ALVIN KNUCKLES V. COMMONWEALTH OF KENTUCKY
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2009-SC-000206-MR
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ALVIN KNUCKLES
V
ON APPEAL FROM ROCKCASTLE CIRCUIT COURT
HONORABLE DAVID A. TAPP, JUDGE
NOS . 08-CR-00020 AND 08-CR-00021
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION OF THE COURT BY JUSTICE SCHRODER
AFFIRMING
Appellant Alvin Knuckles appeals from his conviction of two counts of
Trafficking in a Controlled Substance, First Degree, Second or Subsequent
Offense ; one count of Trafficking in a Controlled Substance, Second Degree,
Second or Subsequent Offense; and three counts of Persistent Felony Offender,
First Degree (PFO I) . The final judgment of the trial court ordered that the
sentences run concurrently in part and consecutively in part for a total of 25
years' imprisonment . Therefore, Appellant appeals to this Court as a matter of
right.
On April 27, 2007, Juanita Renner, after eluding police, was pulled over
on suspicion of driving under the influence by a Kentucky State Police trooper
1 KY. CONST. ยง 110(2)(b) .
and by Rockcastle County Sheriff's Deputy Joe Rush. Deputy Rush asked to
see Renner's cell phone, where he found Appellant's phone number. Deputy
Rush testified that Appellant's name was of interest to him because Appellant
was known to sell drugs.
In order to avoid felony DUI charges, Renner agreed to work as a
confidential informant for Deputy Rush, and to purchase drugs from Appellant.
Renner met Deputy Rush on May 1, 2007, and made a phone call to Appellant,
which was recorded . Appellant made arrangements for Renner to purchase
three pills containing hydrocodone and one pill containing oxycodone . Renner
gave Appellant $60 in buy money. Appellant then purchased the pills from his
supplier, and Renner returned to receive them. Renner's transaction with
Appellant was recorded.
On May 14, 2007, Appellant again contacted Renner. Through a series
of recorded phone calls, Renner agreed to purchase 22 oxycodone pills for
1,000. Renner completed the transaction, which was recorded, and delivered
the pills to Deputy Rush.
Appellant was indicted separately for each of the two drug transactions,
for a total of three trafficking counts and three PFO counts . The trafficking
counts were subsequently amended to reflect that they were second or
subsequent offenses . The two indictments were also consolidated for trial.
Deputy Rush, Renner, and a drug analysis technician with the Kentucky
State Police testified at trial, along with several other witnesses. The tapes of
Renner's phone calls and transactions were played for the jury. The jury found
Appellant guilty of all three trafficking counts and all three PFO counts, but
returned a confusing recommendation regarding whether the respective
sentences should run concurrently or consecutively. The parties agreed to
accept the lowest possible interpretation, and the court ordered that the
sentences run concurrently in part and consecutively in part for a total of 25
years' imprisonment .
Appellant raises three arguments on appeal: that a 14-day continuance
violated his due process rights, that the trial court erred in denying his motion
to strike a juror who was involved with a substance abuse awareness group,
and that he was erroneously subjected to double enhancement of his sentence.
For the reasons that follow, we reject Appellant's arguments and affirm the
judgment of the trial court.
14-DAY CONTINUANCE AFTER FIRST DAY OF TRIAL
The jury was sworn and the trial began on Monday, February 9, 2009 .
Most of the testimony on the first day came from Deputy Rush . Defense
counsel extensively cross-examined Deputy Rush about allowing Renner to
drive with a suspended license, failing to check Renner's background or
perform a drug test on her, and failing to determine who was supplying pills to
Appellant. The day ended with brief testimony from a drug analysis technician
with the Kentucky State Police.
Before recessing for the day, the trial court admonished the jury not to
discuss the case with anyone, and not to form or express an opinion about the
case . The trial court further admonished the jury to have no contact with
persons involved in the case, and to report any attempted communications .
The trial was scheduled to resume on Wednesday, February 11 . In the
interim, however, the trial judge's wife, a Stage IV cancer patient, had a
medical emergency requiring treatment at the National Institute of Health in
Bethesda, Maryland . The trial judge entered an order continuing the trial
generally pending further orders from the court. In the order, the court wote :
It is hereby DIRECTED that the Clerk of the Court
shall notify each of the jurors in this case of the
decision and provide them with a written copy of this
order. During this continuance, each juror is, again,
hereby admonished not to have any discussion with
any person regarding this trial, nor to form or
express an opinion thereon. The jurors are further
admonished
to
conduct
no
independent
investigation regarding this matter.
(Emphasis original) . The clerk noted on the record that all jurors had been
served with a copy of the order.
The judge accompanied his wife to Maryland for what was expected to be
a short stay. However, additional complications arose, and the trial judge did
not return to Kentucky until Saturday, February 21 . The trial resumed on
Monday, February 23. At that time, the court conducted voir dire, and asked
the jurors if they had received and followed the court's admonition . All jurors
responded that they had read and followed the admonition .
When the trial resumed, Appellant, through counsel, filed a motion for a
mistrial citing the delay. In support of his motion, Appellant noted that
Rockcastle County was a small community, and it was likely that jurors had
been approached about the case . Appellant also noted that there had been no
in-person admonition before the general continuance. In addition, Appellant
argued that part of his trial strategy had been to shock jurors with the poor
quality of the police investigation . Appellant was concerned that this shock
value had been dulled in the minds of the jurors as a result of the delay. The
trial court overruled the motion, which. was renewed and again overruled as
part of a motion for a judgment notwithstanding the verdict.
Appellant argues that the 14-day delay violated his due process rights
and his right to a speedy trial. "The standard for reviewing the denial of a
mistrial is abuse of discretion . A mistrial is appropriate only where the record
reveals a manifest necessity for such an action or an urgent or real necessity."2
As the parties at trial noted, this appears to be an issue of first
impression in Kentucky . We therefore draw on cases from other jurisdictions
that have addressed the issue . Ordinarily, to constitute reversible error, a
defendant must show actual prejudice resulting from a continuance or other
separation of the jury. 3 However, even absent a showing of actual prejudice, a
2 Bran v. Commonwealth, 68 S .W.3d 375, 383 (Ky. 2002) (internal quotation marks
and footnotes omitted) .
3
United States v. Diggs, 649 F.2d 731, 738 (9th Cir . 1981), overruled on other grounds
by United States v. McConney, 728 F.2d 1195 (9th Cir. 1984) (finding no reversible
error in 11-day delay due to juror illness, stating that "the circuits are virtually
unanimous that in order for a jury separation to constitute reversible error, the
defendant must show that he suffered actual prejudice because of the separation.")
(collecting cases) ; People v. Behm, 207 N .W.2d 200, 204 (Mich . Ct. App. 1973) ("We
cannot condone the act of the trial judge in adjourning the trial for two weeks after
delay may still "involve[] such a probability that prejudice will result that it
must be deemed inherently lacking in due process." 4
Where there is no showing of actual prejudice, courts have considered a
number of factors to determine whether a due process violation has occurred,
including the length of the delay, whether there was a good reason for the
delay, whether the trial court properly admonished the jurors against
communicating about the case with others prior to the separation, whether the
case was so complex that a prolonged interruption would have a significant
effect on the jurors' ability to remember complicated facts, whether alternatives
to delaying the trial existed, and the extent of publicity surrounding the case .-5
In addition, prejudice is much more likely to be presumed where the delay
occurs after jury deliberations have begun. 6
In this case, Appellant has not shown any actual prejudice resulting from
the delay. Appellant's cross-examination of Deputy Rush was not as fresh in
the jurors' minds as if the trial had concluded promptly . However, defense
the jury was sworn, but we can find no prejudice to defendants arising from the
adjournment.").
4
United States v. Hay, 122 F.3d 1233, 1236 (9th Cir. 1997) (quoting Estes v. Texas,
381 U .S. 532, 542-43 (1965)) (internal quotation marks omitted) (48-day
continuance inherently lacking in due process even absent showing of actual
prejudice) . See also State v. White, 274 A .2d 690, 693-94 (Vt. 1971) (62-day
separation of the jury prejudiced defendant as a matter of law) .
s State v. Kanae, 970 P.2d 506, 510 (Haw. Ct. App . 1998) (setting out six factors used
in cases involving a separation of the jury after deliberations had begun) . See also
State v. Vega, 139 P.3d 260 (Or. Ct. App . 2006), vacated on other grounds, 195 P.3d
64 (Or . 2008) (discussing the Kanae factors in the context of a delay that occurred
midtrial, prior to the beginning of deliberations) .
6 See People v. Santamaria, 229 Cal . App. 3d 269 (1991) (11-day recess violated
defendant's due process rights where recess occurred after deliberations had begun
and there was no good reason for the delay) .
counsel provided a summary during closing argument of problems with the
Commonwealth's case. In addition, much of the incriminating evidence in this
case came from Renner, who testified after the trial resumed.
Nor can we say Appellant's due process rights were violated as a matter
of law. In this particular case, we do not believe that a 14-day delay resulted in
a due process violation absent a showing of actual prejudice . The trial judge's
absence was unavoidable . The court admonished the jurors not to discuss the
case with anyone, both in person after the first day of trial and by a written
order after the trial was continued generally. This was a drug trafficking case,
and the evidence was not so complex that a 14-day delay would have a
significant effect on the jurors' ability to remember the facts of the case . In
addition, the most complex evidence-the tapes of the drug buys--was
introduced after the continuance . No particularly good alternatives to delaying
the trial existed in this case . The trial court stated that it had considered the
possibility of having a special judge appointed . However, the judge expected
his absence to be shorter than it ultimately was. Nor was this a case that was
expected to stretch on for any significant length of time. In addition, the record
does not reflect any publicity surrounding this case . Also, significantly, the
continuance occurred prior to the beginning of jury deliberations.
In some circumstances, a 14-day delay can violate a defendant's due
process rights absent a showing of actual prejudice . In this case, however, the
circumstances weigh against concluding that Appellant was prejudiced as a
matter of law. There was no manifest necessity requiring a mistrial.
JUROR INVOLVED WITH OPERATION UNITE
During voir dire, the trial court asked if any juror was involved in a
substance abuse awareness group. One juror stated that she was vice-chair of
the local chapter of Operation UNITE .? Defense counsel moved to excuse the
juror for cause, at which point the juror was questioned further at the bench .
She stated that she was employed by the Board of Education as a teacher. She
worked with the education branch of UNITE, but she also occasionally called in
tips . She had no prior knowledge of Appellant's case, and had never seen
Deputy Rush.
She stated that UNITE was an important part of her life, and serving as a
juror would "weigh on me." She stated, "I think I can be fair . I think IT think
about my kids at school ." When asked to explain what she meant, the juror
explained, "My students are faced with drugs every day. And I obviously, that's
why I'm working for them not to be on [drugs] ." She stated that she would
think about her students in the jury room "just like any normal person would
. . . hope that they don't ever have to deal with this, or what can I do to help
prevent it ." When asked if she could return a verdict of not guilty if the
Commonwealth did not meet its burden of proof, she stated, "I think I can."
7 Operation UNITE is "a federally-funded drug task force program designed to assist
counties in joining their limited funds and resources to fight drug trafficking and
abuse in Eastern Kentucky." Jarvis v. Commonwealth, No . 2005-CA-001710-MR,
2006 WL 3690980 (Ky. App . Dec . 15, 2006) . See Operation UNITE : Unlawful
Narcotics Investigations, Treatment and Education, http ://www .operationunite .org
(last visited May 20, 2010) .
The trial court overruled Appellant's challenge for cause, and made
detailed oral findings . The court noted that it found the juror credible and that
she "plainly indicated" that she was capable of disregarding any personal
feelings and rendering a verdict based on the evidence. The court also noted
that it would be impossible to seat a jury ifjurors were expected to have no
opinions on the issue of drugs. In addition, the court found that Operation
UNITE has three distinct components: treatment, enforcement, and education,
and that the juror was primarily involved with the education component.
Ultimately, Appellant used a peremptory challenge to remove the juror.
A juror shall be excused for cause "[w]hen there is reasonable ground to
believe that a prospective juror cannot render a fair and impartial verdict on
the evidence . . .
."8
However, the trial court is granted broad discretion, and
its decision will not be reversed unless the failure to excuse is an abuse of
discretion (for questions of law) or clearly erroneous (for questions of fact) .9 In
addition, whether a juror possesses a "`mental attitude of appropriate
indifference' must be reviewed in the totality of the circumstances ." 10
We cannot say that the trial court abused its discretion in denying
Appellant's motion to excuse the juror for cause . The trial court is in the best
8 RCr 9 .36(1) .
9 Shane v. Commonwealth 243 S .W.3d 336, 338 (Ky. 2007) ; Commonwealth v. Lewis,
903 S .W.2d 524, 527 (Ky. 1995) .
iQ Montgomery v. Commonwealth, 819 S .W.2d 713, 718 (Ky. 1991) (quoting United
States v. Wood, 299 U.S . 123, 146 (1936)) . See also Pennington v. Commonwealth,
316 S.W.2d 221, 224 (Ky. 1958) ("It is the probability of bias or prejudice that is
determinative in ruling on a challenge for cause .") .
position to judge the credibility of a juror. I I The court made detailed findings
that the juror could put aside any potential bias and render a verdict on the
evidence . We agree that it would be impossible to seat a jury with no opinions
on the issue of drugs . The trial court effectively discussed the issue with the
juror, and found no reason to question her ability to render a fair and impartial
verdict. There was no error in denying Appellant's challenge for cause.
ALLEGED DOUBLE ENHANCEMENT
Finally, Appellant argues that he was subject to double enhancement of
his sentence during the penalty phase of the trial. After Appellant's conviction,
the trial proceeded to a second or subsequent offense phase . The jury was
informed that Appellant had previously been convicted of trafficking in a
controlled substance in a 1998 judgment . After the jury found Appellant guilty
of being a second or subsequent offender, the trial progressed to the persistent
felony offender (PFO) phase . At this point, the jury was informed that
Appellant was also convicted of escape and possession of a controlled
substance in the same 1998 judgment . The jury also learned that Appellant
was convicted of trafficking in a controlled substance in a 2004 judgment.
The Commonwealth "carved out" the 1998 trafficking offense to prove
subsequent offender status, and then used the remaining felonies from the
same judgment as part of its PFO proof. This is permitted by Morrow v.
Commonwealth. 12 Appellant asks this Court to overrule Morrow, but we decline
II
12
See Wood v. Commonwealth, 178 S.W.3d 500, 515-16 (Ky. 2005) .
77 S.W.3d 558 (Ky. 2002) .
10
to do so . Therefore, there was no erroneous double enhancement in the
penalty phase of the trial.
For the forgoing reasons, the judgment of the Rockcastle Circuit Court is
hereby affirmed.
All sitting. All concur.
COUNSEL FOR APPELLANT:
Linda Roberts Horsman
Department of Public Advocacy
100 Fair Oaks Lane, Suite 302
Frankfort, KY 40601
COUNSEL FOR APPELLEE:
Jack Conway
Attorney General
Kenneth Wayne Riggs
Assistant Attorney General
Office of the Attorney General
1024 Capital Center Drive
Frankfort, KY 40601
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