JOHNATHAN PARKS V. COMMONWEALTH OF KENTUCKY
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2003-SC-0305-MR
JOHNATHAN PARKS
APPELLANT
APPEAL FROM GRAYSON CIRCUIT COURT
HONORABLE SAM H. MONARCH, JUDGE
02-CR-60
V
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION OF THE COURT BY JUSTICE COOPER
VACATING
At 8 :00 p.m. on February 26, 2002, Appellant, 'Johnathan Parks, while operating
a vehicle owned by his wife, was stopped and arrested at the intersection of Highways
88 and 226 in the town of Peonia, Grayson County, Kentucky. Also arrested were his
two passengers, Matthew Morris, who was seated in the right front passenger seat, and
Douglas Blakeman, who was seated in the right rear passenger seat. A search of the
vehicle conducted after the arrests revealed, inter alia, (1) a black plastic trash bag on
the floorboard behind the driver's seat that contained a modified propane gas tank filled
with anhydrous ammonia; (2) another plastic bag on the back seat that contained a
flashlight equipped with two lithium batteries and an opened package containing two
identical lithium batteries ; and (3) two unopened cans of starting fluid in the glove
compartment.
Prior to trial, Blakeman and Morris pled guilty to reduced charges of criminal
facilitation to manufacturing methamphetamine for which each was sentenced to three
years in prison (plus an additional one year each for having escaped from custody after
being transported to Blakeman's residence for the purpose of executing a search
warrant for the premises) . Both testified as witnesses for the Commonwealth . Morris
testified that Blakeman had placed the black plastic bag containing the tank filled with
anhydrous ammonia inside the vehicle and that the flashlight and batteries belonged to
Blakeman . Appellant admitted that he owned the starting fluid but claimed he kept it in
the vehicle in case the car failed to start because of cold weather. The
Commonwealth's expert, Detective Billy Edwards, testified that anhydrous ammonia,
lithium, and ether (contained in starting fluid) are chemicals used in the manufacture of
methamphetamine, but that methamphetamine cannot be manufactured by use of those
chemicals alone . On the night of the arrest, Detective Edwards was called to the scene
and destroyed the anhydrous ammonia by shooting a shotgun shell into the propane
tank, thereby causing the anhydrous ammonia to escape and disperse .' The starting
fluid, the flashlight, and the two additional batteries were retained as evidence and
introduced at trial.
Appellant was convicted of one count of manufacturing methamphetamine, KRS
218A.1432(1)(b), and one count of possession of anhydrous ammonia in an
unapproved container with intent to manufacture methamphetamine, KRS 250.489(1);
KRS 250.991(2), both Class B felonies. Though the jury instructions permitted his
convictions as either principal or accomplice, the verdict forms returned by the jury did
not specify under which theory guilt was found . The jury also found Appellant to be a
' This is a common law enforcement precaution against the dangers of transporting
anhydrous ammonia in a modified propane tank.
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persistent felony offender in the second degree, KRS 532.080(2), and fixed his
enhanced sentences at twenty years in prison for each offense to be served
consecutively for a total of forty years. The trial court entered judgment and sentenced
Appellant in accordance with the verdicts of the jury. He appeals to this Court as a
matter of right. Ky. Const. § 110(2)(b).
We now vacate both of Appellant's convictions and his sentences because (1)
the Commonwealth's own evidence specifically disproved the essential element that
Appellant possessed the anhydrous ammonia with the intent to manufacture
methamphetamine - either as principal or accomplice ; and (2) even if possession of the
starting fluid and flashlight batteries would suffice to convict of manufacturing
methamphetamine under KRS 218A.1432(1)(b), that evidence should have been
suppressed because it was obtained as a result of an unlawful detention .
FACTS.
Appellant resided with his wife and three-year-old daughter in an apartment in
Leitchfield, the county seat of Grayson County . Morris and Blakeman resided in
separate residences in Clarkson, approximately five miles east of Leitchfield via U.S.
Highway 62, and approximately five miles north of Peonia via Kentucky Highway 88.
Blakeman lived in a mobile home located directly behind his father's residence at 408
Peonia Road (Highway 88) . At 3:00 p.m. on February 26, 2002, Detective Tony Willen
of the Grayson County Sheriff's Department received a tip from a confidential informant
that Blakeman and Morris had manufactured some methamphetamine and would be
selling it at 408 Peonia Road . Willen prepared an affidavit for a search warrant that
provided, inter alia:
On this date the affiant received information from a confidential informant
that Doug Blakeman and Matt Morris would be at 408 Peonia Rd. selling
the methamphetamine that the two manufactured earlier this date . The
confidential informant has provided information in the past, on at least
three separate occasions and this information was reliable and accurate
each time. Previous information has resulted in convictions .
Acting on the information received, the affiant conducted the following
independent investigation :
The affiant has received information in the past from the public and from
other police agencies that Mr. Blakeman and Matt Morris were involved in
the manufacturing of controlled substances. Criminal records show that
Doug Blakeman lives at 408 Peonia Rd. Detective Willen also has
personal knowledge as to the location of the residence of Mr. Blakeman .
(Emphasis added .)
Based on this affidavit, a Grayson District Court Judge issued a search warrant
that provided, inter alia:
[Y]ou are commanded to make immediate search of the premises known
and numbered as the Doug Blakeman residence, at :
408 Peonia Rd.
Clark _son, Kv. 42726
And more particularly described as follows:
. . . The residence is a Trailer located on the east side of Peonia Rd. and
the front of the residence faces west . The property has several
outbuildings located on the property and also several vehicles . The
numbers 408 are located on the mailbox that is directly in front of the
house and is clearly visible from the roadway. The Trailer sets [sic]
behind a white house owned by Blakeman's father.
And/or in a vehicle or vehicles described as:
Any vehicle registered to Doug Blakeman, Matt Morris or any vehicle on
the -Property at the time this search warrant_is executed.
And/or the person or persons of :
Doug Blakeman, Matt Morris or any person present at the time this search
warrant is executed.
And the following described personal property : to search for evidence
related to the offenses of manufacturing, trafficking and possession of
Controlled Substances, To Wit: Methamphetamine . To search for the
items used to manufacture methamphetamine to include but not limited to
Lithium batteries, table salt, Anhydrous Ammonia, Ether, Ephedrine or
Pseudoephedrine tablets, liquid fire, coffee filters, rubber gloves, gas
masks and glassware. To search for items or material that is frequently
used to package controlled substances to include but not limited to plastic
sandwich bags, zip lock bags, small plastic envelopes and twist ties. To
search for devices used to weigh controlled substances, either manual or
electronic.
To search for records, written or electronic to include pagers, cellular
phones, call identification devices, computers and disk/tapes for
computers that shows [sic] the identity of those persons involved in the
cultivation/distribution and purchasing of controlled substances. To
search for moneys obtained from the sale of controlled substances,
records written and electronic that shows [sic] where moneys are obtained
and how moneys are expended and secreted . To search for items or
devices used to introduce controlled substances into the human body to
include but not limited to pipes, rolling papers, bongs and stems.
(Emphasis added.)
Appellant testified that when he arrived home from work on February 26, 2002,
there was a note on his door to contact Morris . According to Appellant, he proceeded
with his wife and child to Morris's residence in Clarkson, arriving at approximately 7:30
p .m. Both Morris and Blakeman were present . Blakeman did not own a motor vehicle
and Morris's vehicle was temporarily disabled . Blakeman told Appellant that he had
"fallen out" with his father and asked if Appellant would help him move some clothing
and personal belongings from his mobile home in Peonia to a residence in Annetta,
another small community in Grayson County. The most direct route from Clarkson to
Annetta is through Peonia. Appellant, Blakeman, and Morris proceeded to 408 Peonia
Road, leaving Appellant's wife and child at Morris's residence . After arriving at
Blakeman's residence, Appellant engaged in a conversation with Blakeman's brother
while Blakeman and Morris loaded various plastic bags and a black shoulder satchel
into the vehicle.
Appellant admitted that he saw Blakeman load the black plastic bag
subsequently found to contain the propane tank filled with anhydrous ammonia into the
back seat, but claimed he believed it contained only Blakeman's clothing or other
personal belongings . Detective Willen admitted at trial that the plastic bag was large
enough to completely enclose the propane tank, but stated that the top of the tank was
sticking out of the bag at the time he found it on the floorboard behind the driver's seat
of the vehicle . Both Morris and Blakeman testified as witnesses for the Commonwealth,
without objection, that "everyone in the vehicle knew" that the black plastic bag
contained a propane tank filled with anhydrous ammonia . Morris further testified for the
Commonwealth that he had made arrangements to "trade" the anhydrous ammonia to
Joey Barnes for an unspecified amount of methamphetamine and that the transaction
would occur in Leitchfield. Blakeman testified for the Commonwealth that he did not
know how much methamphetamine they would receive in exchange for the tank of
anhydrous ammonia . The most direct route from Clarkson to Leitchfield is via U.S . 62,
not via Kentucky 88 through Peonia.2
I. SUFFICIENCY OF THE EVIDENCE.
At the time these offenses were committed, KRS 218A.1432(1)(b) provided :
(1)
A person is guilty of manufacturing methamphetamine when he
knowingly and unlawfully:
(b)
Possesses the chemicals or equipment for the manufacture
of methamphetamine with the intent to manufacture
methamphetamine .
(Emphasis added .)
2 The jury, of course, was entitled to believe either that Appellant's intent was to go first
to Annetta, then to Leitchfield, or that his intent was to take the more circuitous route
through Peonia to avoid detection .
At the time these offenses were committed, KRS 250.489 and KRS 250.991
provided in pertinent part:
KRS 250.489 . Possession of anhydrous ammonia in unapproved
container prohibited - Exceptions -Affirmative defense.
(1)
It shall be unlawful for any person to knowingly possess anhydrous
ammonia in any container other than an approved container .
KRS 250.991 . Penalties for violation of anhydrous ammonia provisions .
(2)
Any person who knowingly possesses anhydrous ammonia in a
container other than an approved container in violation of KRS
250.489 is guilty of a Class D felony unless it is proven that the
person violated KRS 250 .489 with the intent to manufacture
methamphetamine in violation of KRS 218A.1432, in which case it
is a Class B felony for the first offense and a Class A felony for
each subsequent offense .
(Emphasis added .)
At the time these offenses were committed, KRS 218A did not contain a
definition of "intent to manufacture ." However, the General Assembly subsequently
enacted KRS 218A.010(14), which defines the phrase, inter alia, as "any evidence
which demonstrates
a person's conscious objective to manufacture a controlled
substance or methamphetamine ." 2005 Ky. Acts, ch. 150, § 7. Where an ambiguous
statutory meaning is clarified by subsequent legislation, that subsequent legislation is
strong evidence of the legislative intent of the first statute. Kotila v. Commonwealth ,
114 S .W.3d 226, 238 (Ky. 2003), overruled on other grounds by Matheney v .
Commonwealth , 2002-SC-0920-MR,
S .W.3d
(Ky. Mar. 23, 2006). The phrase
"to manufacture" in KRS 218A .010(14) clearly requires that Appellant's intent in
possessing the anhydrous ammonia, the starting fluid, and the lithium batteries must
have been that he, himself, either as principal or accomplice, would use those items to
manufacture methamphetamine . The definition does not say, e.g_, "with the intent that
methamphetamine will be manufactured."
No doubt, there are cases in which a jury could reasonably infer an intent to
manufacture methamphetamine from evidence that the defendant was in possession of
anhydrous ammonia in an unapproved container and other surrounding circumstances .
See Fulcher v. Commonwealth , 149 S .W.3d 363, 370 (Ky. 2004) (evidence of ongoing
methamphetamine manufacturing process and presence of other chemicals necessary
to manufacture methamphetamine permitted inference by jury that defendant
possessed anhydrous ammonia with intent to manufacture methamphetamine) .
However, when, as here, the Commonwealth's own evidence disproved that Appellant
possessed the anhydrous ammonia "with the intent to manufacture methamphetamine,"
but proved instead that he possessed it with the intent to trade it to another person in
exchange for some already-manufactured methamphetamine, and there is not a scintilla
of evidence to the contrary, it was clearly unreasonable for the jury to find Appellant
guilty as a principal . Commonwealth v. Benham , 816 S .W.2d 186,187 (Ky. 1991) .
The jury may have found otherwise because the instructions on both offenses
omitted the required element that the possession of the chemicals or equipment and of
the anhydrous ammonia be "with the intent to manufacture methamphetamine ."
Instead, the instructions permitted a finding of guilt if Appellant possessed "equipment
and/or raw material for manufacturing methamphetamine . . . for the purpose of
manufacturing methamphetamine," and possessed anhydrous ammonia " for the
purpose of manufacturing methamphetamine ." (Emphasis added.) Obviously,
possession "for the purpose of" manufacturing methamphetamine does not require the
same personalized intent as does possession "with the intent to" manufacture
methamphetamine . And, obviously, "raw materials" is a broader concept than
"chemicals." The trial court may have altered the statutory language out of concern that
the jury might not realize that lithium, a metallic element, is a chemical when used to
manufacture methamphetamine (since such was not specifically proven at trial) .
However, instructions in criminal cases should conform to the language of the statute .
McGuire v. Commonwealth , 885 S .W .2d 931, 936 (Ky . 1994) . It is left to the lawyers to
"flesh out" the "bare bones" in closing argument. Id. Otherwise, as here, the jury might
convict a defendant for conduct not specifically proscribed by the statute. However, if
an instruction conference was held in this case, it was not recorded ; thus, we have no
way of knowing if Appellant preserved these additional errors by timely objection .
Nevertheless, the record clearly reflects that defense counsel moved for a
directed verdict of acquittal on both counts of the indictment at the close of the
Commonwealth's case and again at the close of all the evidence, specifying as grounds
the failure to prove the intent element of both offenses . Based on the Commonwealth's
own proof, that motion should have been granted. Turner v. Commonwealth , 153
S.W.3d 823, 828-29 (Ky. 2005) (conviction of wanton murder reversed where
Commonwealth's evidence insufficiently proved mens rea element necessary to convict
of wanton murder) . Instead, the jury was permitted to convict Appellant of two offenses,
both premised upon the possession of anhydrous ammonia in an unapproved container
in direct contradiction of uncontroverted evidence that his possession of the anhydrous
ammonia was not with the intent to manufacture methamphetamine .
The Commonwealth's complicity theory is that Appellant intended to deliver the
anhydrous ammonia, starting fluid, and lithium batteries to Barnes, who would then
possess them with the intent to manufacture methamphetamine .
Two co-defendants, both of whom had entered guilty pleas to complicity to
manufacture methamphetaminel3l testified against the appellant that the
appellant was driving them and these ingredients to a person who would
take the ingredients to use in the manufacture of methamphetamine, and
give the three suppliers with [sic] processed methamphetamine .
Brief for Commonwealth, at 32 . (Of course, anhydrous ammonia, ether, and lithium are
not "ingredients" of methamphetamine but only chemicals used in the manufacture of
methamphetamine .)
The Commonwealth posits in its brief that "this case is a complicity liability case,
which, by definition, does not require the proof of each element of the underlying
offense ." Id, at 31 . That, of course, is simply not so. Complicity liability under KRS
502 .020 is not an inchoate offense, such as the offenses described in KRS Chapter
506, e .g_, criminal facilitation, KRS 506.080, the offense to which Blakeman and Morris
pled guilty . Inchoate offenses carry reduced penalties because the underlying offense
was never actually committed . However, unlike an inchoate offense, "KRS 502.020
does not create a new offense known as complicity ." Commonwealth v. Caswell , 614
S.W.2d 253, 254 (Ky. App. 1981) . "[O]ne who is found guilty of complicity to
a crime
occupies the same status as one being guilty of the principal offense ." Wilson v.
Commonwealth , 601 S.W.2d 280,286 (Ky. 1980) .
Thus, to convict a defendant of guilt by complicity, the jury must find beyond a
reasonable doubt that the offense was, in fact, committed by the person being aided or
abetted by the defendant. KRS 502.020(1) ; Harger v. Commonwealth , 43 S .W.3d 261,
265 (Ky. 2001) ("In a prosecution pursuant to KRS 502.020(1), in addition to having to
prove that it was the defendant's intention to promote or facilitate the charged offense,
3 As noted earf'ier, Blakeman and Morris actually pled guilty to criminal facilitation to
manufacture methamphetamine, a Class D felony, KRS 506 .080(2), not complicity to
manufacture methamphetamine, a Class B felony .
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the Commonwealth has the burden of proving the commission of the charged offense
by another person and of proving that the defendant participated in that offense .") ;
Robert G . Lawson & William H . Fortune, Kentucky Criminal Law § 3-3(d)(2), at 117
(1998) ("Complicity liability requires (1) proof of commission of an offense by another
person and (2) proof of the defendant's participation in commission of that offense ."
(Footnote omitted .)) . Therefore, guilt in this case could not be premised upon a
complicity theory that Appellant aided and abetted Joey Barnes's possession of the
anhydrous ammonia, starting fluid, and/or lithium batteries with the intent to
manufacture methamphetamine . Detective Edwards destroyed the anhydrous ammonia
at the scene of the arrest, and the starting fluid and batteries were confiscated by the
arresting officers. Joey Barnes never possessed any of those items, regardless of his
intent; thus, Appellant could not have been complicit in such possession .4
On the basis of the evidence presented in this case, a jury could have found
Appellant guilty of the Class D felony of possession of anhydrous ammonia in an
unapproved container. Dixon v. Commonwealth , 149 S .W .3d 426, 429 (Ky. 2004)
(contents of automobile are presumed to belong to its operator) . However, the trial
court did not instruct the jury on that offense as a lesser included offense . Appellant
would have been entitled to such an instruction if he had requested it. Slaven v.
Commonwealth, 962 S.W.2d 845, 856 (Ky. 1997) (lesser included offense is, in fact and
4 Because it was impossible to convict Appellant as an accomplice, he would be
entitled to a new trial even if the jury could have reasonably disregarded the
Commonwealth's evidence and found him guilty as a principal on the basis of an
inference arising from his mere possession of the anhydrous ammonia, starting fluid,
and flashlight batteries. By instructing the jury on an alternative theory unsupported by
any evidence, the trial court denied Appellant his right to a unanimous verdict.
Commonwealth v. Whitmore, 92 S.W .3d 76, 81 (Ky. 2002); Burnett v. Commonwealth ,
31 S.W.3d 878, 881-83 (Ky. 2000). Again, however, because the instruction conference
was not recorded, it is unknown whether defense counsel made a timely objection to
this improper instruction .
principle, a defense against the higher charge, and the defendant is entitled to an
instruction on that offense if supported by the evidence) . Likewise, the Commonwealth
would have been entitled to such an instruction, if requested, even over Appellant's
objection . Commonwealth v. Elmore , 831 S .W.2d 183,184 (Ky. 1992) . However, the
mere fact that the jury could have been instructed on and could have convicted
Appellant of a lesser included offense does not require remand for a new trial on that
offense . The only offenses of which Appellant's jury was entitled to convict him were
the offenses described in the instructions - being a principal or accomplice to
manufacturing methamphetamine and possession of anhydrous ammonia in an
unapproved container with the intent to manufacture methamphetamine . The evidence
presented by the Commonwealth proved that he did not possess anhydrous ammonia in
an unapproved container with the intent to manufacture methamphetamine . The
Commonwealth cannot choose to try a defendant solely on the indicted offense and
then, after an acquittal, retry the defendant on a lesser included offense arising out of
the same or less facts . KRS 505 .040(1)(a), viz:
Although a prosecution is for a violation of a different statutory provision
from a former prosecution . . . , it is barred by the former prosecution
under the following circumstances :
(1)
The former prosecution resulted in an acquittal, a conviction which
has not subsequently been set aside, or a determination that there
was insufficient evidence to warrant a conviction, and the
subsequent prosecution is for:
(a)
An offense of which the defendant could have been
convicted at the first prosecution ; . . . .
(Emphasis added .) Specifically :
KRS 505 .040(1)(a) prohibits reprosecution for "lesser included
offenses ." For example, a defendant acquitted of murder may not be
reprosecuted for assault if the latter charge involves the same conduct
that was involved in the murder prosecution ; similarly, one who is
convicted of robbery may not be reprosecuted for theft for a taking of the
same property ; and, after a directed verdict of acquittal upon a burglary
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charge, a defendant could not be reprosecuted for criminal trespass for
the entry that was involved in the initial prosecution .
Lawson & Fortune, supra, § 6-3(e)(3), at 249 (footnotes omitted) . Thus, KRS
505.040(1)(a) precludes reprosecution of Appellant for the Class D version of
possession of anhydrous ammonia in an unapproved container based on the same
facts that led to his conviction of the Class B version of the same offense . In sum,
Appellant is entitled to have his conviction of possession of anhydrous ammonia in an
unapproved container with the intent to manufacture methamphetamine and the
sentence imposed therefor vacated .
Since the jury was permitted to consider Appellant's possession of the anhydrous
ammonia in determining his guilt of manufacturing methamphetamine, Appellant would
be entitled at worst to a new trial on that charge premised solely upon his possession of
the starting fluid and lithium batteries. See Matheney ,
S .W.3d at
(slip op. at
6) ("We construe the language of KRS 218A.1432(1)(b) that states 'the chemicals or
equipment for the manufacture of methamphetamine' to mean that one must possess
two or more chemicals or items of equipment with the intent to manufacture
methamphetamine to fall within the statute ."); Stopher v. Commonwealth , 57 S .W .3d
787, 802 (Ky. 2001) ("[I]ntent may be inferred from actions because a person is
presumed to intend the logical and probable consequences of his conduct, and a
person's state of mind may be inferred from actions preceding and following the
charged offense ."); Hudson v. Commonwealth , 979 S .W.2d 106, 110 (Ky. 1998) (an
inquiry into intent is "a subjective matter") ; Whisman v. Commonwealth , 667 S.W.2d
394, 398 (Ky. App. 1984) (intent to traffic in drugs can be inferred from possession of a
5 In closing argument, the prosecutor argued that possession of the starting fluid and
flashlight batteries could be perfectly innocent, but not when considered in conjunction
with possession of anhydrous ammonia .
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quantity of drugs inconsistent with defendant's personal needs accompanied by
suspicious conduct when stopped) . Presumably, it would be for the jury to decide
whether possession of two cans of starting fluid and four lithium batteries was
inconsistent with Appellant's personal needs so as to warrant an inference that he
possessed them with the intent to manufacture methamphetamine . However, because
the starting fluid and batteries were the fruits of an unlawful search, evidence of their
possession by Appellant should have been suppressed, leaving no evidence to support
a conviction of manufacturing methamphetamine under KRS 218A.1432(1)(b) .
I1: UNLAWFUL SEARCH .
A hearing on Appellant's motion to suppress the evidence seized from his wife's
automobile was held five months prior to trial. The only witness who testified at the
suppression hearing was Officer Shawn Lee of the Clarkson Police Department. Lee
testified that Detective Willen called him6 from Leitchfield and advised that he was in the
process of obtaining a search warrant for 408 Peonia Road, and asked Lee to drive to
that location and determine if either Blakeman or Morris was present at that address .
Lee drove to Blakeman's residence and observed both Blakeman and Morris on the
premises. When Lee called Willen to advise him of that fact, Willen asked him to "watch
the residence." Lee then observed Blakeman and Morris enter an unidentified vehicle7
and proceed south on Highway 88 toward Peonia . When Lee advised Willen of that
fact, Willen asked him to follow the vehicle . Lee updated Willen twice on the progress
of the vehicle. Finally, Willen called Lee and advised him that he had obtained a search
6 Lee did not state whether the communication was by telephone, by police radio, or by
some other medium .
Although this vehicle was discovered to belong to Appellant's wife, Appellant's
identity was unknown to Willen and Lee at this point in time .
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warrant for Blakeman's residence and for Blakeman and Morris, and asked Lee to stop
the vehicle . Lee then activated his emergency lights and stopped the vehicle. Lee
approached the vehicle and asked Appellant to produce his driver's license . Willen
arrived shortly thereafter and assumed control of the scene . Lee did not testify to any
events that occurred after Willen's arrival .$
Lee admitted that Appellant was operating the vehicle in a proper manner prior to
the stop and that his only reason for making the stop was Willen's request that he do so
because he had obtained the search warrant . Lee did not testify that he believed the
vehicle being operated by Appellant was registered to Blakeman or Morris ;9 and,
obviously, the vehicle was not "any vehicle on the property at the time this search
warrant is executed," because it had departed 408 Peonia Road before the warrant was
even obtained . Thus, the vehicle, itself, was not subject to search under the warrant .
Furthermore, Lee did not testify that he had any grounds to arrest any of the occupants
or that any of the chemicals subsequently discovered during the search of the vehicle
were in plain view.
Willen did not testify at the suppression hearing, and no other evidence was
offered at that hearing to explain why Willen asked Lee to stop the vehicle other than
Lee's testimony that Willen asked him to stop the vehicle because he (Willen) had
obtained the search warrant. (However, Willen testified by avowal at trial that he asked
Lee to stop the vehicle because "it was leaving a residence that I was on route to serve
a search warrant on .") Since Willen did not testify at the suppression hearing, there was
8 Willen testified at trial that upon his arrival, he placed all three occupants of the
vehicle under arrest, then searched the vehicle.
9 Willen testified at trial that he knew the vehicle belonged "either to [Appellant] or his
girlfriend," though he did not say whether he ascertained that fact before or after the
vehicle was stopped.
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also no evidence to prove why Willen placed the three occupants of the vehicle under
arrest (and no claim that the search of the vehicle was incident to a lawful arrest) .
The trial court upheld the search of the vehicle on grounds that Appellant was on
probation and, as a condition of probation, had signed an agreement permitting "any
properly identified law enforcement officer to conduct a complete search of me, my
residence and my premises including vehicles, building, and containers, under my care
custody and control ." Such prior consent will support a warrantless search if the officer
has a "reasonable suspicion" that the person who gave the consent is presently
engaged in criminal activity. United States v. Knights , 534 U.S . 112, 121-22, 122 S.Ct.
587, 592-93, 151 L . Ed.2d 497 (2001) .10
The degree of individualized suspicion required of a search is a
determination of when there is a sufficiently high probability that criminal
conduct is occurring to make the intrusion on the individual's privacy
interest reasonable .
Id . at 121, 122 S .Ct. at 592. The trial court found that Appellant's earlier presence at
408 Peonia Road, a place where manufacturing and selling methamphetamine was
suspected, and his being in the company of two persons suspected of manufacturing
and selling methamphetamine, satisfied this test. However, Lee did not testify that he
knew why Willen was seeking a search warrant, much less what illegal conduct had
1°
Because "reasonable suspicion" was found to exist in Knights, the Court did not
specifically decide whether the probation condition operated to so diminish, or
completely eliminate, the probationer's expectation of privacy that reasonable suspicion
was not required . Knights , 534 U.S. at 120 n .6,122 S.Ct. at 592 n .6. However, all but
one of the United States Circuit Courts of Appeals that have considered the issue since
Knights have held that reasonable suspicion is required . Nicholas v. Goord, 430 F.3d
652, 665 (2d Cir. 2005) ; United States v. Williams , 417 F.3d 373, 376 n.2 (3d Cir. 2005);
United States v. Comrie , 136 Fed. Appx. 883, 893 (6th Cir. 2005) ; United States v.
Keith , 375 F.3d 346, 350 (5th Cir. 2004) ; United States v. Tucker, 305 F .3d 1193, 1200
(10th Cir. 2002); cf. Motley v. Parks , 383 F.3d 1058, 1064 n .5 (9th Cir. 2004)
(suggesting that reasonable suspicion is required); contra United States v. Barnett , 415
F.3d 690, 692-93 (7th Cir. 2005) .
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been alleged by a confidential informant (or even that there was a confidential
informant) . Since Willen did not testify at the suppression hearing, the trial court's
finding was mere speculation - and was ultimately belied by Willen's subsequent
avowal testimony at trial that he asked Lee to stop the vehicle so that he could execute
the search warrant.
But even if it were otherwise, the fruits of even a consensual search must be
suppressed if the search was conducted pursuant to an unlawful stop or detention .
United States v. Chavez-Villarreal , 3 F.3d 124, 127 (5th Cir. 1993) ("Consent to search
may, but does not necessarily, dissipate the taint of a fourth amendment violation .") ;
United States v. Recalde , 761 F.2d 1448, 1457-58 (10th Cir. 1985), overruled on other
grounds as recognized by State v. Solano, 930 P .2d 1315, 1321 (Ariz. Ct. App. 1996) ;
State v. Miller , 894 S .W.2d 649, 654-56 (Mo. 1995) (en banc) ; cf. Rawlings v. Kentucky ,
448 U.S . 98, 106, 100 S.Ct. 2556, 2562, 65 L.Ed.2d 633 (1980) (exclusion of evidence
obtained during illegal detention is inadmissible only if the evidence was obtained as a
result of the illegal detention) . Obviously, the evidence .on which Appellant was
convicted was obtained as a result of the stop that was made to facilitate the execution
of the search warrant on Blakeman's residence . The issue becomes whether that stop
was a lawful detention .
Search warrants are not directed at persons ; they authorize the search of
"place[s]" and the seizure of "things," and as a constitutional matter they
need not even name the person from whom things will be seized.
Zurcher v. Stanford Daily, 436 U.S. 547, 555, 98 S.Ct. 1970, 1976, 56 L.Ed .2d 525
(1978). Subject to a limited exception, a warrant to search premises does not authorize
the off-premises detention of the owner or occupant of the premises to be searched.
United States v . Tate , 694 F.2d 1217, 1223 (9th Cir. 1982), vacated on other grounds,
- 1 7-
468 U .S. 1206, 104 S .Ct. 3575 ; 82 L.Ed.2d 873 (1984) . The facts in Tate are almost
identical to those in the case sub iudice . In Tate , as here, the officers were conducting
a surveillance of a residence while awaiting the issuance of a search warrant to search
the premises. A group of men came out of the residence, entered a station wagon, and
departed . One of the officers followed the station wagon . Upon learning that the search
warrant had been signed, the officer stopped the station wagon approximately five miles
from the residence and ordered the occupants out of the vehicle, whereupon he
detected the strong odor of ether emanating from the vehicle and some white powder
residue on the person of each of the vehicle's occupants . Id . at 1219. Tate held that
the warrant to search the residence did not authorize the stop of the station wagon and
that the evidence obtained as a result of the stop should have been suppressed.
Miller testified that he stopped the vehicle in order to serve the
defendants with the search warrant for the Avenue 320 residence . . . .
The warrant did not describe the station wagon or any other vehicle as an
area to be searched . The execution of a search warrant does not require
that it be served on the owner or occupant of the premises to be searched.
This was not a warrant of arrest and a search warrant does not authorize
the arrest of any persons associated with the premises to be searched,
when neither on nor near the premises, for the purpose of conveying them
to the scene of the search . Cf. Michigan v. Summers, 452 U.S . 692, 101
S .Ct. 2587, 69 L .Ed.2d 340 (1981) (police may detain person in the act of
leaving premises where police have a proper warrant to search premises
for contraband) .
Id. at 1223 .
The case cited by Tate, Michigan v. Summers , carved out a narrow exception to
this rule. In Summers , the officers were in possession of a warrant to search a house
and were about to execute it when they encountered the owner/occupant descending
the front steps . They detained him while they searched the premises and, after finding
narcotics in the basement, arrested him, searched his person, and found more narcotics
on his person." The Court first noted the general rule :
The State attempts to justify the eventual search of respondent's person
by arguing that the authority to search premises granted by the warrant
implicitly included the authority to search persons on those premises, just
as that authority included an authorization to search furniture and
containers in which the particular things described might be concealed .
But as the Michigan Court of Appeals correctly noted, even if otherwise
acceptable, this argument could not justify the initial detention of
respondent outside the premises described in the warrant . . . . If that
detention was permissible, there is no need to reach the question whether
a search warrant for premises includes the right to search persons found
there, because when the police searched respondent, they had probable
cause to arrest him and had done so. Our appraisal of the validity of the
search of respondent's person therefore depends upon a determination
whether the officers had the authority to require him to re-enter the house
and to remain there while they conducted their search .
Michigan v. Summers , 452 U.S. 692,694-95, 101 S.Ct. 2587, 2590,69 L.Ed.2d 340
(1981) (footnotes omitted) (emphasis added) . In holding that the detention was lawful,
Summers articulated a three-part balancing test :
In assessing the justification for the detention of an occupant of premises
being searched for contraband pursuant to a valid warrant, both the law
enforcement interest and the nature of the "articulabe facts" supporting
the detention are relevant . Most obvious is the legitimate law enforcement
interest in preventing flight in the event that incriminating evidence is
found . Less obvious, but sometimes of greater importance, is the interest
in minimizing the risk of harm to the officers . Although no special danger
to the police is suggested by the evidence in this record, the execution of
a warrant to search for narcotics is the kind of transaction that may give
rise to sudden violence or frantic efforts to conceal or destroy evidence.
The risk of harm to both the police and the occupants is minimized if the
officers routinely exercise unquestioned command of the situation .
Finally, the orderly completion of the search may be facilitated if the
occupants of the premises are present . Their self-interest may induce
them to open locked doors or locked containers to avoid the use of force
that is not only damaging to property but may also delay the completion of
the task at hand.
Id. at 702-03, 101 S .Ct. at 2594 (footnote and citation omitted) .
" Note that the defendant was neither arrested nor searched until after the narcotics
were found in the basement of the residence that was the subject of the search warrant.
-19-
Applying the Summers reasoning, lower courts have upheld off-premises
detentions of owner/occupants of premises for which search warrants have been issued
only when the owner/occupant was in close proximity to the premises to be searched.
United States v. Cochran, 939 F.2d 337, 339 (6th Cir. 1991) (upholding seizure of
person "a short distance" from his residence under Summers where officer in
possession of warrant observed defendant drive off in his car and engaged in
immediate pursuit) ; State v. Ailport , 413 N .W.2d 140,144 (Minn . Ct. App. 1987)
(upholding detention of suspect who drove into motel parking lot at same time officers
were about to execute search warrant for room he had reserved) . However, where the
owner/occupant was not in close proximity to the premises, the detention has been held
unlawful under Summers . See United States v. Sherrill, 27 F .3d 344, 346 (8th Cir.
1994) (detention occurring one block away from premises) ; United States v. Hogan , 25
F.3d 690, 693 (8th Cir. 1994) (seizure of defendant's car and person three-to-five miles
from premises); United States v. Boyd, 696 F.2d 63, 65 n .2 (8th Cir. 1982) (noting that
Summers "certainly did not sanction the search and seizure of residents who, at the
time of the search, are several blocks from their home") ; State v. Ruoho, 685 N .W .2d
451, 460 (Minn . Ct. App. 2004) (detention occurred one-half mile from premises
described in search warrant) .
For purposes of stop and detention, courts have applied the Summers exception
even when the search warrant authorizes search of both the premises and the
owner/occupant. Thus, it was held in State v. Thomas , 603 So. 2d 1382, 1383-84 (Fla .
Dist. Ct. App. 1992), that a suspect was properly detained under Summers because he
was approaching the house being searched; and in Fromm v. State, 624 A.2d 1296,
1299 (Md . Ct. Spec. App. 1993), it was held that detention of the suspect named in the
- 20-
search warrant was proper under Summers where the suspect walked out of a
neighboring apartment building just as his residence was about to be searched. If a
suspect named in a search warrant could be detained and searched wherever the
suspect might be found, there would be no need to apply the Summers exception to
such a person .
A warrant to search only an owner/occupant's premises does not necessarily
authorize a search of the owner/occupant even if found on the premises . Summers ,
452 U.S. at 695 n .4, 101 S .Ct. at 2590 n.4 (although occupant of premises may be
detained during search of premises, search of persons on the premises would be
subject to principles enunciated in Ybarra v. Illinois , 444 U .S. 85, 100 S.Ct. 338, 62
L.Ed .2d 238 (1979)); United States v. Micheli , 487 F.2d 429, 431 (1st Cir. 1973) ("A
search of clothing currently worn is plainly within the ambit of a personal search and
outside the scope of a warrant to search the premises."). For that reason, a warrant,
such as the one issued here, will often authorize a search of both the premises and the
owner/occupant, to prevent the owner/occupant from attempting to conceal on his or her
person evidence properly seizable from the premises. However, because such
warrants focus primarily on activities related to the premises, they are generally
regarded as not authorizing an off-premises search of the named owner/occupant.
Commonwealth v . Santiago , 575 N .E .2d 350, 352-53 (Mass . 1991) ("[I]n the
Commonwealth's view, the search of the defendant's person could have taken place
whenever and wherever the defendant was found - on a public street, at a place of
business, or in someone else's home - and was not necessarily tied to the search of the
apartment. We have never construed a warrant's authorization to search a person so
broadly . . . ."); People v. Green , 310 N.E.2d 533, 534 (N .Y. 1974) (warrant that
- 21-
provided for search of apartment, the person of the defendant, "and any other person
who may be found therein" did not authorize search of defendant nineteen blocks from
apartment, because thrust of warrant was for search of apartment and only toward the
defendant insofar as he was found on the premises) ; People v. Kerrigan , 374 N .Y.S.2d
22, 23 (N.Y. App. Div. 1975) (warrant to search both florist shop where gambling
operations were suspected and defendant who frequented the shop did not authorize
search of defendant on the street a quarter of a mile away from the florist shop) .
The thrust of the search warrant in this case was the premises at 408 Peonia
Road . The information obtained from the confidential informant was that Blakeman and
Morris would be "at 408 Peonia Rd . selling methamphetamine that the two
manufactured earlier this date." The warrant authorized a search of the "premises
known and numbered as the Doug Blakeman residence at: 408 Peonia Rd, Clarkson,
Ky. 42726," any vehicle registered to Blakeman or Morris, "or any vehicle on the
p
r operty at the time this search warrant is executed" (emphasis added), and/or
Blakeman or Morris . Since the warrant authorized seizure not only of
methamphetamine but also of chemicals and equipment used in the manufacture of
methamphetamine, the district judge who issued the warrant obviously had probable
cause to believe that the methamphetamine to be sold on the premises had also been
manufactured on the same premises . In fact, Willen told Lee only that he was
attempting to obtain a search warrant for 408 Peonia Road and for Willen to determine
12
The return on the execution of the warrant shows that Detective Willen seized the
following property pursuant to the warrant: "2 cans Polar starting fluid; funnel ; foil ; bong;
roller; cell-tech ; 2 brass fittings ; black box with paraphernalia ; cast iron elbow; baggies ;
liquid fire; salt; coffee filters ; stats; lighters ." Since only the two cans of starting fluid
were found during the search of Appellant's wife's vehicle, the remaining items must
have been found at Blakeman's residence during a subsequent search. Note that the
return did not identify the flashlight and batteries as evidence seized pursuant to the
warrant .
- 22-
whether Blakeman and Morris were present at that location . Clearly, the purpose of the
warrant was to authorize a search of both the premises and those persons suspected of
conducting illegal activity on the premises . The warrant did not authorize the arrest and
search of Blakeman and Morris five miles away from the searchable premises.
Nor could the facts of this case fall within the Summers exception authorizing
detention of the owner/occupant during the conduct of the search . Blakeman and
Morris were not flight risks because they had no way of knowing that the warrant had
been issued - they had already departed the residence before the warrant was issued.
And, because of their absence, they posed no danger to the officers conducting the
search. United States v. Edwards , 103 F.3d 90, 93-94 (10th Cir. 1996) (where
defendant was unaware that warrant was being executed, stop and detention of
defendant after he drove away from premises to be searched not justified under
Summers) ; Sherrill, 27 F .3d at 346 ("officers had no interest in preventing flight or
minimizing the search's risk because [suspect] had left the area of the search and was
unaware of the warrant") ; H-ogan, 25 F.3d at 693 (seizure not justified under Summers
when defendant was unaware that search was about to be conducted) ; Ruoho, 685
N .W.2d at 460 (same) . Finally, the mere presence of Blakeman and Morris was
unnecessary to facilitate an orderly completion of the search. If Blakeman's father and
brother were on the premises, they could have facilitated a peaceable entry into the
mobile home ; if not, assuming no response to a "knock and announce," Adcock v.
Commonwealth , 967 S .W.2d 6 (Ky. 1998), the warrant authorized the officers to enter
the premises by force . Michigan v. Tyler, 436 U .S. 499, 513, 98 S .Ct. 1942, 1952, 56
L.Ed.2d 486 (1978) (Stevens, J., concurring in part and concurring in the judgment) ("A
warrant provides authority for an . . . immediate entry and search. No notice is given
- 23-
when an application for a warrant is made and no notice precedes its execution ; when
issued, it authorizes entry by force .") . Because Lee's initial stop of Appellant's vehicle
was unlawful, the evidence obtained as a result thereof should have been suppressed
as the "fruit of the poisonous tree." Wong Sun v. United States , 371 U.S . 471, 488, 83
S.Ct. 407, 417, 9 L.Ed .2d 441 (1963).
The Commonwealth urges us to "save" this evidence by applying the "good faith"
exception to the exclusionary rule established in United States v. Leon , 468 U.S. 897,
922, 104 S.Ct. 3405, 3420, 82 L.Ed .2d 677 (1984), and adopted for Kentucky in Crayton
v. Commonwealth , 846 S.W.2d 684, 686 (Ky. 1992) . However, the "good faith"
exception applies to evidence obtained under an invalid warrant where error was made
by a detached and neutral magistrate and the officers relied in good faith on the validity
of the warrant. Dixon v. Commonwealth , 890 S.W.2d 629, 632 (Ky. App. 1994) . The
exclusionary rule is designed to deter police misconduct, Leon, 468 U .S . at 916, 104
S.Ct . at 3417, and "[p]enalizing the officer for the magistrate's error, rather than his own,
cannot logically contribute to the deterrence of Fourth Amendment violations ." Id. at
921, 104 S.Ct. at 3419. Here, the warrant was valid; it simply was improperly executed .
The "good faith" exception will not save an improperly executed search warrant. Id. at
918 n .19, 104 S .Ct. at 3418 n .19 ("Our discussion of the deterrent effect of excluding
evidence obtained in reasonable reliance on a subsequently invalidated warrant
assumes, of course, that the officers properly executed the warrant and searched only
those places and for those objects that it was reasonable to believe were covered by
the warrant .").
"Fourth Amendment violations relating to execution of the warrant are
unaffected by Leon, as is reflected by the majority's caution that its
discussion 'assumes, of course, that the officers properly executed the
warrant and searched only those places and for those objects that it was
- 24-
reasonable to believe were covered by the warrant.' Accordingly, Leon
cannot be invoked in the prosecution's favor on such issues as whether
the warrant was executed in a timely fashion, whether entry without prior
notice of authority and purpose to execute the warrant was permissible
(when not authorized by the warrant itself), whether certain persons were
properly detained or searched incident to execution of the warrant,
whether the scope and intensity and duration of the warrant execution
were excessive, and whether certain items not named in the warrant were
properly seized."
United States v. Medlin, 798 F.2d 407, 410 (10th Cir. 1986) (emphasis added) (quoting
Wayne R . LaFave, "The Seductive Call of Expediency" : United States v. Leon, Its
Rationale and Ramifications, 1984 U . III . L . Rev. 895, 915-16 (1984) . "it is incumbent
on the officer executing
a search warrant to ensure the search
is lawfully authorized and
lawfully conducted ." Groh v. Ramirez, 540 U .S . 551, 563, 124 S .Ct. 1284, 1293, 157
L. Ed.2d 1068 (2004). The only evidence supporting Appellant's conviction of
manufacturing methamphetamine was obtained as a result of the unlawful search of the
vehicle . There being no other evidence to support the conviction, it and the sentence
imposed therefor must be vacated .
Accordingly, the judgments of conviction and sentences imposed by the Grayson
Circuit Court are vacated .
Lambert, C .J. ; Graves, Johnstone, and Roach, JJ ., concur. Wintersheimer, J.,
dissents by separate opinion, with Scott, J., joining that dissent .
COUNSEL FOR APPELLANT :
John T. McCall
200 Hart Block Building
730 West Main Street
Louisville, KY 40202
Christopher F. Polk
Suite 400
730 West Main Street
Louisville, KY 40202
COUNSEL FOR APPELLEE:
Gregory D. Stumbo
Attorney General
State Capitol
Frankfort, KY 40601
Dennis W. Shepherd
Office of Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, KY 40601
RENDERED : MAY 18, 2006
TO BE PUBLISHED
,Supxttco d1ourf
of ~6nfurkg
.
2003-SC-0305-MR
JOHNATHAN PARKS
V.
APPELLANT
APPEAL FROM GRAYSON CIRCUIT COURT
HONORABLE SAM H. MONARCH, JUDGE
NO . 2002-CR-60
COMMONWEALTH OF KENTUCKY
APPELLEE
DISSENTING OPINION BY JUSTICE WINTERSHEIMER
I respectfully dissent from the majority opinion and would affirm the conviction in
all respects for the following reasons.
I . Double Jeopardy
In this situation there are two separate crimes charged, manufacturing in
violation of KRS 218A.1432 and possession of anhydrous ammonia not in a proper
container in violation of KRS 250.489 . These are distinct crimes, each containing an
element that the other does not . It should be remembered that KRS 250 .489 describes
the crime of knowingly possessing anhydrous ammonia in a container other than an
approved container as a class D offense and it may be enhanced to possibly a class A
felony by virtue of KRS 250 .991 . Here, the prosecution proved that Parks possessed
the unlawfully contained material with the intent to manufacture methamphetamine.
Consequently, the enhancement provision of KRS 250.991 was proper.
Anhydrous ammonia is used for purposes other than manufacturing
methamphetamine. It is of its own virtue a regulated substance because it is highly
hazardous . See, e.g., 29 CFR 1910.119. Accordingly, KRS 250.489 punishes such
careless possession because it endangers public safety to improperly store and
transport such a highly hazardous material . See, generally , KRS 205.482, et seq.
Moreover, KRS 250.489 is a separate offense to KRS 218A.1432 because possessing
anhydrous ammonia in an approved container does not cause a violation of KRS
250 .489. Accordingly, one can violate KRS 218A.1432 by manufacturing
methamphetamine but not incur violation of KRS 250.489 if the container in which the
anhydrous ammonia is kept is approved .
KRS 250.489 contains an element which KRS 218A.1432 does not, that is,
possession of anhydrous ammonia in a container other than an approved container .
There is no such element of proof within the description of manufacturing
methamphetamine. KRS 218A.1432 contains an intent element not present among the
elements in KRS 250 .489. Accordingly, there is no double jeopardy prohibition for
prosecuting a criminal defendant for both crimes . See Commonwealth v. Burge, 947
S.W.2d 805 (Ky. 1996), which follows the double jeopardy analysis of Blockburger v.
United States, 284 U .S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). This Court found no
double jeopardy bar in regard to similar arguments in Kotila v. Commonwealth , 114
S.W .3d 226 (Ky. 2003), cert. denied, Kotila v. Kentucky, 540 U.S . 1198, 124 S .Ct.
1456, 158 L.Ed .2d 114 (2004).
II . Search
At the time the police stopped the vehicle being driven by Parks, he was on
probation and had signed a waiver of rights subjecting him to any and all searches.
When the police stopped the vehicle driven by Parks, a warrant had been issued for the
search of the residence of his two companions, Blakeman and Morris . It authorized a
search of the trailer and all vehicles located on the premises. Although the warrant had
not yet been served, the vehicle was seen leaving the residence and was followed by
police . The two men for whom the warrant authorized the search were inside of the
automobile .
The waiver in question stated in pertinent part:
I, the undersigned, have been informed by my attorney, Phillip Smith,
of my Fourth Amendment Right not to have a search of, or seizure of my
property owned by me or in my care, custody and control without a valid
search warrant . . . .
That for and in consideration at least in part, of receiving probation, I
hereby willingly give my permission to any properly identified law
enforcement officer to conduct a complete search of me, my residence
and my premises[,) including vehicles, buildings, and containers, under
my care, custody and control. Additionally, I willingly consent for these
officers to seize anything they desire as evidence for criminal
prosecution .
The waiver also indicated that Parks had consulted with his attorney before
signing the waiver. It also provided that Parks would willingly agree to remain drug-free
while on probation and not associate with other drug users or sellers . The trial judge
determined that the waiver began at the time probation began in January 2001, and
continued for the five-year period of probation, which meant it was in effect when the
stop occurred in 2002, as well as when he was tried in 2003.
The stop of the vehicle was reasonable as an investigatory stop pursuant to Terry
v. Ohio, 392 U .S . 1, 88 S.Ct. 1868, 20 L .Ed .2d 889 (1968), and Taylor v.
Commonwealth ; 987 S .W.2d 302 (Ky. 1998), because there was a reasonable suspicion
that a subject is involved or about to become involved in some criminal activity. Parks
had signed a waiver in exchange for probation . The authorities cited by Parks are
unconvincing and not applicable, particularly in view of the bargain and informed waiver.
Cf. United States v. Knights , 534 U .S. 112, 122 S.Ct. 587, 151 L .Ed .2d 497 (2001),
which deals with a similar but not identical issue. Here, police had a reasonable,
independent basis for suspicion in which to make the investigatory stop.
Ill . Police Testimony
Parks argues that the trial judge committed prejudicial error by allowing evidence
to be introduced against him through the testimony of Elizabethtown police sergeant
Edwards . Parks claims that the officer was never offered as an expert, but was allowed
to testify as if he were an expert for approximately three minutes without any objection
from the defense . The officer's qualifications were subject to direct examination and
disclosed that he had 16 years experience in narcotics investigation field; was
specifically trained in methods of methamphetamine .manufacture ; originally took courses
in this area in 1987; trained under the federal Drug Enforcement Agency as to
clandestine labs, and later took an advanced course in the same subject . He testified
that he had been involved in the investigation of hundreds of labs since 1987, and that
he was certified to investigate clandestine labs and that such certification was required
because of the hazardous material involved . He described anhydrous ammonia as one
such material .
Sargent v. Commonwealth , 813 S .W.2d 801 (Ky. 1991), permitted a police
witness who is qualified by training and experience to testify in such a situation . See
also United States v. Bender, 265 F.3d 464 (6th Cir. 2001); United States v. Quinn, 230
F .3d 862 (6th Cir. 2000); United States v. Thomas, 74 F.3d 301 (6th Cir. 1996). These
cases support the principle that a police officer, by virtue of his job, training and
experience, can in certain instances assist a jury to understand aspects of the drug trade
that the average lay juror would not be able to comprehend . It should be understood
that the first mention of the process of manufacture was introduced by the defense
cross-examination of a prior police witness.
Parks also complains of prejudicial testimony presented by codefendant Morris
who Parks claims was "allowed to impeach his own testimony." The prosecution had
uncovered certain facts about prior statements by Morris to police and was attempting to
ensure that the trial testimony was consistent and accurate . Originally, the trial judge in
chambers had warned the witness not to lie and the trial judge repeated that warning
during the open-court testimony of the witness. There is no evidence of any kind of
collusion by either the prosecutor or the trial judge that even suggests a conspiracy to
intimidate the witness or to prejudice Parks . The witness testified under oath with
subject cross-examination and was not impeached .
IV. Limitation on Cross-Examination
Parks alleges a denial of his right to cross-examine a police officer concerning a
search warrant as a Davis v. Alaska , 415 U .S . 308, 94 S .Ct. 1105, 39 L .Ed .2d 347
(1974) violation . At trial, defense counsel asked Officer Willen on cross-examination
why he stopped Parks' car. The Commonwealth objected and a bench conference
followed. Defense counsel told the trial judge that he wanted to show that the police
were looking for two men but not for Parks . The judge sustained the objection but
permitted the defense to enter the questioned testimony by means of an avowal. During
the in-chambers testimony, the officer stated that he stopped the vehicle because it had
just left the premises for which the search warrant had been issued . Two individuals
other than Parks were named in the search warrant. The trial judge ruled that the
testimony was not relevant because he had already determined that the stop and search
of a probationer was lawful . The judge reasoned that opening this line of questions
could lead to redirect examination about the affidavit supporting the warrant which
indicated that two codefendants were waiting at the premises for a third person who
would supply them with the illegal ingredients . The judge reasoned that this would lead
to
a prejudicial inference going to the jury that the third party must have been Parks
because it was his vehicle. Defense counsel did not pursue any future questioning
following the explanation given by the trial judge.
The requirements of Davis v. Alaska were not compromised . In this case, Parks
sought to explore a relatively extraneous matter concerning the search warrant. The
warrant did not apply to Parks directly. He had every opportunity to cross-examine the
two codefendants and did not choose to do so . The trial judge correctly exercised
judicial discretion in preventing the defense from going into extraneous material . Cf.
Commonwealth v. Maddox, 955 S .W.2d 718 (1997); KRE 611 .
V. Sentencing Information
Parks argues that the jury was given legally and factually inaccurate information
regarding the potential sentencing range available during the penalty phase, and thus a
new penalty phase should be conducted . It is admitted that this sentence was not
properly preserved for appellate review by contemporaneous objection, but that it should
be considered pursuant to RCr 10.26. The trial judge combined the penalty phase
instructions on one jury form and the instructions did allow the jury to consider a non-
enhanced sentence of between ten and twenty years. The combined instructions
stated :
A. If you find the Defendant NOT GUILTY of being a
Persistent Felony Offender, based on the evidence you
heard throughout this trial you shall now fix his
punishment for the offense of Manufacturing
Methamphetamine at confinement in the Penitentiary for
a period of not less than ten (10) nor more than twenty
(20) years, in your discretion .
B. If you find the Defendant guilty of being a Persistent
Felony Offender, Second Degree you shall so state in
your verdict and fix his punishment for the offense of
Manufacturing Methamphetamine at confinement in the
penitentiary for a period of not less than twenty (20)
years, nor more than Life, in your discretion .
Parks complains that the jury was not permitted to fix any punishment on the
underlying offenses before proceeding to whether or not he was proved to have a
persistent felony offender status .
Although the instructions consolidated the PFO and non-PFO offenses, the jury
was properly instructed to consider each one separately. They were first instructed to
assess a non-enhanced sentence if PFO did not apply. The result was to achieve a
verdict that properly reflected that they found the defendant guilty of each charge, had
found him guilty of a PFO second degree, and then they imposed a sentence.
There was never a contemporaneous objection . In fact the prosecutor asked the
trial judge as to whether the penalty phase should be trifurcated and the defense
counsel stated that it was no longer necessary. Certainly the alleged error was
unpreserved, waived and also harmless .
Considering the instructions as a whole, it is clear that the jury decided upon a
sentence of twenty years, or the upper limit for each of the two non-enhanced counts
and then, after enhancement, left the sentence at twenty years or the minimum
sentence after enhancement was considered .
It is true that the verdict sheet expressly stating non-enhanced sentence was not
issued. However, we consider this error, if any, to be procedural, and in the absence of
a contemporaneous objection, it can be determined to be harmless . See Montgomery
v. Commonwealth, 819 S.W .2d 713 (Ky. 1991) . As such there was no violation of the
substantial rights of the defendant .
The failure of the trial judge to follow the precise language of KRS 532.110(1)(c),
in the sentencing instruction is based on speculation . The question of whether the
aggregate consecutive terms would exceed 70 years is not met in this case. Parks can
only speculate that if the jury had been specifically instructed on the 70 year rule, it
would have recommended concurrent sentences. The better way to determine .
sentencing error under a palpable error review is to test for prejudice . In this matter,
there was none. The sentence was 30 years below the 70 year cap and the sentence
for each of the two crimes was the minimum . Thus, there was no prejudice and the
failure to specify the 70 year cap is harmless if error at all .
VI . Sufficiency of Evidence
This case was prosecuted for a violation of KRS 218A.1432(1)(b) . In this matter
no specific foundation regarding the materials required to make methamphetamine was
made at trial . The issue raised on appeal differs from the issue raised at trial and is not
properly preserved for appellate review .
At trial, the two codefendants testified that each one of the three individuals knew
that the items were intended to manufacture methamphetamine. The trial judge correctly
overruled the motion for directed verdict . In this appeal, Parks argues that the
Commonwealth failed to demonstrate that either all of the chemicals or all of the
equipment used for the production of methamphetamine were found in his possession .
This is a different approach than was used in the trial and is expressly condemned as
such a practice in Henson v. Commonwealth , 20 S.W.3d 466 (Ky. 1999), which follows
Kennedv v. Commonwealth , 544 S.W.2d 219 (Ky. 1976). After much judicial debate
involving a variety of cases beginning with Kotila v. Commonwealth , supra, followed by
Fulcher v. Commonwealth , 149 S .W.3d 363 (Ky. 2004), and Varble v. Commonwealth ,
125 S.W.3d 246 (Ky. 2004), this Court has effectively overruled the Kotila decision in
Matheney v. Commonwealth , 2002-SC-920-MR, rendered February 23, 2006 .
In any event in this case complicity liability removes this matter from any Kotila
requirement . Kotila in that case was charged with manufacturing methamphetamine
himself, not counseling, aiding or assisting someone else as required by complicity
liability . Here, the conduct of Parks satisfies the complicity to commit the crime of
manufacturing methamphetamine. Every item enumerated by the statute is in evidence
with the possible exception of glassware or jar. Varble, supra, upheld a conviction under
KRS 128A.1432(1)(b), where all the chemicals except anhydrous ammonia and all the
equipment except for a filter were present. Despite the missing materials, there was
sufficient evidence to satisfy even Kotila . In any event, Matheney, supra , disposes of the
Kotila analysis .
VII. Instructions
There was no error in instructing the jury in this case because of the complicity
aspect which would satisfy the completion of a crime . Complicity does not require the
proof of each element of the underlying offense . The only similarity between this case
and Kotila is the presence of many ingredients required in the manufacturing process .
Here, there was no need for speculation by a jury as to what the ingredients were
intended to be used for. Both codefendants had entered guilty pleas to complicity to
manufacture and both testified against Parks that he was driving them and these
ingredients to a person who would take the ingredients and manufacture the substance
and give the three suppliers the processed product.
As noted in Matheney, the language of KRS 218A.1432(1)(b) states "the
chemicals or equipment for the manufacture of methamphetamine means that "one must
possess two or more chemicals or items of equipment with the intent to manufacture."
Such a construction is based on the common sense approach which gives the proper
recognition to the conduct that is denounced by the statute.
In this case, all that is necessary is that the instructions make out a complicity
.
case under the statute and not a Kotila case. See Commonwealth v. Suttles , 80 S .W .3d
424 (Ky. 2002). Reliance on Commonwealth v. Whitmore, 92 S .W .3d 76 (Ky. 2002) and
Burnet v. Commonwealth , 31 S.W .3d 878 (Ky. 2000), is misplaced .
I would affirm the conviction in all respects.
Scott, J. joins.
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