it was a truthful statement.
Ritchie was attempting to demonstrate that he got Little the
drugs because she asked him to.
“A legitimate nonhearsay use of
an out-of-court statement always involves relevancy in the mere
utterance of the words comprising the statement (i.e., a logical
connection between the utterance of the words and some material
element of the case)” [emphasis original].9
In the case sub
judice, there was a logical connection between Little requesting
that Ritchie get some drugs for her and his defense of
entrapment, and the objections should have been overruled.
However, from our review of the record, we believe this error was
8
Kentucky Rules of Evidence (KRE) 801(c).
9
Lawson, The Kentucky Evidence Law Handbook, § 8.05 (3d ed.,
1993).
-10-
harmless.
Even without the admission of this testimony, Ritchie
was able to convey to the jury the essence of his conversation
with Little.
We believe, as a whole, that Ritchie was able to
relate to the jury his entrapment defense.
It is ironic that the prosecutor objected to Ritchie
being allowed to testify to what Little had said to him that
induced him to get her drugs, but on cross-examination the
prosecutor asked Ritchie extensively about his conversations and
dealings with Little.
We believe from the questions and answers
set forth below that Ritchie was given ample opportunity to
explain his entrapment defense to the jury:
Prosecutor:
You knew — you knew [Chester]
was — but the point is, is
this the first person that
came to your door, and
announced to you that they
were a drug dealer. If you
knew anyone that needed
anything, they could supply
it. Was he the first person
that ever done [sic] this?
Ritchie:
No.
Prosecutor:
Tell us who else had done that
to you then.
Ritchie:
Beverly done it.
Prosecutor:
Anybody — of course, I knew
you were going to say Beverly
— but anybody else, other than
her?
Ritchie:
No.
Prosecutor:
Okay — so, it was just Beverly
and Chester, that come to you
and said, “Now, look, we are
drug dealers.” Of course, why
would Beverly come to you and
-11-
say, “I am a drug dealer,” if
she is having to call you to
go get drugs for her?
Ritchie:
Well, I came down to her house
before, and seen her selling
them.
Prosecutor:
No — now wait a minute! I
think you told us that Beverly
came to you — to your home,
and announced to you that she
was going to sell drugs, and
that if you knew anybody that
wanted any, she would sell
them — that she could sell
them for you . . .
Ritchie:
Yes.
Proscutor:
Okay — when was that?
Ritchie:
I don’t remember — 1999.
Prosecutor:
1999?
Ritchie:
Uh-huh.
Prosecutor:
Because I was wondering, if
Beverly was selling, why would
she come to you, on January 9,
2000, asking you to get drugs
for her?
Ritchie:
I don’t know.
Prosecutor:
Well, that wouldn’t make sense
to you, would it? That
doesn’t make sense at all,
does it?
Ritchie:
If she did, it probably did.
Prosecutor:
Okay — so, now, Chester comes
over, and you said he rolls in
about what time?
Ritchie:
Twelve or one — it was right
in the evening there.
Prosecutor:
Okay — so, about twelve or
one, and says that — and says
-12-
that he can sell drugs, and
that same day, lo and behold,
Beverly Little needs you to
buy her some drugs, and you
agree to do it?
Ritchie:
Yes.
Prosecutor:
Why?
Ritchie:
I don’t
started
I never
and got
Prosecutor:
You haven’t?
Ritchie:
No.
Prosecutor:
So, she cried on you, and you
suddenly decided that well,
she was crying and you would
go ahead and get involved in
the drug trade?
Ritchie:
No, it was where she shot
herself in the leg. I felt
sorry for her.
Prosecutor:
You felt sorry for her.
Ritchie:
Yeah.
Prosecutor:
Okay — now, you first said
that she was crying. And now,
you are saying you felt sorry
for her.
Ritchie:
Well, that’s the reason she
was crying.
Prosecutor:
Okay — she was in pain. She
told you she was in pain,
crying, and she needed drugs,
so you decided to start
getting in the business for
her — to go get drugs and hand
them out to her. Is that what
happened?
Ritchie:
I felt sorry for her.
know. She just
crying is one thing —
had bought them — went
them before for her.
-13-
Prosecutor:
Is that what happened, sir?
Ritchie:
Yes.
Prosecutor:
Okay — so, you felt sorry for
her, because she cried around
on you, and it was just so
convenient, that you have got
a supplier now, because
Chester showed up. And so,
you just decided on January 9,
1999 [sic], between the hours
of twelve and one o’clock,
when Chester shows up, and
whatever time it is that you
talk to Beverly Little on the
telephone, that you are going
to go ahead and get started in
the drug trade?
Ritchie:
No, I didn’t decide that.
Prosecutor:
Well, that’s what happened,
isn’t it?
Ritchie:
I don’t know.
Prosecutor:
Well, that was you on the
video, wasn’t it, going to get
the money, and take . . .
Ritchie:
Yeah, that’s the only time I
decided to get started. I
don’t decide to get started.
Prosecutor:
Well, that is the drug trade
though — you will agree to
that?
Ritchie:
Yeah, I guess.
Prosecutor:
All right — we are getting
somewhere. But you said you
wouldn’t describe it as
deciding to get started.
Well, obviously, something
went through your mind. You
know, you have got Chester
showing up, which is so
convenient for Beverly and
you, on this same day, about
twelve or one o’clock, and he
-14-
announces to you that he is a
drug dealer, and then, as
coincidence would have it,
that same day, Beverly Little
calls you, and she is crying
around — called you, according
to you — well, she says she
didn’t call you — and she is
crying around, because her leg
is hurting, and you get
involved in the drug trade
there. Now, obviously, you
had to make that decision,
because you did it.
Ritchie:
Yeah.
Prosecutor:
So, you did decide that day to
get in the drug trade?
Defense Attorney:
Objection, Your Honor — he
said he went and got the pills
for.
Prosecutor:
Well, he agreed that that’s
the drug trade, though, Judge.
He has already agreed to that.
Court:
Overruled — move along.
Prosecutor:
Well, Your Honor, that’s
important. I think I should
be allowed to question him
about that.
Court:
Well, you have.
Prosecutor:
I didn’t get an answer, Judge.
He just sat there, because his
counsel objected, and he never
answered.
Court:
You can answer the question.
Ritchie:
Yeah.
Prosecutor:
All right — you were the — you
will agree with me, that it is
just a little coincidental.
It certainly looks odd,
-15-
doesn’t it, that it all
happened that one day?
Ritchie:
Yeah.
. . .
Prosecutor:
Now, on January 9, you said
that Beverly Little called you
how many times?
Ritchie:
Three to four times that day.
Prosecutor:
Did you talk to her three or
four times that day?
Ritchie:
No.
Prosecutor:
You talked to her one time?
Ritchie:
Yes.
Prosecutor:
And in that one conversation,
you actually dialed the phone
to her home, didn’t you?
Ritchie:
No.
Prosecutor:
Oh, she dialed you?
Ritchie:
Yes.
Prosecutor:
Okay — what time was that?
Ritchie:
That was up in the night.
Prosecutor:
How long was it before you
showed up at her house, and
your hand reached out for that
two hundred and forty bucks?
Ritchie:
Five minutes, or something
like that.
Prosecutor:
Okay — so, you talked to her,
and then, five minutes later,
you are down to her house?
Ritchie:
Yes.
-16-
Prosecutor:
All right — all right — so,
she called you and you talked
to her for how long?
Ritchie:
It was . . .
Prosecutor:
Two or three minutes?
Ritchie:
Yes — something like that.
Prosecutor:
Okay — that was when you
decided to become a drug
dealer, wasn’t it — or get
involved with the drug trade —
that two or three minutes.
So, it took her two or three
minutes to convince you to get
involved in the drug trade —
is that right?
Ritchie:
Yeah.
Prosecutor:
She was crying around on you,
for all of two or three
minutes, wanting you to get
her some drugs, and of course,
Chester had been down to your
house. So, you immediately
jump in the car, and run to
her house in five minutes?
Ritchie:
Yes.
For the foregoing reasons, the judgment of the
Breathitt Circuit Court is affirmed.
ALL CONCUR.
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BRIEF AND ORAL ARGUMENT FOR
APPELLANT:
BRIEF FOR APPELLEE:
Albert B. Chandler, III
Attorney General
Jerry A. Patton
Prestonsburg, Kentucky
Shawn C. Goodpaster
Assistant Attorney General
Frankfort, Kentucky
ORAL ARGUMENT FOR APPELLEE:
Courtney Hightower
Assistant Attorney General
Frankfort, Kentucky
-18-
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