MICHAEL JARRICK GILBERT V. COMMONWEALTH OF KENTUCKY
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RENDERED: JULY 19, 2002; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NOS.
2001-CA-001211-MR AND 2001-CA-002341-MR
MICHAEL JARRICK GILBERT
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE JOHN R. ADAMS, JUDGE
ACTION NOS. 01-CR-00082 AND 01-CR-00265
V.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION AFFIRMING
* * * * * * * *
BEFORE:
GUDGEL, JOHNSON, and SCHRODER, Judges.
GUDGEL, JUDGE:
This is an appeal from a judgment and a
postjudgment order entered by the Fayette Circuit Court after a
jury trial.
Appellant was found guilty of possession of both a
controlled substance and drug paraphernalia, and he pled guilty
to being a second-degree persistent felony offender (PFO).
For
the reasons stated hereafter, we affirm.
During the morning of October 31, 2000, the Lexington
Metro Police Department received a report that an unconscious
person had been dragged into a specified motel room and that
there might be narcotics in the room.
After several knocks the
responding police officers were admitted into the motel room,
where they observed various items including a steel wool
substance in a trash can, a drinking straw cut into several
pieces, some type of powdery material, and an unidentified
medication.
They also observed, near appellant's feet and just
under the edge of the bed where he was seated, two plastic pipes
and a plastic bag containing a white powder.
The officers, who
permitted appellant and the room's other occupants to leave,
later discovered a second bag of white powder in the room.
Testing of the first bag provided no positive results, but the
pipes tested positive for cocaine residue and the second bag
tested positive for cocaine.
Appellant was indicted for possession of a controlled
substance, first degree, and possession of drug paraphernalia,
second degree.
PFO.
Subsequently, he was indicted as a second-degree
A jury found appellant guilty of both possession charges,
and he entered a guilty plea to the PFO charge.
On May 21, 2001,
appellant was sentenced to concurrent sentences of eighteen
months on the paraphernalia charge and one year on the cocaine
charge, enhanced to six years as a PFO.
Appeal No.
2001-CA-1211-MR followed.
On August 1 the Commonwealth informed appellant's
counsel that it had learned that one of the members of the grand
jury which indicted appellant as a PFO was a convicted felon who
was ineligible for service on a grand jury.
Appellant filed an
RCr 11.42 motion to vacate, which the trial court denied in an
order entered on September 27, 2001.
Appeal No. 2001-CA-2341-MR
followed, and the two appeals subsequently were consolidated.
note that the Commonwealth asserts that the second notice of
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We
appeal was untimely as it was filed thirty-two days after entry
of the September 27 order denying RCr 11.42 relief.
However, it
is clear that since the thirtieth day from entry of the September
27 order fell on Saturday, October 27, the notice of appeal in
fact was timely when it was filed on Monday, October 29.
See CR
6.01.
First, appellant contends that the trial court erred by
denying his motions for a directed verdict.
We disagree.
It is undisputed that the police officers observed two
plastic pipes containing steel wool, and a small bag containing a
white powder, near appellant's feet under the edge of the bed
where he was seated.
It is also undisputed that appellant
volunteered that the powder looked like baking soda and requested
that it be tested.
Subsequent testing revealed that the pipes
contained cocaine residue but that the powder was not a
controlled substance.
Appellant seems to assert that no controlled substances
were found while he was present in the motel room, and that the
cocaine which later was found in the room did not justify the
charges against him.
However, the record shows that the criminal
complaints against appellant in fact were based on the plastic
bag and pipes found at his feet, as well as on the officers'
observance of other possible drug paraphernalia items in the
room. It is well established that the possession of even a
residual trace of cocaine in a pipe will support a charge of
possession of cocaine.
See Bolen v. Commonwealth, Ky., 31 S.W.3d
907 (2000); Commonwealth v. Shivley, Ky., 814 S.W.2d 572 (1991).
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As the charges against appellant were supported by evidence that
the pipes under the edge of the bed where he was seated tested
positive for cocaine residue, it follows that the court did not
err by failing to direct a verdict in his favor.
Next, appellant contends that the trial court erred by
failing to instruct the jury regarding the offense of attempted
possession of cocaine.
We disagree.
The charges of possession of cocaine and drug
paraphernalia were based on the items which the officers found
near appellant's feet.
Simply put, appellant either was or was
not in possession of those items, and any unsuccessful attempt to
purchase cocaine from the person who rented the motel room was
simply irrelevant to the charges relating to the items found at
his feet.
It follows, therefore, that no grounds existed for
instructing the jury as to the offense of attempted possession of
cocaine, and that the court did not err by failing to give an
instruction on that charge.
Next, appellant contends that he "was denied a fair
trial because the arresting officer repeatedly injected"
prejudicial opinions and conclusions into his testimony.
However, appellant admits that the alleged errors in this vein
were not preserved for review, and our review of the record fails
to demonstrate that he is entitled to relief on this ground in
order to prevent a manifest injustice.
RCr 10.26.
Finally, appellant contends that the trial court erred
by denying his RCr 11.42 motion seeking to set aside his PFO
conviction, based on the Commonwealth's postjudgment disclosure
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that a member of the grand jury which indicted him on that charge
was a convicted felon and ineligible to serve on a grand jury.
We disagree.
KRS 29A.080(2)(e) disqualifies from jury service any
person who previously has been convicted and not pardoned of a
felony.
Although generally any challenge to a juror's
qualifications is waived unless it is made before the jury is
empaneled, Ohio Casualty Insurance Co. v. Cisneros, Ky. App., 657
S.W.2d 244 (1983), an exception to that rule may exist where the
complaining party neither knew nor reasonably could have known of
the basis for the challenge before the jury was empaneled.
Warren v. Commonwealth, Ky. App., 903 S.W.2d 907 (1994).
Nevertheless, a voluntary and intelligent guilty plea generally
forecloses the possibility of any subsequent independent
challenge to a grand jury selection or to the alleged denial of
other constitutional rights.
Tollett v. Henderson, 411 U.S. 258,
93 S.Ct. 1602, 36 L.Ed.2d 235 (1973).
In other words, "a guilty
plea constitutes an admission of all facts alleged and a waiver
of all non-jurisdictional and procedural defects and
constitutional infirmities in any prior stage of the proceeding."
8 Leslie Abramson, Kentucky Practice ยง22.121 (3d ed. 1997).
It
therefore follows, in light of appellant's guilty plea to the PFO
charge, that the trial court did not err by denying his
postjudgment challenge to that conviction.
Tollett, 411 U.S.
258.
The court's judgment and order are affirmed.
ALL CONCUR.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Gene Lewter
Lexington, KY
A.B. Chandler III
Attorney General
Louis F. Mathias, Jr.
Assistant Attorney General
Frankfort, KY
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