ROBERT ANDERSON v. COMMONWEALTH OF KENTUCKY
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RENDERED : SEPTEMBER 18, 2003
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2000-SC-0435-MR
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APPELLANT
ROBERT ANDERSON
APPEAL FROM GRAVES CIRCUIT COURT
HONORABLE JOHN T. DAUGHADAY, JUDGE
1999-CR-0194
COMMONWEALTH OF KENTUCKY
APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING IN PA RT, REVERSING IN PART,
AND REMANDING
Robert Anderson was convicted of one count of manufacturing
methamphetamine in violation of KRS 218A.1432 and was sentenced to twenty years in
prison . Anderson raises a number of issues on appeal including the constitutionality of
KRS 218A.1432 . For the reasons set forth below, we affirm his conviction but reverse
his sentence and remand for a new sentencing hearing .
Facts and Procedural History
Anderson's downfall began with the putative purchase of a van from one Richard
D'Avignon. After taking possession of the van, Anderson failed to transfer the title of
the van to his name . This failure so worried D'Avignon, who feared that he might be
held responsible should Anderson have an accident with the van, that D'Avignon went
to the County Clerk's office and "junked" the van's title . See KRS 186A .520 (setting
forth the procedure for obtaining a salvage title). Subsequently, Anderson contacted
D'Avignon regarding the title. D'Avignon informed Anderson that he would obtain a
new certificate of title ("un-junk" the title), if Anderson would agree to pay him an
additional $100 .00 . Anderson responded somewhat ambivalently that they would get it
all worked out.
D'Avignon tried for some time to get the title situation straightened out to his
satisfaction, but found it difficult to contact Anderson . Eventually, D'Avignon decided to
take matters into his own hands and repossess the van because of Anderson's failure
to correct the problems with the van's title . Upon receiving information from a friend as
to the van's location in an apartment complex parking lot, D'Avignon contacted the local
police and informed them of his intent to take possession of the van . Additionally, he
asked the police to send an officer to meet him at the van's location.
Detective Mike Perkins arrived on the scene before D'Avignon . After locating the
van, he ran a check on the van's plates and discovered that the plates were registered
to a red Corvette that was titled in Anderson's name . Having learned Anderson's
address from the check on the van's license plate, Detective Perkins then went to
Anderson's apartment and knocked on the door . After receiving no response to his
knock, Detective Perkins placed a piece of tape across the interstice between the rear
door and the doorjamb, in order to determine whether the door was opened in his
absence. Detective Perkins then went to a local restaurant to wait for D'Avignon.
Before D'Avignon arrived, Detective Perkins saw Anderson pull into the
restaurant parking lot driving a red Corvette . According to Detective Perkins, Anderson
observed the presence of police at the restaurant and sped off. Detective Perkins
briefly gave chase but soon lost sight of Anderson and returned to the van . D'Avignon
arrived soon after these events .
D'Avignon showed Detective Perkins the title to the van, which stated that
D'Avignon was the owner. D'Avignon then asked Detective Perkins to search the van in
order to verify its contents . D'Avignon feared that the van might contain contraband,
and he wanted proof to disavow his ownership of any illegal items. Before searching
the van, Detective Perkins called the County Attorney to seek advice as to whether
D'Avignon had the authority to consent to the search . The County Attorney advised
Detective Perkins that it was okay to search the van pursuant to D'Avignon's consent .
The van was moved to another location where the light was better. The search
of the van uncovered items that are used in the manufacture of methamphetamine:
twenty-nine cans of ether; a large quantity of ephedrine; plastic tubing ; a pizza pan, the
holes in which made it ideal for drying ; starting fluid ; and other miscellaneous items .
After the search, Detective Perkins was informed by officers on the scene that
Anderson had responded to a knock on his door and had consented to having his
apartment searched . Detective Perkins instructed the officers not to enter the
apartment and to wait for his arrival. When Detective Perkins returned to Anderson's
apartment, he discovered that the tape on the door had moved . The search of
Anderson's apartment revealed additional items used in the manufacture of
methamphetamine: cans of Liquid Fire, more starter fluid, iodized salt, empty blister
packs of sudaphedrine, and lithium batteries . Upon this evidence, Anderson was
arrested, indicted, tried, and convicted of manufacturing methamphetamine in violation
of KRS 218A.1432 .
Issues
I.
Search of the Van
Anderson argues that the trial court erred in denying his motion to suppress the
evidence obtained during the search of the van on grounds that the search violated his
Fourth Amendment rights . We disagree .
The "threshold question in every suppression case is the existence of a
reasonable expectation of privacy in the area searched ." United States v. Bellina , 665
F .2d 1335, 1339 (4th Cir. 1981) (internal quotation marks omitted) . The defendant
bears the burden of showing that he or she had a reasonable expectation of privacy .
Rawlings v. Kentucky, 448 U .S . 98, 104, 100 S. Ct. 2556, 2561, 65 L. Ed . 2d 633, 641
(1980) . Unless the defendant meets this burden, he or she has no standing to
challenge the introduction of evidence obtained pursuant to the search in question . Id .
at 106, 100 S. Ct. at 2562, 65 L. Ed . 2d at 642 . Further, the search itself must have
been performed under the color of law, because "a wrongful search or seizure
conducted by a private party does not violate the Fourth Amendment and . . . such
private wrongdoing does not deprive the government of the right to use evidence that it
has acquired lawfully." Walter v. United States, 447 U .S . 649, 656, 100 S. Ct. 2395,
2401, 65 L . Ed . 2d 410, 417 (1980). Thus, the first question we must answer is whether
Anderson had standing to challenge the admissibility of the evidence obtained as a
result of a search of the van . Under the facts of this case, we believe that Anderson did
have standing .
First, we conclude that the search was the result of state action . A number of
cases hold that a search of a vehicle done by a private party in conjunction with a
repossession is not state action. See , e .-g ., United States v. Coleman , 628 F.2d 961
(6th Cir. 1980) ; State v. Lee, 628 A.2d 1318 (Conn . App . 1993), cert. denied,
510 U .S . 1202 , 114 S. Ct. 1319, 127 L. Ed. 2d 668 (1994). Under these cases, the
mere presence of police officers during the repossession or inventory of the items of the
car does not transform the search into state action . Coleman , 628 F .2d at 964. But in
this case, the police at the scene actually conducted the search of the van at
D'Avignon's request. We believe that this official involvement precludes the conclusion
that the search of the van was a private search. See Arkansas v. Sanders , 442 U .S.
753, 757, 99 S . Ct. 2586, 2589, 61 L . Ed . 2d 235, 240 (1979) (the determination of
Fourth Amendment rights often turns on apparently small factual distinctions between
cases). We now turn to the question of Anderson's expectation of privacy.
Whether a person has a constitutionally protected reasonable expectation of
privacy involves the two inquiries of whether the individual manifested a subjective
expectation of privacy in the object of the challenged search, and whether society is
willing to recognize that expectation as reasonable . California v. Ciraolo, 476 U.S . 207,
211, 106 S . Ct. 1809, 1811, 90 L . Ed . 2d 210, 215 (1986) . We assume that Anderson
had a subjective expectation of privacy in the van in light of his use of the van, his claim
of ownership, and the fact that he kept the van's doors locked . The reasonableness of
that expectation, however, turns in large part on D'Avignon's right to repossess the van .
If D'Avignon had the lawful right to repossess the van, Anderson would have no
legitimate expectation of privacy in the vehicle . United States v. Weiss, 11 M.J . 651,
652 (AFCMR,1981); cf. United States v. Allen , 106 F.3d 695, 699 (6th Cir. 1997), cert.
denied, 520 U.S . 1281, 117 S . Ct . 2467, 138 L . Ed . 2d 223 (1997) (a hotel guest
generally has no legitimate expectation of privacy in hotel room or the room's contents
after the conclusion of the agreed rental period) . On the other hand, if D'Avignon did
not have the right to repossess the van, then Anderson retained at least some
expectation of privacy in the van and its contents . See United States v. Knoll , 16 F.3d
1313, 1320 (2nd Cir. 1994), cert. denied sub nom, Gleave v. United States,
513 U .S . 1015, 115 S. Ct. 574, 130 L. Ed . 2d 490 (1994).
At issue in Knoll was whether the trial court should have suppressed the
contents of files and audiotapes that were stolen from an attorney's office. Knoll , 16
F .3d at 1319 . The trial court concluded that there could be no Fourth Amendment
violation because the search via the burglary was purely private and not the result of
state action . Id . On appeal, the Knoll Court agreed that the initial search was private
and, therefore, the appellant had no standing to challenge the admissibility of any
evidence uncovered through private action . Id . But it concluded that this did not
dispose of the question of whether the documents in closed containers and the
contents of the audiotapes taken during the burglary were procured pursuant to state
action . Id . at 1320 .
As the Knoll Court saw it,
the critical issue is the point in time when the object of the
search has been completed . If the object has been realized,
the government cannot later become a party to it. By the
same token, it may not expand the scope of an ongoing
private search unless it has an independent right to do so.
Knoll , 16 F .3d at 1320. Thus, the Knoll Court concluded that, if the contents of the files
and audiotapes (1) were not readily apparent from the exterior, and (2) had not been
discovered pursuant to a private search before the files and the audiotapes themselves
were turned over to the government, then (3) the defendant retained a legitimate
expectation of privacy in the contents of the files and audiotapes, which would have
allowed him to challenge their admissibility. Id . The situation here is similar .
If D'Avignon did not have the legal right to repossess the van, his possession of it
at the time it was searched was unlawful, and . Anderson had standing to challenge any
evidence uncovered in a search that was the product of state action . The question of
whether D'Avignon had the legal right to repossess the van cannot, and probably
should not, be determined from the record before us. For the purpose of this appeal,
we assume that D'Avignon did not have the legal right to repossess the van and reach
the merits of Anderson's argument that the search of the van violated his Fourth
Amendment rights .
No warrant was issued to search D'Avignon's van. "All searches without a valid
search warrant are unreasonable unless shown to be within one of the exceptions to
the rule that a search must rest upon a valid warrant ." Gallman v. Commonwealth , Ky.,
578 S .W.2d 47, 48 (1979). To meet its burden of showing that the search in question
falls within an exception, the Commonwealth argues that D'Avignon had actual authority
to consent to the search, and, thus, the search was lawful and the trial court correctly
denied Anderson's motion to suppress. Consent to search, of course, is one of the
main exceptions to the warrant requirement of the Fourth Amendment . Cook v.
Commonwealth, Ky., 826 S.W.2d 329, 331 (1992). This exception encompasses the
consent of third parties as to areas under common control or access with the person
challenging the legality of the search. See Colbert v. Commonwealth , Ky., 43 S.W.3d
777, 780-81 (2001), cert. denied , 534 U.S . 964, 122 S. Ct. 375 , 151 L . Ed . 2d 285
(2001). In the alternative, the Commonwealth argues that the search was lawful under
the apparent-authority-to-consent exception . See id . at 784.
The Commonwealth's primary argument that D'Avignon had actual authority to
consent to the search of the van is contrary to our assumption that D'Avignon was not
in legal possession of the van . Therefore, we reject this argument and turn to the
question of whether the police reasonably relied on D'Avignon's apparent authority to
consent to the search.
In Illinois v. Rodriquez , 497 U .S. 177, 179, 110 S . Ct. 2793, 2796, 111 L . Ed . 2d
148, 155 (1990), the U .S. Supreme Court addressed the issue of "[w]hether a
warrantless entry is valid when based upon the consent of a third party whom the
police, at the time of entry, reasonably believe to possess the common authority over
the premises, but who in fact does not do so ." The Court held that the absence of
actual authority to consent to the search did not automatically render the search illegal:
Whether the basis for such authority exists is the sort of
recurring factual question to which law enforcement officials
must be expected to apply their judgment; and all the Fourth
Amendment requires is that they answer it reasonably . The
Constitution is no more violated when officers enter without
a warrant because they reasonably (though erroneously)
believe that the person who has consented to their entry is a
resident of the premises, than it is violated when they enter
without a warrant because they reasonably (though
erroneously) believe they are in pursuit of a violent felon who
is about to escape.
Id . at 186, 110 S . Ct. at 2800, 111 L. Ed . 2d at 160.
Thus, the constitutional validity of a warrantless search that is based on the
consent of a third party who has the apparent (but not the actual) authority to consent to
the search, turns on whether the officials executing the search were reasonable in their
belief that they, in fact, had the proper consent to conduct the search. This inquiry, like
other factual determinations bearing upon search and
seizure . . . must be judged against an objective standard :
would the facts available to the officer at the moment . . .
warrant a man of reasonable caution in the belief that the
consenting party had authority over the premises? If not,
then warrantless entry without further inquiry is unlawful
unless the authority actually exists. But if so, the search is
valid .
Rodrig uez, 497 U.S . at 188-89, 110 S . Ct. at 2801, 111 L . Ed . 2d at 161 . Under the
facts of this case, we hold that the officers conducting the search were reasonable in
their belief that D'Avignon had the authority to consent to the search .
Self-help repossession of an "automobile in a peaceable manner without force,
violence, breach of the peace, etc. " is not unlawful . C.I .T . Corp . v. Short, 273 Ky. 190,
115 S.W.2d 899 (1938). But of course, the repossessor must have the legal right to
make the repossession. D'Avignon's basis for repossessing the van was not made
clear at the suppression hearing . D'Avignon, however, did have the title to the van in
his name and a key to the vehicle. Thus, it seems that D'Avignon did have a colorable
claim to repossess the van at the time that he consented to its search . Further, the
police officers at the scene phoned the County Attorney prior to searching the van to
ascertain whether D'Avignon had the authority to consent to the search. Based on
these facts, we believe that the police were reasonable in their belief that D'Avignon
had the actual authority to consent to the search. Therefore, we affirm the trial court's
denial of Anderson's motion to suppress the search .
II .
Vagueness
Anderson argues that KRS 218A.1432 is void for vagueness because § (1)(b) of
the statute fails to give sufficient notice as to the conduct made unlawful and because it
allows for arbitrary prosecution . We disagree .
Under the United States and Kentucky Constitutions, a penal statute must define
an offense with sufficient definiteness to enable an ordinary person to understand what
conduct is prohibited and it must do so in a manner that does not encourage
discriminatory enforcement . See Kolender v. Lawson , 461 U.S . 352, 357-58, 103 S. Ct.
1855, 1858-859, 75 L. Ed . 2d . 903, 909 (1983) ; Musselman v. Commonwealth , Ky., 705
S .W .2d 476, 478 (1986). Further, except where First Amendment rights are involved, a
vagueness challenge is decided on a case-by-case basis. United States v. Hofstatter, 8
F.3d 316, 321 (6th Cir.1993), cert. denied , 510 U.S . 1131, 114 S . Ct . 1101, 127 L . Ed.
2d 413 (1994). In other words, in a case not touching on First Amendment rights, a
defendant must challenge the statute as applied to him or her. In light of our recent
decision in Kotila v. Commonwealth , Ky.,
S .W .3d- (2003), we hold that KRS
218A.1432 is not unconstitutionally vague as applied to Anderson .
KRS 218A .1432(1)(b) provides that a "person is guilty of manufacturing
methamphetamine when he knowingly and unlawfully . . . [p]ossesses the chemicals or
equipment for the manufacture of methamphetamine with the intent to manufacture
methamphetamine ." In Kotila , we held that KRS 218A .1432(1)(b) requires proof that a
defendant had possession of either all of the chemicals or all of the equipment
necessary for the manufacture of methamphetamine with the intent to manufacture
methamphetamine before the defendant can be found guilty of violating the statute.
Kotila ,
S.W .3d at
. Thus, a person cannot be prosecuted for possessing some,
but not all, of the chemicals or all the equipment necessary to manufacture
methamphetamine . The additional requirement that the chemicals or the equipment
must be possessed with intent to manufacture methamphetamine helps to further
prevent the statute from being unconstitutionally vague . See, e.g-, Hofstatter , 8 F .3d at
322.
The police officers arresting Anderson found him in possession of all the
equipment necessary to manufacture methamphetamine and all of the necessary
chemicals except anhydrous ammonia . Further, he had possession of a large quantity
of some of the necessary chemicals, including twenty-nine cans of starting fluid (a good
source of ether), over two thousand individual capsules of sudaphedrine, and twenty-six
lithium batteries, from which the intent to manufacture methamphetamine can be
inferred . See discussion of intent to manufacture , infra . Detective Perkins testified that
Anderson was arrested because of the combination of chemicals and equipment found
in his possession and the large quantity of some of these items. Under these facts, we
conclude that Anderson was on sufficient notice that his conduct was illegal and that he
was not the victim of arbitrary enforcement, even if the police were proceeding under
the mistaken theory that prosecution under KRS 218A.1432 did not require proof of
possession of all the chemicals or all of the equipment used to manufacture
methamphetamine . Cf. Sheriff, Washoe County v. Burdog , 59 P.3d 484, 487 (Nev.
2002), cent. denied ,
U .S .
S . Ct.
L . Ed . 2d
(2003), in which
the Nevada Supreme Court held that a statute that penalized possession of chemicals
used in the manufacture of methamphetamine was unconstitutionally vague on its face
because the statute did not include an element of intent to manufacture . Therefore, we
hold that KRS 218A .1432(1)(b) is constitutional as applied to Anderson .
Ill.
Directed Verdict
Anderson argues that the trial court erred in denying his motion for a directed
verdict on grounds that the Commonwealth failed to introduce evidence that he
intended to manufacture methamphetamine . We disagree .
As noted above, Anderson was found in possession of all of the equipment
necessary to manufacture methamphetamine and all of the necessary chemicals
except anhydrous ammonia . Further, he had possession of an abnormally large
amount of antihistamine tablets and cans of starter fluid . Intent to manufacture can be
inferred from a large and unusual quantity of the chemicals necessary to manufacture
methamphetamine . Cf. United States v. Faymore , 736 F.2d 328, 333 (6th Cir. 1984),
cert . denied , 469 U .S . 868, 105 S . Ct . 213, 83 L. Ed. 2d 143 (1984) (intent to distribute
illegal drugs can be inferred from possession of a large quantity of the drugs) . Thus,
the trial court did not err in denying the motion for a directed verdict on grounds that the
Commonwealth failed to produce sufficient evidence of intent to manufacture
methamphetamine.
IV.
Failure to Instruct on Possession of Drug Paraphernalia
Next, Anderson argues that the trial court erred in not instructing on the whole
law of the case in violation of RCr 9.54. Specifically, he argues that he was entitled to
an instruction on possession of drug paraphernalia, which is a Class A misdemeanor
for a first offense, because the evidence at trial supported giving an instruction on this
charge . We disagree .
A basic rule of statutory construction is that, between two statutes that cover the
same subject matter, a specific statute controls a more general statute. Heady v.
Commonwealth, Ky., 597 S .W .2d 613 (1980). "This is especially true where the special
act is later in point of time ." Morton v. Auburndale Realty Co . , Ky., 340 S .W .2d 445,
446 (1960) . A comparison of the drug paraphernalia statute (KRS 218A.500) and the
methamphetamine manufacturing statute (KRS 218A .1432) demonstrates that they
cover the same subject matter in that they criminalize the same conduct and mental
state when applied to the facts of this case.
KRS 218A.1432(1)(b) (methamphetamine manufacturing) - which was enacted
in 1998, 1998 Ky. Acts, ch . 606 § 59 -- provides :
A person is guilty of manufacturing methamphetamine when
he knowingly and unlawfully . . . [p]ossesses the chemicals
or equipment for the manufacture of methamphetamine with
the intent to manufacture methamphetamine .
KRS 218A.500(2) (possession of drug paraphernalia) -- which was enacted in
1982, 1982 Ky. Acts, ch . 413 § 2, and last amended in 1992, 1992 Ky. Acts, ch. 441 § 8
-- provides in pertinent part:
It is unlawful for any person to use, or to possess with intent
to use, drug paraphernalia for the purpose of . . .
manufacturing . . . a controlled substance in violation of this
chapter.
The definition of "drug paraphernalia" includes "all equipment, products and
materials of any kind which are used, intended for use, or designed for use in . . .
manufacturing . . . a controlled substance in violation of this chapter." KRS
218A.510(1) . Further, methamphetamine is a controlled substance within the meaning
of KRS Chapter 218A. KRS 218A.010(4). Finally, both statutes require proof of intent
to manufacture . Thus, both statutes apply to the Commonwealth's proof in this case :
evidence of the equipment and chemicals used in the manufacture of
methamphetamine in sufficient and unusually large quantities to infer intent to
manufacture methamphetamine.
By enacting KRS 218A.1432, the General Assembly has singled out the
manufacture of methamphetamine as particularly evil . This reflects the inherent
dangers of manufacturing methamphetamine .' In contrast, KRS 218A.500 generally
addresses, inter alia, the problems and dangers of manufacturing all controlled
substances . Because the methamphetamine manufacturing statute is more specific
and was enacted subsequent to the enactment of the drug paraphernalia statute, the
methamphetamine manufacturing statute is controlling . Consequently, we hold that the
trial court did not err in refusing to instruct on possession of drug paraphernalia .
V.
Computer Printout
Anderson argues that the trial court erred in allowing a deputy circuit clerk to
testify in the penalty phase as to Anderson's misdemeanor convictions . Specifically, he
argues that the clerk erroneously testified that he had been convicted of second-degree
assault, child abuse. We agree .
KRS 532 .055 permits the Commonwealth to introduce a convicted defendant's
prior criminal convictions in the penalty phase of a trial . In Hall v. Commonwealth , Ky.,
817 S .W .2d 228 (1991), we held that these may be introduced through a certified
Kentucky State Police computer printout . Id . at 229. While, a computer printout of
conviction is subject to a hearsay challenge, this is usually overcome by meeting the
requirement of the records-of-regularly-conducted-activity exception to the hearsay rule
set forth in KRE 803(6). Robinson v. Commonwealth , Ky., 926 S .W .2d 853, 854
'"In addition to the dangers of methamphetamine abuse, the manufacturing process presents its
own hazards . The production of methamphetamine requires the use of hazardous chemicals . Many of
these chemicals are corrosive or flammable . The vapors that are created in the chemical reaction attack
mucous membranes, skin, eyes and the respiratory tract. Some chemicals react dangerously with water
and some can cause fire or explosion . . . . [Further, m]ethamphetamine manufacturing results in a great
deal of hazardous waste. The manufacture of one pound of methamphetamine results in six pounds of
waste. This waste includes corrosive liquids, acid vapors, heavy metals, solvents and other harmful
materials that can cause disfigurement or death when contact is made with skin or breathed into the
lungs . Lab operators almost always dump this waste illegally in ways that severely damage the
environment . National parks and other preserved sites have been adversely affected ." U .S. Drug
Enforcement Agency Fact Sheet , http://www .usdoj .gov/dea/pubs/pressrel/methfactOl .html (accessed on
October 25, 2002 .)
- 1 4-
(1996) . But in Hall, we were careful to note that "[i]n the present case, there is no
dispute whatever as to the defendant's prior convictions ; no issue, if you will, as to the
contents of a writing ." Hall, 817 S .W .2d at 230 (emphasis in original) ; see also
Robinson, 926 S.W.2d at 854. Here, Anderson does take issue with the accuracy of
the contents of the computer printout.
Second-degree assault is a Class C felony. KRS 508 .020 . Obviously, Anderson
could not have been convicted of a felony in district court . KRS 24A .110. Therefore,
evidence that Anderson had been convicted of second-degree assault should not have
been admitted through the printout of Anderson's district court convictions . The
Commonwealth does not strenuously disagree ; rather, it argues that the issue was not
properly preserved . We believe that it was for the following reasons.
The video record in this case is quite poor, especially where objections are
concerned . Most of the bench conferences in this case are completely inaudible . To
overcome this problem, defense counsel filed a narrative statement under the authority
of CR 75.13(1). The statement was approved by the trial court and entered into the
record on January 29, 2001 . The narrative statement includes two separate objections
to the introduction of Anderson's misdemeanor convictions in district court.
The pertinent section from the narrative statement is contained in paragraph 12,
which states:
Defense objects to clerk reading convictions and charges
other counties without proper certified record . . . . Defense
from
objected to Graves County Clerk testifying as to convictions in
other counties from a computer printout. Defense argued that the
computer printout was not a proper record of convictions from other
counties . Judge denied objection. (92-F-134 was read as assault
2nd, child abuse-however, that is only how the computer adds
2 There is no evidence in the record that Anderson had been previously convicted of any felonies
prior to his present felony conviction.
-1 5-
stuff, and it was amended to a misdemeanor and did not involve a
child at all-you can tell from the penalty it was amended, but the
original charge was read as a felony).
We read the part of the statement in parentheses as being the trial judge's reasoning in
overruling the objection . Thus, the issue of whether the felony assault conviction
should have been admitted through the deputy circuit clerk was clearly before the trial
judge and properly preserved . The Commonwealth argues, in the alternative, that the
error was harmless . We disagree .
The jury recommended that Anderson serve the maximum sentence of twenty
years' imprisonment, and the trial judge followed the jury's recommendation . We
cannot say that the erroneous information that Anderson had been convicted of
second-degree assault, child abuse, did not play some part in the jury recommendation .
Therefore, the error was not harmless and Anderson is entitled to a new sentencing
hearing .
VI.
Other Issues
Additionally, Anderson argues that the length of his sentence violates the Eighth
Amendment to the United States Constitution and that the poor video record denied him
effective assistance of appellate counsel . In light of the fact that the case is being
remanded for a new sentencing hearing, the Eighth Amendment argument is not ripe
for review. As for the second argument, claims of ineffective assistance of appellate
counsel cannot be raised on appeal . Ineffective assistance of appellate counsel is not
a cognizable issue in this jurisdiction. Lewis v. Commonwealth , Ky ., 42 S.W .3d 605,
614(2001) .
Conclusion
For the reasons set forth above, we affirm Anderson's conviction for
manufacturing methamphetamine in violation of KRS 218A .1432, but we reverse his
sentence and remand this case for a new sentencing hearing consistent with this
opinion .
Lambert, C.J . ; Graves and Johnstone, JJ ., concur . Wintersheimer, J ., concurs in
result only. Cooper, J ., dissents by separate opinion, with Stumbo, J ., joining that
dissent. Keller, J ., dissents and would reverse Appellant's conviction and remand the
case to the trial court because the trial court erred by failing : (1) to suppress the
evidence uncovered in the unconstitutional search of Appellant's van ; and (2) to instruct
the jury as to the lesser-included offense of Possession of Drug Paraphernalia .
COUNSEL FOR APPELLANT :
Euva Hess
Assistant Public Advocate
Department of Public Advocacy
100 Fair Oaks Lane, Suite 301
Frankfort, KY 40601
COUNSEL FOR APPELLEE :
A. B. Chandler, III
Attorney General of Kentucky
Gregory C . Fuchs
Assistant Attorney General
Office of Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, KY 40601-8204
RENDERED : SEPTEMBER 18, 2003
NOT TO BE PUBLISHED
,*uyrrmr (~Vurf
of '~ftrufurhv
2000-SC-0435-MR
ROBERT ANDERSON
APPELLANT
APPEAL FROM GRAVES CIRCUIT COURT
HONORABLE JOHN T. DAUGHADAY, JUDGE
1999-CR-0194
V
COMMONWEALTH OF KENTUCKY
APPELLEE
DISSENTING OPINION BY JUSTICE COOPER
The Commonwealth's expert testified that Appellant was in possession of all of
the chemicals and equipment necessary to manufacture methamphetamine except
anhydrous ammonia . Although he, unlike the expert in Kotila v. Commonwealth , Ky.,
S.W.3d
, (slip op., at 15) (2003), further testified that there were other
chemicals that could be substituted for anhydrous ammonia in the manufacturing
process, he did not identify those products or testify that any were found in Appellant's
possession . Nevertheless, the evidence was sufficient to support a conviction of
manufacturing methamphetamine under the equipment alternative of KRS
218A .1432(1)(b) . Of course, the jury was not required to accept the expert's testimony
that the equipment found in Appellant's possession constituted all of the equipment
necessary to manufacture methamphetamine . Kotila , at
(slip op., at 28) . Thus,
Appellant requested and tendered an instruction on possession of drug paraphernalia
as a lesser included offense of manufacturing methamphetamine . The request was
denied .
KRS 218A.500 provides, inter alia , as follows :
As used in this section and KRS 218A .510:
(1)
"Drug paraphernalia" means all equipment, products and materials
of any kind which are used , [or] intended for use . . . in . . .
manufacturing . . . a controlled substance in violation of this
chapter. It includes, but is not limited to :
(h)
(2)
Blenders, bowls, containers, spoons, and mixing devices
used, intended for use, or designed for use in compounding
controlled substances ;
It is unlawful for any person to use, or to possess with intent to use,
drug paraphernalia for the purpose of . . . manufacturing . . . a
controlled substance in violation of this chapter.
Any person who violates any provision of this section shall be guilty
of a Class A misdemeanor for the first offense and a Class D felony
for subsequent offenses .
(Emphasis added .)
KRS 218A .510 provides :
In determining whether an object is drug paraphernalia, a court or other
authority should consider, in addition to all other logically relevant factors,
the following :
(1) Statements by an owner or by anyone in control of the object
concerning its use ;
(2) Prior convictions, if any, of an owner, or of anyone in control of the
object, under any state or federal law relating to any controlled
substance ;
(3) The proximity of the object, in time and space, to a direct violation
of KRS 218A.500(2), (3) or (4);
(4) The proximity of the object to controlled substances ;
(5) The existence of any residue of controlled substances on the
object ;
(6) Direct or circumstantial evidence of the intent of an owner, or of
anyone in control of the object, to deliver it to persons whom he
knows, or should reasonably know, intend to use the object to
facilitate a violation of KRS 218A.500(2), (3) or (4) ; the innocence
of an owner, or of anyone in control of the object, as to a direct
violation of KRS 218A .500(2), (3) or (4) shall not prevent a finding
(7)
(8)
(9)
(10)
(11)
(12)
(13)
(14)
that the object is intended for use, or designed for use as drug
paraphernalia ;
Instructions, oral or written, provided with the object concerning its
use ;
Descriptive materials accompanying the object which explain or
depict its use ;
National and local advertising concerning its use;
The manner in which the object is displayed for sale ;
Whether the owner, or anyone in control of the object, is a
legitimate supplier of like or related items to the community, such
as a licensed distributor or dealer of tobacco products ;
Direct or circumstantial evidence of the ratio of sales of the object
to the total sales of the business enterprise ;
The existence and scope of legitimate uses for the object in the
community;
Expert testimony concerning its use .
Under these statutes, possession of any chemical or item of equipment used in
the manufacture of methamphetamine can be considered possession of drug
paraphernalia in violation of KRS 218A .500 depending upon the circumstances of the
possession or intended use. Thus, when a defendant is charged under KRS
218A .1432(1)(b) with manufacturing methamphetamine by possessing all of the
chemicals or equipment necessary to do so, but the jury could believe that the
defendant possessed some, but less than all, of the necessary chemicals or equipment,
the jury should be instructed on possession of drug paraphernalia as a lesser included
offense . Swain v. Commonwealth , Ky., 887 S .W.2d 346, 348 (1994) (jury should be
instructed on any lesser included offense supported by the evidence).
This issue was not raised in Kotila , supra, but it clearly completes the picture with
respect to a charge of manufacturing methamphetamine, viz:
1 . If the defendant was actually and knowingly manufacturing
methamphetamine, the defendant is guilty of a Class B felony under KRS
218A.1432(1)(a).
2. If the defendant knowingly possessed all of the chemicals or equipment
necessary to manufacture methamphetamine with the intent to manufacture
methamphetamine, the defendant is guilty of a Class B felony under KRS
218A.1432(1)(b) .
3. If the defendant knowingly possessed anhydrous ammonia in an unapproved
container with the intent to manufacture methamphetamine, the defendant is guilty of a
Class B felony under KRS 250.489(1) and KRS 250.991(2) .
4 . 1f the defendant, e .g_, (a) knowingly attempted but failed to obtain possession
of all of the chemicals or equipment necessary to manufacture methamphetamine with
the intent to manufacture methamphetamine, or (b) knowingly possessed less than all of
the chemicals or equipment necessary to manufacture methamphetamine but had
already begun the manufacturing process, the defendant is guilty of a Class C felony,
i .e. , criminal attempt to manufacture methamphetamine, under KRS 506.010. Kotila ,
at
(slip op., at 33-34) .
5. If the defendant knowingly possessed a methamphetamine precursor with the
intent to manufacture methamphetamine, the defendant is guilty of a Class D felony
under KRS 218A.1437 .
6. If the defendant possessed chemicals or equipment (other than anhydrous
ammonia in an unapproved container or a methamphetamine precursor) that constituted
less than all of the chemicals or equipment necessary to manufacture
methamphetamine with the intent to manufacture methamphetamine, the defendant is
guilty of the Class A misdemeanor of possession of drug paraphernalia under KRS
218A.500.
Circuit drugjoins this reversewaslesser included requested instructioncase to the
of CourtI for aAppellant Appellant's conviction and remand this on
JI believe new trial Accordingly, I the offense of manufacturing
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