ROGER BEATY V. COMMONWEALTH OF KENTUCKY
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2001-SC-0890-MR
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ROGER BEATY
V.
APPELLANT
APPEAL FROM LOGAN CIRCUIT COURT
HONORABLE TYLER L. GILL, JUDGE
01-C R-1
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION OF THE COURT BY JUSTICE COOPER
AFFIRMING IN PART AND REVERSING AND REMANDING IN PART
Appellant, Roger Beaty, was convicted by a Logan Circuit Court jury of five
counts related to the possession, trafficking, or manufacturing of illegal drugs and drug
paraphernalia and one count of operating a vehicle under the influence of alcohol or an
impairing substance (DUI) . All sentences imposed for those convictions were ordered
to run concurrently for a total of twenty years imprisonment . He appeals to this Court as
a matter of right, Ky. Const . § 110(2)(b), contending that: (1) the trial court improperly
allowed a prosecution witness to testify despite the untimely production of the witness's
statement in violation of RCr 7 .26; (2) there was insufficient evidence to convict him of
"knowingly" manufacturing methamphetamine ; (3) the jury instruction as to
manufacturing methamphetamine failed to require proof of scienter; (4) the trial court
failed to allow him to present his defense that the crime was committed by another
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person ; (5) the constitutional guarantee against double jeopardy was violated by his
dual convictions of manufacturing methamphetamine and possession of a controlled
substance in the first degree ; and (6) the trial court failed to properly address the jury's
error in returning verdicts sentencing him for both a first and second offense of
possession of drug paraphernalia .
I. FACTS.
On November 8, 2000, Logan County Deputy Sheriff Jimmy Phelps observed a
white Chevrolet erratically weaving from side to side on the highway. Upon stopping
and approaching the vehicle, Phelps detected a strong odor of anhydrous ammonia .
Appellant was the driver of the Chevrolet ; his girlfriend, Marion Ann Hanks, was in the
front passenger seat. Phelps asked Appellant to exit the vehicle, and as he did so,
Phelps observed that he was unsteady on his feet. Appellant failed the field sobriety
tests and was arrested and charged with DUI . KRS 189A.010(1) . Because the breath
test was negative, Phelps concluded that Appellant was under the influence of a
substance other than alcohol. Appellant refused to submit to a blood or urine test at a
local hospital .
A search incident to the arrest revealed substantial evidence of illegal drug
activity. In a bag concealed in the area of his groin, Appellant possessed three small
bags of marijuana, a bag of cocaine, a set of scales, and other assorted drug
paraphernalia . When Hanks was asked to exit the vehicle by another officer, she
attempted to hide under the vehicle a bag containing marijuana and rolling papers.
Officers found marijuana seeds in the front seat, open containers of beer and gin, and,
in the glove compartment, a prescription pill bottle containing crack cocaine and bearing
the name "Kenneth Huskey," who, as explained infra, was the boyfriend of the vehicle's
owner.
The back seat and trunk of the vehicle contained a methamphetamine laboratory .
A search of the back seat revealed several garbage bags and a duffel bag containing a
piece of burnt aluminum foil bearing methamphetamine residue, several thousand
Sudafed tablets, starter fluid, ether fuel, drain cleaner, iodized salt, brass fittings, tubing,
pipe wrenches, hoses, duct tape, vice grips, bolt cutters, and glass jars. The trunk
contained three propane tanks (one containing anhydrous ammonia) and a gallon jar
containing a liquid white residue later found to be methamphetamine . Phelps testified
that upon examining the jar and the equipment, he determined that Appellant "was
actually in the process of cooking while driving down the road ."
The vehicle was owned by Hanks's friend, Pamela Kuhl . Appellant and Hanks
testified that they had borrowed the car merely to do laundry and were ignorant of the
contents of the back seat and trunk. Hanks claimed that the car was always messy and
that she had not noticed the equipment in the back seat. Kuhl, and Kuhl's boyfriend,
Kenneth ("Spook") Huskey, testified that the car was empty when they loaned it to
Hanks in the early afternoon of November 8, 2000 .
Appellant was indicted on nine counts : driving erratically in violation of KRS
189 .300 (Count I) ; DUI in violation of KRS 189A.010(1)(c) (Count II); trafficking in
marijuana (less than eight ounces) in violation of KRS 218A.1421(2)(b) (Count III);
manufacturing methamphetamine in violation of KRS 218A.1432(1)(a) (Count IV);
possession of a controlled substance in the first degree in violation of KRS 218A.1415
(Count V); possession of anhydrous ammonia in an unapproved container with the
intent to manufacture methamphetamine in violation of KRS 250.489 and KRS
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250 .991(2) (Count VI); possession of drug paraphernalia, second offense, in violation of
KRS 218A .500(2) (Count VII); violating the open container laws, KRS 189.530(2)
(Count Vlll) ; and being a persistent felony offender in the second degree (Count IX).'
Counts I, VIII, and IX were eventually dismissed. A Logan Circuit Court jury convicted
Appellant on all remaining counts (including possession of marijuana, a lesser included
offense under Count III, which was subsequently dismissed pursuant to KRS 505 .020)
and recommended that his sentences run concurrently for a total of twenty years . The
trial court entered a judgment in accordance with the verdicts and sentenced Appellant
to a total of twenty years in prison . We affirm Appellant's convictions and sentences for
DUI, trafficking in marijuana, and possession of drug paraphernalia, second offense, but
reverse and remand for a new trial Appellant's convictions of manufacturing
methamphetamine, possession of a controlled substance in the first degree, and
possession of anhydrous ammonia in an unapproved container with the intent to
manufacture methamphetamine .
II. DELAYED DISCOVERY.
Appellant first complains that Kenneth Huskey was allowed to testify despite a
discovery violation . On November 15, 2000, Huskey, gave the following statement to
the police :
Marion Ann and Roger came by my girlfriend's house and ask [sic] to
borrow the car to go wash close [sic] . He took me to the store about 3:00
- 3:30, took me back to my girlfreind's [sic] house and left. [T]here was
nothing in the backseat [sic] of the car when [I] was in there. Not to my
knowledge was anything in the trunk!!
Appellant was also charged but never indicted for possession of cocaine.
The Commonwealth concedes that RCr 7.26(1) required the prosecutor to furnish
Huskey's statement to Appellant no later than forty-eight hours prior to trial and that the
Commonwealth did not produce the statement until the day before trial . Appellant made
a motion in limine to preclude Huskey from testifying because of this discovery violation .
The trial court overruled the motion and explained in an order denying a motion for a
new trial that Appellant had failed to allege that the late submission prejudiced him or
that he would have "done anything differently" if the statement had been provided in a
timely manner.
We find no abuse of discretion . "[E]yen if the forty-eight hour rule is violated,
automatic reversal is not required . Some prejudice must be found, or the error, if any, is
harmless." Gosser v. Commonwealth , Ky., 31 S.W .3d 897, 905 (2000), citing McRay v.
Commonwealth, Ky. App., 675 S.W .2d 397, 400 (1984). See also Roach v.
Commonwealth, Ky., 507 S .W .2d 154,155 (1974); Hicks v. Commonwealth , Ky. App.,
805 S .W.2d 144, 149 (1990). Here, the error was harmless .
Appellant claims he was prejudiced by Huskey's testimony , but in so arguing he
commits a kind of category mistake. The relevant inquiry, instead, is whether Appellant
was prejudiced by the Commonwealth's tardiness . Appellant does not claim that
receiving the statement on time (one day earlier than he did receive it) would have
impacted his defense . Appellant did not request a continuance, does not claim that
Huskey's statement was exculpatory, compare Mounce v . Commonwealth , Ky., 795
S.W.2d 375, 378 (1990), and does not claim that he was surprised . While Appellant
2 See Gilbert Ryle, The Concept of Mind 16 (Chicago 1949) (explaining that a foreigner
would commit a "category mistake" if, after touring Oxford University and being shown
the colleges, libraries, playing fields, museums, scientific departments, and
administrative offices, he asked, "But where is the University?") .
now suggests that he would have liked to have questioned Huskey about a pending
indictment against Huskey, the statement contained no information relevant to that
issue. Thus, the violation of the rule in this case did not result in prejudice .
III . SUFFICIENCY OF THE EVIDENCE.
Appellant next contends that the trial court erred by failing to direct a verdict on
the charges of manufacturing methamphetamine and possessing anhydrous ammonia
in an unapproved container with the intent to manufacture methamphetamine . Both
charges contain a requirement that the conduct be undertaken "knowingly ." KRS
218A .1432; KRS 250.489(1) ; KRS 250 .991(2) . In arguing that the evidence of scienter
was insufficient, Appellant maintains, as he did at trial, that he was completely ignorant
of the fact that there was a methamphetamine laboratory in the vehicle .
"On appellate review, the test of a directed verdict is, if under the evidence as a
whole, it would be clearly unreasonable for a jury to find guilt." Commonwealth v.
Benham, Ky., 816 S.W.2d 186, 187 (1991) . As Appellant admits, direct evidence of his
awareness of the laboratory was not required to support his conviction . Love v.
Commonwealth , Ky., 55 S .W .3d 816, 825 (2001) . Knowledge may be inferred from
circumstantial evidence . Id . ; McRa , supra , at 399.
There was overwhelming evidence from which to infer Appellant's knowledge of
the methamphetamine laboratory. First, Appellant was driving the vehicle . Leavell v.
Commonwealth , Ky., 737 S.W .2d 695, 697 (1987) ("The person who owns or exercises
dominion or control over a motor vehicle in which contraband is concealed, is deemed
to possess the contraband .") . Second, Huskey and Kuhl testified that the vehicle was
empty when they loaned it to Appellant in direct contravention of Appellant's and
Hanks's testimony . Third, Deputy Phelps testified to a strong odor of ammonia
emanating from the trunk . Even if Appellant was, as he claims, unable to recognize the
odor of cooking methamphetamine, the jury was entitled to assume that Appellant knew
that automobiles do not emit the odor of ammonia when operating in a normal fashion .
Thus, this jury could have inferred that, if innocent, Appellant would have investigated
the strange odor and thereby discovered the laboratory . Fourth, Appellant had
marijuana, cocaine, and assorted drug paraphernalia hidden inside his trousers, which
cast at least some doubt on his protest that he was unaware of the presence of
additional controlled substances in the vehicle . Finally, as the trial court noted in
overruling the motion for directed verdict, why would an individual (such as Kuhl) who
was operating a methamphetamine laboratory in her vehicle, loan that vehicle to an
innocent person who might discover the laboratory and report it to the police? (More on
this query, infra .)
Thus, there was sufficient evidence to submit the scienter issue to the jury. See
Burnett v . Commonwealth , Ky., 31 S.W .3d 878, 880 (2000) (finding sufficient evidence
to convict when crack cocaine was found in seat of vehicle where defendant had been
sitting and owner of car disavowed possession) ; Young v. Commonwealth , Ky ., 25
S .W.3d 66, 70 (2000) (affirming when methamphetamine found in defendant's trailer
despite defendant's protest that he was not living in trailer) ; Leavell , supra , at 697
(affirming when defendant held ignition key to vehicle with marijuana in its trunk, even
though key would not open trunk).
We decline Appellant's invitation to require "something more" than the evidence
presented here . Appellant cites several cases from other jurisdictions reversing
because of insufficient evidence of knowledge . However, all of those cases in which a
defendant, like Appellant, had control over the location where the drugs were found
involved a "secret compartment ." See Cerda v. State , 795 S.W.2d 358, 359 (Ark. 1990)
(cocaine hidden in car bumper) ; People v. Ortiz, 752 N.E .2d 410, 424-29 (III. 2001)
(cocaine in trailer's secret compartment) ; State v. Perkins , 996 S .W .2d 753, 757 (Mo .
Ct. App. 1999) (methamphetamine hidden in bathroom light fixture in motel room). The
United States Court of Appeals for the Fifth Circuit has made it clear that cases dealing
with hidden compartments present an exception to the general rule.
Ordinarily, knowledge of the existence of drugs may be inferred from
control over the location in which they are found . When the drugs are
secreted in a hidden compartment, however, we require additional
circumstantial evidence that is suspicious in nature or demonstrates guilty
knowledge .
United States v. Moreno, 185 F.3d 465, 471 (5th Cir. 1999) (quotation omitted) . Here,
the methamphetamine laboratory was located in the back seat and trunk of the vehicle
and drew attention to itself through a strong odor . No secret compartment was
involved .
IV. JURY INSTRUCTION.
Appellant next complains that the jury instruction under which he was convicted
of manufacturing methamphetamine was defective because it did not require a finding
of one of the culpable mental states required by KRS 501 .030(2) . That statute provides :
A person is not guilty of a criminal offense unless :
(2)
He has engaged in such conduct intentionally, knowingly, wantonly
or recklessly as the law may require, with respect to each element of
the offense . . . .
KRS 218A .1432(1) requires a culpable mental state of "knowingly" as an element
of the offense . Thus, Appellant is correct that the omission of this element from the
instruction was erroneous . However, Appellant did not object to the instruction given
nor did he move for or tender an alternative instruction . Thus, the issue is not
preserved for review. RCr 9 .54(2) ; Commonwealth v. Duke, Ky., 750 S .W .2d 432, 433
(1988) . Since the conviction must be reversed on other grounds, we need not engage
in palpable error analysis . RCr 10.26 .
V. EXCLUSION OF ALTERNATIVE PERPETRATOR EVIDENCE.
Appellant contends that he was denied his Due Process right to present a
defense to the methamphetamine-related offenses by exclusion of evidence that
Pamela Kuhl, the owner of the vehicle, had a motive to commit the offenses . His theory
was that Kuhl believed that Hanks and Huskey were secret paramours and, after
discovering the affair, Kuhl contrived to loan Hanks the mobile methamphetamine
laboratory in order to incriminate Hanks and eliminate her as a rival for Huskey's
affections. Kuhl normally loaned her car to Hanks to drive her daughter to school, so
Kuhl would have assumed that Hanks would be the driver on November 8, 2000.
However, the scheme went awry. Appellant ended up as the driver, and though the trap
was set for Hanks, it ensnared Appellant instead .
The Commonwealth called Kuhl as a rebuttal witness, and Appellant attempted
to develop this theory on cross-examination. Specifically, Appellant attempted to elicit
testimony from Kuhl about her alleged jealousy of Hanks and to introduce a document
written by Kuhl illustrating her belief that Huskey and Hanks had engaged in sexual
relations . The trial court sustained the Commonwealth's objection to the admission of
this evidence. It was, however, preserved by avowal . KRE 103(a)(2) .
In response to Appellant's avowal questioning, Kuhl confirmed that she had been
jealous of Hanks and had composed a document memorializing her jealousy :
Q:
Can you just describe what that [document] is and what it says? I
mean, essentially it has to do with whether or not something's going
on between Marion Ann and Spook [Huskey]?
A:
Right, yeah .
Q:
And you had some concerns about that .
A:
Yeah, at one point I did, yes.
Q:
And so you were kind of jealous of Marion Ann?
A:
I was probably jealous of what they had done in the past, yeah.
Q:
And you had some concerns about what was going on in the
present as well?
A:
Well, yeah, it crossed my mind .
Q:
This is your writing and you did write this.
A:
Yeah, it's mine .
The document was a piece of cardboard containing scrawled questions apparently
addressed to Appellant and Hanks:
1.
Why did you (Rodger) [sic] ask Spook if he was f---ing Marion Ann?
2.
Did you know (Rodger) [sic] I can't keep my eyes off you.
3.
Marion Ann - did you know Bergetta told Spook if we stay friends
you'll break us up? You did it to her.
4.
Marion Ann - Deserry said to Spook that he f---ed you twice . And
Spook believes him .
5.
Marion Ann - Did you know the only reason you came back to the
bedroom last night was to f--- with Spook so we'd get in a fight. Did
you also know I was standing in the hallway listening . We planned it.
6.
Marion Ann + Roger Dale - Why are you two trying to break us up .
Spook said that's your guys plan all along . Why?
7.
Marion Ann - Are you planning to drop me as a friend when you get
what you want from me, like you did to Bergetta .
8.
Why did you tell Roger Dale you never f---ed Spook?
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On the back of the cardboard tablet, Kuhl offered further thoughts :
Did you know I sent you back to catch Spook looking you [sic] . We were
trying to set him up. And you were swinging your open [sic] in the living
room shown [sic] your p--sy to him .
Kuhl also wrote, "Kuhl v's Huskey and [Huskey] v's Kuhl . So just step back!!!"
Kuhl protested on avowal rebuttal that she had resolved her concerns with Hanks
and was not angry with her on November 8, 2000 . Kuhl also alleged that she was
friends with Appellant but did not know him very well.
Appellant contends that the document and cross-examination, both evincing
Kuhl's jealousy, should have been admitted for two reasons. First, he contends that the
evidence was admissible to impeach Kuhl's credibility by showing bias and that
exclusion of the evidence for that purpose violated the Confrontation Clause of the Sixth
Amendment to the United States Constitution and Section Eleven of the Kentucky
Constitution. Second, he claims that the evidence was admissible substantively as
probative of his defense theory that it was Kuhl, not Appellant, who placed the
methamphetamine laboratory and materials in the car. According to Appellant, the trial
court's exclusion of the evidence for that purpose violated the Due Process Clauses of
the Fifth and Fourteenth Amendments to the United States Constitution and Section
Eleven of the Kentucky Constitution .
A. Confrontation .
We first address the issue of whether the evidence was admissible for
impeachment purposes because that was the reason for the trial court's exclusion, and
in that regard, the trial court was correct . In Davis v. Alaska , 415 U .S . 308, 94 S .Ct.
1105, 39 L.Ed.2d 347 (1974), the United States Supreme Court confirmed that the Sixth
Amendment right to confront witnesses includes the right to conduct reasonable cross-11 -
examination . Id. at 316, 94 S.Ct. at 1110 ; see also Weaver v. Commonwealth , Ky., 955
S.W.2d 722, 726 (1997) ; Commonwealth v. Maddox , Ky., 955 S .W.2d 718, 721 (1997).
However, the trial court retains "broad discretion to regulate cross-examination."
Maddox , supra , at 721 (quotation omitted) . "The right to confrontation guarantees an
opportunity for effective cross-examination but not cross-examination in whatever way
and to whatever extent the defense might wish ." Epperson v. Commonwealth , Ky., 809
S .W.2d 835, 842-43 (1990). The trial court here correctly noted that the Confrontation
Clause is only implicated if the excluded cross-examination concerns a matter giving the
witness reason to testify falsely during the trial at hand, e.g ., when the witness bears
some animus toward, or is biased against, the defendant. See Caudill v.
Commonwealth , Ky., 777 S .W.2d 924, 925 (1989) (witness had divorce pending against
defendant) ; Barrett v. Commonwealth , Ky., 608 S .W.2d 374, 376 (1980) (history of
hostility between witness's family and defendant's family and friends).
However, as Appellant concedes, there was no evidence that Kuhl's jealousy
created bias against him . Indeed, Kuhl testified that she never had strong feelings of
any kind towards Appellant . Bias alone is not sufficient to implicate the Sixth
Amendment . Cf. United States v. Rahman , 189 F .3d 88, 132 (2d Cir. 1999) (trial court
did not violate Confrontation Clause by excluding evidence of witness's bias against
third parties). Thus, Kuhl's jealousy of Hanks was not relevant to her credibility as a
witness against Appellant .
B. Due Process.
"The right of an accused in a criminal trial to due process is, in essence, the right
to a fair opportunity to defend against the State's accusations ." Chambers v.
Mississippi , 410 U.S. 284, 294, 93 S .Ct . 1038, 1045, 35 L.Ed .2d 297 (1973). This right,
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often termed the "right to present a defense," is firmly ingrained in Kentucky
jurisprudence, e .g_, Rogers v. Commonwealth , Ky., 86 S.W.3d 29, 39-40 (2002);
Holloman v. Commonwealth, Ky., 37 S .W.3d 764, 767 (2001); Mills v. Commonwealth ,
Ky., 996 S.W.2d 473, 489 (1999) ; McGregor v. Hines , Ky., 995 S .W.2d 384, 388 (1999) ;
Barnett v. Commonwealth , Ky., 828 S.W .2d 361, 363 (1992), and has been recognized
repeatedly by the United States Supreme Court. See United States v. Scheffer , 523
U .S. 303, 308, 118 S .Ct. 1261, 1264, 140 L .Ed .2d 413 (1998); Michigan v. Lucas, 500
U .S. 145, 149, 111 S .Ct. 1743, 1746, 114 L.Ed .2d 205 (1991); Taylor v. Illinois, 484
U .S . 400, 408, 108 S .Ct . 646, 652, 98 L.Ed .2d 798 (1988); Rock v. Arkansas, 483 U.S .
44, 55, 107 S .Ct. 2704, 2711, 97 L .Ed .2d 37 (1987); Crane v. Kentucky, 476 U.S . 683,
690-91, 106 S .Ct. 2142, 2146-47, 90 L .Ed.2d 636 (1986) ; Green v. Georgia , 442 U.S .
95, 97, 99 S.Ct. 2150, 2151-52, 60 L.Ed .2d 738 (1979) ; Washington v. Texas , 388 U.S .
14, 22-23, 87 S.Ct. 1920, 1925, 18 L.Ed.2d 1019 (1967). An exclusion of evidence will
almost invariably be declared unconstitutional when it "significantly undermine[s]
fundamental elements of the defendant's defense ." Scheffer , supra, at 315, 118 S .Ct.
at 1267-68 .
Appellant's only defense to the methamphetamine-related charges was that Kuhl
was the perpetrator . Likewise, in Chambers and Washington , supra , the
unconstitutionally excluded evidence was probative of the defendant's theory that a third
person was the actual perpetrator of the charged offense . 410 U.S . at 289, 93 S.Ct. at
1043 ; 388 U .S. at 16-17, 87 S .Ct. at 1921-22 . For the same reasons expressed in
Chambers and Washington , we have been adamant that a defendant "has the right to
introduce evidence that another person committed the offense with which he is
charged ." Eldred v . Commonwealth , Ky., 906 S .W .2d 694, 705 (1994); see Harvey v.
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Commonwealth , 266 Ky. 789, 100 S .W.2d 829, 830 (1937) ("It has been uniformly held
by this court that one accused of a crime may introduce evidence tending to prove that
the crime was committed by another, subject, however, to the right of the
commonwealth to rebut such evidence ."); Kelly v. Commonwealth , 259 Ky. 770, 83
S.W.2d 489, 490 (1935) ; cf. McGrecor, supra, at 388 ("It is crucial to a defendant's
fundamental right to due process that he be allowed to develop and present any
exculpatory evidence in his own defense, and we reject any alternative that would
imperil that right."). A trial court may only infringe upon this right when the defense
theory is "unsupported," "speculat[ive]," and "far-fetched" and could thereby confuse or
mislead the jury. Maddox , supra , at 721 .
Federal courts have also specifically recognized the importance of the
defendant's right to produce evidence that a third party (or "aaltperp," i.e . , "alleged
alternative perpetrator"3), actually committed the crime . E . . , United States v. Crosby ,
75 F.3d 1343, 1347 (9th Cir. 1996) ("fundamental standards of relevancy require the
admission of testimony which tends to prove that a person other than the defendant
committed the crime that is charged") (quotation omitted) ; United States v. Blum , 62
This term was coined by Professor David McCord in his article, "But Perry Mason
Made It Look So Easy!" : The Admissibility of Evidence Offered By a Criminal Defendant
To Suggest That Someone Else Is Guilty, 63 Tenn . L. Rev. 917, 920 (1996). Other
useful law review articles on this subject include Ellen Yankiver Suni, Who Stole the
Cookie From The Cookie Jar?: The Law and Ethics of Shifting Blame in Criminal
Cases, 68 Fordham L. Rev. 1643 (2000) (outlining the ethical guidelines governing the
assertion of the defense and arguing that "aaltperp" evidence should be excluded only if
the trial court can make a finding that with the admission of the evidence, an "irrational
acquittal" is "substantially more likely than a rational acquittal"), and Stephen Michael
Everhart, Putting a Burden of Production on the Defendant Before Admitting Evidence
that Someone Else Committed the Crime Charged : Is it Constitutional?, 76 Neb. L.
Rev. 272 (1997) (arguing that imposition of additional burden on defendant by some
jurisdictions before admitting "aaltperp" evidence is unconstitutional) .
3
- 1 4-
F.3d 63, 68 (2d Cir. 1995) ; (reversing when trial court prevented defendant from
introducing evidence that third party committed crime) ; United States v. Stevens, 935
F.2d 1380, 1384 (3d Cir. 1991) (reversing when trial court prevented defendant from
introducing "reverse 404(b)" evidence 4 that third party had perpetrated another crime so
similar in modus operandi to the crime with which defendant was charged as to identify
third party as perpetrator); Pettiiohn v. Hall, 599 F.2d 476, 480 (1 st Cir. 1979)
("Evidence that someone other than the defendant was identified as the criminal is not
only probative but critical to the issue of the defendant's guilt.").
However, evidence is not automatically admissible simply because it tends to
show that someone else committed the offense . Maddox , supra , at 721 . For example,
evidence of motive alone is insufficient to guarantee admissibility. State v. Cerreta , 796
A.2d 1176, 1183 (Conn . 2002) ("It is not enough to show that another had the motive to
commit the crime . . . .") (quotation omitted) . In a homicide case, a defendant is not
entitled to parade before the jury every person who bore some dislike for the victim
without showing that the "aaltperps" at least had an opportunity to commit the murder.
See State v. Makerson, 277 S.E .2d 869, 871-72 (N .C. Ct. App. 1981) (affirming when
defendant's only evidence was that "aaltperp" bore murder victim ill will) ; Romano v.
State, 847 P.2d 368, 381-82 (Okla . Crim . App. 1993) (affirming when defendant's only
evidence was that three others had motives to kill murder victim), affd 512 U.S. 1, 114
S .Ct. 2004, 129 L. Ed .2d 1 (1994) .
Rule 404(b) evidence is generally offered by the government to prove the defendant's
guilt. "Reverse 404(b) evidence" is evidence of an "aaltperp's" other crimes, wrongs, or
acts offered by the defendant to prove that the "aaltperp" committed the offense with
which the defendant is charged . Id. at 1401-06.
4
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In the same way, evidence of opportunity alone is insufficient to guarantee
admissibility . E Karvonen v. State , 424 S.E .2d 47, 49 (Ga . Ct. App. 1992) (affirming
.,
.g
child sexual abuse conviction when excluded evidence merely showed babysitter had
opportunity to commit abuse). Simply showing that the "aaltperp" was at the scene of
the crime, without also showing some connection between the "aaltperp" and the crime,
will generally not be allowed . See de la Garza v. State , 898 S.W.2d 376, 378 (Tex. Ct.
Crim . App . 1995) (affirming drug conviction when excluded evidence merely showed
that three illegal aliens were apprehended near where drugs and defendant were
found).
A defendant who is able to offer evidence of both motive and opportunity by an
if
aaltperp," however, is in a different position. As Professor McCord notes, appellate
courts have almost invariably reversed when proffered evidence of both motive and
opportunity has been excluded by the trial court. See McCord, supra note 3, at 951,
959. In Blum , supra , for example, the United States Court of Appeals for the Second
Circuit reversed convictions when the defendant was prohibited from presenting
evidence that the third party had both a motive and an opportunity to commit the crime
in question . Id . at 68 . In reversing, the Court stressed that "the Constitution guarantees
criminal defendants the right to present a defense." Id . at 67 . See also United States v.
Valleio , 237 F .3d 1008, 1022-23 (9th Cir. 2001) (reversing because defendant convicted
of transporting drugs in automobile was prevented from presenting evidence that
previous owner of vehicle had used it to transport drugs and thereby prevented
defendant from "provid[ing] an alternative theory of how the drugs were secreted in
[defendant's] car without his knowledge") ; Crosb , supra , at 1347 (reversing because
defendant was prevented from presenting evidence that jealous husband had
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"opportunity, ability, and motive to commit the crime.") ; cf. Johnson v. Brewer, 521 F.2d
556, 562 (8th Cir. 1975) (reversing because trial court excluded defendant's evidence
attempting to prove that the government's informer and witness had "framed" another
defendant in a parallel case) .
Appellant offered no substantive defense to the marijuana, drug paraphernalia,
and DUI charges (Counts II, III, and VII), and we do not disturb those convictions .
However, Appellant did attempt to offer a defense to the methamphetamine-related
charges: that Kuhl planted the methamphetamine-related products in the vehicle
without his knowledge . The avowal testimony and document support this theory by
substantiating Kuhl's jealousy of Hanks and her worry that Hanks would "break up"
Kuhl's relationship with Huskey. The document also illustrated Kuhl's affection for
scheming, evidenced by her admissions on the cardboard document that "[w]e were
trying to 'set him up,' and 'we planned it."' (Emphasis added.) The jury was aware, of
course, that Kuhl had the opportunity to place the drugs in her own vehicle. However,
without evidence of her motive for doing so, Appellant's defense was left in shambles.
The error seems to have stemmed from the trial court's belief that Appellant's
only purpose in offering the evidence was to impeach Kuhl's credibility. See Blum,
supra, at 68 ("We do not share the district court's view that [defendant] attempted to
introduce this evidence primarily to impeach [the "aaltperp's"] credibility ."); Pettijohn,
supra , at 479 (noting that state court's relevancy ruling improperly "focused on
impeachment, not upon the use of the evidence to present a direct defense upon one's
behalf'). The trial court thus did not address the crucial question of whether KRE 403
authorized exclusion of the evidence for substantive purposes. If it had, the evidence
would have been admitted . Neither the document nor Kuhl's testimony was cumulative .
-17-
The avowal testimony took only minutes, and there was little potential for the jury to
have been confused or misled . See Blum, supra , at 68 ("Indeed, given the importance
of the testimony to the defense, whatever confusion that may have resulted from its
admission would have to have been overwhelming to satisfy Rule 403's balancing test.")
(quotation omitted) . In fact, Kuhl's jealousy answers the trial court's query, supra , as to
why Kuhl would lend a vehicle containing a methamphetamine laboratory to an innocent
person. See Valleio , supra, at 1023 (noting that defendant "was not allowed to provide
an answer for the jurors' question : 'If defendant did not know there were drugs in the
car and did not place them there himself, who did?"' ) . Finally, because this evidence
was proffered by Appellant, there was no risk of undue prejudice. As stated by
Wigmore :
[I]f the evidence [that the crime was committed by someone else] is in
truth calculated to cause the jury to doubt, the court should not attempt to
decide for the jury that this doubt is purely speculative and fantastic but
should afford the accused every opportunity to create that doubt.
1 A John Henry Wigmore, Evidence in Trials at Common Law § 139 (Tiller's rev. 1983) .
Nor was the error harmless . Appellant was denied "the right to present a
defense, the right to present [his] version of the facts as well as the prosecution's to the
jury so it may decide where the truth lies ." Washington v. Texas, 388 U .S . at 19, 87
S .Ct. at 1923.
Because this error implicated Appellant's constitutional right to Due
Process, reversal is required absent evidence rendering the exclusion "harmless
beyond a reasonable doubt." Chapman v. California, 386 U .S . 18, 24, 87 S .Ct. 824,
828, 17 L .Ed .2d 705 (1967); Pettiiohn , supra , at 482 ("While it may be possible that
erroneous exclusion of a defendant's evidence could be harmless beyond a reasonable
doubt, we do not think this is such a case.") (internal citation omitted) ; see also Barth v.
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Commonwealth , Ky., 80 S .W.3d 390,395 (2001) ; Holloman v. Commonwealth , 37
S .W.3d at 767 . Because of the fundamental importance of the evidence to Appellant's
defense, we cannot conclude beyond a reasonable doubt that the error was harmless .
"No matter how credible [the "aaltperp"] defense, our system of justice guarantees the
right to present it and be judged by it." Pettiiohn, supra , at 483. Thus, we are required
to reverse the methamphetamine-related convictions (Counts IV, V, and VI) and remand
those charges for a new trial .
VI . DOUBLE JEOPARDY .
Appellant contends that his convictions of manufacturing methamphetamine and
possession of methamphetamine violate the Double Jeopardy Clause of the Fifth
Amendment to the United States Constitution and Section 13 of the Kentucky
Constitution . The alleged error was unpreserved . We address it under the authority of
Sherley v. Commonwealth , Ky., 558 S .W.2d 615, 618 (1977) ("failure to preserve this
issue for appellate review should not result in permitting a double jeopardy conviction to
stand"); Gunter v. Commonwealth , Ky., 576 S .W .2d 518, 522 (1978); Baker v.
Commonwealth , Ky., 922 S .W .2d 371, 374 (1996); and Butts v. Commonwealth , Ky.,
953 S .W .2d 943, 944-45 (1997), and because the issue will necessarily recur on retrial.
Recall that methamphetamine was found in two places and forms in the vehicle . First,
Deputy Phelps testified that methamphetamine was found being "cooked" in a jar in the
trunk of the vehicle . He also testified that he found methamphetamine residue on a
piece of burnt aluminum foil in a duffel bag in the back seat.
Our rule against multiple prosecutions for the same course of conduct parallels
the federal rule announced in Blockburger v. United States , 284 U .S . 299, 52 S.Ct . 180,
- 1 9-
76 L.Ed . 306 (1932) . See Commonwealth v. Burge, Ky., 947 S .W .2d 805, 809-811
(1996).
If "the same act or transaction constitutes a violation of two distinct
statutory provisions, the test to be applied to determine whether there are
two offenses or only one, is whether each provision requires proof of a fact
which the other does not." . . . [T]wo different statutes define the "same
offense," typically because one is a lesser included offense of the other.
Rutledge v. United States , 517 U.S . 292, 297, 116 S .Ct. 1241, 1245, 134 L .Ed .2d 419
(1996), quoting Blockburger , supra, at 304, 52 S.Ct. at 182. This is, properly speaking,
a rule of statutory interpretation in a case such as this one; neither the United States nor
the Kentucky Constitution proscribes the imposition of multiple punishments for
separate offenses committed during the course of a single criminal episode . See
Robert G . Lawson and William H . Fortune, Kentucky Criminal Law § 6-3(d)(2), at 237
(LEXIS 1998) . The rule against "double jeopardy" in this situation "presume[s] that
'where two statutory provisions proscribe the same offense,' a legislature does not
intend to impose two punishments for that offense ." Rutledge , supra , at 297, 116 S.Ct.
at 1245, quoting Whalen v. United States , 445 U .S . 684, 691-92, 100 S .Ct. 1432, 143738, 63 L .Ed.2d 715 (1980). The General Assembly codified this presumption and the
Blockburger test in KRS 505.020 . Bur e, supra , at 809-11 .
The question presented is whether the Commonwealth violated KRS 505 .020 by
convicting Appellant of both manufacturing methamphetamine under KRS
218A .1432(1)(a) and possession of a controlled substance (methamphetamine) in the
first degree under KRS 218A .1415(1) . We address this issue in two parts. First, under
Blockburger, supra, do KRS 218A .1432(1)(a) and KRS 218A .1415(1) each require proof
of an element that the other does not? Second, were the two convictions predicated
upon the same offense?
- 20-
A. Blockburger Test .
This issue pertains to the methamphetamine that was being "cooked" in the jar in
the trunk of the vehicle . Each statute, KRS 218A.1432(1)(a) and KRS 218A.1415 (1),
has three principal elements. A defendant violates KRS 218A.1432(1)(a) when he (1)
knowingly and unlawfully (2) manufactures (3) methamphetamine . A defendant violates
KRS 218A. 1 415(l) when he (1) knowingly and unlawfully (2) possesses (3)
methamphetamine . The only distinction between the two statutes is the difference
between "manufacture" and "possess ." KRS 218A.1431(1) defines "manufacture" as
"the production, preparation, propagation, compounding, conversion, or processing of
methamphetamine . . . ." KRS chapter 218A does not define "possession" and the
definition at KRS 500.080(14) applies, pursuant to that statute, only to penal code
offenses . Cf. Rasmussen v. Commonwealth , Ky., 705 S .W .2d 914, 915 (1986)
(definitions in KRS 510 .010 are restricted by that statute only to KRS chapter 510
offenses) . Nevertheless, we have held that "possession" for purposes of KRS chapter
218A includes both actual and constructive possession . Houston v. Commonwealth ,
Ky., 975 S .W .2d 925, 927-28 (1998); Leavell, 737 S.W .2d at 697 .
Most jurisdictions that have considered the issue agree that convictions of
"manufacturing" and "possessing" the same unit of a controlled substance fail the
Blockburger test. Recently, the Supreme Court of Colorado addressed the issue en
banc in Patton v. People, 35 P.3d 124 (Colo . 2001). Analyzing statutes identical to our
own in all relevant respects, Patton concluded that possession of methamphetamine
was a lesser included offense of manufacturing methamphetamine for purposes of
double jeopardy . Id . a t 127.
- 21 -
Comparing the meanings of "manufacture" and "possession," it is evident
that one who manufactures a controlled substance also possesses the
substance in the course of manufacturing it. "Possession" requires
immediate and knowing control over the substance. Logic dictates that
such control is required in the production of the substance. . . . [W]e can
envision no scenario in which an individual can manufacture
methamphetamine without also possessing it.
Id. at 131 . See Craig v. State , 863 S.W .2d 825, 827 (Ark. 1993) ("In proving the offense
of manufacturing, the state must necessarily show the defendant has control of the
controlled substance in order to manufacture it. That being so, possession of the
substance is necessarily a lesser included offense of the manufacturing ."); Anderson v.
State, 447 So .2d 236, 238 n.3 (Fla . Dist. Ct. App. 1983) (possession of marijuana is
"considered the 'same' offense for double jeopardy purposes" as manufacturing
marijuana) ; Mudd v. State, 483 N.E .2d 782, 784 (Ind . Ct. App . 1985) ("The proof
required to establish manufacture of marijuana necessarily establishes possession as
well ; one cannot knowingly or intentionally manufacture the drug without also
possessing it to that end .") ; see also United States v. Miller, 870 F.2d 1067, 1071 (6th
Cir. 1989) (the offense of manufacturing marijuana is likely to include proof of
possession); but see State v. Spivie , 581 N .W.2d 205, 209 (Iowa Ct . App. 1998) (proof
of manufacturing does not necessarily include proof of possession, e.g_, one could
finance the manufacture of a controlled substance without ever possessing it) . Further,
in United States v. Buchanan , 830 F .2d 146 (10th Cir. 1987), the Court of Appeals for
the Tenth Circuit, in holding that convictions of possession and manufacturing an
explosive device failed the Blockburger test, noted that "numerous courts . . . have
recognized that possession is always incidental to manufacture and that the two
offenses merge for the purposes of sentencing ." Id . at 148 .
- 22-
The Commonwealth argues that a contrary result is required because it is
possible to manufacture methamphetamine without possessing methamphetamine, i .e . ,
a defendant can be convicted of manufacturing methamphetamine by taking one step in
the manufacturing process, yet not be guilty of "possessing" methamphetamine if the
process is never completed. We disagree . The definition of "manufacture," i .e . , "the
production, preparation, propagation, compounding, conversion, or processing of
methamphetamine," obviously contemplates a finished product . If Appellant had been
charged not with actually manufacturing methamphetamine under KRS 218A.1432(1)(a)
but with possessing the chemicals or equipment necessary to do so under KRS
218A.1432(1)(b), the scenario offered by the Commonwealth would support a conviction
under the latter subsection.' Or if Appellant had been in possession of less than all of
the chemicals or equipment necessary for the manufacture of methamphetamine but
had actually begun the manufacturing process, the Commonwealth's scenario would
support a conviction of criminal attempt to manufacture methamphetamine under KRS
506.010(1)(b) . See Kotila v. Commonwealth , Ky.,
S .W.3d
(2003) (slip op.,
at 33) (citing United States v. Smith , 264 F.3d 1012, 1016-17 (10th Cir. 2001)).
However, Appellant could not have been convicted of manufacturing methamphetamine
under KRS 218A .1432(1)(a) unless he actually manufactured some quantity of
methamphetamine . In that scenario, if the manufacturing process was performed by the
defendant, compare S ivie, supra, at 209, possession of the manufactured
methamphetamine is an element of the offense of manufacturing ; and a conviction of a
' In fact, Appellant was originally indicted under Count IV of violating KRS
218A .1432(1)(b) . A superseding indictment issued one week before trial amended
Count IV to charge, instead, a violation of KRS 218A .1432(1)(a) .
- 2 3-
separate offense of possession would be double jeopardy . KRS 505.020(1)(a) .
Appellant did, in fact, complete the process of manufacturing a quantity of
methamphetamine, allowing him to be convicted under KRS 218A.1432(1)(a) of actually
manufacturing methamphetamine . However, under the facts of this case, he could not
also be convicted of a separate offense for possessing the methamphetamine that he
manufactured . That would be akin to convicting a defendant of trafficking in and
possession of the same controlled substance because one must possess the substance
before one can sell or transfer it to another. Mangrum v. Commonwealth , Ky., 674
S .W.2d 957, 958 (1984) (convictions of complicity to both selling and possessing with
intent to sell marijuana constituted double jeopardy) .
B . Same Offense .
This issue pertains to the methamphetamine residue on the piece of burnt
aluminum foil found in the back seat of the vehicle and the wording of the instruction on
possession of a controlled substance in the first degree . The question is whether the
manufacturing and possession convictions were predicated upon the same underlying
facts. Without this factual unity, multiple convictions are not proscribed . KRS
505 .020(1). For example, in the pre-code case of Wallace v. Commonwealth , 207 Ky.
122, 268 S .W . 809 (1925), our predecessor court held that a defendant who shot
several police officers during a single course of conduct could be successively
convicted of murdering each officer under the same statute without violating double
jeopardy . Id . at 813 ; see also Hennemeyer v. Commonwealth , Ky., 580 S.W.2d 211,
215 (1979) (defendant properly convicted of six counts of wanton endangerment in the
first degree for firing six shots at pursuing police officers during vehicle chase); Slone v.
Commonwealth , 266 Ky. 366, 99 S.W .2d 207, 209 (1936) ("If one should throw a bomb
-24-
in a crowd, and kill several persons, it could not be maintained that his conviction for the
death of one of them would bar a prosecution against him for the killing of any of the
others .") (quotations omitted) .
In the same way, Appellant was properly convicted of both possessing
methamphetamine and manufacturing methamphetamine per KRS 505.020(1) if the
methamphetamine that he was convicted of possessing was not the same
methamphetamine that he was convicted of manufacturing . See United States v.
Graham , 275 F .3d 490, 519-20 (6th Cir. 2001) ("We have upheld multiple convictions
and sentences under 18 U .S .C. § 924(c)(1) so long as such convictions are based on
separate predicate acts ."). Unfortunately, we are unable to discern from the jury's
verdict in the case sub iudice which quantity of methamphetamine Appellant was
convicted of possessing .
As noted supra, if the conviction of possession was premised upon the
methamphetamine found in the jar in the trunk of the vehicle, KRS 505.020(1)(a) would
require that the possession conviction be vacated . However, if the conviction was
premised upon the methamphetamine residue found on the piece of burnt aluminum foil
in the duffel bag in the back seat, the conviction would not necessarily violate KRS
505.020(1)(a) . This residue would have been sufficient to support a conviction under
KRS 218A . 1 415(l), see Bolen v. Commonwealth , Ky., 31 S.W .3d 907, 909 (2000),
Commonwealth v. Shivley, Ky., 814 S .W.2d 572, 574 (1991), and a reasonable jury
could have believed that this residue was not a product of the manufacturing process
occurring in the trunk of the vehicle, etc .., the residue represented methamphetamine
purchased on the street or manufactured elsewhere and used personally by Appellant .
With such a finding, a reasonable jury could have convicted Appellant of manufacturing
-25-
methamphetamine (based upon the manufacturing process occurring in the trunk of the
vehicle) and possession of methamphetamine (based upon the residue found in the
back seat) without violating KRS 505.020(1)(a).
Unfortunately, the jury instructions did not require the jury to make this distinction
in the verdict. Instruction Number 8 was the manufacturing instruction . Instruction
Number 9, the possession instruction, provided as follows :
You will find the Defendant guilty of first-degree possession of a
controlled substance under this Instruction, if, and only if, you believe from
the evidence beyond a reasonable doubt all of the following:
A.
That in this county on about November 8, 2000, he had in his
possession a quantity of methamphetamine .
AND
B.
That he knew the substance so possessed by him was
methamphetamine .
To avoid double jeopardy, the instruction should also have contained the following or a
similar proviso:
AND
C.
If you have found the Defendant guilty of manufacturing
methamphetamine under Instruction No. 8, that the substance so
possessed by him was not a product of the same manufacturing
process for which you have found him guilty under that Instruction .
That or some similar distinguishing proviso would have protected Appellant's
right to be free of double jeopardy . However, because Instruction Number 9 did not
require the jury to distinguish between the two offenses, we cannot know that the jury
convicted Appellant of possession of methamphetamine that was not a product of the
manufacturing process for which he was also convicted under Instruction No. 8 . See
Miller v. Commonwealth , Ky., 77 S.W .3d 566, 576 (2002) ("Whether the issue is viewed
as one of insufficient evidence, or double jeopardy, or denial of a unanimous verdict,
-26-
when multiple offenses are charged in a single indictment, the Commonwealth must
introduce evidence sufficient to prove each offense and to differentiate each count from
the others, and the jury must be separately instructed on each charged offense .").
Thus, we would be bound to reverse Appellant's conviction for possession of
methamphetamine for a new trial even if reversal was not required on the Due Process
ground discussed supra . This would be true even though the sentence imposed for
Appellant's possession conviction was ordered to run concurrently with Appellant's other
more lengthy sentences . Ball v. United States , 470 U.S . 856, 865, 105 S .Ct. 1668,
1673, 84 L .Ed .2d 740 (1985) ("[t]he separate conviction , apart from the concurrent
sentence, has potential adverse collateral consequences that may not be ignored .").
VII. VERDICT ERROR.
The final issue relates to a jury error in the return of the drug paraphernalia
penalty verdict. The jury found Appellant guilty of possession of drug paraphernalia
during the guilt phase of the trial. The issue of whether Appellant was a first (Class A
misdemeanor) or second (Class D felony) offender, KRS 218A.500(5), was reserved to
the penalty phase of the trial . Cf. Commonwealth v. Ramsey , Ky., 920 S .W.2d 526
(1996) . Accordingly, in the penalty phase, the court instructed the jury that it should find
Appellant guilty of possession of drug paraphernalia, second offense, and sentence him
to one to five years imprisonment if, and only if, the jury believed beyond a reasonable
doubt that at the time he committed the present offense he "had been previously
convicted of the offense of possession/use of drug paraphernalia one or more times ."
The trial court then instructed the jury as to the penalty range for possession of
drug paraphernalia, first offense:
-27-
If you did not find the Defendant guilty of Use/Possession of Drug
Paraphernalia, Second Offense, then he stands convicted of
Possession/Use of Drug Paraphernalia, First Offense . You shall now fix
his punishment for that offense at confinement in the county jail for a
period not to exceed 12 months, at a fine not to exceed $500 .00, or both
confinement and fine, in your discretion.
The prosecution introduced a Kenton Circuit Court document entitled "Final Judgment
on Plea of Guilty" dated January 21, 1998, showing that Appellant had previously pled
guilty to possession of drug paraphernalia, second offense, and had been sentenced to
one year imprisonment . Appellant did not cross-examine the witness authenticating this
document or otherwise dispute its accuracy .
Following deliberations, the jury returned a verdict finding Appellant guilty on the
"second offense" page of the instructions and fixed his sentence at three years . Then,
disregarding the instructions, the jury also fixed his sentence at "twelve months" on the
"first offense" page of the instructions . Upon encountering these inconsistent verdicts,
the trial court recognized the entry of "twelve months" as a mistake and simply
disregarded it.
Court: Next instruction, now, the next instruction is signed by the
foreperson and it gives a verdict of twelve months, which states "if
you did not find the defendant guilty of use/possession of drug
paraphernalia, second offense, then he stands convicted of first
offense ." It may not have been entirely clear, but obviously you did
find him guilty, so this says "if you did not," so this form should not
have been filled out . It does give a sentence of twelve months and
it is signed by the foreperson . I'm going to turn over to the next
one .
Defense counsel did not object to this remedy and, when asked if he had any questions
about the verdict, whether he wished to poll the jury, and whether there was any reason
not to discharge the jury, responded in each instance, "No, your honor." The jury was
then discharged and, although Appellant subsequently presented the court with a
- 28-
motion for a new trial, he did not assert any error with respect to the sentencing verdict
on his conviction of possession of drug paraphernalia, second offense . Nevertheless,
Appellant now claims that failing to resubmit the issue to the jury resulted in "manifest
injustice ." RCr 10 .26. 6
It is well established in Kentucky that a failure to object to a verdict that is
inconsistent, ambiguous, or otherwise unclear constitutes a waiver for purposes of
appeal . E Foster v. Commonwealth , Ky., 507 S.W.2d 443, 445 (1974); Prince v.
.,
.g
Commonwealth , Ky. App., 576 S.W.2d 244, 246 (1978). There are only three
exceptions . The first two were established in Smith v. Crenshaw, Ky., 344 S .W.2d 393
(1961), in which our predecessor Court held that it would consider a claim on appeal
despite a failure to object before the jury has been discharged when (1) "the verdict fails
to determine a particular claim ;" or (2) the verdict "is so ambiguous that it cannot be
ascertained what determination has been made of the claim ." Id . at 395 ; see also
Franklin v. Commonwealth, Ky., 490 S .W.2d 148, 151 (1972) (finding verdict "patently
unintelligible and impossible for the trial court to interpret without speculation"). We
recognized the third exception in Caretenders, Inc. v. Commonwealth , Ky., 821 S .W.2d
83 (1991), holding that we will also address such a claim if it both (1) alleges a
"substantive" error, and (2) was raised before the trial court, albeit sometime after the
jury was discharged, such as in a motion for a new trial . Id . at 85. In all other
6 Appellant also asserts that this, too, was a double jeopardy violation and, therefore,
accessible on appeal. However, he does not explain this theory or present any
arguments in support of that position . Obviously, double jeopardy could have occurred
only if the trial judge had accepted both verdicts and entered a judgment convicting
Appellant of two offenses . He did not.
- 29-
circumstances, a complaint about the consistency, ambiguity, or clarity of the verdict is
waived if not raised while the jury remains empaneled .
The Court of Appeals for the Eighth Circuit explained the rationale behind the
parallel federal rule:
The purpose of the rule is to allow the original jury to eliminate any
inconsistencies without the need to present the evidence to a new jury.
This prevents a dissatisfied party from misusing procedural rules and
obtaining a new trial for an asserted inconsistent verdict.
Lockard v. Mo . Pac. R.R. Co . , 894 F.2d 299, 304 (8th Cir. 1990) (citation omitted) . We
have repeatedly affirmed the trial court's authority in most circumstances to order the
jury to make its verdict clear and consistent when an objection is made, either by
informal poll or direction to reconvene and reconstitute the verdict . Bush v.
Commonwealth , Ky., 839 S .W.2d 550, 556 (1992) (approving informal poll) ; Bo ie v.
Commonwealth , Ky., 467 S .W.2d 767, 769 (1971) (approving sending jury back to
correct verdict); Wright v. Commonwealth , Ky., 455 S.W .2d 561, 562 (1970) (same) ;
Mathis v. Commonwealth , Ky., 447 S .W.2d 641, 644 (1969) (approving informal poll).
However, these remedies are only possible before the jury has been discharged . See
Burchett v. Commonwealth , Ky. App ., 734 S .W .2d 818, 820 (1987) ("Although a trial
court has the authority before accepting a verdict and before discharging a jury to send
it back to correct a mistake in its verdict, it is axiomatic that an ambiguous or incorrect
verdict must be corrected prior to the time the jury is discharged ."). In this case,
Appellant failed to object to the verdict as inconsistent, incorrect, or ambiguous before
the jury was discharged .
Moreover, Appellant fits none of the exceptions articulated supra . First, the jury's
verdict addressed every claim in the indictment . Second, the verdict was not so
- 30-
ambiguous that the trial court could not ascertain what determination was made of the
relevant claim . The jury unambiguously found Appellant guilty of possessing drug
paraphernalia as a second (or greater) offense and that finding was supported by
uncontradicted evidence . The trial judge correctly determined that the additional act of
fixing a sentence for what was essentially a lesser included offense amounted to
surplusage . Cf. McGinnis v. Wine , Ky., 959 S .W .2d 437, 439 (1998) ; Jones v. Jones ,
938 F.2d 838, 845 (8th Cir. 1974) . Finally, Appellant did not present this issue to the
trial court in his motion for a new trial or at any other time .
Accordingly, the judgments of convictions and the sentences imposed by the
Logan Circuit Court for (1) DUI, (2) trafficking in marijuana, and (3) possession of drug
paraphernalia, second offense, are affirmed . The convictions of (4) manufacturing
methamphetamine, (5) possession of a controlled substance in the first degree, and (6)
possession of anhydrous ammonia in an unapproved container with intent to
manufacture methamphetamine, and the sentences imposed for those convictions, are
reversed and remanded for a new trial in accordance with the contents of this opinion .
All concur.
COUNSEL FOR APPELLANT :
Euva D. Hess
Assistant Public Advocate
Appellate Division
Department of Public Advocacy
100 Fair Oaks Lane
Frankfort, KY 40601
COUNSEL FOR APPELLEE:
A. B . Chandler, III
Attorney General
State Capitol
Frankfort, KY 40601
Samuel J . Floyd, Jr.
Assistant Attorney General
Office of Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, KY 40601-8204
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