JOHNNY HUMFLEET V COMMONWEALTH OF KENTUCKY AND CLIFFORD HUMFLEET V COMMONWEALTH OF KENTUCKY
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IMPORTANT NOTICE
NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNA TED "NOT TO BE
PUBLISHED." PURSUANT TO THE RULES OF
CIVIL PROCED URE PROMULGA TED BY THE
SUPREME COURT, CR 76.28 (4) (c), THIS OPINION
IS NOT TO BE PUBLISHED AND SHALL NOTBE
CITED OR USED AS A UTHORITY INANY OTHER
CASE IN ANY COURT OF THIS STATE.
RENDERED : JANUARY 23, 2003
NOT TO BE PUBLI
2002-SC-0030-MR
JOHNNY HUMFLEET
APPEAL FROM LAUREL CIRCUIT COURT
HONORABLE LEWIS B. HOPPER, JUDGE
01-CR-00131-01
V
APPELLEE
COMMONWEALTH OF KENTUCKY
AND
2002-SC-0069-MR
APPELLANT
CLIFFORD HUMFLEET
V
APPEAL FROM LAUREL CIRCUIT COURT
HONORABLE LEWIS B. HOPPER, JUDGE
01-CR-00131-02
COMMONWEALTH OF KENTUCKY
APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Johnny Humfleet and his brother Clifford Humfleet were tried together before a
jury on charges of manufacturing methamphetamine in violation of KRS 218A.1432 .
Both men were convicted of that charge and sentenced to twenty years in prison . The
arguments raised by the defendants in their separate appeals are substantially the same
and for that reason we have combined the two cases in order to render one opinion .
The questions presented are whether the defendants were entitled to directed
verdicts on the manufacturing methamphetamine charge; whether the trial judge erred
in failing to instruct the jury on lesser included offenses ; and whether the trial judge
exceeded the scope of KRE 614 in his questioning a witnesses. Clifford Humfleet also
presents the question of whether the trial judge erred in failing to sever the trials.
Two deputy sheriffs went to Clifford Humfleet's residence looking for a runaway
juvenile . When they arrived, they observed three individuals running from an opensided shed located behind Clifford's trailer. The two deputies gave chase and as they
passed the shed, one of the deputies smelled a chemical odor which he associated with
the manufacturing of methamphetamine . A short pursuit resulted in the apprehension
of Rosalee Humfleet, Johnny Humfleet's former wife . Although divorced for about eight
years the couple were still living together in a trailer next to Clifford .
Returning to the shed, the deputies observed a working methamphetamine lab.
Rosalee was advised of her Miranda rights and she proceeded to identify the other two
individuals who fled as the juvenile the deputies were seeking and Johnny Humfleet .
She indicated that Clifford Humfleet had been helping at the shed but that he had gone
back to his trailer just before the deputies arrived. He was found there by the deputies
and arrested . The deputies also discovered that an electric extension cord running
from the living room of Clifford's home supplied the power for the shed . Rosalee
consented to a search of her residence and the deputies found the components of a
second methamphetamine lab .
After pleading guilty to facilitation to manufacture methamphetamine, Rosalee
testified against Clifford and Johnny at their trial . She stated that just before the
deputies arrived, she had walked down to the shed with Johnny and that Clifford was
already there with the juvenile . According to Rosalee, Clifford told Johnny that they had
some methamphetamine to be gassed off - the final step in the manufacturing process .
Clifford returned to his trailer while Johnny worked in the lab. Shortly thereafter, Clifford
opened his back door and yelled "sheriff"and she, Johnny and the juvenile ran .
A detective with the Kentucky State Police who was called in to dismantle the
labs testified that the lab in the shed was operational . He also testified that finding the
finished product at a lab was uncommon because it is usually consumed or sold.
Both Johnny and Clifford Humfleet testified in their own defense and denied any
knowledge of the labs . Contrary to the testimony of Rosalee, Johnny claimed he had
not lived at the trailer for approximately ten months . Clifford also claimed that he had
been living elsewhere and only returned home four days before his arrest. The jury
convicted both men of manufacturing methamphetamine and they were each
sentenced to twenty years in prison . These appeals followed .
After careful review of the record, it is clear that none of the issues raised by
either defendant are properly preserved for appellate review. We must also observe
that in each instance where the defendants seek review for palpable error they
incorrectly cite to RCr 10.24 instead of RCr 10.26.
I. Directed Verdict
Neither Clifford nor Johnny Humfleet properly preserved for appellate review the
issue of sufficiency of the evidence in regard to the charge of manufacturing
methamphetamine . At the close of the Commonwealth's case, both defendants moved
for a directed verdict on the grounds that there was no link between them and the labs
other than the testimony from Rosalee . On appeal, the defendants contend that
because none of the samples taken from the lab tested positive for a controlled
substance, the most they could be found guilty of was criminal attempt to manufacture
methamphetamine . Such an argument cannot be raised for the first time on appellate
review. Anastasi v. Commonwealth , Ky., 754 S .W .2d 860 (1988) .
In any event, there was sufficient evidence for the trial judge to submit the case
to the jury, and it was not clearly unreasonable for the jury to find both Clifford and
Johnny Humfleet guilty of manufacturing methamphetamine . Commonwealth v.
Benham, Ky., 816 S.W.2d 186 (1991); Commonwealth v. Sawhill, Ky., 660 S.W .2d 3
(1983). The testimony from Rosalee Humfleet and the police officers was sufficient to
prove that the brothers intended to manufacture methamphetamine and possessed the
chemicals or equipment to do so. KRS 218A . 1432(1)(b) does not require that
methamphetamine actually be produced . The trial judge properly denied the motions
for a directed verdict .
II . Instructions
The claim by Clifford and Johnny Humfleet that the trial judge erred by failing to
instruct the jury on the lesser included offenses of facilitation, attempt and manufacture
of a simulated controlled substance, is not properly preserved for appellate review. RCr
9.54(2) provides :
No party may assign as error the giving or the
failure to give an instruction unless he has
fairly and adequately presented his position by
an offered instruction or by motion, or unless
he makes objection before the court instructs
the jury, stating specifically the matter to which
he objects and the ground or grounds of his
objection.
Both defendants concede that they did not object to the jury instructions given by
the trial judge . The failure to comply with RCr 9 .54(2) has consistently been interpreted
to prevent review of claimed error in the instructions because of the failure to preserve
the alleged error for review . Commonwealth v. Thurman , Ky., 691 S .W .2d 213 (1985) .
We have reviewed this issue for palpable error and have found none .
III . Questioning of Witness
The allegation of error by Clifford and Johnny Humfleet that the trial judge
exceeded the scope of KRE 613 in his questioning Rosalee Humfleet was also not
properly preserved for appellate review . This claimed error does not rise to the level of
manifest injustice which is required for review under RCr 10 .26.
IV . Severance
Finally, Clifford Humfleet did not request a separate trial from his brother, thus
any alleged error is unpreserved for appellate review. In any event, trying the brothers
together was completely proper. RCr 9 .16 provides for separate trials only upon a
showing of prejudice to the complaining party. In applying this rule, the trial court has
broad discretion and an exercise of that discretion will not be overturned absent a clear
showing of abuse. Epperson v. Commonwealth , Ky., 809 S .W .2d 835 (1990) . It is
abundantly clear from the record that neither Clifford nor Johnny Humfleet was in any
way prejudiced.
Both defendants received due process of law under the federal and state
constitutions .
The judgments of conviction of both Clifford Humfleet and Johnny Humfleet are
affirmed .
All concur.
COUNSEL FOR APPELLANT
JOHNNY HUMFLEET:
John Palombi
Assistant Public Advocate
Department of Public Advocacy
100 Fair Oaks Lane, Suite 302
Frankfort, KY 40601
COUNSEL FOR APPELLANT
CLIFFORD HUMFLEET :
Euva D. Hess
Assistant Public Advocate
Department of Public Advocacy
100 Fair Oaks Lane, Suite 302
Frankfort, KY 40601
COUNSEL FOR APPELLEE:
A . B. Chandler III
Attorney General of Kentucky
Todd D . Ferguson
Assistant Attorney General
Criminal Appellate Division
Office of the Attorney General
1024 Capital Center Drive
Frankfort, KY 40601-8204
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