STEVE EDWARDS AND RICHARD ALLEN EDWARDS v. COMMONWEALTH OF KENTUCKY
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RENDERED:
NOVEMBER 5, 2004; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 2003-CA-001298-MR
AND
NO. 2003-CA-001299-MR
STEVE EDWARDS AND
RICHARD ALLEN EDWARDS
v.
APPELLANTS
APPEAL FROM GREEN CIRCUIT COURT
HONORABLE DOUGHLAS M. GEORGE, JUDGE
ACTION NOS. 02-CR-00005-1 & 02-CR-00005-2
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
DYCHE, KNOPF, AND MINTON, JUDGES.
KNOPF, JUDGE:
Brothers Steve and Richard Edwards appeal from
separate judgments of the Green Circuit Court, entered August
10, 2003, convicting them, following their joint trial, of
cultivating five or more marijuana plants,1 of trafficking in
1
KRS 218A.1423(2).
marijuana,2 and of possessing drug paraphernalia.3
Steve was
sentenced to two years in prison, Richard to one year.
They
contend that the trial court erred by refusing to suppress
evidence seized from their Green County farm, by refusing them a
continuance when a co-defendant changed his plea and agreed to
testify for the Commonwealth, and by denying their motions to
dismiss the charge of cultivating five or more plants.
We
affirm.
In late August or early September 2001, a Green County
deputy received a tip that marijuana was being grown in one of
the barns on the Edwardses’ farm.
The deputy notified a
narcotics detective for the Kentucky State Police, and together,
during the night of September 12, 2001, they entered the
Edwardses’ land to investigate.
Without entering the barn, the
officers observed through windows that it had been partitioned
into several rooms with an office area separated by padlocked
doors from storage areas and from areas that had formerly been
used for working with livestock.
Through a vent fan and through
a crack in a door into one of the livestock areas they saw a
tray like a sheet-cake pan in which seedlings appeared to be
growing under a florescent lamp.
2
KRS 218A.1421.
3
KRS 218A.500.
2
From mid-September until December 5, the officers
looked into the barn eight or nine more times.
When the plants
in the pan became larger, the detective identified them as
marijuana.
The officers also observed a steady light shining
from a room into which they could not see and heard what the
detective recognized as the ballast for a grow light coming from
that room.
On one occasion they saw the processed remains of
three large marijuana plants.
They saw what they believed were
marijuana trimmings and residue on the floor in several of the
areas.
And they saw small plastic bags like those often used to
package marijuana for sale.
On December 5, 2001, the detective obtained and
executed a search warrant for the barn.
The search uncovered
three large potted marijuana plants, about three pounds of
processed marijuana in several small bags, a grow light,
electronic scales, Steve Edwards’s journal describing an attempt
to start plants from clippings from a parent plant, and a small
quantity of cocaine.
The brothers were indicted and tried with
the result noted above.
The brothers contend that they should not have been
convicted of cultivating five or more plants when the search
yielded only three plants and when the detective testified that
he could not tell how many plants he had seen in the tray.
As
they concede, however, this Court must uphold the jury’s verdict
3
unless it so lacked evidentiary support that no reasonable juror
could have reached it.4
The deputy testified that he had seen at least five
plants in the tray; the detective testified that he had seen the
three processed plants, which together with the seized plants
makes six; and Steve’s journal, which a juror could reasonably
believe referred to marijuana, said that there had been more
than five starts from the parent plant.
to support the jury’s verdict.
This is ample evidence
The trial court did not err,
therefore, by denying the brothers’ motions to reduce the
cultivation charge.
A friend and business associate of the Edwardses was
indicted along with them, and on the morning trial was to begin
they learned that this co-defendant had just pled guilty and
would testify for the Commonwealth.
Claiming to have been
unfairly surprised by this development, the Edwardses moved for
a continuance.
The trial court abused its discretion, they
contend, when it denied that motion.
As our Supreme Court has stated many times, in ruling
on a motion for a continuance the trial court should consider
(1) length of delay sought; (2) previous
continuances; (3) inconvenience to
litigants, witnesses, counsel, and the
court; (4) whether the delay is purposeful
or is caused by the accused; (5)
4
Commonwealth v. Benham, Ky., 816 S.W.2d 186 (1991).
4
availability of other competent counsel, if
at issue; (6) complexity of the case; and
(7) whether denying the continuance would
lead to identifiable prejudice.5
At the time of the Edwardses’ motion, their trial,
which would not be complex, had already been pending for fifteen
months and had been continued twice, once because the Edwardses
had attempted to appeal from a clearly interlocutory evidentiary
ruling.
A postponement would have caused a delay of several
more months until the next open court dates and would have
seriously inconvenienced the Commonwealth, some of whose
witnesses had been given plane reservations that could no longer
be cancelled.
On the other hand, as the court noted, the risk
of unfair prejudice was not great because the Edwardses should
have anticipated that the co-defendant would testify.
We do not
believe that the trial court abused its discretion in these
circumstances by denying the Edwardses’ motion for a
continuance.
Finally, the Edwardses contend that the trial court
erred by denying their motion to suppress the evidence seized
from their barn.
The detective and the deputy engaged in
unlawful warrantless searches, they maintain, the several times
they entered the brothers’ property and peered though the fan or
the crack in the barn door.
5
The search warrant was tainted by
Furnish v. Commonwealth, Ky., 95 S.W.3d 34, 42 (2002).
5
those unlawful observations, and so its fruits should have been
suppressed.
We disagree.
Although the brothers insist that the barn was their
business office, they do not dispute that it is an out-building
in open agricultural land well removed from any residence.
The
United States Supreme Court has held that police officers to not
violate the Fourth Amendment’s guarantee against unreasonable
governmental searches and seizures by trespassing upon such open
fields and looking inside such out-buildings.6
The fact that the
building serves in part as an agricultural business office makes
no difference,7 nor does the fact that the officer gains his view
through a small, unintentional opening.8
The trial court did not
err by denying the Edwardses’ suppression motion.
In sum, the Edwardses were not entitled to a
continuance the day trial began, the court properly admitted the
evidence seized from their barn, and the court properly refused
to reduce the cultivation charge.
Accordingly, we affirm the
August 10, 2003, judgment of the Green Circuit Court.
MINTON, JUDGE, CONCURS.
6
United States v. Dunn, 480 U.S. 294, 107 S. Ct. 1134, 94 L. Ed.
2d 326 (1987); Oliver v. United States, 466 U.S. 170, 104 S. Ct.
1735, 80 L. Ed. 2d 214 (1984).
7
United States v. Dunn, supra.
8
United States v. Elkins, 300 F.3d 638 (2002); United States v.
Pace, 955 F.2d 270 (1992).
6
DYCHE, JUDGE, DISSENTS.
BRIEF FOR APPELLANTS:
BRIEF FOR APPELLEE:
Danny Butler
Danny Butler Law Office
Greensburg, Kentucky
Gregory D. Stumbo
Attorney General of Kentucky
Clint Watson
Assistant Attorney General
Frankfort, Kentucky
7
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