KENNETH WAYNE THOMAS v. COMMONWEALTH OF KENTUCKY
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RENDERED:
FEBRUARY 3, 2006; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO.
2004-CA-002354-MR
KENNETH WAYNE THOMAS
APPELLANT
APPEAL FROM HARDIN CIRCUIT COURT
HONORABLE JANET P. COLEMAN, JUDGE
INDICTMENT NO. 04-CR-00123
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BUCKINGHAM AND McANULTY, JUDGES; PAISLEY, SENIOR JUDGE.1
PAISLEY, SENIOR JUDGE:
Kenneth W. Thomas appeals from a
judgment of conviction and sentence entered by the Hardin
Circuit Court.
Thomas was convicted of two counts of
trafficking in a controlled substance in the first degree, one
count of trafficking in a controlled substance near a school and
of being a persistent felony offender.
Finding no error, we
affirm.
1
Senior Judge Lewis G. Paisley sitting as Special Judge by assignment of the
Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and
KRS 21.580.
In 2002, Barry Howard was a paid confidential
informant for the Hardin County Sheriff’s Office.
According to
the record, Howard had participated in roughly 106 controlled
drug purchases.
from Thomas.
On July 30, 2002, Howard arranged to buy drugs
Prior to the drug buy, Howard met with Detectives
Randy Gibbs and Steve Witte.
The detectives searched him and
gave him money to buy drugs.
Howard then met with Thomas and
purchased some marijuana from him.
On August 5, 2002, Howard
arranged another drug buy with Thomas.
buy, Howard met with the detectives.
Once again, prior to the
After being searched, the
detectives gave Howard $100.00 to purchase drugs.
purchased methamphetamine from Thomas.
Howard then
On August 14, 2002,
Howard again purchased methamphetamine from Thomas.
In February 2004, a Hardin County Grand Jury indicted
Thomas on two counts of trafficking in a controlled substance in
the first degree, one count of trafficking in a controlled
substance near a school and of being persistent felony offender
in the first degree.
Thomas proceeded to trial on September 10,
2004 and was convicted on all counts.
In October 2004, the
Hardin Circuit Court sentenced Thomas to serve a total of ten
years in prison.
Now, Thomas seeks relief from his criminal
conviction.
SUFFICIENCY OF THE EVIDENCE
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On appeal, Thomas questions the sufficiency of the
evidence.
Thomas avers that there were numerous discrepancies
between Detective Gibbs’s testimony at trial, his testimony
before the grand jury and his testimony at the preliminary
hearing.
And there were numerous discrepancies between Howard’s
testimony at trial and Detective Gibbs’s testimony at trial.
Relying on State v. Phillips, 585 S.W.2d 517 (Mo. Ct.
App. 1979), an opinion from the Missouri Court of Appeals,
Thomas argues that the uncorroborated testimony of a
confidential informant is not sufficient to sustain a
conviction.
Thomas also cites Sisson v. State, 710 N.E.2d 203
(In. App. 1999), an opinion from the Indiana Court of Appeals,
for the proposition that if a witness’s testimony is very
uncertain, then an appellate court may substitute its judgment
regarding the witness’s credibility for that of the jury’s.
According to Thomas, Detective Gibbs’s testimony was very
uncertain.
In addition, Thomas insists that Howard’s testimony
was the only evidence that connected Thomas to drug trafficking.
And he insists that Howard’s testimony was not only
uncorroborated but was also very uncertain.
Thus, Thomas
reasons that the evidence adduced at trial was insufficient to
sustain his conviction.
Although Thomas claims to take issue with the
sufficiency of the evidence, in reality, he is arguing that the
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Commonwealth’s witnesses were not credible.
Relying on Sisson,
he urges us to substitute our judgment regarding the witnesses’
credibility for that of the jury’s.
However, the holding in
Sisson is contrary to the law here in the Commonwealth of
Kentucky.
In the Commonwealth, it has long been held that the
jury, not an appellate court, has the sole responsibility to
weigh the evidence and judge the credibility of all witnesses
that testify before it. Dunn v. Commonwealth, 151 S.W.2d 763,
764-765 (Ky. 1941).
While a jury is not bound to accept the
testimony of any witness as true, it has the discretion to
believe all of a witness’s testimony, some of it or none of it.
Dunn v. Commonwealth, supra and Gillispie v. Commonwealth, 279
S.W. 671, 672 (Ky. 1926).
The numerous minor discrepancies set
forth in Thomas’s brief do not cast doubt on the sufficiency of
the evidence.
They merely reflect on the credibility of the
Commonwealth’s witnesses.
We cannot substitute our judgment
regarding credibility for that of the jury’s.
Thus, we defer to
the jury, which obviously found the Commonwealth’s witnesses to
be credible since it convicted Thomas on all counts.
PROSECUTORIAL MISCONDUCT
According to Thomas, the prosecutor made the following
remarks during his closing argument:
Have you heard one thing that should cause
you to question the truth and veracity of
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Mr. Howard? Have you heard one thing?
You’ve heard nothing.
Have they brought anything in here?
It’s unrefuted.
The only person who knows if there was a
hand to hand transfer of drugs in the car
with tinted windows is Kenny Thomas.
According to Thomas, by making these four statements, the
prosecutor was impermissibly commenting upon Thomas’s Fifth
Amendment right to remain silent and not testify at trial.
Thomas insists these statements show that the prosecutor
hammered repeatedly on what Thomas did not say and did not prove
at trial.
Thomas reasons that this was prosecutorial misconduct
so egregious that the trial court erred in not granting a
mistrial.
We note that, at trial, Thomas only objected to the
first comment listed above.
The prosecutor made this statement
in response to Thomas’s attack on Howard’s credibility during
Thomas’s closing argument; therefore, it was not a comment on
Thomas’s silence.
The other three statements were not preserved
for appellate review.
However, since we initially found the
fourth statement listed above to be the most troubling, we will
briefly address it.
The record reflects that, during one of the
drug transactions, Thomas approached a vehicle owned by a Miss
Grissim, interacted with an unknown occupant in the vehicle and
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then gave Howard a small quantity of methamphetamine.
During
Thomas’s closing argument, he complained that the evidence which
the Commonwealth used to indict him was somehow insufficient for
the Commonwealth to seek an indictment against Miss Grissim.
In
response to Thomas’s complaint, which questioned the sufficiency
of the evidence, the prosecutor made the last remark listed
above.
This remark was not a comment of Thomas’s silence but
was a rebuttal to Thomas’s attack on the sufficiency of the
evidence.
To determine if a prosecutor’s remarks commented on a
criminal defendant’s right to remain silent, we look to see if
the remarks were “manifestly intended to reflect on the
accused’s silence or of such a character that the jury would
naturally and necessarily take [them] as such.” Bowling v.
Commonwealth, 873 S.W.2d 175, 178 (Ky. 1993).
For a trial court
to grant a mistrial there must be a manifest necessity for one.
Kirkland v. Commonwealth, 53 S.W.3d 71, 76 (Ky. 2001).
The
record demonstrates that the prosecutor’s statements were not
intended to comment on Thomas’s silence and did not render
Thomas’s trial fundamentally unfair. Id.
Since there was no
manifest necessity for a mistrial, the trial court did not err.
CHAIN OF CUSTODY
According to Thomas, a person known as Danny Payne
picked up the drug evidence that had been tested by the Kentucky
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State Police’s forensic lab and delivered it to a person only
known as E. Wilson.
Thomas points out that neither Payne nor
Wilson testified at trial; however, Thomas concedes that both
individuals signed the bottom of the sheet showing the record of
evidence.
On appeal, Thomas argues that because eighteen months
has passed between the commission of the crimes and the
indictment, the chain of custody was vitally important.
Since
neither Payne nor Wilson testified, Thomas insists that there
was a fatal break in the chain of custody.
Thus, he reasons
that the trial court erred when it denied his motion for
mistrial based on the alleged break in the chain of custody.
When reviewing a trial court’s decision regarding the
chain of custody, we will not reverse absent an abuse of the
trial court’s discretion. Thomas v. Commonwealth, 153 S.W.3d
772, 781 (Ky. 2004).
The purpose for establishing a chain of
custody is to insure that the physical evidence proffered is the
same physical evidence that was involved in the alleged crime
and that this physical evidence has remained materially
unaltered. Id. at 779.
However, having said that, it is not
necessary for the party offering the evidence to establish a
perfect chain of custody. Rabovsky v. Commonwealth, 973 S.W.2d
6, 8 (Ky. 1998).
Nor is the party required to eliminate all
possibility of tampering or misidentification. Id.
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The party is
required to demonstrate with reasonable probability that the
evidence has not been altered in any material way. Id.
In
addition, any gaps in the chain of custody go to the weight of
the evidence not its admissibility. Id.
Here, the Commonwealth
produced evidence tracing the drugs from Detective Gibbs’s
possession to the possession of the chemist who tested and
identified them.
At trial, the chemist testified that once she
had finished testing the drugs she re-packed them and re-sealed
their package.
Prior to opening the package at trial, she
testified that the package showed no signs of tampering and
appeared to be in the same condition as when she had re-sealed
it.
Thus, the Commonwealth demonstrated with reasonable
probability that the drugs introduced at trial were the same
drugs tested by the chemist and that the drugs tested by the
chemist were the same drugs sold by Thomas.
Moreover, the
Commonwealth demonstrated with reasonable probability that the
drugs had not been materially altered.
The trial court did not
abuse its discretion in admitting the drugs into evidence and
denying Thomas’s motion for mistrial.
KENTUCKY RULES OF CIVIL PROCEDURE (CR) 76.28
We note that CR 76.28(4)(c) states, “Opinions that are
not to be published shall not be cited or used as authority in
any other case in any court of this state.”
Despite the clear
prohibition against citing unpublished opinions, Thomas’s
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counsel, a seasoned appellate attorney, violated CR 76.28(4)(c)
and cited an unpublished opinion in Thomas’s brief.
We admonish
appellate counsel for ignoring this civil rule and caution her
against future violations.
The judgment of conviction is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Lisa Bridges Clare
Assistant Public Advocate
Frankfort, Kentucky
Gregory D. Stumbo
Attorney General of Kentucky
Bryan D. Morrow
Assistant Attorney General
Frankfort, Kentucky
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