JOHN LEMONTE SCRUGGS v. COMMONWEALTH OF KENTUCKY
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RENDERED: May 7, 2004; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2002-CA-002312-MR
JOHN LEMONTE SCRUGGS
APPELLANT
APPEAL FROM OWEN CIRCUIT COURT
HONORABLE STEPHEN L. BATES, JUDGE
ACTION NO. 02-CR-00011
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
JOHNSON, TAYLOR AND VANMETER, JUDGES.
JOHNSON, JUDGE:
John Lemonte Scruggs has appealed from a final
judgment and sentence of the Owen Circuit Court entered on
October 14, 2002, which, following Scruggs’s conviction for
trafficking in a controlled substance in the first degree,1
sentenced Scruggs to five years’ imprisonment in accordance with
the jury’s recommendation.
Having concluded that all of
Scruggs’s claims of error are without merit, we affirm.
1
Kentucky Revised Statutes (KRS) 218A.1412.
On April 9, 2002, an Owen County grand jury indicted
Scruggs on one count of trafficking in a controlled substance in
the first degree.
The grand jury charged that on or around
January 22, 2002, Scruggs “knowingly and unlawfully trafficked
in a Schedule II narcotic drug, namely cocaine.”
Scruggs
entered a plea of not guilty to the charge and the case
proceeded to trial.
A jury trial was held on September 13, 2002.
At the
close of the Commonwealth’s case-in-chief, and at the close of
all of the evidence, Scruggs moved the trial court for a
directed verdict of acquittal.
denied by the trial court.
Both of Scruggs’s motions were
After hearing all of the evidence,
the jury found Scruggs guilty of trafficking in a controlled
substance in the first degree, and recommended a sentence of
five years’ imprisonment.
On October 14, 2002, after a pre-
sentence investigation had been completed, the trial court
followed the jury’s recommendation and sentenced Scruggs to five
years’ imprisonment.
This appeal followed.
Scruggs first claims that his conviction must be
reversed on the grounds that there was insufficient evidence to
support his conviction.
Specifically, Scruggs argues:
Without the testimony of Matt Collins, who,
prior to his testimony against Scruggs
received a favorable plea agreement from the
prosecution, and Terry Smith, who although
he claimed no deals, ultimately received a
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favorable sentencing recommendation (which
the [trial] court followed) from the
prosecution, the Commonwealth would have not
had any chance of obtaining a conviction.
According to Scruggs, his conviction should be
reversed on the grounds that the testimony of Collins and Smith
was not competent evidence, and that without their testimony,
there was insufficient evidence to support his conviction.
Essentially, Scruggs is arguing that the trial court erred by
denying his motions for a directed verdict of acquittal.
We
disagree and find no merit in Scruggs’s argument.
In Commonwealth v. Benham,2 our Supreme Court explained
the test for a trial court to follow when ruling on a motion for
a directed verdict:
On motion for directed verdict, the
trial court must draw all fair and
reasonable inferences from the evidence in
favor of the Commonwealth. 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. For the purpose of
ruling on the motion, the trial court must
assume that the evidence for the
Commonwealth is true, but reserving to the
jury questions as to the credibility and
weight to be given to such testimony.
The Court went on to state the appropriate standard for an
appellate court to follow when reviewing a trial court’s ruling
on a motion for a directed verdict:
2
Ky., 816 S.W.2d 186, 187 (1991).
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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
defendant is entitled to a directed verdict
of acquittal.
We first address Scruggs’s argument that Collins and
Smith were not competent to testify before the jury because of
their alleged motivations to lie.
A court must always be
mindful that “[c]redibility and weight of the evidence are
matters within the exclusive province of the jury.”3
In Darnell
v. Commonwealth,4 our Supreme Court stated:
A witness’ expectation of a benefit or
motive to testify falsely is a factor that
goes to the credibility of the witness and
to the weight of his testimony. Such
matters are within the scope of the jury’s
duty.
Hence, even though Collins and/or Smith may have had a
motivation to provide testimony favorable to the Commonwealth,
this motive was simply a factor for the jury to decide in
weighing the credibility of their testimony.
A criminal
defendant is entitled to expose a witness’s bias, interest, or
motive on cross-examination,5 and our review of the record shows
3
Commonwealth v. Smith, Ky., 5 S.W.3d 126, 129 (1999).
4
Ky., 558 S.W.2d 590, 595 (1977).
5
Keller v. Commonwealth, Ky., 572 S.W.2d 157, 159 (1978)(holding that “it is
well settled that a witness may be cross-examined on any facts which tend to
show bias, interest, or motive which might affect the credibility of the
testimony of the witness. This is so for the reason that the jury is
entitled to hear all the relevant facts calculated to influence a witness so
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that Scruggs availed himself of this opportunity.
Thus, the
jury was made aware of any motives that Collins and/or Smith may
have had for testifying, and there was no error in permitting
the jury to consider their testimony.
Second, our review of the evidence presented at trial
reveals that the trial court properly denied Scruggs’s motions
for a directed verdict of acquittal.
Kentucky State Trooper
Derek Boyd testified that he began working with a paid
informant, Janet Maiden, at some point prior to January 2002.
Maiden testified that Smith had informed her that he could get
any amount of drugs she needed from Collins.
Maiden relayed
this information to Trooper Boyd, who organized a controlled
drug transaction.
On January 22, 2002, Trooper Boyd provided Maiden with
$1,100.00 to buy cocaine from Smith.
Smith testified that he
took the $1,100.00 from Maiden and approached Collins with a
request to buy one ounce of cocaine.
Both Collins and Smith
testified that they then contacted Scruggs and asked if he could
provide the cocaine.
Both Collins and Smith also stated that
Scruggs eventually came to Collins’s home with a bag of cocaine,
whereupon the three men separated and weighed several grams of
cocaine to sell to Maiden.
Collins and Smith further testified
that Scruggs took the $1,100.00 that Trooper Boyd had given
as to enable the jury to properly estimate the weight to be given the
testimony of the witness”).
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Maiden in exchange for the cocaine.
Finally, although he denied
being a part of the drug transaction, Scruggs admitted that he
was in Collins’s home when the drug deal occurred.
Hence, there was ample evidence presented to the jury
which could have supported a finding that Scruggs was guilty of
trafficking in a controlled substance in the first degree.
Accordingly, it was not “clearly unreasonable” for the jury to
find Scruggs guilty, and the trial court did not err by denying
Scruggs’s motions for a directed verdict of acquittal.
Scruggs next argues that he was denied a fair trial on
the grounds that a prospective juror was not struck for cause
after informing the trial court that he or she was Smith’s
cousin.6
In response, the Commonwealth claims that Scruggs
waived his opportunity to raise this issue by failing to object
during voir dire.
We agree with the Commonwealth.
In Pelfrey v. Commonwealth,7 our Supreme Court stated:
The rule is well settled that a
challenge to a juror for cause must be made
before the trial. The general rule is that
objection to a juror because of his
disqualification is waived by a failure to
object to such juror until after verdict.
The trial lawyer has a specific procedure to
follow when he believes a juror is biased.
RCr8 9.36(1) provides that “challenges for
cause shall be made first by the
6
The identity of this prospective juror is not clear from the record.
7
Ky., 842 S.W.2d 524, 526 (1992).
8
Kentucky Rules of Criminal Procedure.
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Commonwealth and then by the defense.”
Here, since the appellant did not challenge
any of the jurors, we can only assume that
he was satisfied with the jury. Contrary to
trial counsel’s argument, a continuance
motion for a new panel is not the equivalent
of individually challenging jurors for
cause. Once trial counsel’s general motion
was denied, his method for reviewing the
bias issue was to specifically challenge
jurors. Without doing so, counsel clearly
waived his jury challenge [citations
omitted].
In the case sub judice, Scruggs has conceded that no
objection was made to this unidentified prospective juror prior
to trial.
Therefore, since “[c]ounsel’s decisions during voir
dire are generally considered to be matters of trial strategy,”9
it must be assumed that Scruggs was satisfied with this
prospective juror.
Furthermore, we reject Scruggs’s argument
that this was a “palpable error” capable of appellate review
under RCr 10.26.10 Since trial counsel failed to demonstrate
obvious juror bias to the trial court, we cannot conclude that
the trial court’s failure to sua sponte strike this juror met
any of the three requirements of RCr 10.26, i.e., (1) any error
was not obvious, (2) there was no evidence that appellant’s
substantial rights were affected, and (3) there was no basis to
9
Hodge v. Commonwealth, Ky., 17 S.W.3d 824, 837 (2000).
10
RCr 10.26 states that “[a] palpable error which affects the substantial
rights of a party may be considered by the court on motion for a new trial or
by an appellate court on appeal, even though insufficiently raised or
preserved for review, and appropriate relief may be granted upon a
determination that manifest injustice has resulted from the error.”
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conclude that a manifest injustice resulted.
Accordingly,
Scruggs’s claim that he was denied a fair trial because of an
alleged failure to strike a prospective juror for cause is
wholly without merit.
Next, Scruggs claims that he was denied due process of
law when, during the penalty phase of the trial, the
Commonwealth’s Attorney made a reference to the “war on drugs”
while addressing the jury.
Scruggs argues that this statement
was “highly prejudicial,” since it invited the jury to consider
issues outside the evidence presented at trial.
We disagree.
Once again, Scruggs failed to make a contemporaneous
objection to the Commonwealth’s Attorney’s remarks.
Thus, since
the trial court was never given an opportunity to rule on this
issue, Scruggs’s claim of error has not been properly preserved
for appellate review.11
Regardless of this procedural defect,
however, it is clear that Scruggs suffered no prejudice
whatsoever as a result of the Commonwealth’s Attorney’s remarks.
The statement was made during the penalty phase of trial, after
which the jury recommended the minimum sentence of five years’
11
See RCr 9.22; and Turner v. Commonwealth, Ky., 460 S.W.2d 345, 346
(1970)(stating that “[t]he appellate court reviews for errors, and a
nonruling is not reviewable when the issue has not been presented to the
trial court for decision”).
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imprisonment.12
Accordingly, Scruggs was not harmed by any
denial of due process of law.
Finally, Scruggs claims that the trial court abused
its discretion by denying his request to have his five-year
prison sentence probated.
Scruggs offers no argument in support
of this claim of error other than his assertion that his prior
record consisted only of “traffic tickets,” and that denying him
probation “defies common sense.”
Once again, we conclude that
this alleged error is without merit.
As Scruggs himself has conceded, the trial court is
vested with “substantial discretion in deciding upon the
disposition of convicted offenders.”13
In the case at bar, the
trial court denied Scruggs’s request to have his five-year
sentence probated on grounds (1) that there was a substantial
risk Scruggs would commit another crime; (2) that Scruggs was in
need of treatment which could be provided most effectively in a
correctional institution; and (3) that probation would unduly
depreciate the seriousness of Scruggs’s crimes.
Considering
that Scruggs was found guilty of taking part in a large, illicit
drug transaction, the trial court clearly did not abuse its
discretion by denying Scruggs’s request to have his five-year
12
For a first offense, trafficking in a controlled substance in the first
degree is a Class C felony, punishable under KRS 532.060(2)(c) by “not less
than five (5) years nor more than ten (10) years.”
13
Turner v. Commonwealth, Ky., 914 S.W.2d 343, 348 (1996)(quoting KRS
533.010).
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sentence probated.
Therefore, we find Scruggs’s final claim of
error to be unpersuasive.
Based on the foregoing, the judgment of the Owen
Circuit Court is affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Margaret O’Donnell
Frankfort, Kentucky
Albert B. Chandler III
Attorney General
Samuel J. Floyd, Jr.
Assistant Attorney General
Frankfort, Kentucky
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