MICKEY TOOLEY V. COMMONWEALTH OF KENTUCKY
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IMPORTANT NOTICE
NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."
PURSUANT TO THE RULES OF CIVIL PROCEDURE
PROMULGATED BY THE SUPREME COURT, CR 76 .28(4)(C),
THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS BINDING PRECEDENT IN ANY OTHER
CASE IN ANY COURT OF THIS STATE ; HOWEVER,
UNPUBLISHED KENTUCKY APPELLATE DECISIONS,
RENDERED AFTER JANUARY l, 2003, MAY BE CITED FOR
CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED
OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE
BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION
BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED
DECI SION IN THE FILED DOCUMENT AND A COPY OF THE
ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE
DOCUMENT TO THE COURT AND ALL PARTIES TO THE
ACTION.
RENDERED : NOVEMBER 25, 2009
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APPELLANT
MICKEY TOOLEY
ON APPEAL FROM MONROE CIRCUIT COURT
HONORABLE EDDIE C . LOVELACE, JUDGE
NO . 08-CR-00035
COMMONWEALTH OF KENTUCKY
APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING IN PART AND VACATING IN PART
On April 11, 2008, Tompkinsville Probation and Parole Officer Jeff Taylor
and Detective Eddie Paul Murphy of the Pennyrile Drug Task Force were
driving in the Harlan Heights section of Tompkinsville, Kentucky . While on
Short Street, Officer Taylor observed Appellant, Mickey Tooley, driving a blue
Chevy Lumina. Officer Taylor knew that Appellant did not have a valid driver's
license, and Detective Murphy subsequently pulled the vehicle over . Appellant
admitted that he did not have a valid driver's license, and when Detective
Murphy told him that he was under arrest for driving with a DUI-suspended
license, Appellant ran away through a nearby yard. He was quickly
apprehended and placed under arrest.
A search incident to arrest conducted by Detective Murphy revealed a
crack pipe, a piece of plastic containing crack cocaine, and two pill bottles.
The label on one pill bottle was made out to "Jennifer Lundsford" and
contained liquid hydrocodone. The label on the other pill bottle was in
Appellant's name and contained hydrocodone pills of varying strengths, Xanax,
buspirone pills, and another rock of crack cocaine. Detective Murphy also
discovered cash in the sum of $1,032 in various denominations in Appellant's
pockets. Appellant informed Officer Taylor that his mother had given him the
money to buy forks and spoons.
A trial by jury was held on November 18, 2008. Appellant was convicted
of first-degree trafficking in a controlled substance, second offense ; seconddegree trafficking in a controlled substance, second offense; and possession of
drug paraphernalia, second offense . For these felony convictions, Appellant
received a combined sentence of 35 years . Appellant was also convicted of
possession of a controlled substance not in its original container; driving on a
DUI-suspended license, second offense ; and fleeing and evading police in the
second degree. For these misdemeanor convictions, the jury assessed fines in
the total amount of $1,250. He now appeals the final judgment entered as a
matter of right, Ky. Const. ยง 110(2) (b) .
Appellant raises two issues on appeal: (1) the trial court failed to define
"dispense" in the jury instructions, which led to a denial of Appellant's right to
a unanimous verdict; and (2) the trial court erroneously imposed fines upon
Appellant, as he was an indigent defendant.
Jury Instructions
The instructions to which Appellant takes issue are the following:
INSTRUCTION NO . 2
DEFINITIONS
POSSESSION - Means to have actual physical
possession or otherwise to exercise actual dominion or
control over a tangible object.
SELL - Means to dispose of a controlled substance to
another person for consideration or in furtherance of
commercial distribution .
DISTRIBUTE - Means to deliver other than by
administering or dispensing a controlled substance.
DISPENSE - Means to deliver a controlled substance
to an ultimate user.
INSTRUCTION NO. 3
TRAFFICKING IN A CONTROLLED SUBSTANCE IN
THE FIRST DEGREE
You will find the Defendant guilty of Trafficking in a
Controlled Substance in the First Degree 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 or about the 11 th day of
April, 2008, and before the finding of the
Indictment herein, he had in his possession a
quantity of cocaine ;
AND
B.
That he knew the substance so possessed by
him was cocaine;
AND
C.
That he had the cocaine in his possession with
the intent of selling, distributing, or dispensing
it to another person .
INSTRUCTION NO. 5
TRAFFICKING IN A CONTROLLED SUBSTANCE IN
THE SECOND DEGREE
You will find the Defendant guilty of Trafficking in a
Controlled Substance in the Second Degree 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 or about the 11 to day of
April, 2008, and before the finding of the
Indictment herein, he had in his possession a
quantity of hydrocodone;
AND
B.
That he knew the substance so possessed by
him was hydrocod one ;
AND
C.
That he had the hydrocodone in his possession
with the intent of selling, distributing, or
dispensing it to another person.
Appellant argues that these instructions are erroneous because they fail
to give the complete statutory definition for the term "dispense." KRS 218A .
010(8) . Appellant concedes that there was sufficient evidence to believe he
possessed drugs with the intent to sell, but maintains that there was no
evidence he possessed the drugs with the intent to dispense or distribute them,
pursuant to the statutory definitions. KRS 218A.010(8) and (10) . This issue is
not preserved, but Appellant nevertheless requests review pursuant to RCr
10.26.
This Court has previously found similar instructions to be reversible
error. See Commonwealth v . Whitmore , 92 S.W .3d 76 (Ky. 2002) . In
Whitmore, a trafficking instruction was given that allowed the jury to find the
defendant guilty if he possessed crack cocaine "with the intent to distribute,
dispense, sell, or transfer it to another person." Id . at 80 . Like the instant
case, Whitmore argued that the evidence would only support a conviction for
intent to sell crack cocaine to another person. Id. Because no evidence was
introduced to show that Whitmore possessed cocaine with the intent to
manufacture or dispense it, we held that the instruction violated the unanimity
requirement . Id. at 81 .
In Whitmore , however, the error was preserved . Id . ("[S]uch error, when
preserved, [is] not subject to a harmless error analysis.") . Here, we must
determine if the error was palpable. Palpable error is one "which affects the
substantial rights of a party [and] may be considered . . . by an appellate court
on appeal, even though insufficiently raised or preserved for review . . . ." RCr
10 .26 . The basic palpable error review, where an unpreserved error requires
reversal, is "if a manifest injustice has resulted from the error," which means
there "is [a] probability of a different result or [the] error [is] so fundamental as
to threaten a defendant's entitlement to due process of law ." Martin v.
Commonwealth , 207 S .W.3d 1, 3 (Ky. 2006) .
While we believe that the instruction as given was improper, we do not
agree with Appellant that the error was palpable . See Commonwealth v.
Rodefer, 189 S .W .3d 550 (Ky. 2006) . The most logical inference from the
evidence is that the jury based its verdict on either the theory of possession
with intent to sell or possession with intent to distribute, as ample evidence
was introduced to support both . Here, as in Rodefer, Appellant's defense
throughout trial was that he was an addict who possessed the drugs simply for
personal use . Appellant possessed a large amount of drugs, most of which
were contained in two different pill bottles . Evidence showed that Appellant
had two rocks of crack cocaine that were separately wrapped . Additionally,
Appellant had approximately $1,032 in various denominations in his pockets.
No evidence was introduced at trial to support the theory that Appellant
possessed drugs with the intent to "dispense" as defined under KRS
218A.010(8) . Thus, no reasonable juror could have convicted Appellant of
anything but possession with intent to sell or possession with intent to
distribute . These facts show that the inclusion of an improper jury instruction
did not create a "substantial possibility that the result would have been any
different." Abernathy v. Commonwealth , 439 S .W.2d 949, 952 (Ky. 1969)
(overruled in part by Blake v. Commonwealth, 646 S.W.2d 718 (Ky. 1983)) .
Therefore, the error in the jury instructions did not "seriously affect the
fairness, integrity or public reputation of judicial proceedings." Brock v.
Commonwealth , 947 S .W.2d 24, 28 (Ky . 1997) . As such, the error in the
instructions was not palpable .
Imposition of Fines
Appellant next contends that the trial court's imposition of $1,250 in
fines was in violation of KRS 534 .040(4), because the trial court had already
recognized his indigent status pursuant to KRS Chapter 31 . Appellant
concedes that this alleged error is not preserved for appellate review, but
nonetheless requests the Court to review the issue pursuant to the palpable
error standard of RCr 10 .26 .
Subsection (4) to KRS 534 .040 provides that "[ f nnes required by this
section shall not be imposed upon any person determined by the court to be
indigent pursuant to KRS Chapter 31 ." This Court said in Simpson v .
Commonwealth , 889 S .W.2d 781 (Ky. 1994) :
"Pursuant to the
statute, the judge must
independently determine the appropriateness of any
fine, and if so, the appropriate amount and method of
payment thereof. In so doing, the judge must also
consider whether the appellant is indigent. In this
connection, we observe that at sentencing in this case,
the appellant was represented by an assistant public
advocate . Thus, we may assume that the trial judge
had already determined that the appellant was
indigent."
Id. at 784 . 1
While in Simpson , the fines were imposed for felonies, and not for misdemeanors as
in this case, both KRS 534 .030(4) and KRS 534.040(4) have the same language
prohibiting the imposition of fines upon indigent defendants.
At the time of trial, Appellant was receiving the services of a public
defender, and he was granted the right to appeal in forma pauperis. So, as the
Commonwealth concedes, the trial court clearly erred in imposing a fine . We
find that, in this case, the trial court's imposition of $1,250 in fines resulted in
manifest injustice .
The judgment of the Monroe Circuit Court is hereby affirmed, except for
the portion thereof imposing fines. As Appellant's underlying convictions are
not affected by this ruling, we vacate only that portion of the final judgment
imposing $1,250 in fines, and remand the case to the Monroe Circuit Court for
re-sentencing in accordance with this opinion .
Minton, C .J. ; Cunningham, Schroder, Scott and Venters, JJ ., concur.
Abramson and Noble, JJ ., concur, but would emphasize that there was no
unanimity problem with the instructions in this case because as given,
"dispense" can only be read to mean essentially the same thing as the
definition for "sell" and "distribute ."
COUNSEL FOR APPELLANT :
Erin Hoffman Yang
Assistant Public Advocate
Department of Public Advocacy
100 Fair Oaks Lane, Suite 302
Frankfort, KY 40601
COUNSEL FOR APPELLEE :
Jack Conway
Attorney General
John Paul Taro
Assistant Attorney General
Office of Criminal Appeals
Office of the Attorney General
1024 Capital Center Drive
Frankfort, KY 40601
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