STEPHON HARBIN V. COMMONWEALTH OF KENTUCKY
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MODIFIED : DECEMBER 18, 2003
RENDERED : AUGUST 21, 2003
TO BE PUBLISHED
,Sixyrrun Qlaud of
2000-SC-0730-MR
AND
2001-SC-0177-TG
APPELLANT
STEPHON HARBIN
V.
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE ANN SHAKE, JUDGE
99-C R-00418
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION OF THE COURT BY JUSTICE GRAVES
AFFIRMING, IN PART, AND REVERSING AND REMANDING, IN PART
Appellant, Stephon Harbin, was convicted in the Jefferson Circuit Court of firstdegree trafficking in a controlled substance (cocaine), three counts of first-degree
wanton endangerment, attempting to elude police, resisting arrest, and of being a firstdegree persistent felony offender . He was sentenced to a total of twenty years
imprisonment and appeals to this Court as a matter of right. In addition, Appellant
appeals from the circuit court's final order of forfeiture . We affirm the convictions but
reverse and remand for a hearing on the forfeiture issue .
On the evening of October 27, 1998, Officer Larry Seelye observed Appellant,
Stephon Harbin, and co-defendant, Eric Henderson, sitting in a blue minivan on the
corner of Nineteenth and Broadway in Louisville. Officer Seelye testified that Appellant,
who was in the driver's seat, was holding a bag of cocaine and talking to a third male
who was standing outside of the van. The third person took the bag, looked at it, and
returned it to Appellant . The man then walked away and Appellant drove off. When
officers activated their emergency lights and sirens, Appellant accelerated and
attempted to evade police . Officer Seelye stated that the ensuing vehicle chase
reached speeds of 70-80 mph down Broadway . Eventually, Appellant lost control of his
van and struck a tree in the Chicasaw Park area . Appellant exited the vehicle and ran
toward a residential area where he was apprehended by other officers. Officer Kenton
Buckner testified that he saw Appellant throw a gun during the pursuit. A search the
next day located a gun in the area, although no fingerprints were found on it.
When Appellant's van was searched, a bag of powder cocaine, $6,500 in cash,
and some baggies on the passenger side floorboard were found . Appellant was
subsequently indicted for: (1) first-degree trafficking in a controlled substance (cocaine) ;
(2) possession of a firearm by a convicted felon; (3) first-degree wanton endangerment
(three counts); (4) resisting arrest; (5) possession of a defaced firearm ; (6) attempting to
elude police ; and (7) third-degree criminal trespass . During the August 1999 trial,
Appellant received a directed verdict on the criminal trespass charge . The jury
subsequently found him guilty of trafficking, wanton endangerment, resisting arrest, and
attempting to elude police. Appellant thereafter pled guilty to being a first-degree
persistent felony offender .
On October 18, 1999, pursuant to a plea agreement, Appellant was sentenced to
twenty years imprisonment, the minimum permissible sentence under KRS
532 .080(6)(a) . Also, the prosecutor agreed to drop the charge of possession of a
handgun by a convicted felon .
On November 1, 1999, the trial court ordered that
Appellant may proceed In Forma Pauperis and that the Department of Public Advocacy
provide counsel .
On November 17, 1999, the Commonwealth moved to forfeit Appellant's minivan,
the $6,500 found therein, and the gun that was apparently dropped during the pursuit .
The Commonwealth's motion was noticed only to the attorney who Appellant had
retained to represent him at trial, Steve Schroering . The Commonwealth's motion was
heard during the November 29, 1999, motion hour before a judge other than Judge
Shake (who had presided over all of Appellant's previous proceedings) . Neither
Appellant nor DPA was present . The trial court granted the forfeiture motion.
Apparently, a copy of the signed forfeiture order was never sent to Appellant, DPA, or
even Schroering . After learning of the order some fifteen days after its entry, Appellant
filed a pro se motion under CR 59 .05 to alter, amend, or vacate the judgment. On
January 31, 2000, Judge Shake rendered an opinion and order denying the motion on
the grounds that the court no longer had jurisdiction of the case. Appellant now
appeals to this Court as a matter of right.
1.
Appellant contends that the trial court impermissibly limited his voir dire by ruling
that he could only inform the jury panel that the possible range of penalties was "one
day to life," without any further explanation . Appellant claims the panel was misled by
information that the penalty range was anywhere from one day to life in prison without
delineating the specific offenses and the penalty range carried by each offense .
At the time of Appellant's trial, the controlling cases on this issue were Samples
v. Commonwealth , Ky., 983 S .W.2d 151 (1998) and Shields v. Commonwealth , Ky., 812
S .W .2d 152 (1991), cert. denied, 502 U.S . 1065 (1992), which permitted the jury to be
informed of the entire sentencing range, including the sentences for any lesser-included
offenses . Subsequently, this Court rendered the decision in Lawson v. Commonwealth ,
Ky., 53 S .W .3d 534, 544 (2001), wherein we stated :
In all non-capital criminal cases where a party or the trial court wishes to
voir dire the jury panel regarding its ability to consider the full range of
penalties for each indicated offense, the questioner should define the
penalty range in terms of the possible minimum and maximum sentences
for each class offense . . .
Lawson overruled Samples and Shields to the extent they held otherwise . Thus,
contrary to the Commonwealth's position and the trial court's ruling, defense counsel
should have been permitted to inform the jury panel of the specific penalty range for
each charged offense .
Notwithstanding, Appellant entered a guilty plea on the PFO charge and was
sentenced to the minimum of twenty years. As this Court explained in Lawson , supra,
the purpose of allowing sentencing information to go to the jury is "to assess [its ability]
to consider the range of permissible penalties in the event the trial proceedrs] to a
sentencing phase ." Id . at 541 (emphasis added). Given Appellant's plea of guilt to the
PFO charge and the imposition of the minimum possible twenty year sentence, any
error must be deemed harmless .
II .
Appellant next contends that the trial court erred in admitting "highly prejudicial
testimony regarding a photograph of a nude woman lying on a bed surrounded by large
amounts of cash ." The photograph itself was excluded on the grounds that any
probative value was outweighed by its prejudicial effect . However, the trial court ruled
that if Appellant "opened the door," the Commonwealth would be permitted to question
him concerning the contents of the photograph .
After Appellant testified on direct examination that the $6,500 found in the
minivan had come from various legal sources, the Commonwealth again moved to
admit the photograph. Apparently concerned that the trial court would reverse its earlier
ruling, defense counsel agreed to the Commonwealth's questioning Appellant about the
large amount of money that was depicted in the photograph . No further objection was
raised .
We are of the opinion that the photograph, or at least its contents, was arguably
relevant in light of Appellant's explanation for the source of the money . Further, while it
may be questionable whether Appellant did, in fact, "open the door" by claiming the
money was legitimately obtained, the issue is rendered moot in light of his concession
to the prosecutor's questioning . This failure to object must be viewed as a trial strategy
which is not reviewable on appeal. Salisbury v. Commonwealth , Ky.App ., 556 S .W .2d
922 (1977). Therefore, error, if any, was harmless .
Appellant argues that his Due Process rights were violated when his vehicle and
the $6,500 found therein were forfeited without notice and an opportunity for a hearing .
We agree .
The statutes pertaining to forfeiture are KRS 218A .410 and KRS 218A.460 .
Pursuant to KRS 218A.410, property subject to forfeiture includes "vehicles . . . which
are used, or intended for use, to transport or in any manner to facilitate the
transportation, for the purpose of sale or receipt" of controlled substances and
equipment used in the manufacture of such, and "all proceeds . . . traceable to the
exchange, and all moneys . . . used or intended to be used, to facilitate any violation of
this chapter [.]" KRS 218A .410(1)(h) and (j) . However, subsection (j) further provides :
It shall be a rebuttable presumption that all moneys, coin,, and currency found in
close proximity to controlled substances, to drug manufacturing or distributing
paraphernalia, or to records of the importation, manufacture, or distribution of
controlled substances, are presumed to be forfeited under this paragraph. The
burden of proof shall be upon claimants of personal property to rebut this
presumption by clear and convincing evidence . The burden of proof shall be
upon the law enforcement agency to prove by clear and convincing evidence that
all real property is forfeitable under this paragraph
In addition, KRS 218A .460, which concerns the application of the forfeiture procedures,
states, in pertinent part:
(2) Following conviction of a defendant for any violation of this chapter, the court
shall conduct an ancillary hearing to forfeit property if requested by any party
other than the defendant or the Commonwealth . The Commonwealth's attorney,
or the county attorney if the proceeding is in District Court, shall initiate the
hearing by filing a motion requesting entry of a final order of forfeiture upon proof
that the property was being used in violation of the provisions of this chapter.
The final order of forfeiture by the court shall perfect in the Commonwealth or
appropriate law enforcement agency, as provided in KRS 218A .435, right, title,
and interest in and to the property . The Commonwealth may transfer any real
property so forfeited by deed of general warranty .
(4) Unless otherwise expressed in KRS 218A.410, the burden shall be upon
claimant to property to prove by preponderance of the evidence that it is not
subject to forfeiture.
Appellant first argues that the Fourteenth Amendment to the United States
Constitution requires that he be given notice and an opportunity for a hearing before his
property is forfeited, and to the extent that KRS 218A.460(2) does not require such, it
should be held unconstitutional . Notably, in her January 31, 2000 order, Judge Shake
noted that KRS 218A .460 "does not require an evidentiary hearing for all forfeitures and
certainly not at the request of a convicted defendant."
The Fourteenth Amendment to the United States Constitution provides that no
state shall deprive any person of life, liberty, or property without due process of law.
"An elementary and fundamental requirement of due process in any proceeding which is
to be accorded finality is notice reasonably calculated, under all the circumstances, to
apprise interested parties of the pendency of the action and afford them an opportunity
to present their objections ." Robinson v. Hanrahan , 409 U .S. 38, 39-40, 93 S.Ct. 30,
31, 34 L .Ed .2d 47 (1972) (quoting Mullane v. Central Hanover Bank & Trust Co ., 339
U .S . 306, 314, 70 S .Ct. 652, 94 L .Ed . 865 (1950) . In Fuentes v.Shevin , 407 U .S . 67,
80, 92 S .Ct. 1983, 1994, 32 L.Ed .2d 556 (1972), the United States Supreme Court
stated, "For more than a century the central meaning of procedural due process has
been clear: Parties whose rights are to be affected are entitled to be heard ; and in order
that they may enjoy that right they must first be notified ."
Unlike statutory schemes from other jurisdictions, Kentucky's Controlled
Substances Act, KRS Chapter 218A, does not explicitly provide for notice and
hearing to a defendant convicted of a violation of the Act before a court may order
property forfeited . In fact, the language of KRS 218A.460(2) appears only to require
an ancillary hearing if requested by a third party, not the Commonwealth or a
defendant . However, it is clear from the language contained in KRS 218A.410, that
the Legislature intended for an individual to be afforded the basic constitutional
protections of due process prior to forfeiture of otherwise legal property . We fail to
discern any other reason why KRS 218A.41 0(1)(j) would place the burden on a
claimant to rebut by clear and convincing evidence the presumption that the
property, in this case money, is forfeitable. Further, KRS 218A .460 expressly
provides that the claimant to other personal property has the burden to prove by a
preponderance of the evidence that it is not subject to forfeiture . Holding that notice
and an opportunity to contest the forfeiture of one's property are not required
essentially eviscerates these burdens of proof. It defies common sense that one
could meet such a burden in the absence of any knowledge of the forfeiture action.
Here, the record reflects that the November 17, 1999, motion was noticed only to
Appellant's trial counsel, Schroering, whose responsibilities as trial counsel had ended
over two weeks previously when he was replaced for pu rpo ses of appeal by the DPA on
November 1, 1999. Although "the Due Process clause . . . requires only that the
Government's effort [at notice] be `reasonably calculated' to apprise a party of the
pendency of the action[,]" Dusenbery v. United States, 534 U .S . 161, 170, 122 S .Ct.
694, 151 L.Ed.2d 597, 607 (2002) (quoting Mullane'v . Central Hanover Bank & Trust
Co . , 339 U .S . 306, 315, 70 S .Ct. 652, 94 L.Ed . 865 (1950)), we hold that the
Commonwealth's service in this case was insufficient because Schroering's prior
representation of Appellant did not demonstrate a "currency and continuity of litigation
and representation," Lynch v. Commonwealth , Ky.App ., 610 S .W.2d 902, 906-7 (1980)
(quoting Guthrie v. Guthrie , Ky., 429 S.W .2d 32, 35 (1968), from which the
Commonwealth could reasonably conclude that Appellant was still "represented by"
Schroering, see RCr 1 .08(b), or that service upon Schroering was "reasonably certain to
inform [Appellant .]" Dusenbery , supra , 534 U.S. at 170, 151 L .Ed.2d at 606 (quoting
Mullane , supra , 339 U .S at 315) . Since the Commonwealth was aware of both
Appellant's incarceration and the DPA's appointment for purposes of appeal, it should
have noticed the motion to the DPA or Appellant himself. As Appellant in this case was
not provided notice of the forfeiture action, it follows that he did not have any opportunity
to present evidence to rebut the presumption that his property was forfeitable. See
Lynch, supra at 907 ("Without service there can be no notice ; without notice there can
be no compliance with one's constitutional rights of due process.").
Appellant also takes issue with the actual forfeiture of the $6,500 found in the
minivan in the absence of any proof that it was related to the trafficking activities . We
addressed this issue in Osborne v. Commonwealth , Ky., 839 S .W.2d 281, 284 (1992),
wherein we stated :
On examination of [KRS 218A.41 00)], it is apparent that any property
subject to forfeiture under (j) must be traceable to the exchange or
intended violation . This requirement exists without regard to the
presumption which appears later in the statute . Without such a
requirement, the statute would mandate forfeiture of property which was
without any relationship to the criminal act and would be of dubious
constitutionality validity . . . .
The Commonwealth may meet its initial burden by producing slight
evidence of traceability . Production of such evidence plus proof of close
proximity, the weight of which is enhanced by virtue of the presumption, is
sufficient to sustain the forfeiture in the absence of clear and convincing
evidence to the contrary . In practical application, the Commonwealth
must first produce some evidence that the currency or some portion of it
had been used or was intended to be used in a drug transaction .
Additional proof by the Commonwealth that the currency sought to be
forfeited was found in close proximity is sufficient to make a prima facie
case. Thereafter, the burden is on the claimant to convince the trier of fact
that the currency was not being used in the drug trade .
At trial, Appellant and his fiancée, Kimberly Guinn, testified that the $6,500 found
in the minivan was a down payment on a house they were renting with an option to buy.
Guinn testified that each of them contributed one-half of the down payment, and that
$3,000 came from monies she received in the settlement of a car accident claim .
Appellant stated that his part of the down payment was attributable to a tax return . The
Commonwealth did not directly refute such testimony . None of the officers who
witnessed the trafficking activities testified that a buy took place or that money
exchanged hands. In fact, one of the officers stated that the individual they observed
walk away from the van was not apprehended because he had not committed a crime .
Thus, the Commonwealth produced no evidence at trial to indicate the $6,500 was
traceable to the trafficking activities .
Further, unlike Osborne , supra, there was not a separate forfeiture proceeding in
this case. The Commonwealth grossly mischaracterizes the record in stating that
"[d]uring an evidentiary hearing conducted November 29, 1999, the trial judge ruled that
the money should be forfeited because the appellant had failed to rebut the statutory
presumption 'by clear and convincing evidence' that the money was not part of illegal
drug activities ." What the Commonwealth characterizes as an "evidentiary hearing"
was, in fact, a two-minute motion hour appearance by the Commonwealth (in the
absence of Appellant or counsel) before a judge unfamiliar with the case, during which
time the judge's only inquiry was whether forfeiture was permitted while the criminal
conviction was on appeal. In any event, absolutely no finding of traceability was made
but the order was nonetheless signed .
Finally, Appellant argues that the forfeiture violates the Excessive Fines Clauses
of the Eighth Amendment and § 17 of the Kentucky Constitution . It is well-established
that punitive forfeitures such as this one implicate the excessive fines clauses. Austin v.
United States , 509 U .S . 602, 113 S .Ct. 2801, 125 L .Ed.2d 488 (1993) ; Commonwealth
v. Fint , Ky ., 940 S .W .2d 896 (1997) . A trial court must determine not only whether the
property is sufficiently tainted by the criminal act to be subject to forfeiture, but also
whether the forfeiture is grossly disproportionate to the particular offense . Some of the
factors to be considered are the gravity of the offense, the potential penalties, the actual
sentence, sentences imposed for similar crimes, and the effect of the forfeiture on
innocent parties . Fint, supra ; United States v. Real Property Known and Numbered as
415 East Mitchell Avenue, Cincinnati, Ohio , 149 F .3d 472 (6th Cir. 1998) . While the
gravity of Appellant's convictions militates against him on this issue, since the trial court
did not conduct any forfeiture proceedings an analysis of the excessiveness of forfeiture
is premature .
Appellant's convictions are affirmed . This matter is remanded to the Jefferson
Circuit court for further proceedings concerning the forfeiture of Appellant's property .
Lambeli, C .J ., Cooper, Craves, Keiier and vvintersheimer, J .J ., concur.
Stumbo, J., dissents in a separate opinion in which Johnstone, J ., joins.
COUNSEL FOR APPELLANT :
Shelly R . Fears
Department of Public Advocacy
100 Fair Oaks Lane, Suite 302
Frankfort, KY 40601
COUNSEL FOR APPELLEE :
A.B . Chandler III
Attorney General
Perry Ryan
Assistant Attorney General
Office of Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, KY 40601
RENDERED : AUGUST 21, 2003
TO BE PUBLISHED
,$ixyrrme (gaurf of 'ArnfurkV
2000-SC-0730-MR
AND
2001-SC-0177-TG
STEPHON HARBIN
V.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE ANN SHAKE, JUDGE
99-CR-00418
COMMONWEALTH OF KENTUCKY
APPELLEE
DISSENTING OPINION BY JUSTICE STUMBO
Respectfully, I must dissent. I disagree with the majority opinion on Issue I and
Issue 11 raised by Appellant . First, the majority opinion is consistent with our prior ruling
in Lawson v. Commonwealth , Ky., 53 S .W .3d 534, 544 (2001), that "the questioner
should define the penalty range in terms of the possible minimum and maximum
sentences for each class of offense. . . ." However, I must disagree with the majority's
reasoning that it was harmless error since Appellant pled guilty to the PFO charge and
was ultimately given the minimum possible twenty-year sentence.
This error cannot be harmless because it occurred prior to anyone knowing that
the case would not reach the penalty phase. "A meaningful voir dire examination by
both sides is a sine qua non to the seating of a fair and impartial jury." Shields v.
Commonwealth , Ky., 812 S .W .2d 152, 153 (1991), overruled in part by Lawson , supra .
The issue in the case at bar was whether the trial court erred in prohibiting
defense counsel from advising the jury panel about the specific sentence range carried
by each of the offenses . The majority found the trial court did err. It is my opinion that
the entire trial process was infected by this error and I would reverse for a new trial .
Secondly, admission of testimony regarding a photograph was highly prejudicial
as it was not relevant to charges against Appellant, nor did it have any probative value.
Appellant and his girlfriend testified as to the source and purpose of the money in the
van, i .e . , proceeds from a lawsuit to be used to purchase a home . No evidence was
presented that connected the money in the photo with the money in the van or illegal
activity.
We are required to determine whether the probative value of such evidence
outweighs the potential for prejudice to the accused . Although the photograph was not
introduced, forcing Appellant to testify about the large sums of money featured in the
photograph may have created an association with drug trafficking in the minds of the
jury, thereby prejudicing Appellant . I believe this prejudice far outweighed the probative
value of the evidence . The trial judge erred by failing to exercise sufficient caution when
he allowed the Commonwealth to question Appellant regarding the contents of the
photograph . Accordingly, I would reverse for a new trial .
Johnstone, J ., joins this dissent.
uyrrwr Courf of firufurhg
2000-SC-0730-MR
AND
2001-SC-0177-TG
STEPHON HARBIN
V.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE ANN SHAKE, JUDGE
99-CR-00418
COMMONWEALTH OF KENTUCKY
APPELLEE
ORDER GRANTING PETITION FOR MODIFICATION, IN PART
AND DENYING !, IN PART
Appellee's Petition for Modification of this Court's Opinion rendered August 21,
2003, is granted in part and denied in part.
The Opinion of the Court by Justice Graves rendered August 21, 2003 shall be
modified on page 3 lines 5 and 9, page 8 line 3, page 10 line 3 and page 11, Counsel
for Appellee . Due to pagination, the attached published opinion substitutes in full for the
previous opinion rendered . Said modification does not affect the holding .
Lambert, C .J . ; Cooper, Johnstone, Keller, Stumbo and Wintersheimer, JJ .,
concur. Graves, J ., would deny the petition for modification in part to the extent that he
would retain the language on pages 3 and 10 of the Opinion of the Court rendered
August 21, 2003 that criticizes the prosecution's description of the terms of the plea
agreement as a misrepresentation .
Entered : December 18, 2003 .
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