MORRIS VARBLE V COMMONWEALTH OF KENTUCKY
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RENDERED : JANUARY 22, 2004
TO BE PUBLISHED
sixprnar C~nurf of
2001-SC-0230-MR
MORRIS VARBLE
V
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APPELLANT
APPEAL FROM HENDERSON CIRCUIT COURT
HONORABLE STEPHEN HAYDEN, JUDGE
00-CR-27
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION OF THE COURT BY JUSTICE COOPER
AFFIRMING IN PART, REVERSING IN PART,
VACATING_ IN PART, AND_REMANDING
Appellant, Morris W. Varble, was convicted in the Henderson Circuit Court of one
count each of manufacturing methamphetamine, KRS 218A .1432(1)(b), and possession
of a controlled substance in the first degree (methamphetamine), KRS 218A.1415 . He
was sentenced to consecutive prison terms of fifteen years and five years respectively .
He appeals to this Court as a matter of right, Ky. Count . ยง 110(2)(b), contending that (1)
Count I of the indictment charging manufacturing methamphetamine was fatally
defective; (2) the Commonwealth was improperly permitted to amend Count I of the
indictment on the morning of trial ; (3) he was not permitted to voir dire prospective jurors
as to whether they could consider the full range of penalties for each charged offense ;
(4) he was denied his right to present the defense that someone else committed the
offense ; (5) there was insufficient evidence to convict him of manufacturing
methamphetamine ; (6) the jury was improperly instructed on the charge of
manufacturing methamphetamine ; and (7) KRS 218A .1432(1)(b) is unconstitutional .
We agree that Appellant's voir dire was improperly limited and that the jury was
improperly instructed on the charge of manufacturing methamphetamine, but disagree
with Appellant's other contentions . Therefore, we reverse the conviction of
manufacturing methamphetamine and the fifteen-year sentence imposed therefor and
remand Count I of the indictment for a new trial. We affirm the conviction of possession
of a controlled substance in the first degree but vacate the five-year sentence imposed
therefor and remand for a new sentencing phase trial .
On November 21, 1999, Appellant voluntarily permitted Detective Brian Babbs of
the Kentucky State Police and Detective Jamie Duvall of the Henderson Police
Department to enter his residence in Corydon, Kentucky. While in Appellant's kitchen,
Duvall noticed a number of empty Sudafed blister packs in plain view in an open trash
can . Sudafed is an over-the-counter antihistamine sold in tablet form . Its primary
ingredient, pseudoephedrine, is a methamphetamine precursor . KRS 218A .1437(1) .
Appellant executed a written consent to a search of his residence, yard, and garage .
During the search, the detectives discovered the following items identified at trial as
chemicals, equipment, or evidence thereof, used in the manufacture, ingestion, or sale
of methamphetamine :
Twenty-two empty Sudafed blister packs capable of containing over 500
tablets;
Two bottles of "mini-pseudos" (not further identified) ;
Three full bottles and one empty bottle of drain cleaner;
Five full cans and two empty cans of starting fluid ;
Salt and two empty salt containers ;
Six funnels;
Spoons;
One aquarium pump ;
One can opener;
Mason jars and other glassware;
Lithium batteries and remains of batteries that had been broken open,
including lithium strips ;
Plastic baggies and baggie corners;
Two sets of weighing scales ;
Two air tanks with hoses and a propane tank ;
Four electric fans;
Tupperware or Pyrex dishes ;
Aluminum foil;
One filter (not further identified) ;
One dust filter mask ;
One air purifier respirator ;
Plastic tubing with brass fittings ;
Latex gloves ;
One bag of chlorine ;
Chlorine test kits ;
One Spam can containing brown residue later determined to be
methamphetamine;
One razor blade and straw; and
Brass fittings, some of which were discolored .
The search did not yield any coffee filters, which, as indicated at trial, are commonly
used in the manufacturing process to separate soluble pseudoephedrine from the
insoluble binding agents in Sudafed tablets. Nor did the officers find a discernible
quantity of anhydrous ammonia (a methamphetamine precursor) . However, Babbs
testified that the odor of anhydrous ammonia was emanating from both air tanks. He
also testified that exposure to anhydrous ammonia most likely caused the discoloration
on the brass fittings .
The officers placed Appellant under arrest and searched him . The search
produced a piece of aluminum foil containing a residue later determined to be
methamphetamine, a newspaper clipping noting defense witness Ross Ferguson's
unrelated arrest for manufacturing methamphetamine, and a sales receipt for the
purchase of the plastic tubing found during the search of Appellant's property .
Appellant's defense to the manufacturing charge was that the actual perpetrator was
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Damon McCormick. Appellant claimed in an audiotaped statement to Babbs after his
arrest that McCormick owned all of the chemicals and equipment found on his property
except the "mini-pseudos" and had forced Appellant to permit him to manufacture
methamphetamine on his property by threatening his life and that of his domestic
companion, Hope Stevens.
I. INDICTMENT.
Count I of the original indictment charged as follows :
That on or about November 12, 1999, in Henderson County,
Kentucky, the Defendant, Morris W . Varble, committed the offense of
Manufacturing Methamphetamine [sic] possessing the chemicals or
equipment for the manufacturing of methamphetamine .
The indictment also correctly cited KRS 218A .1432 as the statute proscribing the
charged offense .
Appellant claims the indictment was defective because it did not recite the
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statutory culpable mental states of "knowingly" and "with the intent to manufacture
methamphetamine ." We disagree . At least since the adoption of the present criminal
rules, our courts have consistently held that an indictment is sufficient if it fairly informs
the accused of the nature of the charged offense and is not misleading . Thomas v.
Commonwealth , Ky., 931 S.W .2d 446, 449 (1996); Wylie v. Commonwealth , Ky., 556
S .W .2d 1, 2 (1977) (per curiam) . Even under the old Criminal Code, an indictment for
murder was not defective because it omitted "intentionally," the culpable mental state.
Delk v . Commonwealth , 308 Ky . 579, 215 S .W .2d 109, 110 (1948) ("That would follow
as a matter of course, for without intent it would not be murder.") . See also Abney_v.
Commonwealth , Ky. App., 588 S.W .2d 714, 715-16 (1979) (indictment for burglary held
not defective because it failed to recite "with intent to commit a crime").
II. AMENDED INDICTMENT .
On the morning of the first day of trial, the Commonwealth was permitted to
amend Count I of the indictment to read :
That on or about November 12, 1999, in Henderson County,
Kentucky, the Defendant, Morris W . Varble, committed the offense of
Manufacturing Methamphetamine ~y possessing chemicals or equipment
for the manufacturing of methamphetamine i or by conspiring with, aiding
or attempting to aid Damon McCormick manufacture methamphetamine or
possess the chemicals and/or equipment to manufacture
metham ohetamine .
(Amendatory language emphasized .)
RCr 6.16 provides :
The court may permit an indictment . . . to be amended any time before
verdict if no additional or different offense is charged and if substantial
rights of the defendant are not prejudiced . If justice requires, however, the
court shall grant the defendant a continuance when such an amendment
is permitted .
This case does not require an inquiry into whether charging Appellant as an accomplice
was an "additional offense" to charging him as the principal offender. But see
Wolbrecht v. Commonwealth , Ky., 955 S .W.2d 533, 537 (1997) (reversible error to
permit Commonwealth to amend indictment on fifth day of trial to charge defendant with
acting in complicity with an unknown person) . Here, the amendment of Count I did not
prejudice Appellant's substantial rights because he was not convicted as an accomplice
under the theory of the amended indictment but as the principal offender as charged in
the original indictment . Furthermore, when the indictment was amended, defense
counsel did not request a continuance and admitted that he had anticipated that the
motion would be granted and had prepared his defense accordingly. Remember, it was
Appellant who first claimed that the chemicals and equipment found on Appellant's
property belonged to McCormick.
III . VOIR DIRE.
Appellant filed a motion in limine, KRE 103(d), to be allowed to voir dire
prospective jurors as to whether they could consider the full range of penalties for each
charged offense, i .e . , ten to twenty years for manufacturing methamphetamine, KRS
218A.1432(2) ; KRS 532 .060(2)(b), and one to five years for possession of a controlled
substance in the first degree . KRS 218A.1415(2)(a) ; KRS 532 .060(2)(d) . The trial court
overruled the motion and limited defense counsel to inquiring whether each juror "could
consider the full range of penalties" without specifying the range.
In Shields v. Commonwealth , Ky., 812 S .W.2d 152 (1991), overruled on other
grounds by Lawson v. Commonwealth , Ky., 53 S .W .3d 534, 544 (2001), we held that
"[i]n order to be qualified to sit as a juror in a criminal case, a member of the venire must
be able to consider any permissible punishment." Id . at 153 . In Lawson , supra , we held
that "[i]n 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 indicted
offense, the questioner should define the penalty range in terms of the possible
minimum and maximum sentences for each class of offense . . . . .. Id . at 544.
Denying Appellant the right to inquire whether each juror could consider the full
range of penalties for each charged offense erroneously denied him the right to
determine whether each prospective juror was qualified to serve on the jury in his case .
We cannot conclude that the error was harmless, as the jurors did not impose the
minimum sentence allowable for either conviction . Compare McCarthy v.
Commonwealth , Ky., 867 S .W.2d 469, 472 (1993) (imposition of minimum sentences
rendered error harmless), overruled on other grounds by Lawson , supra, at 544.
However, because the error pertains only to sentencing, it does not require a new guilt-
phase trial under Count II for possession of a controlled substance in the first degree,
but only that a new sentencing phase trial be held on that conviction . The error does
not affect Count I of the indictment because, as explained infra , Appellant's conviction of
manufacturing methamphetamine must be reversed because of an improper guilt phase
instruction .
IV. EXCLUSION OF WITNESS'S TESTIMONY AND STATEMENTS.
Appellant's only defense was that McCormick, not Appellant, was the person
actually engaged in the manufacture of methamphetamine . He made this accusation in
his audiotaped statement to Babbs, and the accusation was incorporated into the
amended indictment . Thus, although McCormick was never formally charged with this
offense, he was at least an accused suspect. Additionally, defense counsel admitted
during an in-chambers hearing that McCormick was under indictment in an adjacent
county on a charge of engaging in organized crime, KRS 506 .120, premised upon his
involvement in numerous methamphetamine-manufacturing operations .
Appellant attempted to call McCormick as a witness for the purpose of asking
him whether he had visited Appellant's home and whether he had told Ross Ferguson
that he intended to "set up" Appellant . During an in-chambers hearing, McCormick, on
advice of personal counsel, advised the trial judge that he would invoke his Fifth
Amendment privilege with respect to those questions . The trial judge then sustained
the prosecutor's motion in limine to preclude Appellant from calling McCormick as a
witness and also from eliciting testimony from any other witness regarding out-of-court
statements made to them by McCormick .
The trial judge's ruling prohibiting Appellant from calling McCormick as a witness
was obviously correct . Clayton v. Commonwealth , Ky., 786 S.W .2d 866, 868 (1990)
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(impermissible to call a witness knowing that the witness will invoke Fifth Amendment
privilege against self-incrimination) ; see also Combs v. Commonwealth , Ky., 74 S .W .3d
738, 742 (2002) (same) . However, the Fifth Amendment privilege against selfincrimination "protects a person only against being incriminated by his own compelled
testimonial communications." Doe v. United States , 487 U .S. 201, 207, 108 S.Ct. 2341,
2345-46, 101 L.Ed .2d 184 (1988) ; Fisher v. United States , 425 U .S. 391, 408, 96 S .Ct.
1569, 1579, 48 L.Ed .2d 39 (1976). Thus, it does not protect against the reiteration of
voluntary, out-of-court communications made by that person to others so long as the
communications satisfy an exception to the hearsay rule .
Ferguson's proposed testimony was not preserved by an avowal, thus, we are
unable to determine whether its exclusion constituted reversible error. KRE 103(a)(2) ;
Commonwealth v. Ferrell , Ky., 17 S .W.3d 520 (2000) . We address this issue only
because it will necessarily recur upon retrial . Assuming relevancy, two hearsay
exceptions could apply to McCormick's statement to Ferguson that he was going to "set
up" Appellant . First, since the statement cast light on McCormick's future intent, not on
a past event, it could be admissible as a statement of McCormick's then-existing state of
mind . KRE 803(3); Crowe v. Commonwealth , Ky ., 38 S .W .3d 379, 383 (2001) (victim's
statements that she intended to ask her husband for divorce admissible to prove that
she did ask him for divorce, thus providing a motive for him to kill her). Second,
McCormick's exemption from testifying because of his assertion of a privilege satisfied
the "unavailability" requirement of KRE 804(a)(1) triggering the hearsay exception for
statements against interest . KRE 804(b)(3) . However, even though Ferguson's
statement was partially corroborated by his claim that the propane tank found on
Appellant's property belonged to McCormick, evidence that McCormick told Ferguson
merely that he was going to "set up" Appellant was insufficient to satisfy the requirement
that the statement "so far tended to subject the declarant to civil or criminal liability . . .
that a reasonable person in the declarant's position would not have made the statement
unless believing it to be true." KRE 804(b)(3) . Generally, to qualify for admission under
this exception, the statement must, in a "real and tangible way," subject the declarant to
criminal liability . United States v. Monaco , 735 F .2d 1173, 1176 (9th Cir. 1984). It is
insufficient that it "possibly could" or "maybe might" lead to criminal liability . United
States v. Butler, 71 F .3d 243, 253 (7th Cir . 1995) . McCormick's statement was too
ambiguous to support a conclusion that he intended to "plant" chemicals or equipment
necessary to manufacture methamphetamine on Appellant's property . Moreover,
Appellant did not claim that McCormick "planted" the chemicals or equipment on his
property but that he forced Appellant to keep them there.
V. SUFFICIENCY OF THE EVIDENCE.
Appellant argues that there was insufficient evidence to convict him of
manufacturing methamphetamine under KRS 218A.1432(1)(b), which 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 v. Commonwealth , Ky., 114 S.W .3d 226 (2003), we held that the
language "the chemicals or equipment" permits a conviction only if the defendant
possesses "all of the chemicals or all of the equipment necessary to manufacture
methamphetamine ." Id . at 237. Appellant argues that because the search of his
premises on November 12, 1999, did not reveal any quantity of anhydrous ammonia or
any coffee filters, Kotila precluded his conviction . We disagree . The indictment
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charged Appellant with possessing the necessary chemicals or equipment "on or about
November 12, 1999." Testimony that the odor of anhydrous ammonia was emanating
from the two air tanks and that the discoloration of the brass fittings was likely caused
by exposure to anhydrous ammonia was circumstantial evidence that Appellant had, in
fact, possessed anhydrous ammonia in the recent past. United States v. Morrison , 207
F.3d 962, 966 (7th Cir. 2000) (odor of anhydrous ammonia emanating from cooler found
in defendant's residence was circumstantial evidence that defendant had used
anhydrous ammonia to manufacture methamphetamine) . Appellant's argument is akin
to claiming that his possession of twenty-two Sudafed blister packs would not support
his conviction because the blister packs were empty. He was found in possession of all
of the other chemicals necessary to manufacture methamphetamine, and it was for the
jury to decide whether he possessed those same chemicals at the same time that he
possessed the anhydrous ammonia (and the Sudafed) . The requirement is that the
chemicals or equipment be possessed simultaneously, not that they be possessed at
the time of the arrest. In a felony case, the failure to prove the specific date of the
offense is of no consequence unless time is a material element of the offense . Stringer
v . Commonwealth, Ky., 956 S .W .2d 883, 885-86 (1997) ; Peyton v. Commonwealth , 288
Ky. 601, 157 S .W.2d 106, 108 (1941) (indictment charged offense was committed in
1939 whereas proof at trial was that it occurred in 1936) .
As for the coffee filters, there was no testimony that only coffee filters can be
used to separate the soluble pseudoephedrine from the insoluble binding agents in
Sudafed tablets . In Kotila , cotton balls were used as the straining device . Kotila, supra,
at 236 . Here, the evidence found during the search of Appellant's residence includes a
filter of an unspecified nature and a dust filter mask, both of which presumably could act
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as a strainer to separate a liquid from a solid . The statute does not require that the
equipment was actually used to manufacture methamphetamine but only that it could be
so used . We assume that this evidence will be clarified upon retrial . On the present
status of the evidence, however, Appellant was not entitled to a directed verdict of
acquittal on this issue . Commonwealth v. Benham , Ky., 816 S .W .2d 186,187 (1991).
Nor was the evidence insufficient to prove intent . Appellant did not deny that his
garage was a methamphetamine laboratory . He only denied that it was so used by him.
Additionally, the evidence permitted an inference that Appellant may have had a motive
to manufacture methamphetamine for use by himself and Stevens, his domestic
companion . See Adkins v . Commonwealth , Ky., 96 S .W .3d 779, 793 (2003) ("Evidence
of a drug habit, along with evidence of insufficient funds to support that habit, is relevant
to show a motive to commit a crime in order to gain money to buy drugs .") (Citations
omitted .)); United States v. Cunningham , 103 F.3d 553, 557 (7th Cir. 1996) (evidence of
nurse's Demerol addiction admissible to show motive to tamper with Demerol-filled
syringes) ; State v. Kealoha , 22 P.3d 1012, 1027 (Haw. Ct. App . 2000) ("Evidence that
Defendant sold methamphetamine to finance her cocaine use is probative of whether
Defendant had a motive to manufacture methamphetamine and her intent to do so .") .
There was evidence that Stevens had previously used methamphetamine and pled
guilty to facilitating its manufacture in another case not involving Appellant . Also, the
presence of methamphetamine on Appellant's person was circumstantial evidence of
his own methamphetamine use . Thus, there was evidence of both motive and
opportunity from which a jury could reasonably imply intent.
VI. METHAMPHETAMINE INSTRUCTION.
The jury instruction under which Appellant was convicted of manufacturing
methamphetamine stated :
Instruction No . 1
You will find the Defendant, Morris W . Varble, guilty of
Manufacturing Methamphetamine under this Instruction if, and only if, you
believe from the evidence beyond a reasonable doubt that in this county,
on or about November 12, 1999, he possessed any of the following:
"liquid fire" (sulfuric acid) starting fluid (ether) ; salt; a funnel ; spoons ; an
aquarium pump ; can opener ; pseudoephedrine or ephedrine pills ;
batteries, or parts thereof; scales ; "spam" container ; filter mask; respirator
filter ; "super shock it"; latex gloves ; test kits ; pipe fittings ; tubes; hoses;
tupperware containers ; aluminum foil ; baggies ; baggie corners ; air tank ; a
propane tank; and/or butane or propane fuel; mason jars; plastic bottles ;
with the intent to manufacture metha mphetamine.
(Emphasis added .)
This instruction differed from the instruction that required reversal in Kotila,
supra, at 242, in that it permitted the jury to convict Appellant of manufacturing
methamphetamine if he possessed any, i.e. , one or more, of the listed items with the
intent to manufacture methamphetamine . The instruction in Kotila predicated conviction
upon the defendant possessing all of the listed items with the intent to manufacture
methamphetamine but did not permit the jury to determine whether the items that were
listed constituted all of the chemicals or all of the equipment necessary to manufacture
methamphetamine . Id . at 243. The instruction given in this case was, in fact, an
instruction on the lesser offense of possession of drug paraphernalia . KRS
218A .500(1), (3).1 Because Appellant was convicted of manufacturing
Appellant did not request an instruction on possession of drug paraphernalia as a
lesser included offense. He did, however, request and receive an instruction on the
lesser included offense of criminal facilitation . KRS 506 .080.
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methamphetamine under an instruction on possession of drug paraphernalia, his
conviction of manufacturing methamphetamine must be reversed for a new trial .
VII. CONSTITUTIONALITY OF KRS 218A.1432(1)(b) .
A. Vagueness .
As in Kotila , supra , Appellant claims that KRS 218A.1432(1)(b) is void for
vagueness . Kotila held otherwise, id . at 248-49, and our views in that regard have not
changed .
B . Overbreadth .
Appellant also challenges the statute for "overbreadth ." However, the
constitutional prohibition against "overbreadth" applies only to restrictions on First
Amendment freedoms "because of a judicial prediction or assumption that the statute's
very existence may cause others not before the court to refrain from constitutionally
protected speech or expression," thus creating a "chilling effect upon the exercise of
First Amendment rights ." Martin v . Commonwealth , Ky ., 96 S .W.3d 38, 50 (2003)
(quoting Broadrick v. Oklahoma , 413 U .S. 601, 612, 93 S .Ct. 2908, 2916, 37 L .Ed .2d
830 (1973), and Dombrowski v. Pfister, 380 U .S . 479, 487, 85 S .Ct. 1116, 1121, 14
L .Ed .2d 22 (1965)). Obviously, restrictions on the possession of chemicals and
equipment necessary to manufacture methamphetamine do not implicate First
Amendment rights . Kotila , supra, at 248 . Thus, the only issue is whether the statute is
unconstitutional "as applied" to Appellant, generally implicating only the "void for
vagueness" doctrine, supra, which as noted above, does not invalidate KRS
218A .1432(1)(b) .
C. Cruel Punishment.
Appellant's final constitutional argument is that KRS 218A.1432(1)(b) violates the
proscription against cruel punishment contained in the Eighth Amendment to the United
States Constitution and section 17 of the Kentucky Constitution . He premises this
argument upon his assumption (made prior to the rendition of Kotila , supra ) that a
penalty of ten to twenty years could be imposed for possession of any chemical or item
of equipment used to manufacture methamphetamine . Of course, Kotila eliminated that
assumption by construing the statute to require that a conviction be predicated upon
possession of all of the chemicals or all of the equipment necessary to manufacture
methamphetamine . Id. at 237.
"'Cruel punishment' can relate to the severity in the amount or duration of the
punishment, but if the punishment is within the maximum prescribed by the statute
violated, courts generally will not disturb the sentence ." Riley v. Commonwealth , Ky.,
S .W .3d
(slip op . at 17-18) (2003) (citing Weber v. Commonwealth , 303
Ky. 56, 196 S .W.2d 465, 469-70 (1946)) ; Monson v. Commonwealth , Ky., 294 S .W .2d
78, 80 (1956), overruled on other grounds by Owens v. Commonwealth , Ky., 487
S .W .2d 897, 900 (1972); Mills v . Commonwealth , 305 Ky. 44, 202 S .W .2d 1005, 100708 (1947); McElwain v. Commonwealth , 289 Ky. 446,159 S .W .2d 11, 12 (1942) ;
Bradley v. Commonwealth , 288 Ky. 416,156 S.W .2d 469, 471 (1941) .
As in Riley , supra, Appellant makes a general claim that his sentence is
disproportionate to the nature of his offense . Solem v. Helm , 463 U .S . 277, 290, 103
S .Ct . 3001, 3009, 77 L.Ed .2d 637 (1983). A proportionality analysis of a claim of cruel
punishment requires consideration of three factors : (1) the gravity of the offense and
harshness of the penalty ; (2) the sentences imposed on other criminals in the same
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jurisdiction ; and (3) the sentences imposed for commission of the same crime in other
jurisdictions . Id. at 290-92, 103 S .Ct. at 3010-11 ; see also Brown v. Commonwealth ,
Ky., 818 S .W .2d 600, 600-01 (1991) .
As for the first factor enumerated in Solem , we do not regard a maximum penalty
of twenty years as cruel punishment for establishing what amounts to a laboratory
designed for the manufacture of an illegal and addictive drug . It is immaterial to this
analysis that the maximum penalty for manufacturing other controlled substances is
only ten years . KRS 218A .1412. Appellant's argument is that the statute constitutes
cruel punishment, not that it violates the Equal Protection Clause .
The second and third factors in Solem require an individualized comparison with
sentences imposed against others for the same offense . Our reversal of Appellant's
conviction of manufacturing methamphetamine vacates his sentence for that conviction
and, thus, obviates any present need for such a comparison .
Accordingly, Appellant's conviction and sentence for manufacturing
methamphetamine are reversed and remanded to the Henderson Circuit Court for a
new trial; and Appellant's conviction of possession of a controlled substance in the first
degree is affirmed but the sentence imposed therefor is vacated and remanded to the
Henderson Circuit Court for a new sentencing phase trial.
Johnstone, Keller, and Stumbo, JJ ., concur. Lambert, C .J ., concurs by separate
opinion, with Graves and Wintersheimer, JJ ., joining that concurring opinion .
COUNSEL FOR APPELLANT :
Emily Holt
Department of Public Advocacy
Suite 302
100 Fair Oaks Lane
Frankfort, KY 40601
COUNSEL FOR APPELLEE:
Gregory D. Stumbo
Attorney General
State Capitol
Frankfort, KY 40601
Todd D. Ferguson
Assistant Attorney General
Office of Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, KY 40601-8204
RENDERED : JANUARY 22, 2004
TO BE PUBLISHED
6*UyrrMr
X;,Vurf of ff:eUfUrhV
2001-SC-0230-MR
MORRIS VARBLE
V
APPELLANT
ON APPEAL FROM HENDERSON CIRCUIT COURT
HONORABLE STEPHEN HAYDEN, JUDGE
00-CR-27
COMMONWEALTH OF KENTUCKY
APPELLEE
CONCURRING OPINION BY CHIEF JUSTICE LAMBERT
I concur with the result achieved by the majority in this case, but write
separately to highlight what I believe to be a desirable modification of the holding of
Kotila v. Commonwealth .' In Kotila , the majority held that the conviction must be
reversed because the defendant did not possess "all of the chemicals or all of the
equipment necessary to manufacture methamphetamine ."2 Such a statement would
normally compel the conclusion that the failure to possess the necessary chemical
anhydrous ammonia would preclude the conviction . But in this case, the majority has
held that "the odor of anhydrous ammonia ,3 is sufficient circumstantial evidence to
prove that at some point in time Appellant possessed anhydrous ammonia . Thus, in
2
Ky., 114 S .W.3d 226 (2003) .
Varble v. Commonwealth , Ky.,
at 10).
S.W.3d
(200_)(majority opinion)( Siip op.
future prosecutions it will not be necessary to prove actual possession of anhydrous
ammonia, but merely former possession based on proof of odor.
Similarly in this case, there was no evidence of coffee filters or another
commonly used filtration device . The majority addresses this fact by presuming that a
"filter of an unspecified nature and a dust filter mask"4 could be used as the necessary
filtration device . The foregoing represents a significant departure from the bright line
rule announced in Kotila .
I wrote a dissenting opinion in Kotila expressing the view that the statute
need not have been interpreted as it was and that the burden on the prosecution had
been unnecessarily elevated . While I still hold that view, the instant case represents a
moderation of what I believe to be undesirable aspects of Kotila .
Graves and Wintersheimer, JJ ., join this concurring opinion .
4 Slip op. at10.
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