JOSEPH E. PORTER, A/K/A JOED PORTER v. COMMONWEALTH OF KENTUCKY
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RENDERED:
NOVEMBER 26, 2003; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2002-CA-002253-MR
JOSEPH E. PORTER,
A/K/A JOED PORTER
APPELLANT
APPEAL FROM ROWAN CIRCUIT COURT
HONORABLE WILLIAM B. MAINS, JUDGE
ACTION NO. 01-CR-00146
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BAKER, KNOPF, AND TACKETT, JUDGES.
KNOPF, JUDGE:
Joseph Porter appeals from a judgment of the
Rowan Circuit Court, entered October 18, 2002, convicting him of
first-degree trafficking in a controlled substance (cocaine),1
possession of marijuana,2 and possession of drug paraphernalia,3
1
KRS 218A.1412.
2
KRS 218A.1422.
all while in possession of a firearm.4
He was sentenced to
concurrent terms of imprisonment totaling ten years.
Porter
contends that the trial court erred by admitting evidence
derived from an illegal search, by admitting expert testimony
for which there was an inadequate foundation, and by denying his
motion for a directed verdict.
None of these alleged errors
entitles Porter to relief.
At about eleven o’clock on the evening of November 9,
2001, Karen LaBraun telephoned the Morehead Police Department
from a local Days Inn and reported her suspicion that the man
with whom she was traveling, Oscar Guerrero, was involved in
drug trafficking.
The police investigated and discovered
several ounces of cocaine in the trunk of LaBraun’s vehicle.
They arrested Guerrero and apparently both he and LaBraun gave
statements to the effect that earlier that evening Guerrero had
left cocaine with Joseph Porter at his apartment.
On the basis
of LaBraun’s statement, the officers obtained a search warrant
for Porter’s residence and executed it forthwith, at about fourthirty a.m. on November 10, 2001.
In Porter’s apartment the
police found about five ounces of cocaine, a small quantity of
marijuana, electronic scales, and two handguns.
3
KRS 218A.500.
4
KRS 218A.992.
2
At trial, the investigating officers testified to this
chain of events and, in addition, a friend of Porter’s, who had
been visiting him at the time, testified that Guerrero and a
woman had indeed come to Porter’s apartment the afternoon of
November 9, 2001, and that Guerrero had asked Porter to keep
some cocaine for delivery to a third person.
Porter first
contends that the trial court should have suppressed the
evidence gathered during the search of his apartment because the
affidavit the officers submitted with their request for the
search warrant did not establish probable cause.
After identifying Porter’s apartment as the place to
be searched, the affidavit continued as follows:
On the 9th day of November, 2001, at
approximately 11:00 p.m. affiant received
information from/observed: a[n] informant
told MPD that Oscar Guerrero, a resident of
Ciscero, Ill., came to Morehead, delivered 5
bags of crack cocaine to Joe Ed Porter’s
apartment at 211 Rowan, Morehead, Ky., and
left 1 bag of crack cocaine in the trunk of
his car, a blue Lincoln Continental (1979).
The car was parked at the parking lot of the
Days Inn motel, in Morehead, Ky. The above
informa[nt] had personal knowledge of
transaction and assisted Oscar Guerrero in
the execution of the transaction, which was
unknown to her.
Acting on the information received, affiant
conducted the following independent
investigation: Called the Ciscero, Ill.,
police Dept. who informed MPD the Guerrero
family has history of drug dealing. MPD
obtained a U.S. Forest Service drug dog, who
indicated drugs were in the trunk of the
3
blue Lincoln Continental. Mr. Guerrero gave
permission to the MPD to search his car.
MPD found a bag of crack cocaine in the
automobile.
In deciding whether to issue a search warrant, the
issuing magistrate is to “make a practical, common-sense
decision whether, given all the circumstances set forth in the
affidavit before him . . . there is a fair probability that
contraband or evidence of a crime will be found in a particular
place.”5
When the affidavit is based on information learned from
an informant, the “informant’s veracity, reliability, and basis
of knowledge are all relevant considerations in the totality of
the circumstances analysis, [but] they are not conclusive and a
deficiency in one may be compensated for, in determining the
overall reliability of a tip, by a strong showing as to the
other, or by some other indicia of reliability.”6
Typically, as
Porter notes, a bare and uncorroborated tip from a confidential
informant will not establish probable cause for a search
warrant.7
5
Lovett v. Commonwealth, Ky., 103 S.W.3d 72, 77-78 (2003)
(citing Illinois v. Gates, 462 U.S. 213, 76 L. Ed. 2d 527, 103
S. Ct. 2317 (1983); internal quotation marks omitted).
6
Id.
7
Florida v. J.L., 529 U.S. 266, 146 L. Ed. 2d 254, 120 S. Ct.
1375 (2000).
4
In this case, however, there was much more than a bare
and uncorroborated tip.
The informant was not anonymous.
By
the time the police applied for the warrant, they had
interviewed the informant, a concerned citizen, face-to-face.
Their estimate of her reliability, therefore, was based on more
than the initial anonymous phone call.
Furthermore, the
informant’s allegations were based on observation, not hearsay,
and the officers independently discovered that Guererro had been
linked with drug dealing and confirmed the allegation that his
car contained cocaine.
We agree with the trial court that these
facts provided a substantial basis for the magistrate’s
conclusion that the informant’s other allegations were reliable
and that the police would likely find contraband in Porter’s
apartment.
Porter also complains that the affidavit did not
specify when the alleged delivery to his apartment had taken
place and thus gave the magistrate no reason to conclude that
the informant’s allegations were not stale.
We disagree.
The
affidavit makes clear that the police acted promptly on the tip
and found cocaine in Guererro’s car within a few hours of
applying for the warrant.
A fair reading of the affidavit
indicates that the informant’s visit to Porter’s apartment took
place shortly before she made her call.
5
To be sure, the better practice would have been for
the affidavit to include the time of the informant’s alleged
observations as well as the time she contacted the police, but,
as the trial court noted, our Supreme Court has held that this
sort of defect in a warrant application does not justify
suppressing evidence unless the affidavit was false or
misleading or was so lacking in indicia of probable cause that
it suggests either a magistrate who has abandoned his or her
detached and neutral role or officers who could not but know
that their reliance on the warrant was unreasonable.8
The affidavit in this case was not false or
misleading, and we agree with the trial court that it was not so
defective in establishing timeliness as to suggest a lack of
good faith by either the magistrate or the officers.
The trial
court did not err, therefore, by denying Porter’s motion to
suppress evidence gained during the search of his apartment.
Porter next contends that the trial court should have
excluded the opinion testimony offered by Thomas Morrow, a lab
supervisor and drug chemist for the State Police.
Morrow
testified that in his opinion the substances seized from
Porter’s apartment were in fact cocaine and marijuana.
At no
point was Morrow asked about his training and experience, so
8
Commonwealth v. Litke, Ky., 873 S.W.2d 198 (1994); Crayton v.
Commonwealth, Ky., 846 S.W.2d 684 (1992).
6
Porter maintains that the trial court had no basis for deeming
him qualified to offer an expert’s opinion.
Again, the better
practice, clearly, would have been for the Commonwealth to
elicit brief testimony concerning Morrow’s qualifications, but
under KRE 702, the trial court has discretion to admit expert
testimony when it determines that the expert’s opinions will be
reliable enough and relevant enough to aid the jury.9
We are not
persuaded that the trial court abused its discretion in this
instance.
The drug tests underlying Morrow’s testimony are
routine for persons in his position, and thus it could
reasonably be inferred that Marrow conducted them and
interpreted the results accurately.
Were there reasons to doubt
Morrow’s competence or the reliability of the results in this
case, Porter was free to explore them during cross-examination.
Apparently there were none.
Although we would urge the
Commonwealth to duly qualify its expert witnesses, its failure
to do so here does not entitle Porter to relief.
Finally, Porter contends that another lapse in the
Commonwealth’s proof entitled him to a directed verdict.
As
noted above, several witnesses testified that Guerrero delivered
cocaine to a Joseph, or Joe Ed, Porter’s apartment in November
2001 and that the police essentially caught Porter red-handed.
9
Goodyear Tire and Rubber Company v. Thompson, Ky., 11 S.W.3d
575 (2000).
7
At no time, however, did anyone testify expressly that the Joe
Ed Porter who was arrested in November 2001 was the same person
as the Joe Ed Porter standing trial.
As Porter notes, an in-
court identification of the accused is an essential element in
the establishment of guilt beyond a reasonable doubt.10
Several
courts have held, however, that identification may be inferred
from all the facts and circumstances that are in evidence,
including the fact that no witness points out that the wrong
person has been brought to trial, and, on the contrary, that
reference is plainly made to the defendant as the person
involved in the wrong-doing.11
We think this rule is sound.
In this case the testimony of Porter’s friend is
particularly potent circumstantial evidence of Porter’s
identification.
Were there any doubt that the Porter on trial
was the same person caught by the police in possession of
cocaine, this witness, surely, would have raised it.
She did
not, however, and because she did not the jury could reasonably
infer that the two persons were the same.
10
The trial court did
United States v. Weed, 689 F.2d 752 (7th Cir. 1982).
11
Brooks v. United States, 717 A.2d 323 (D.C. 1998) (collecting
cases); United States v. Alexander, 48 F.3d 1477 (9th Cir. 1995);
United States v. Weed, supra.
8
not err, therefore, when it denied Porter’s motion for a
directed verdict.12
In sum, although Porter has identified imperfections
in the prosecution of his case, his right is to a fundamentally
fair prosecution, not a perfect one.
The warrant application,
the questioning of Thomas Morrow, and Porter’s in-court
identification all could have been better.
As they were,
however, they satisfied Porter’s right to a fundamentally fair
process.
Accordingly, we affirm the October 18, 2002, judgment
of the Rowan Circuit Court.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
George C. Howell
Ashland, Kentucky
Albert B. Chandler III
Attorney General of Kentucky
Janine Coy Bowden
Assistant Attorney General
Frankfort, Kentucky
12
Commonwealth v. Benham, Ky., 816 S.W.2d 186 (1991).
9
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