DODSON (JEROME C.) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: APRIL 15, 2011; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-001859-MR
JEROME C. DODSON
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE JAMES M. SHAKE, JUDGE
ACTION NO. 08-CR-001346
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING IN PART,
VACATING IN PART,
AND REMANDING
** ** ** ** **
BEFORE: CAPERTON AND DIXON, JUDGES; LAMBERT,1 SENIOR JUDGE.
DIXON, JUDGE: Jerome C. Dodson appeals a judgment of conviction and
sentence rendered by the Jefferson Circuit Court following a jury trial. We affirm
in part, vacate in part, and remand for additional proceedings.
1
Senior Judge Joseph E. Lambert 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 July 2007, Jerome C. Dodson leased an apartment, unit 205, at the
Bayview Condos in Louisville, Kentucky. Prior to signing the lease, Dodson had
visited unit 205 as a guest of the previous tenant, Otis Sledge. Dodson primarily
resided in Detroit, Michigan, where he operated an automobile towing company,
and he traveled to Louisville a few times per month for his business. The
apartments at Bayview were individually owned, and unit 205 was owned by
Calvin Marcus, a Florida resident. Marcus’s friend, Judy Wurtman, managed the
rental of unit 205 on behalf of Marcus.
On October 11, 2007, Detective William Bower of the Louisville
Metro Police Department sought a search warrant for Dodson’s apartment based on
information received from Cassandra Conners, who told police she had transported
a large quantity of ecstasy from Detroit to Louisville and delivered it to unit 205.
Conners advised police that three black males were at the apartment and $130,000
in cash was subsequently delivered. Conners stated that she and two other
individuals, Kahari Wright and Santos Sanders, had stolen a truck and parked it in
the Bayview Condos parking lot. In the search warrant affidavit, Detective Bower
stated that detectives conducted surveillance on the complex, located the stolen
truck and learned that Dodson was the lessee of unit 205. Bower stated that
detectives had previously received an anonymous complaint regarding unit 205
involving heavy traffic all night and stolen motorcycles in the unit’s garage.
Bower further acknowledged that Conners, Santos, and Wright had consistently
given detectives verifiable information regarding numerous items of stolen
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property. The search warrant was issued and executed by officers on the evening
of October 11.
Dodson was not home when officers arrived; accordingly, officers
contacted Judy Wurtman to gain entry into the apartment. Wurtman unlocked the
door for the officers, and the subsequent search revealed items of drug
paraphernalia, approximately seven grams of heroin, and a 9mm handgun.
In April 2008, a Jefferson County Grand Jury indicted Dodson on
charges of 1) trafficking in a controlled substance (heroin) while in possession of a
firearm; 2) possession of a handgun by a convicted felon; and 3) possession of
drug paraphernalia while in possession of a firearm. The Commonwealth
ultimately dismissed the charge of possession of a handgun by a convicted felon,
and a jury trial commenced on the remaining charges in May 2009.
On the morning of trial, Dodson filed a “Motion to Quash,”
essentially asking the court to suppress the evidence seized due to alleged errors in
the search warrant. The trial court heard argument from counsel on the issue, but
denied the motion without a formal evidentiary hearing. At trial, the
Commonwealth presented testimony from several police officers involved in the
search of Dodson’s apartment. The testimony showed that items such as a “kilo
press,” a “seal and save,” and digital scales were found in the apartment and
believed to be items of drug paraphernalia. The testimony also indicated the
loaded handgun was found on a windowsill in the bedroom, behind the headboard
of Dodson’s bed. Further, officers testified that the package of heroin was
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discovered in the pocket of a leather coat, which was located in a closet in the
living room. The Commonwealth’s expert witness, Sgt. Bryan Nunn, testified
regarding his training and experience in drug trafficking cases. Sgt. Nunn
correlated the evidence found in Dodson’s apartment to its potential use in a drug
trafficking operation. Sgt. Nunn also testified drug dealers sometimes kept a
weapon near the bed for protection in the event of an attempted home invasion or
drug-related robbery. Four witnesses testified on behalf of Dodson and presented a
defense theory that the heroin and the handgun belonged to Otis Sledge, the former
resident of Dodson’s apartment.
The jury acquitted Dodson of the trafficking charge and returned
guilty verdicts on the charges of possession of heroin while in possession of a
firearm and possession of drug paraphernalia. The jury recommended a sentence
of six and one-half years’ imprisonment, and the trial court sentenced Dodson
accordingly.
Dodson now appeals his conviction, contending 1) he was entitled to a
directed verdict as to firearm enhancement; 2) palpable error occurred when
language was omitted from the firearm enhancement jury instructions; 3) the court
erred by denying Dodson’s motion to suppress without a hearing; and 4) Dodson
was entitled to a mistrial due to prejudicial statements in the Commonwealth’s
closing argument.
I. Directed Verdict
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Dodson asserts the Commonwealth failed to meet its burden of proof
on the issue of firearm enhancement pursuant to KRS 218A.992; consequently,
Dodson contends he was entitled to a directed verdict of acquittal. We disagree.
“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.” Commonwealth v.
Benham, 816 S.W.2d 186, 187 (Ky. 1991).
KRS 218A.992 provides for penalty-enhancement when a “person
who is convicted of any violation of this chapter who, at the time of the
commission of the offense and in furtherance of the offense, was in possession of a
firearm[.]” The “in furtherance of” language was added to the statute following
Commonwealth v. Montaque, 23 S.W.3d 629 (Ky. 2000), where the Kentucky
Supreme Court held that there must be a nexus between the underlying offense and
the possession of the firearm. Id. at 632. The Montaque Court explained as
follows:
[W]hen it cannot be established that the defendant was in
actual possession of a firearm or that a firearm was
within his or her immediate control upon arrest, the
Commonwealth must prove more than mere possession.
It must prove some connection between the firearm
possession and the crime.
Id. at 632-33 (internal footnote and citation omitted).
In the case at bar, Dodson asserts that the Commonwealth failed to prove
that he, while committing the offense of possession of heroin, possessed a firearm
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“in furtherance of” that offense. Victor Hensley testified for the defense, stating
that in July or August 2007, he had offered to purchase the 9mm handgun from
Otis Sledge. Dodson notes that he was not in the apartment when the search
occurred, and he points out that the gun and the heroin were located in different
areas of the house. He asserts that, because the firearm and the contraband were
not in close proximity, there was no connection between the two items. We
disagree.
Sgt. Nunn testified regarding the prevalence of home invasions of narcotics
traffickers as a means of obtaining money or drugs. Sgt. Nunn asserted his opinion
that drug dealers rely on readily accessible firearms to protect themselves in the
event of a home invasion or attempted robbery. Sgt. Nunn further testified that
seven grams was “a lot” of heroin for the Louisville area, with a street value of at
least $4000.2
Dodson diminishes Sgt. Nunn’s testimony by pointing out the jury acquitted
him of trafficking in heroin. However, viewed in the light most favorable to the
Commonwealth, Sgt. Nunn’s testimony was sufficient for reasonable jurors to infer
that, even if Dodson was not trafficking in heroin, he nonetheless possessed
valuable narcotics in his home, which could warrant possessing a firearm to protect
himself and his heroin. After careful review, we believe the trial court properly
denied Dodson’s motion for a directed verdict on this issue.
II. Jury Instructions
2
Sgt. Nunn testified that the seven grams of heroin constituted approximately 210 individual
doses, which could be sold for $20 to $40 per dose.
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Dodson asserts the jury instructions were clearly erroneous as to the firearm
enhancement because the court failed to include the “in furtherance of” language
required by KRS 218A.992. Dodson concedes this alleged error was not preserved
and requests review as palpable error pursuant to RCr 10.26.
The jury instruction stated:
INSTRUCTION NO. 1B – ILLEGAL POSSESSION OF
A CONTROLLED SUBSTANCE IN THE FIRST
DEGREE (HEROIN) WHILE IN POSSESSION OF A
FIREARM
If you do not find the Defendant, Jerome C. Dodson,
guilty under Instructions No. 1 or 1A, you will find him
guilty under this Instruction if, and only if, you believe
from the evidence beyond a reasonable doubt all of the
following:
A.
That in Jefferson County, Kentucky,
on or about the 11th day of October, 2007,
the Defendant had in his possession a
quantity of Heroin;
B.
That the Defendant knew the
substance so possessed by him was Heroin;
AND
C. And while in the commission of this
offense, the Defendant was in possession of
a firearm.
If you find the Defendant guilty under this Instruction,
you will state so by your verdict and no more.
The verdict form utilized similar language, and it allowed the jury to convict
Dodson based on a finding that “the Defendant was in possession of a firearm
when he committed the offense.”
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KRS 218A.992 specifically requires possession of a firearm at the time of
the commission of the offense and in furtherance of the offense. In Campbell v.
Commonwealth, 260 S.W.3d 792 (Ky. 2008), the Kentucky Supreme Court
approved the use of “in furtherance” language in a KRS 218A.992 instruction. The
Court noted that the “language properly tracks the statute and, certainly, is more
than adequate to fulfill the requirement that a nexus between the firearm
possession and the drug offense be shown.” Id. at 805. In contrast, the jury
instructions at bar did not require that the jury find a nexus between the firearm
possession and the possession of a controlled substance; instead, the jury was able
to find Dodson guilty based on merely possessing a firearm at the same time he
committed the offense of possessing heroin. We believe the court’s failure to
instruct the jury on an essential element of the offense – the “nexus” requirement”
– was clearly erroneous. However, since this error is unpreserved, we must
determine whether it affected Dodson’s substantial rights resulting in manifest
injustice. RCr 10.26.
The evidence at trial was conflicting as to whether there was a connection
between the firearm and heroin; consequently, the jury was required to determine
whether a nexus was established -- whether Dodson possessed a firearm “in
furtherance of the offense when he committed the offense.” See Cooper and
Cetrulo, Kentucky Instructions to Juries, Criminal § 12.08 5th ed. (2009). Under
the instructions provided, the jury was not required to make such a finding, and we
believe that resulted in manifest injustice. See Stewart v. Commonwealth, 306
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S.W.3d 502, 509 (Ky. 2010) (palpable error where jury instructions omitted an
essential element necessary to convict of an enhanced offense).
Considering the facts of this case, we conclude the erroneous instruction
constituted palpable error under RCr 10.26. Accordingly, we vacate and remand
Dodson’s conviction for possession of a controlled substance (heroin) while in
possession of a firearm.
III. Motion to Suppress
On the morning of trial, Dodson filed a “Motion to Quash and Brief in
Support,” challenging the validity of the search warrant. Dodson contended
Cassandra Conners did not exist and that the information in the affidavit was
unreliable. After hearing arguments from counsel, the trial court denied the
motion, concluding the issuing judge properly found probable cause and that
Dodson had not shown the warrant affidavit contained deliberate or reckless false
statements pursuant to Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed.
2d 667 (1978).
Pursuant to RCr 9.78, the court was obligated to hold an evidentiary hearing
on the motion to suppress; however, the failure to hold a hearing is subject to
harmless error review. Hunt v. Commonwealth, 304 S.W.3d 15, 27 (Ky. 2009).
At the outset, we address whether the search warrant was valid on its face.
In Beemer v. Commonwealth, 665 S.W.2d 912 (Ky. 1984), the Kentucky Supreme
Court adopted the “totality of the circumstances” test for reviewing a search
warrant affidavit:
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The task of the issuing magistrate is simply to make a
practical, common-sense decision whether, given all the
circumstances set forth in the affidavit before him,
including the ‘veracity’ and the ‘basis of knowledge’ of
persons supplying hearsay information, there is a fair
probability that contraband or evidence of a crime will be
found in a particular place. And the duty of a reviewing
court is simply to ensure that the magistrate had a
‘substantial basis for . . . conclud[ing]’ that probable
cause existed.
Id. at 914-15, quoting Illinois v. Gates, 462 U.S. 213, 238-39, 103 S. Ct. 2317, 76
L. Ed. 2d 527 (1983). We further note, “Probable cause does not require certainty
that a crime has been committed or that evidence will be present in the place to be
searched.” Moore v. Commonwealth, 159 S.W.3d 325, 329 (Ky. 2005). Finally,
appellate “review of a search warrant must give great deference to the warrantissuing judge's findings of probable cause and should not be reversed unless
arbitrarily exercised.” Id.
In the case at bar, Dodson asserts that the information contained in the
affidavit was unreliable and did not support a finding of probable cause. We
disagree.
The affidavit stated that the officer had previously received valid
information from Conners, Santos, and Wright regarding stolen vehicles. Conners
provided detailed information to the detective regarding her personal involvement
in a drug transaction in unit 205 and gave information regarding a stolen vehicle in
the parking lot of the apartment complex, which the police located. In providing
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information to the police, Conners admitted her own direct involvement in criminal
activities.
“In cases involving identifiable informants who could be subject to criminal
liability if it is discovered that the tip is unfounded or fabricated, such tips are
entitled to a greater ‘presumption of reliability’ as opposed to the tips of unknown
‘anonymous’ informants (who theoretically have ‘nothing to lose’).”
Commonwealth v. Kelly, 180 S.W.3d 474, 477-78 (Ky. 2005). Furthermore,
“[s]tatements against the informant's penal interest also increase the degree of
veracity that a court may attribute to the statements.” Lovett v. Commonwealth,
103 S.W.3d 72, 78 (Ky. 2003).
After careful review, we conclude the totality of the circumstances
established a fair probability that evidence of illegal activity would be found in
Dodson’s apartment; consequently, we agree with the trial court “that the
magistrate had a ‘substantial basis for . . . conclud[ing]’ that probable cause
existed.” Beemer, 665 S.W.2d at 915.
Although we have concluded the warrant was valid on its face, we must
address
Dodson’s allegations regarding the truthfulness of the information
contained in the affidavit. Specifically, Dodson asserts that Cassandra Conners did
not exist and the information was generally unreliable.
In Commonwealth v. Smith, 898 S.W.2d 496, 503 (Ky. App. 1995), this
Court stated,
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To attack a facially sufficient affidavit, it must be shown
that (1) the affidavit contains intentionally or recklessly
false statements, and (2) the affidavit, purged of its
falsities, would not be sufficient to support a finding of
probable cause. The same basic standard also applies
when affidavits omit material facts. An affidavit will be
vitiated only if the defendant can show that the police
omitted facts with the intent to make, or in reckless
disregard of whether the omission made, the affidavit
misleading and that the affidavit, as supplemented by the
omitted information, would not have been sufficient to
support a finding of probable cause.
When a movant challenges the veracity of the information supplied by the
affiant,
There must be allegations of deliberate falsehood or of
reckless disregard for the truth, and those allegations
must be accompanied by an offer of proof. They should
point out specifically the portion of the warrant affidavit
that is claimed to be false; and they should be
accompanied by a statement of supporting reasons.
Affidavits or sworn or otherwise reliable statements of
witnesses should be furnished, or their absence
satisfactorily explained. Allegations of negligence or
innocent mistake are insufficient.
Franks v. Delaware, 438 U.S. at 171-72, 98 S. Ct. at 2684.
Here, we agree with the trial court that Dodson failed to provide any
evidence to support his speculative assertions regarding the truthfulness of the
affidavit. “Conjecture without evidence will not be considered[;]” accordingly,
Dodson failed to demonstrate the affidavit contained false statements, and we need
not further address the issue. Hayes v. Commonwealth, 320 S.W.3d 93, 102 (Ky.
2010). The trial court’s failure to hold an evidentiary hearing constituted harmless
error.
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IV. Closing Argument
Dodson contends the trial court erred by denying his motion for a mistrial
due to prejudicial statements made during the Commonwealth’s closing argument.
Specifically, Dodson points to two incidents during closing when the
Commonwealth stated that an “unbiased judge” authorized a search of Dodson’s
apartment because narcotics trafficking was occurring. Dodson asserts the
Commonwealth’s statements implied that a judge had already determined Dodson
was guilty of drug trafficking and then sent the police to the apartment.
“A trial court has discretion in deciding whether to declare a mistrial, and its
decision
should not be disturbed absent an abuse of discretion.” Clay v.
Commonwealth, 867 S.W.2d 200, 204 (Ky. App. 1993).
We are mindful that “[a] prosecutor may comment on tactics, may comment
on evidence, and may comment as to the falsity of a defense position.” Slaughter
v. Commonwealth, 744 S.W.2d 407, 412 (Ky. 1987). In the case at bar, a recurring
element of Dodson’s defense strategy was to imply the police acted improperly in
conducting the search of his apartment; as a result, we believe the prosecutor’s
comments were not improper. We conclude the court did not abuse its discretion
by denying Dodson’s request for a mistrial.
In conclusion, we vacate and remand Dodson’s conviction for firearm
enhancement, and we affirm his conviction in all other respects.
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For the reasons stated herein, the judgment of the Jefferson Circuit Court is
affirmed in part, vacated in part, and remanded for proceedings consistent with this
opinion.
CAPERTON, JUDGE, CONCURS.
LAMBERT, SENIOR JUDGE, DISSENTS.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Emily Holt Rhorer
Frankfort, Kentucky
Jack Conway
Attorney General of Kentucky
W. Bryan Jones
Assistant Attorney General
Frankfort, Kentucky
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