HAROLD W. GARDNER v. COMMONWEALTH OF KENTUCKY
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RENDERED:
OCTOBER 13, 2006; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO.
NO.
2005-CA-000585-MR
AND
2005-CA-001387-MR
HAROLD W. GARDNER
APPELLANT
APPEALS FROM MUHLENBERG CIRCUIT COURT
HONORABLE DAVID H. JERNIGAN, JUDGE
ACTION NOS. 04-CR-00138 AND 04-CR-00170
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
ACREE, SCHRODER, AND VANMETER, JUDGES.
ACREE, JUDGE:
Harold W. Gardner (Gardner) appeals his
convictions in Muhlenburg Circuit Court on charges of Carrying a
Concealed Deadly Weapon, Possession of a Controlled Substance
with firearm enhancement and Possession of Drug Paraphernalia.
For the reasons stated, we affirm.
On September 24, 2004, Harold Gardner was pulled over
for suspicion of Driving Under the Influence by Deputy Wade
Griggs of the Muhlenberg County Police Department.
Deputy
Griggs asked Gardner if he had any drugs or weapons on him and
Gardner affirmatively answered that he had a handgun in his back
pocket.
Gardner claimed to have a concealed carry permit but
did not have it with him.
A records check revealed that Gardner
did not have a permit to carry a concealed deadly weapon, nor
had he ever been issued a concealed carry permit, and he was
subsequently arrested.
During the search incident to arrest, Deputy Griggs
recovered two pouches containing methamphetamine, empty baggies,
three lighters, and several “boats” or pieces of aluminum foil
in which methamphetamine is placed in order to smoke it.
Gardner was charged with Possession of a Controlled Substance
with a firearm enhancement, Carrying a Concealed Deadly Weapon,
and Possession of Drug Paraphernalia.
On February 16, 2005,
Gardner was found guilty on all counts and sentenced to serve
ten years.
Between his arrest and conviction on these charges,
Gardner engaged in criminal activity resulting in additional
charges and subsequent convictions.
On October 7, 2004, Gardner,
while out of jail on bond, went to Commercial Printing in
Greenville, Kentucky, and asked if the employees there could
make picture ID cards with his photo on them.
After being
informed that they could not, Gardner ordered a ream of blue
parchment paper.
The next day, Gardner returned to Commercial
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Printing and showed them a certificate provided by the State
upon completion of a gun safety class.
Gardner asked the
employees if they could use the blue parchment paper he ordered
to print certificates of completion of training with his name on
them or, alternatively, print certificates of completion with
the name area left blank.
The employees informed Gardner that
they could not do so because it would be illegal.
Gardner
became upset and left Commercial Printing, taking a portion of
the ream of blue paper without paying for it.
After Gardner
left the store, the employees called the police.
On October 11, 2004, the Sheriff of Muhlenburg County
and several Deputies procured and executed a search warrant on
Gardner’s home to find the ream of blue parchment paper stolen
from Commercial Printing.
The search uncovered drug
paraphernalia, methamphetamine, two firearms, and three forged
concealed deadly weapons permits.
Two of the cards had
Gardner’s name and picture on them. Gardner was subsequently
arrested.
While in custody, Gardner made two statements which
were reduced to writing on his behalf.
In the first, he
admitted to trying to hide drugs and drug paraphernalia before
the police could find them.
In the second statement, Gardner
admitted that he went to Commercial Printing and asked the
employees to make concealed deadly weapons permits and
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certificates of training completion for him.
Gardner also
admitted that he possessed forged concealed deadly weapon
permits.
Gardner was indicted for Possession of a Controlled
Substance with a firearm enhancement, Possession of Drug
Paraphernalia with a firearm enhancement, Tampering with
Physical Evidence, and Forgery in the Second Degree.
He was
found guilty on May 17, 2005, on all counts and was sentenced to
serve fifteen years.
Gardner separately appealed both the
February and May verdicts.
These appeals have been consolidated
in order to render one opinion.
We will discuss issues common
to both convictions first, followed by the issues pertaining to
Gardner’s February 2005 trial and, finally, those raised
concerning his May 2005 conviction.
Gardner argues in both appellate briefs that the trial
court erred when it overruled his motion to disqualify the
Commonwealth’s Attorney based on Gardner’s claim of a conflict
of interest.
While still in private practice in 1997, the
Commonwealth’s Attorney represented Gardner in dissolution
proceedings.
Gardner and his wife eventually entered into a
reconciliation agreement and a divorce was never finalized.
After July of 1997, the Commonwealth’s Attorney had no further
contact with Gardner concerning the divorce.
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The trial court
was correct in finding no continuing, ongoing representation of
Gardner by the Commonwealth’s Attorney.
Gardner cites Kentucky Supreme Court Rule 3.130,
Professional Rule of Conduct 1.11, and claims that this
provision prohibits his former counsel from serving as the
prosecutor in this later criminal matter.
This rule states, at
subdivision (c):
Except as the law may otherwise expressly
permit, a lawyer serving as a public officer
or employee shall not:
(1) Participate in a matter which the
lawyer participated personally and
substantially while in private practice
or nongovernmental employment. . . .
An attorney is prohibited from participating in the prosecution
of a later criminal case “if by reason of his professional
relations with the accused he has acquired a knowledge of the
facts which are closely interwoven therewith
. . .
1995).
.”
Whitaker v. Commonwealth, 895 S.W.2d 953, 956 (Ky.
Here there is no substantial relationship between the
1997 divorce proceedings and the 2005 criminal action.
Gardner
does not, and cannot, assert that any facts gathered by counsel
during the dissolution had bearing on the later criminal
charges.
The vast differences between the two actions should
indicate there was no possibility of conflict between the
divorce proceedings and the later criminal action.
We conclude
that the Commonwealth’s Attorney is no longer legally bound to
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represent Gardner and there was no conflict of interest in the
present case.
Gardner next asserts that during the February 2005
trial, the trial court erroneously permitted the prosecution to
introduce evidence that he forged a concealed deadly weapon
permit, constituting improper impeachment on a collateral issue.
We agree.
During his first trial, Gardner testified on his own
behalf.
He admitted that he did not have a permit to carry a
concealed weapon.
When asked by the prosecutor to explain why
at the time of his arrest he told Deputy Griggs that he had
concealed weapon permit, Gardner explained that he misunderstood
Deputy Griggs and thought that the officer was asking about a
different type of permit (a hunting license) which would only
require the gun’s registration papers.
The Commonwealth, at
that time, introduced evidence of Gardner’s trip to Commercial
Printing, his subsequent arrest for forgery of concealed weapon
permits, and his statement to police officers admitting he
possessed fake conceal and carry permits.
The Commonwealth
asserts that introduction of this evidence, including that
Gardner had forged a concealed deadly weapon permit before his
arrest on September 24, 2004, was proper to rebut his earlier
testimony that he misunderstood Deputy Griggs when the officer
asked him if he had a permit to carry a concealed deadly weapon.
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We disagree but find the error to be harmless and not warranting
reversal.
Impeachment by contradiction regarding a collateral
fact is prohibited.
Eldred v. Commonwealth, 906 S.W.2d 694, 705
(Ky. 1994)(citing Lawson, The Kentucky Evidence Law Handbook (3d
Ed. 1993) § 4.10).
A collateral fact is one that could not have
been introduced into evidence for a purpose independent of the
contradiction.
Commonwealth v. Jackson, 281 S.W.2d 891, 893-94
(Ky. 1955) overruled on other grounds by Jett v. Commonwealth,
436 S.W.2d 788, 792 (Ky. 1969).
Further, “[i]t is generally
recognized that a witness may not be impeached with respect to a
matter which is irrelevant and collateral to the issues in the
action.”
Simmons v. Small, 986 S.W.2d 452, 455 (Ky.App.
1998)(quoting Jackson, supra).
“The purpose of this rule is ‘to
minimize confusion for the triers of fact by avoiding an
unwarranted and endless proliferation of side issues.’”
Simmons, 986 S.W.2d at 455 (quoting Lawson, The Kentucky
Evidence Law Handbook, § 4.10 (3d ed., 1993)).
Whether Gardner understood Deputy Griggs when he
claimed to have a concealed weapon permit is not essential to
this case.
Kentucky Revised Statute (KRS) 527.020(1) states:
A person is guilty of carrying a concealed
weapon when he carries concealed a firearm
or other deadly weapon on or about his
person.
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A person may carry a concealed weapon within the Commonwealth of
Kentucky if they are properly licensed to do so pursuant to KRS
527.020(4).
If Gardner had possessed the proper permit, he
could have asserted this as an affirmative defense.
An
affirmative defense must be raised by the defendant.
Smith v.
Commonwealth, 313 Ky. 113, 230 S.W.2d 478, 479 (Ky. 1950).
Gardner did not assert at trial that he was part of the class
exempted from KRS 527.020(1).
Therefore it was not necessary or
proper for the Commonwealth to introduce evidence before the
jury that had no connection to the issue at hand and could
potentially prejudice them against Gardner.
Thus, in reviewing the trial courts error, we must
follow Kentucky Rule of Criminal Procedure (RCr) 9.24.
RCr 9.24
provides:
No error in either the admission or the
exclusion of evidence and no error or defect
in any ruling or order, or in anything done
or omitted by the court or by any of the
parties, is ground for granting a new trial
or for setting aside a verdict or for
vacating, modifying or otherwise disturbing
a judgment or order unless it appears to the
court that the denial of such relief would
be inconsistent with substantial justice.
The court at every stage of the proceeding
must disregard any error or defect in the
proceeding that does not affect the
substantial rights of the parties.
We must therefore determine whether the error was prejudicial.
The jury did hear evidence that in many circumstances could be
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highly prejudicial.
Gardner admitted to trying to obtain false
documents, being arrested while out on bond for forgery, and
possession of false documents.
However, given the amount of
evidence against Gardner, including his own admission that he
was carrying a concealed deadly weapon, the admission of
subsequent forgery charges did not affect the outcome of his
case.
We conclude that Gardner’s substantial rights were not
violated by any error in the admission of this evidence.
Gardner further argues that the trial court improperly
allowed the Commonwealth to question Deputy Griggs about
Gardner’s past use of methamphetamine.
this issue is unpreserved.
Gardner concedes that
He asks for review of the issue for
palpable error pursuant to RCr 10.26.
Reversing a conviction based on palpable error
requires this Court to determine that a manifest injustice
occurred such that, when considering the entire case, there is
substantial possibility that the result would have been
different but for the error.
219, 224 (Ky. 1996).
Partin v. Commonwealth, 918 S.W.2d
Deputy Griggs testified that Gardner told
him he had used methamphetamine, but was not addicted to it.
Gardner argues that his use of methamphetamine is not at issue
in this trial, but rather his possession of it was.
The
Commonwealth asserts this evidence was properly admitted as
rebuttal evidence countering Gardner’s assertion he did not know
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the substance he was carrying on the night of September 24, 2004
was methamphetamine.
We agree with the Commonwealth.
There was
no palpable error and it is our conclusion that Gardner’s
substantial rights have not been unduly affected.
Gardner next argues that the Commonwealth’s Attorney
had an obligation to remove himself under Kentucky Rule of
Professional Conduct 3.7(a) during his May 2005 trial because he
was likely to be called as a “necessary witness.”
Rule 3.7(a)
states:
A lawyer shall not act as advocate at a
trial in which the lawyer is likely to be a
necessary witness except where:
(1) The testimony relates to an uncontested
issue;
(2) The testimony relates to the nature and
value of legal services rendered in the
case; or
(3) Disqualification of the lawyer would
work substantial hardship on the client.
The Commonwealth’s Attorney did not testify at trial and was not
a necessary witness, thus, Gardner’s argument must fail.
After his arrest, Gardner made two statements which were reduced
to writing on his behalf.
The Commonwealth’s Attorney was
present when Gardner made his first statement and transcribed it
for him.
A sheriff’s deputy was also present at that time and
witnessed both the statement and its transcription.
testified to the accuracy of the statement at trial.
The deputy
The
Commonwealth’s Attorney was never in danger of being called as a
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witness.
We find no violation of the Kentucky Rules of
Professional Conduct.
Next, Appellant contends there was insufficient
evidence for the jury to find him guilty of forgery in the
second degree.
KRS 515.030, in relevant part, states:
(1) A person is guilty of forgery in the
second degree when, with intent to
defraud, deceive or injure another, he
falsely makes, completes or alters a
written instrument which is or purports
to be or which is calculated to become
or to represent when completed:
(c) A written instrument officially
issued or created by a public
office, public employee or
governmental agency.
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
granted. For the purpose of ruling on the
motion, the trial court must assume that the
evidence for the Commonwealth is true [and
reserve] to the jury questions as to the
credibility and weight to be given to [the]
evidence.
Commonwealth v. Benham, 816 S.W.2d 186, 187-188 (Ky. 1991).
If
reasonable minds might fairly find guilt beyond a reasonable
doubt, then the evidence is sufficient to allow the case to go
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to the jury even though it is circumstantial.
Sawhill, 660 S.W.3d 3,4 (Ky. 1983).
that test, it is insufficient.
S.W.2d 811, 814 (Ky. 1971).
Commonwealth v.
If the evidence cannot meet
Hodges v. Commonwealth, 473
The trial court is expressly
authorized to direct a verdict for the defendant if the
prosecution produces no more than a mere scintilla of evidence.
Benham, supra.
The prosecution produced evidence that was
considerably more than a mere scintilla.
Gardner was arrested
for carrying a concealed handgun without the necessary license.
While out on bond, Gardner attempted to have a commercial
printing store make him photo identification cards and training
completion certificates identical to those issued by a
governmental agency.
A subsequent search of Gardner’s home
uncovered three forged concealed deadly weapon permits, two of
which had Gardner’s picture on them.
possessing the forged documents.
Gardner admitted to
Review of the evidence
presented in this case clearly indicates that the trial judge
correctly determined that a reasonable juror could fairly find
guilt beyond a reasonable doubt.
Finally, Gardner argues that the jury instructions
were so erroneous that reversal for a new trial is required.
Gardner concedes that the issue is unpreserved.
objects to Instruction Four which stated:
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Gardner now
You will find the defendant guilty of
Second-Degree Forgery under this Instruction
if, and only if, you believe from the
evidence beyond a reasonable doubt all of
the following:
A. That in this county on or about October
11, 2004, and before the finding of the
Indictment herein, he falsely made or
caused to be made a Concealed Deadly
Weapon’s License purporting to have been
issued by the Commonwealth of Kentucky,
through the Muhlenberg County Sheriff’s
Office;
AND
B. That in so doing, it was the defendant’s
intention to defraud, deceive or injure
some other person or persons.
Gardner contends that there is palpable error because
Instruction Four mentioned the concealed deadly weapons permits
he admitted to having, but failed to mention the certificates of
completion Gardner requested Commercial Printing make for him.
Gardner also asserts that Instruction Four should not have
contained the language “caused to be made.”
Gardner’s trial counsel participated in the drafting
of the jury instructions.
Four at trial.
He made no objection to Instruction
Thus, not only were the alleged errors
unpreserved, they were waived.
S.W.2d 574, 578 (Ky. 1998).
reversal.
Davis v. Commonwealth, 967
The instructions do not justify
Nothing in the record indicates any of the errors
proposed by Gardner would have caused the jury to have decided
differently.
The errors, if any, did not result in manifest
injustice so as to require a new trial.
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For the foregoing reasons, the judgment of the
Muhlenberg Circuit Court is affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEFS FOR APPELLEE:
Euva Denean May
Assistant Public Advocate
Frankfort, Kentucky
Gregory D. Stumbo
Attorney General of Kentucky
Kevin R. Branscum
Assistant Attorney General
Frankfort, Kentucky
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