Opinion
NO. 2015-CA-000497-MR
01-13-2017
HOMER WAYNE BURD APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Homer Wayne Burd, Pro Se Eddyville, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Gregory C. Fuchs Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM ALLEN CIRCUIT COURT
HONORABLE JANET J. CROCKER, JUDGE
ACTION NO. 10-CR-00091 OPINION
AFFIRMING
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BEFORE: J. LAMBERT, TAYLOR, AND THOMPSON, JUDGES. LAMBERT, J., JUDGE: In this post-conviction proceeding, Homer Wayne Burd, proceeding pro se, has appealed from the order of the Allen Circuit Court denying his motion for Kentucky Rules of Criminal Procedure (RCr) 11.42 relief following an evidentiary hearing. Finding no error, we affirm.
For our summary of the underlying facts, we shall rely upon the Supreme Court of Kentucky's opinion from Burd's direct appeal:
On June 18, 2010, Detective Mike Wimpee of the Kentucky State Police Drug Task Force received information from an informant that Appellant was manufacturing methamphetamine at his residence. The next day, Detective Wimpee contacted the Office of Probation and Parole which informed him that Appellant had an outstanding arrest warrant for violating his parole. Detective Wimpee requested and received a copy of that warrant.
Later that day, Detective Wimpee and three additional officers went to Appellant's home to execute the arrest warrant. Two officers went to the front door while Detective Wimpee and another detective, Charlie Drummond, went around the house to the backyard to guard against a possible escape through the backdoor. On their way to the backyard, Detective Drummond told Detective Wimpee that he smelled what he believed to be camping fuel. Next to the garage, the Detectives saw a camping fuel can and an acetone can—two items commonly used in the manufacture of methamphetamine—sitting on top of a garbage can. The detectives continued to the backyard where Detective Wimpee positioned himself behind a fifty-five gallon trash barrel. From his position, Detective Wimpee noticed marijuana plants growing in flower pots an estimated distance of twenty feet to his left. After nobody answered the front door, Detective Wimpee left the scene to obtain a search warrant; however, because they believed Appellant was still inside, the other three officers remained positioned outside of Appellant's home.
About an hour later, Detective Wimpee returned with the Sheriff and a K-9 unit to execute the search warrant. After again knocking and announcing their presence with no response, the Sheriff forced open the door to find Appellant, his wife, and another individual
inside. Detective Wimpee immediately detected the smell of chemicals and asked Appellant if there was anything dangerous or harmful in the residence. Appellant led him to the kitchen where there was a glass jar which he told Detective Wimpee he had used to cook meth. Thereafter, Appellant led the detectives to a bedroom closet where there were two tote bags. In the bags, the detectives found several items associated with manufacturing methamphetamine, including a bottle filled with lighter fluid, glass jars, and coffee filters. The fact that the bags contained a portable meth lab does not appear to be in dispute; however, Appellant testified that the bags were not his and that he did not know their contents. Elsewhere in the bedroom, Detective Wimpee discovered crystal methamphetamine (in its manufactured state).Burd v. Commonwealth, 2012 WL 5289418, at *1 (No. 2011-SC-000531-MR) (Ky. Oct. 25, 2012).
After receiving the informant's tip, the officers performed a "drive by" of Appellant's home the day before executing the arrest warrant to confirm that Appellant still lived at that address, and to ascertain if anyone else might live there. During the "drive by," the officers saw Appellant and his wife outside the house, as well as two cars in the driveway and another car in front of the house. When they returned the following day to execute the arrest warrant, all of the cars were still there. Thus, although nobody answered the door when the officers knocked and announced their presence, they had reason to believe that Appellant was inside the house. [Footnote 1 in original.]
The Allen County Grand Jury returned a five-count indictment against Burd, charging him with Manufacturing Methamphetamine, First Offense, with the Intent to Manufacture Methamphetamine pursuant to Kentucky Revised Statute (KRS) 218A.1432; Possession of a Controlled Substance, First Degree, pursuant to KRS 218A.1415; Cultivation of Marijuana, First Offense, pursuant to KRS 218A.1423(2); Use/Possession of Drug Paraphernalia pursuant to KRS 218A.500; and for being a first-degree persistent felony offender (PFO I) pursuant to KRS 532.080(3). The first count charged that "he possessed two or more items of equipment for the manufacture of methamphetamine[.]" The Commonwealth later moved, and was permitted, to amend the language in this count pursuant to RCr 6.16 to insert the words "or two (2) or more chemicals" between the words "equipment" and "for" to conform to the statute and evidence. A new conflict public defender was appointed to represent Burd when his first appointed counsel was permitted to withdraw due to a conflict of interest.
Burd moved to suppress the evidence police seized during the search of his home, arguing that the search warrant was invalid and that the search was conducted without his consent. In a supplement to the motion, Burd contended that the search warrant contained false or misleading statements and was based on information obtained in violation of his expectation of privacy. The court denied the motion, finding that the search warrant was supported by probable cause obtained through a tip from a witness and the officers' own observations. The court also held that the officers were constitutionally permitted to enter the curtilage to secure the rear door of the residence.
The matter proceeded to trial, where the jury found Burd guilty of manufacturing methamphetamine, first-degree possession of a controlled substance, possession of drug paraphernalia, and for being a PFO I. The jury fixed his punishment at thirty-years' imprisonment. The circuit court had granted a directed verdict on the cultivation of marijuana charge and subsequently dismissed it. The court entered a final judgment on August 17, 2011, adjudging Burd guilty and imposing a thirty-year sentence pursuant to the jury's recommendation.
Burd directly appealed the judgment of conviction to the Supreme Court, raising issues related to the motion to suppress and whether the circuit court should have instructed the jury on the lesser-included offense of unlawful possession of a methamphetamine precursor. The Court affirmed on both issues, considering the jury instruction argument under the palpable error rule. The Court's analysis on this issue is as follows:
Appellant next argues that the trial court erred to his substantial prejudice when it failed to instruct the jury on the lesser included offense of unlawful possession of a methamphetamine precursor ("unlawful possession"). Although this issue is unpreserved, we invoke our authority to review for palpable error. RCr 10.26. Under the palpable error standard, an unpreserved error may be noticed on appeal only if the error is "palpable" and "affects the substantial rights of a party," and even then relief is appropriate only "upon a determination that manifest injustice has resulted from the error." Id. "[W]hat a palpable error analysis 'boils down to' is whether the reviewing court believes there is a 'substantial possibility' that the result in the case would have been different without the error." Brewer v. Commonwealth, 206 S.W.3d 343, 349 (Ky. 2006) (citations omitted).
"It shall be the duty of the court to instruct the jury in writing on the law of the case...." RCr 9.54(1). The trial judge is obligated to "prepare and give instructions on the whole law of the case, and [RCr 9.54(1)] requires instructions applicable to every state of the case deducible or supported to any extent by the testimony." Taylor v. Commonwealth, 995 S.W.2d 355, 360 (Ky. 1999) (citations omitted). "An instruction on a lesser included offense is appropriate only when the state of the evidence is such that a juror might entertain reasonable doubt as to the defendant's guilt of the greater offense, and yet believe beyond reasonable doubt that the defendant is guilty of the lesser offense." Billings v. Commonwealth, 843 S.W.2d 890, 894 (Ky. 1992) (citations omitted).
The manufacturing methamphetamine statute provides, in relevant part:
A person is guilty of manufacturing methamphetamine when he knowingly and unlawfully:
a. Manufactures methamphetamine; or
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.
KRS 218A.1632(1) (emphasis added). The instruction on the manufacturing charge actually required the jury to find more than the statute requires to be proven. It required the jury to find that Appellant had "two or more of the chemicals and two or more of the items of equipment for its manufacture...." (Emphasis added.) However, Appellant does not allege prejudice in this error.
The unlawful possession statute provides:
A person is guilty of unlawful possession of a methamphetamine precursor when he or she knowingly and unlawfully possesses a drug product or combination of drug products containing ephedrine, pseudoephedrine, or phenylpropanolamine, or their salts, isomers, or salts of isomers, with the intent to use the drug product or combination of drug products as a precursor to manufacturing methamphetamine or other controlled substance.
KRS 218A.1437(1). Accordingly, in order for an instruction on unlawful possession to have been appropriate there must have been evidence that Appellant possessed "ephedrine, pseudoephedrine, or phenylpropanolamine, or their salts, isomers, or salts of isomers."
At trial Detective Drummond testified that a plastic jar of salt was seized from Appellant's home and later destroyed. When Detective Wimpee was asked
about the salt on cross-examination, he could not describe it with any detail. It does not appear that the salt was ever tested to determine if it was the salts or salts of isomers of ephedrine, pseudoephedrine, or phenylpropanolamine. Thus, the jury heard evidence that a jar of salt was seized from Appellant's home, but whether that salt was of the type described in the unlawful possession statute remains undetermined.
Based upon this evidence, we find that RCr 9.54(1) required an instruction on unlawful possession because it was supported to some extent by the testimony. As previously noted, RCr 9.54(1) requires instructions "applicable to every state of the case deducible or supported to any extent by the testimony." Taylor v. Commonwealth, 995 S.W.2d 355, 360 (Ky. 1999) (emphasis added) (citations omitted). The jury could have believed that Appellant possessed methamphetamine precursors in the form of the salts contemplated in KRS 218A.1437(1) with the intent to manufacture methamphetamine in the future. Although it is unknown whether the jar contained salts, isomers, or salts of isomers of ephedrine, pseudoephedrine, or phenylpropanolamine, the jury could fairly have so inferred. The trial court therefore erred in failing to instruct the jury on unlawful possession.
We cannot conclude, however, that the trial court's failure rises to the level of palpable error. To begin with, we note there is no authority from this Court "to indicate that a trial court's failure to instruct on a lesser-included offense is palpable error, when no objection is made, or instruction offered." Jackson v. Commonwealth, No.2008-SC-000063-MR, 2009 WL 3526660, at *3 (Ky. Oct. 29, 2009) (citing Clifford v. Commonwealth, 7 S.W.3d 371, 376 (Ky. 2000)). In fact, we have been asked on at least twelve previous occasions to find palpable error in a trial court's failure to instruct on a lesser included offense, and we have yet to conclude that the error resulted in manifest injustice. RCr 10.26.
Second, we cannot conclude that even if the instruction had been tendered that "there is a 'substantial
possibility' that the result in the case would have been different." Brewer, 206 S.W.3d at 349. Put differently, we cannot conclude that the error resulted in a "manifest injustice." RCr 10.26. The jury was presented with overwhelming testimonial evidence from Detectives Drummond and Wimpee, and substantial photographic evidence of the items seized from Appellant's home. For example, Detective Drummond presented photographs to the jury that were taken at Appellant's home the day the search warrant was executed. These pictures depict several items commonly used in the manufacture of methamphetamine. Detective Drummond described what each of the photographs depicted and how each item is used in the manufacture of meth. One of the photographs captures all of the items contained in the two portable meth lab tote bags spread out on Appellant's front lawn. Other photographs depict tanks that are often used in the manufacture of methamphetamine. Detective Drummond testified that these tanks had been altered in a manner consistent with manufacturing meth.
Detective Drummond also read from a list of the evidence that had been seized from Appellant's home but destroyed as "contaminated material" collected from a suspected methamphetamine lab. Among the items on the evidence list were: (1) five one-quart glass jars, (2) a plastic two-liter bottle, (3) a plastic jar of ammonium nitrate, (4) a plastic funnel, (5) a plastic jar of lye, (6) coffee filters, and (7) a two-quart can of Kingsford lighter fluid.
Detective Wimpee also explained to the jury how each of the photographed items is used to manufacture methamphetamine, and testified that the only missing components required for the manufacture of meth were "Sudafed" and rubber tubing. However, Detective Wimpee also testified that his investigation revealed that Appellant's "entire family had been buying Sudafed in both Kentucky and Tennessee."
Thus, although there is a possibility that the jury could have found Appellant guilty of unlawful possession, given the volume and strength of the
testimonial and photographic evidence probative of the manufacture of methamphetamine, we cannot say the possibility was "substantial." See Brewer, 206 S.W.3d at 349. We therefore hold that the trial court did not commit palpable error in failing to instruct the jury on Unlawful Possession of a Methamphetamine Precursor.Burd, 2012 WL 5289418, at *5-7 (footnotes omitted).
While his direct appeal was pending, Burd filed a pro se motion for RCr 11.42 relief, alleging ineffective assistance of his trial counsel. His arguments included the failure to follow through with a meritorious motion to suppress evidence, to secure a plea deal, to advise him of parole eligibility, to call mitigating witnesses during the penalty phase, or to attack the constitutionality of KRS 439.3401. He also moved for an evidentiary hearing and for appointment of counsel. The Commonwealth objected to the motion. The circuit court held the RCr 11.42 proceedings in abeyance pending a final decision in Burd's direct appeal. Once the Supreme Court rendered its decision, Burd moved the court to revive his RCr 11.42 motion and filed a supplement to include issues related to the jury instructions and his testifying at trial. The Commonwealth again objected to Burd's assertions.
By order entered November 5, 2013, the circuit court ruled on Burd's motion and supplemental motion for RCr 11.42 relief. The circuit court found Burd was not entitled to relief or to an evidentiary hearing on his arguments related to the motion to suppress and his constitutional challenge to KRS 439.3401. However, the court found Burd was entitled to an evidentiary hearing on his arguments relating to plea agreement advice, the failure to present mitigation evidence, and the failure to properly advise him on the decision to testify. In addition, the court held Burd was entitled to an evidentiary hearing on his argument that his trial counsel was ineffective in failing to request a jury instruction on unlawful possession of a methamphetamine precursor. The court specifically stated:
In Burd's case, it appears that if the issue had been raised that the Commonwealth may have been able to offer additional proof to refute that the plastic jar of salt was a meth precursor. In addition, it appears that an instruction on the lesser included offense of possession of a meth precursor would have been inconsistent with the defendant's overall defense strategy and his sworn testimony that no manufacturing activity had occurred at the residence; that the "boxed labs" were not his; and that he did not possess them with the intent to manufacture but rather to trade for methamphetamine. However, consistent with the holding in Geary [v. Commonwealth, 2009 WL 3151038 (No. 2008-CA-001116-MR) (Ky. App. Oct. 2, 2009)], the Court concludes that the defendant is entitled to a hearing on this issue.
Burd appealed from the portions of the order denying relief on the suppression motion and the constitutional challenge, but later had that appeal dismissed on his motion. Appointed counsel filed a supplement to Burd's RCr 11.42 motion on the jury instruction issue, noting that a failure to prevail on a palpable error argument on direct appeal does not preclude raising the same claim for ineffective assistance of counsel in an RCr 11.42 proceeding.
The court held an evidentiary hearing on December 11, 2014. Trial counsel testified by telephone by agreement of the parties. She worked in the Glasgow office of the Department of Public Advocacy at the time she represented Burd as conflict counsel. In preparing the jury instruction, she reviewed the evidence and the applicable statutes. It did not occur to her to request the precursor instruction because they had been arguing that he did not have everything to manufacture methamphetamine. She did not see a basis for that instruction because of their defense that there was no ephedrine in the house. Once she had her strategy, it would not have made sense to seek an instruction on the lesser-included charge. On cross-examination, trial counsel stated that she did not have any evidence that the material found was a component of methamphetamine because it had been destroyed without being tested. She did not believe she could have successfully argued that Burd met the elements of the lesser-included charge or that she would have been able to successfully argue alternative theories to the jury. The court went on to question trial counsel, and she stated that Burd had never told her that any pseudoephedrine or ephedrine was present in the contents of the evidence seized by the officers, but rather he told her that he did not have any detailed knowledge of what was in the contents of the bags because they were not his.
We shall only focus on the parts of the witnesses' testimony addressing the jury instruction issue.
Burd testified next. The court elicited testimony from Burd confirming that it remained his sworn testimony that the methamphetamine labs belonged to another person, that he intended to trade the methamphetamine labs for methamphetamine, that he was purchasing Sudafed for someone else to manufacture methamphetamine, that he did not know what was in the tote bags, and that he never told his trial counsel that he knew what was in the tote bags.
On February 10, 2015, the circuit court entered an opinion and order denying Burd's motion for RCr 11.42 relief on all of the issues he raised. Addressing the jury instruction issue, the circuit court first cited to Martin v. Commonwealth, 207 S.W.3d 1, 5 (Ky. 2006), to recognize that "a failure to prevail on a palpable error claim does not obviate a proper ineffective assistance claim." The court went on to conclude that based upon the Supreme Court's holding on direct appeal, Burd was entitled to an instruction on the lesser-included offense of unlawful possession of a methamphetamine precursor. However, the court determined that trial counsel's failure to request such an instruction was a matter of trial strategy. Burd's trial counsel determined that the unlawful possession of a methamphetamine precursor offense "was inconsistent with Burd's overall defense, namely that he was not involved in the manufacturing process, which Burd reiterated at the 11.42 evidentiary hearing." The court concluded as follows:
In this case, the proof of Burd's guilt to the manufacturing charge was overwhelming. His trash can(s) contained discarded acetone and Coleman fuel cans and his garage contained modified propane tanks. His house smelled of chemicals. He admitted to the investigating officer in the presence of other officers that he had used a glass jar to cook meth. He showed the officers where the tote bags were located in response to their inquiry as to whether there were any dangerous items in the house. He confessed that the tote bags and their contents were his. At trial his defense was that
there was a missing ingredient to complete the manufacturing process, namely pseudoephedrine, and that his role was to supply "Sudafed" to Pedigo in exchange for the completed product, asserting his addiction to methamphetamine as the reason for his participation. He did not contend at trial nor does he contend now that at the time of his arrest that he was in possession of any methamphetamine precursor. His defense remains the same: that the tote bags belonged to Pedigo; that he did not know what the bags contained; and that it was his intention to return them to Pedigo in exchange for methamphetamine. The Court concludes that [trial counsel] pursued a reasonable trial strategy based on that defense and that her decision not to request a lesser included instruction was consistent with that strategy. Accordingly, it was not ineffective assistance of counsel because it was unsuccessful. [Emphasis in original.]This appeal now follows.
On appeal, Burd limits his argument to whether his trial counsel was ineffective in failing to request a lesser-included jury instruction with respect to the manufacturing methamphetamine charge. The Commonwealth contends that the circuit court properly denied Burd's motion for relief.
The applicable standard of review in RCr 11.42 post-conviction actions is well-settled in the Commonwealth. Generally, in order to establish a claim for ineffective assistance of counsel, a movant must meet the requirements of a two-prong test by proving that: 1) counsel's performance was deficient and 2) the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); accord Gall v. Commonwealth, 702 S.W.2d 37 (Ky. 1985), cert. denied, 478 U.S. 1010, 106 S.Ct. 3311, 92 L.Ed.2d 724 (1986). Pursuant to Strickland, the standard for attorney performance is reasonable, effective assistance. The movant must show that his counsel's representation fell below an objective standard of reasonableness and bears the burden of proof. In doing so, the movant must overcome a strong presumption that counsel's performance was adequate. Jordan v. Commonwealth, 445 S.W.2d 878, 879 (Ky. 1969); McKinney v. Commonwealth, 445 S.W.2d 874, 878 (Ky. 1969). Furthermore, "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" Strickland, 466 U.S. 689, 104 S.Ct. 2065. If an evidentiary hearing is held, the reviewing court must determine whether the lower court acted erroneously in finding that the defendant below received effective assistance of counsel. Ivey v. Commonwealth, 655 S.W.2d 506, 509 (Ky. App. 1983).
Burd asserts in his brief that the circuit court used the evidentiary hearing as "an opportunity to press [his trial counsel] to claim that her failure to request an instruction for unlawful possession was trial strategy." He further claims that his trial counsel's testimony at the evidentiary hearing supports his claims that she was ineffective. Finally, he claims that his trial counsel's work prior to the trial was not as important as her work during the trial. During the course of the trial, the court granted the Commonwealth's motion to amend the manufacturing methamphetamine charge, which Burd claimed effectively destroyed his defense that because no pseudoephedrine was present, he could not be convicted on a manufacturing charge. He claims that his trial counsel's failure to change her strategy constituted ineffective assistance. We disagree with all of Burd's assertions.
Our first consideration under Strickland is whether Burd's trial counsel's representation was ineffective. In order to do so, we must review the applicable statute. KRS 218A.1437 sets forth the elements for unlawful possession of a methamphetamine precursor and provides in relevant part as follows:
(1) A person is guilty of unlawful possession of a methamphetamine precursor when he or she knowingly and unlawfully possesses a drug product or combination of drug products containing ephedrine, pseudoephedrine, or phenylpropanolamine, or their salts, isomers, or salts of isomers, with the intent to use the drug product or combination of drug products as a precursor to manufacturing methamphetamine or other controlled substance.As the Supreme Court noted on direct appeal, in order for the jury to find Burd guilty of this lesser-included offense, it would have had to find that he had been in possession of one of the substances listed in the subsection, including ephedrine, pseudoephedrine, or their salts. We also note that the Supreme Court has already held that it was error for Burd's trial counsel to fail to request an instruction on the lesser-included charge.
Having considered the parties' arguments, we must agree with the Commonwealth that Burd failed to establish that his trial counsel's failure to request a lesser-included instruction was not sound trial strategy. Rather, trial counsel testified that Burd's defense throughout the trial was that he did not know what was in the tote bags. Therefore, it was reasonable for her to not ask for such an instruction so as to not argue inconsistent theories to the jury. In fact, even though it held that the jury should have been instructed on this lesser-included charge, the Supreme Court found there existed only a possibility that the jury would have convicted Burd on the lesser-included charge rather than the manufacturing charge. Accordingly, we hold that Burd has failed to establish that his trial counsel's assistance was ineffective, but rather it constituted trial strategy.
Even if we were to agree with Burd that his trial counsel was ineffective, he has failed to establish that he was prejudiced by any ineffective assistance. The trial court carefully detailed and considered the overwhelming evidence establishing Burd's guilt on the manufacturing charge in its opinion and order. This included the odor of chemicals in his house, his confession to the investigating officer that he had cooked meth, and his showing of the tote bags to officers in response to their question about dangerous items in the house. His defense was that he could not be found guilty of manufacturing methamphetamine because there was a missing element, pseudoephedrine. During the evidentiary hearing, Burd confirmed his testimony that he did not own the tote bags and that he did not know what was in the tote bags, which went along with his trial defense. However, the jury did not accept Burd's defense and relied on the evidence introduced at trial to find him guilty on the primary charge. This precludes a finding of prejudice on his trial counsel's failure to request an instruction on the lesser-included offense.
For the foregoing reasons, the opinion and order of the Allen Circuit Court denying Burd's motion for RCr 11.42 relief is affirmed.
THOMPSON, JUDGE, CONCURS.
TAYLOR, JUDGE, CONCURS IN RESULT ONLY. BRIEF FOR APPELLANT: Homer Wayne Burd, Pro Se
Eddyville, Kentucky BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky Gregory C. Fuchs
Assistant Attorney General
Frankfort, Kentucky