JERMAINE L. CHRISTIAN v. COMMONWEALTH OF KENTUCKY and FELICIA DONISE HEARD v. COMMONWEALTH OF KENTUCKY
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DECEMBER 5, 2003; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2002-CA-002305-MR
JERMAINE L. CHRISTIAN
v.
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE LAURANCE B. VANMETER, JUDGE
ACTION NO. 02-CR-00181
COMMONWEALTH OF KENTUCKY
and
NO.
APPELLEE
2002-CA-002306-MR
FELICIA DONISE HEARD
v.
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE LAURANCE B. VANMETER, JUDGE
ACTION NO. 02-CR-00181
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
BEFORE:
** ** ** ** **
BUCKINGHAM, COMBS, and DYCHE, Judges.
COMBS, JUDGE.
Jermaine L. Christian and Felicia Donise Heard
have appealed from the final judgments and sentences of the
Fayette Circuit Court entered on October 29, 2002.1
Following a
joint jury trial, Christian was convicted of first-degree
trafficking in a controlled substance, possession of drug
paraphernalia, and being a second-degree persistent felony
offender.
He was sentenced to serve ten years in prison.
Heard
was convicted of possession of cocaine,2 possession of marijuana,
and possession of drug paraphernalia.
probated for a period of five years.
Her one-year sentence was
We affirm.
On January 8, 2000, a confidential informant purchased
crack cocaine (a form of powdered cocaine capable of being
smoked) from a man identified as “Big Man” at an apartment in
Lexington, Kentucky.
Based on that transaction, police officers
obtained a warrant to search the apartment.
Detective Byron
Smoot and eight officers under his direction entered the
apartment and in the kitchen found Heard, to whom the apartment
was leased.
Christian was in the living room playing video
games with two other men.
The officers seized numerous items from the apartment,
including 4.4 grams of crack cocaine (discovered on top of a
dresser in the appellants’ bedroom), two baggies containing
1
Although their appeals have not been consolidated, this Court ordered
that they be heard together.
2
The final judgment incorrectly states that Heard was convicted of
trafficking in a controlled substance.
2
marijuana, hand scales, digital scales, razor blades, and two
cell phones.
In the bedroom where the cocaine was located, the
officers found men’s clothing of sufficient size to fit
Christian, a rather large man.
They also found other items
belonging to Christian in a safe in the bedroom as well as a
significant amount of cash in Christian’s trouser pocket.
The
appellants were arrested and indicted on charges of trafficking
in cocaine and possession of marijuana and drug paraphernalia.3
All of the charges against the appellants were based
on the items and information gathered during the search of the
apartment.
They were not charged with any crime resulting from
the undercover drug purchase that had taken place immediately
prior to the search.
Consequently, the Commonwealth refused
Heard’s request to reveal the identity of the confidential
informant whose tip served as the basis for the officers to seek
the warrant to search the apartment.
The court denied Heard’s
pre-trial motion seeking to compel discovery of his identity.
The appellants were tried on September 26, 2002.
Christian did not testify.
However, he attempted through his
witnesses to establish that he did not reside with Heard and
that he did not have anything to do with the drugs found in her
apartment.
His mother, Meltina Mulder, testified that Christian
3
The charge of possession of marijuana against Christian was dismissed
prior to trial.
3
was living with her at the time of his arrest.
Mulder also told
the jury that she had given her son $300 in cash that morning to
buy himself some clothes and that his sisters had given him
additional money for the same purposes.
Heard, who had no previous criminal record, told the
jury that she and Christian had lived together for five years.
Consistently with her statements to the officers who searched
her apartment, she admitted that the marijuana and the hand
scales seized from the apartment belonged to her.
denied having any connection with the cocaine.
However, she
Heard claimed
that she saw the cocaine on the dresser in the bedroom that she
shared with Christian when she came home from work on the
evening of their arrest and that she assumed it belonged to
Christian.
The jury found Christian guilty of first-degree
trafficking in a controlled substance.
However, it believed
Heard’s testimony that she was not involved in the sale of
cocaine and found her guilty of the lesser offense of
possession.
During the jury’s deliberation in the
PFO/sentencing phase, Christian moved for a mistrial after one
of the juror’s sent a note to the judge asking: “Would Jermaine
like to say anything on his own behalf?”
Christian argued that
the juror had obviously ignored the court’s instruction that no
negative inference could be drawn from his decision not to
4
testify.
Stating that the note was susceptible of several
interpretations, the trial court denied the motion.
No further
admonition was requested.
The appellants were sentenced pursuant to the jury’s
recommendation.
These appeals followed.
No. 2002-CA-002305-MR
Christian has raised three issues in his appeal.
argues:
He
(1) that there is insufficient evidence to support his
conviction for trafficking; (2) that the trial court abused its
discretion in allowing a police officer to testify that the
small amount of crack cocaine seized from the apartment was
indicative of possession with intent to sell; and (3) that the
trial court erred in denying his motion for a mistrial during
the PFO/sentencing portion of the trial.
We disagree that any
error deprived Christian of his right to receive a fair trial.
Our standard in reviewing the sufficiency of the
evidence to support a conviction is set out in Commonwealth v.
Benham, Ky., 816 S.W.2d 186, 187 (1991), citing Commonwealth v.
Sawhill, Ky., 660 S.W.2d 3 (1983), as follows:
On appellate review, the test of a directed
verdict is, if under the evidence as a
whole, it would be clearly unreasonable for
a jury to find guilt, only then the
5
defendant is entitled to a directed verdict
of acquittal.
Christian attempted to distance himself from Heard and
the contents of her apartment.
Nonetheless, there was
considerable evidence from which the jury could reasonably find
that he did in fact live at the same address as his co-defendant
and that he had control over the cocaine found in the bedroom.
Heard testified that she and Christian lived together and that
the cocaine did not belong to her.
In addition, the police
found clothes and other personal items belonging to Christian
stored in the same bedroom where the cocaine was located.
driver’s license listed Heard’s address as his own.
His
Therefore,
it was not unreasonable for the jury to conclude that Christian
resided in the apartment and that he had constructive possession
of the cocaine.
Moreover, when he was searched, Christian -- who was
unemployed -- had $491 in cash in his pocket.
That evidence,
bolstered by the testimony of Sergeant Mark Simmons (to be
discussed below), was sufficient to allow the jury to believe
that Christian possessed the drug with the intent to sell or to
distribute it to others.
Thus, the trial court did not err in
failing to direct a verdict of acquittal on the trafficking
charge.
Id.
6
Christian next argues that the trial court erred in
allowing Sergeant Mark Simmons to testify that the cocaine
seized from the apartment was of a quantity more likely to be
consistent with trafficking than with personal use.
In making
this argument, Christian acknowledges the existence of several
decisions holding that police officers may offer expert
testimony on the issue of whether the quantity of drugs is
indicative of trafficking as distinguished from mere personal
use of the drug.
See, Sargent v. Commonwealth, Ky., 813 S.W.2d
801, 802 (1991)(15 pounds of marijuana); Kroth v. Commonwealth,
Ky., 737 S.W.2d 680, 681 (1987)(a “large quantity” of drugs);
and Burdell v. Commonwealth, Ky., 990 S.W.2d 628 (1999)(cocaine
with a “street value” of $10,000).
Nevertheless, he argues that the minute amount of
drugs seized during the raid on Heard’s apartment -– less than
1/7th of one ounce -- set his case apart from those permitting
such testimony as relevant and appropriate.
He contends that if
a police officer can testify that possession of a few grams of
cocaine is indicative of trafficking, possession of any amount
of the drug could support a trafficking conviction.
We apply the standard of abuse of discretion in
reviewing the decision of a trial court as to whether to admit
evidence.
(1995).
Mitchell v. Commonwealth, Ky., 908 S.W.2d 100, 103
We can find no abuse of discretion in the court’s
7
ruling in this case.
Christian offers no criticism with respect
to Sergeant Simmons’s qualifications as an expert in narcotics.
Although the amount of crack cocaine was relatively small, it
nonetheless had a street value of more than $200.
Moreover, in
testifying that the drug was possessed for sale rather than for
personal use, Sergeant Simmons based his opinion not only on its
amount but also on several other factors:
the discovery of a
number of items used to weigh and package the drug; the amount
of cash found in Christian’s pocket; and, rather significantly,
the fact that no pipe or other utensil was found in the
apartment for ingesting the cocaine.
Finally, Christian argues that he was convicted and
sentenced by a tainted jury.
He bases this argument on the note
sent by a juror to the judge during the PFO portion of the
trial.
In that note, the juror asked if Christian wanted to
”say anything on his own behalf.”
Christian argues that the
note reveals a prejudice against him for not testifying -thereby implicating his rights to due process.
He believes that
he was convicted of a greater offense than his co-defendant (who
did testify) because of the alleged prejudice concerning his
silence.
In resolving this issue, we note a trial court wholly
exercises discretion in denying a party’s motion for a mistrial.
Neal v. Commonwealth, Ky., 95 S.W.3d 843 (2003).
8
A mistrial is justified only when a
“manifest necessity for such an action or an
urgent or real necessity” appears in the
record. Skaggs v. Commonwealth, Ky., 694
S.W.2d 672, 678 (1985). It is within the
trial judge’s discretion whether a mistrial
should be granted, and his decision should
not be disturbed, absent an abuse of
discretion.
Id.at 851-852.
The Commonwealth correctly argues that the trial court
did not abuse its discretion in denying the motion for a
mistrial.
The note from the juror was sent at the PFO stage of
the trial -- after the jury had determined Christian’s guilt on
the underlying charge of trafficking.
Christian did not seek an
appropriate admonition, and the jury recommended that Christian
be given the minimum sentence –- an additional factor serving to
negate the existence of an unfavorable inference as to his
silence.
Clay v. Commonwealth, Ky.App., 867 S.W.2d 200 (1993).
NO.
2002-CA-002306-MR
In her appeal, Heard argues that the trial court erred
in making the following rulings:
(1) refusing to order the
Commonwealth to disclose the name of its confidential informant;
(2) refusing to allow her to present evidence at trial of
Christian’s prior involvement with drugs; and (3) refusing to
allow her to show that the police officers were looking for a
9
male when they executed the search warrant.
We find no error to
support reversal of the judgment.
Heard had attempted to obtain the name of the
individual whose previous purchase of drugs led to the issuance
of the warrant to search her apartment.
She argued that the
confidential informant could provide evidence to indicate that
it was Christian who was dealing in drugs instead of her.
In Taylor v. Commonwealth, Ky., 987 S.W.2d 302, 304
(1999), the court addressed an order of a trial court protecting
the identity of the Commonwealth’s informant:
KRE4 508 provides the Commonwealth with a
privilege to refuse to disclose the identity
of an informant. Exceptions to the
privilege occur when the disclosure is
voluntary, when the informant is a witness
and when the testimony of the informant is
relevant to an issue. . . . The Kentucky
rule in KRE 508 reflects the decision of the
United States Supreme Court in Roviaro v.
United States, 353 U.S. 53, 77 S.Ct. 623, 1
L.Ed.2d 639 (1957), which indicates that a
proper balance regarding nondisclosure must
depend on the particular circumstances of
each case, taking into consideration the
crimes charged, the possible defenses, the
possible significance of the informer’s
testimony and other relevant factors. . . .
In cases interpreting that rule, the courts
uniformly held that where the evidence shows
that an informant was merely a tipster who
leads to subsequent independent police
investigation which uncovers evidence of the
crime, disclosure of the identity of the
informant is not required. See, Hargrave v.
Commonwealth, Ky., 724 S.W.2d 202 (1986) and
4
Kentucky Rules of Evidence.
10
Schooley v. Commonwealth, Ky., 627 S.W.2d
576 (1982).
If the Commonwealth had provided his identity, the
informant may have testified that he purchased cocaine from a
male at Heard’s address.
Heard contends that such testimony
would have resolved any question that the jury might have had
concerning her involvement.
However, such testimony would have
not provided exculpatory evidence as to the charges for which
Heard was actually being tried because those charges arose
separately from the informant’s activity, resulting from the
subsequent investigation and search of her apartment rather than
the drug sale that preceded the search.
Since the informant was
not a material witness to the crimes involving Heard, the trial
court properly denied her motion to compel the Commonwealth to
expose his identity.
Id.
Heard next alleges that she was deprived of a fair
trial by the court’s refusal to allow her to introduce evidence
that Christian had previously been convicted of trafficking in
cocaine and that he was involved with drug court at the time of
their arrest.
She contends that Christian opened the door for
such testimony when his mother testified that she had encouraged
her son to stay away from Heard because -- in her opinion -Heard was “trouble.”
11
We conclude that the trial court did not abuse its
discretion in not permitting Heard to present evidence of
Christian’s prior criminal acts.
Any reference to Christian’s
participation in drug court would have directly violated the
proscription in KRE 404(b) against admission of other crimes to
prove bad character.
See also, Billings v. Commonwealth, Ky.,
843 S.W.2d 890 (1992).
Finally, Heard argues that the trial court erred in
preventing her from establishing that the police officers who
searched her apartment were actually looking for a male suspect.
She states that this issue was preserved during her crossexamination of Detective Patrick.
We find no error.
Heard made
no attempt to put the omitted testimony in the record by avowal.
Thus, the issue has not been preserved for review.
Additionally, Detective Patrick testified that although he was
one of the team that participated in the search of Heard’s
apartment, he had not reviewed the search warrant and he did not
know the individuals whom they were seeking.
He could not
remember whether Detective Smoot had given any description of
the individuals in his briefing prior to the search.
His
testimony refutes Heard’s supposition as to this unpreserved
allegation of error.
The judgments in both appeals are affirmed.
ALL CONCUR.
12
BRIEF AND ORAL ARGUMENT FOR
APPELLANT CHRISTIAN:
Matthew W. Boyd
Lexington, Kentucky
BRIEF AND ORAL ARGUMENT FOR
APPELLANT HEARD:
BRIEF FOR APPELLEE:
Albert B. Chandler III
Attorney General of Kentucky
Courtney J. Hightower
Assistant Attorney General
Frankfort, Kentucky
ORAL ARGUMENT FOR APPELLEE:
Gene Lewter
Lexington, Kentucky
Courtney J. Hightower
Frankfort, Kentucky
13
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