JOSEPH D. HARRIS V. COMMONWEALTH OF KENTUCKY
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THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED ."
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RENDERED : MARCH 19, 2009
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APPELLANT
JOSEPH D . HARRIS
V.
ON APPEAL FROM MUHLENBERG CIRCUIT COURT
HONORABLE DAVID H . JERNIGAN, JUDGE
NO . 07-CR-00066
COMMONWEALTH OF KENTUCKY
APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Joseph Harris appeals as a matter of right from an August 15, 2007
Judgment of the Muhlenberg Circuit Court convicting him of manufacturing
methamphetamine and of second-degree escape. The jury also found that
Harris is a first-degree persistent felony offender (PFO) . In accord with the
jury's recommendation, the trial court sentenced Harris to consecutive terms of
imprisonment of twenty and ten years, respectively, for the PFO-enhanced
offenses . The Commonwealth alleged that on the evening of March 6, 2007,
the Powderly Chief of Police, Wade Griggs, apprehended Harris and Douglas
Edwards in possession of certain chemicals and equipment used in the
manufacture of methamphetamine with the intent to manufacture, and that as
the arrest was proceeding Harris fled from Chief Griggs's custody. Harris
contends that the Commonwealth failed to prove either of the substantive
l4abar PC .
charges and that his trial was tainted when the Commonwealth was permitted
to cross-examine one of the defense witnesses, Edwards, with respect to a
collateral matter . Finding no error, we affirm .
RELEVANT FACTS
Chief Griggs was the Commonwealth's principal witness, and he testified
that at about 7:00 pm on March 6, 2007, as he drove past Douglas Edwards's
residence on Hillside Drive in Powderly, he detected a strong chemical odor, an
odor his training and experience led him to associate with the illegal
manufacture of methamphetamine or "meth." Chief Griggs was familiar with
Edwards, as the two men are cousins . He stopped at the Edwards residence to
investigate; met Edwards outside carrying a bag of trash to a burn-barrel;
obtained Edwards's permission to enter the residence ; and upon entering,
although Edwards had said that no one else was present, found Harris at the
kitchen sink washing a mason jar. Griggs testified that the chemical smell
inside the residence was very strong suggesting the presence or recent
presence of a meth lab. He ordered Edwards and Harris to sit in the living
room where he found a loaded handgun partially concealed between sofa
cushions and, after securing the gun, made a quick search of the residence .
In the kitchen he found a blender, the beaker of which contained a white,
powdery residue which later proved to contain pseudoephedrine; a pan
containing more than 100 tablets of what proved to be pseudoephedrine cold
medicine ; a damp coffee filter that smelled strongly of ether ; a partially
consumed four-pound container of rock salt; a container of table salt; and
some hypodermic syringes. He found the door to one of the back bedrooms
sealed with tape and plastic sheeting, and inside that room he found partiallyused cans of starting fluid and Liquid Fire, a plastic bottle cap with a hole
drilled through it, plastic tubing, and a candle warmer . All of these items,
Griggs testified, with the exception of the syringes, were commonly used in the
illegal production of meth .
Having made these discoveries, Griggs testified that he informed
Edwards and Harris that he was charging them with manufacturing meth and
read them their Miranda rights. He admitted that he did not handcuff the men
or use the words "under arrest," but he testified that his assertion of custody
on the manufacturing charge was clear. At some point, either before or after
Griggs recited the Miranda warnings, Harris complained that the smell was
bothering his lungs and requested permission to go outside . Griggs then took
the men out onto the front porch, from which, a few minutes later, Harris ran
away. Griggs testified that before Harris had run more than twenty-five or
thirty feet, he, Griggs, yelled after him to stop, that he was under arrest.
Harris was apprehended later that night at the residence of one of his friends.
The Commonwealth's proof also included testimony by both a forensic
chemist and the director of the Pennyroyal Narcotics Task Force, Cheyenne
Albro . The chemist established the presence of pseudoephedrine on the
blender and the amount (more than nine grams) of pseudoephedrine present in
the seized pills . Albro testified as an expert in methamphetamine interdiction
and explained in detail what role all of the items seized from Edwards's
residence play in the meth manufacturing process. He also explained how as
innocent-seeming an act as washing out a mason jar could be a vital part of
meth production, for ajar can be reused at different stages of the process, and
it is crucial to keep one stage from contaminating another.
Harris and Edwards were both indicted for manufacturing
methamphetamine, and in April 200'7 Edwards pled guilty to that charge .
Harris, however, denied knowing anything about Edwards's meth making and
presented a wrong-place-at-the-wrong-time defense. He claimed that several
days before this incident Edwards had asked him to repair some damaged
water pipes and that he had been at Edwards's residence that night to make
some preliminary measurements . Testifying on Harris's behalf, Edwards
acknowledged that he had indeed intended to use the items Chief Griggs seized
to manufacture methamphetamine, but he claimed that the wrongdoing was
his alone, that Harris had not been involved . He confirmed Harris's claim
about the pipes, and insisted that Harris had arrived at his residence no more
than five or ten minutes before Chief Griggs.
Against these claims, Griggs testified that he interviewed Edwards at the
police station not long after his arrest and that Edwards had admitted that
Harris was involved in the manufacturing, at least to the extent of pouring
some ether into ajar. The Commonwealth was also permitted to cross-examine
Edwards and to present Griggs's testimony on rebuttal concerning the fact that
Griggs had stopped Edwards's vehicle at about 5:20 that evening for a traffic
violation and that Edwards and Harris had been in the car together . Harris
contends that the Commonwealth's proof failed to establish either his intent to
manufacture methamphetamine or his arrest prior to his flight. We disagree .
ANALYSIS
I . Harris Was Not Entitled To A Directed Verdict.
As the parties correctly note, upon a motion for a directed verdict,
the trial court must draw all fair and reasonable
inferences from the evidence in favor of the
Commonwealth . If the evidence is sufficient to
induce a reasonable juror to believe beyond a
reasonable doubt that the defendant is guilty, a
directed verdict should not be given . For the
purpose of ruling on the motion, the trial court
must assume that the evidence for the
Commonwealth is true, but reserving to the jury
questions as to the credibility and weight to be
given to such testimony .
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, only
then the defendant is entitled to a directed verdict
of acquittal .
Commonwealth v . Benham, 816 S .W.2d 186, 187 (Ky. 1991) (citation omitted) .
A. The Trial Court Did Not Err By Refusing to Direct a Verdict of
Acquittal on the Manufacturing Charge .
Harris contends, first, that the Commonwealth failed to prove all of the
elements of manufacturing methamphetamine . That crime is defined by KRS
218A.1432, which provides in pertinent part that a person is guilty of such
manufacturing when
he knowingly and unlawfully . . . (b) with intent to
manufacture methamphetamine possesses two (2)
or more chemicals or two (2) or more items of
equipment for the manufacture of
methamphetamine .
Insisting that "it is not illegal to wash a mason jar," Harris contends that the
Commonwealth failed to prove intent. Construing the evidence in favor of the
Commonwealth, as we must, we may begin by noting that criminal intent may
be inferred not simply from the defendant's acts, here Harris's pouring ether
into ajar, according to Edwards's post-arrest statement, and his washing a jar,
as observed by Chief Griggs, but also from the surrounding circumstances .
Pate v. Commonwealth , 243 S.W.3d 327 (Ky. 2007) ; Davenport v.
Commonwealth, 177 S .W .3d 763 (Ky . 2005) . The surrounding circumstances
included Edwards's admission that he, at least, intended to manufacture meth ;
his statement that Harris helped; his testimony that he and Harris had been
good friends for ten years; the fact that washing a mason jar has nothing to do
with measuring water pipes but can be, according to Director Albro, an
important act in the manufacturing process; the overwhelming odor in
Edwards's home, which would surely have aroused Harris's curiosity if he did
not already know how it arose ; the fact that Edwards and Harris were together
earlier in the day although Edwards at first claimed otherwise, and the fact
that Harris fled after Chief Griggs charged him with manufacturing . These are
all circumstances tending to belie Harris's water-pipe defense, and together
they more than permit a reasonable inference that Harris shared Edwards's
intent to manufacture methamphetamine. The trial court did not err, in sum,
when it denied Harris's motion for directed verdict on the manufacturing
charge .
B . The Trial Court Did Not Err when it Refused to Direct a Verdict of
Acquittal on the Escape Charge .
Nor did the court err by refusing to direct a verdict of acquittal on the
second-degree escape charge. That offense is defined by KRS 520.030, which
provides in pertinent part that a person is guilty of escape in the second degree
when . . . being charged with or convicted of a
felony, he escapes from custody.
"Custody" for the purposes of this case means "restraint by a public servant
pursuant to a lawful arrest." KRS 520 .010 . Harris contends that the
Commonwealth failed to prove that he was under arrest when he fled . Again,
for present purposes,
[a]n arrest is made by placing the person being
arrested in restraint, or by his submission to the
custody of the person making the arrest. The
submission shall be in the actual presence of the
arrester .
KRS 431 .025(2) . Although Chief Griggs admitted that he did not physically
restrain Harris, he testified that he informed Edwards and Harris that he was
charging them with manufacturing methamphetamine, that he rebuffed
Edwards's pleas that they not be arrested, and that he read them their Miranda
rights. Chief Griggs and Harris both testified that Harris asked Chief Griggs for
permission to leave the house because his lungs were burning, and thus, in
Chief Griggs's presence, he indicated that he, himself, realized that he was in
custody and submitted to it . This testimony, in other words, permitted a
reasonable juror to find that Harris escaped after he had been charged with
and arrested for manufacturing methamphetamine, and thus was sufficient
evidence to overcome Harris's motion for directed verdict on the escape charge.
II . The Commonwealth Did Not Improperly Cross-Examine Edwards.
Finally, Harris contends that his trial was rendered unfair when the trial
court permitted the Commonwealth to cross-examine Edwards with respect to
a collateral matter. As noted above, Edwards testified that Harris could not
have been involved in the illegal activities at Edwards's house the night they
were arrested because Harris had arrived at the house only minutes before
Chief Griggs . On cross-examination, the Commonwealth, referring to the
traffic stop earlier that evening when Chief Griggs had seen Edwards and
Harris together in Edwards's car, asked, "Isn't it true that you and Mr. Harris
were out before that night running around accumulating products to make
meth?" Harris objected on the ground that the traffic violation was an
inadmissible prior bad act. Overruling the objection, the trial court indicated
that Edwards's testimony had made the fact that the two men were together
earlier admissible. On appeal, Harris contends that having been in a vehicle
with Edwards about an hour-and-a-half before Chief Griggs found them
together at Edwards's house was an irrelevant, collateral fact concerning which
the Commonwealth should not have been permitted to inquire . He cites the
general rule against impeachment on collateral facts, Metcalf v.
Commonwealth , 158 S .W.3d 740 (Ky. 2005), and notes that "[a]lthough a
witness in a criminal case may be impeached by contradictory evidence, `such
evidence is not admissible for that purpose unless it pertains to a material
matter."' Chumbler v. Commonwealth, 905 S .W .2d 488, 495-96 (Ky . 1995)
(quoting from Nugent v. Commonwealth, 639 S .W.2d 761, 764 (Ky. 1982)) .
The simple response to Harris's contention, as the trial court observed, is
that the length of time the men spent together that evening was a material
matter to which the traffic-stop evidence was relevant. It tended both to show
that the men had been together a significant length of time, long enough for
Harris to be involved in the manufacturing, and to cast doubt on the veracity of
Edwards's contrary testimony. Cf. Ernst v. Commonwealth, 160 S .W.3d 744,
762 (Ky. 2005) ("Evidence of collateral criminal conduct is admissible for the
purpose of rebutting a material contention of the defendant .") .
On appeal, Harris also complains about the form of the Commonwealth's
question, contending that there was no evidence that he and Edwards were
"running around accumulating" meth-making products, and that by suggesting
otherwise the question was inflammatory. Although it is true that neither
party is "at liberty to present unsupported theories in the guise of crossexamination and invite the jury to speculate as to some cause other than one
supported by the evidence," Commonwealth v. Maddox, 955 SM .2d 718, 721
(Ky . 1997), here there was evidence both that Edwards and Harris had been
found in conjunction with an accumulation of meth-making chemicals and
equipment and also that not long before that the two men were riding together,
facts which brought the purpose of their earlier errand within the scope of
legitimate cross-examination .
CONCLUSION
In sum, the Commonwealth adequately proved both that Harris shared
Edwards's admitted intent to manufacture methamphetamine and that Chief
Griggs arrested Harris for that crime, rendering Harris's subsequent flight an
escape . That proof was not tainted by evidence of Edwards's traffic violation,
since the violation evidence bore meaningfully on the issue of Harris's
participation in the manufacturing and on Edwards's credibility . Accordingly,
we affirm the August 15, 2007 Judgment of the Muhlenberg Circuit Court.
All sitting . All concur.
COUNSEL FOR APPELLANT:
Roy Alyette Durham, II
Assistant Public Advocate
Department of Public Advocacy
100 Fair Oaks Lane
Suite 301
Frankfort, KY 40601
COUNSEL FOR APPELLEE:
Jack Conway
Attorney General
David Bryan Abner
Assistant Attorney General
Office of Criminal Appeals
Office of the Attorney General
1024 Capital Center Drive
Frankfort, KY 40601
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