Opinion
NO. 2017-CA-000946-MR
07-20-2018
SAMUEL GAMBREL APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Julia K. Pearson Assistant Public Advocate Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Ken W. Riggs Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM KNOX CIRCUIT COURT
HONORABLE GREGORY A. LAY, JUDGE
ACTION NO. 16-CR-00233 OPINION
AFFIRMING
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BEFORE: D. LAMBERT, MAZE, AND NICKELL, JUDGES. NICKELL, JUDGE: Samuel Gambrel appeals from a judgment and sentence entered by the Knox Circuit Court on May 2, 2017. At a jury trial, Gambrel was found guilty of first-degree trafficking in a controlled substance, second or subsequent offense, and sentenced to a term of ten years. Gambrel now seeks palpable error review, claiming the trial court should have instructed jurors on criminal facilitation even though he did not tender or otherwise request such an instruction. We affirm.
Kentucky Revised Statutes (KRS) 218A.1412, a Class C felony.
Two confidential informants, Kenny Hoskins and Michelle Philpot, were working with the Kentucky State Police to buy illegal drugs. Hoskins, a paid informant, contacted Gambrel and arranged to purchase two oxycodone pills. Det. Tyson Lawson searched Hoskins and Philpot, wired Hoskins with a video camera, and gave Hoskins $115 to make the buy.
Gambrel picked up the informants at their home and drove them to Flat Lick, Kentucky, stopping for gas along the way. After a short drive, Gambrel pulled into a driveway where a camper was parked. Hoskins gave Gambrel the buy money, Gambrel exited the vehicle and walked to the camper. A few minutes later, Gambrel returned to the vehicle with two and one-half oxycodone pills and a syringe. Gambrel gave two of the pills to Hoskins. While sitting in the vehicle, Gambrel crushed the remaining one-half pill, prepared a syringe in which he placed the crushed pill, and injected himself. Using a smartphone, Gambrel confirmed the authenticity of the pills when Hoskins questioned what he had just bought. Gambrel then drove the informants back to their home, and Hoskins and Philpot delivered the two oxycodone pills to Det. Lawson.
Gambrel was indicted on a single count of first-degree trafficking in a controlled substance, second or subsequent offense. At a one-day jury trial convened on April 18, 2017, a video of the drug buy was introduced through Hoskins. Jurors saw Gambrel approach the camper, step to the camper's open door, return with drugs for Hoskins, and prepare a syringe and inject himself with oxycodone. Jurors were instructed on trafficking and possession. This matter-of-right appeal followed.
On appeal, Gambrel alleges a single trial error—failure to instruct on criminal facilitation. Gambrel requests palpable error review under RCr 10.26—arguing now, for the first time, the evidence supported such an instruction.
Kentucky Rules of Criminal Procedure.
At trial, Gambrel tendered no instructions, accepted the trial court's instructions as written, and offered no objections to the instructions. Gambrel's defense was he did not make the sale, he merely drove Hoskins and Philpot to the man who sold the pills and then injected himself with a crushed pill because he is a drug user.
RCr 9.54(1) requires a trial court "to instruct the jury in writing on the law of the case[.]" In discussing the instructions, over the Commonwealth's objection, the trial court determined instructing jurors on possession, in addition to trafficking, was appropriate because it was supported by the evidence. A directed verdict having been denied, the trial court instructed jurors on both possession and trafficking. Facilitation was never mentioned nor discussed.
RCr 9.54(2) reads:
No party may assign as error the giving or the failure to give an instruction unless the party's position has been fairly and adequately presented to the trial judge by an offered instruction or by motion, or unless the party makes objection before the court instructs the jury, stating specifically the matter to which the party objects and the ground or grounds of the objection.As revealed previously, Gambrel neither tendered an instruction on facilitation nor orally requested one. Thus, the alleged error was not "adequately presented to the trial judge[.]" Generally,
"[t]he trial court is required to instruct the jury on lesser included offenses when requested and justified by evidence." Miller v. Commonwealth, 283 S.W.3d 690, 699 (Ky. 2009) (citing Martin v. Commonwealth, 571 S.W.2d 613 (Ky. 1978); internal quotation marks omitted and emphasis added). It is not an error, however, palpable or otherwise, for the trial court not to instruct on a lesser included offense that has not been requested. Commonwealth v. Varney, 690 S.W.2d 758, 759 (Ky. 1985); RCr 9.54(2).Bartley v. Commonwealth, 400 S.W.3d 714, 731 (Ky. 2013) (footnote omitted). As explained in Martin,
[w]e do not expect the trial judge to anticipate a party's strategic preferences and act upon them sua sponte. The trial judge cannot be expected to distinguish a neglectful omission from a deliberate choice. Thus, RCr 9.54 imposes upon the party the duty to inform the trial court
of its preferences regarding "the giving or the failure to give" a specific jury instruction. Therefore, when the allegation of instructional error is that a particular instruction should have been given but was not or that it should not have been given but was given, RCr 9.54 operates as a bar to appellate review unless the issue was fairly and adequately presented to the trial court for its initial consideration.409 S.W.3d at 346. Based on Bartley, the Commonwealth argues palpable error review is inappropriate in this case. Gambrel, however, relies on Springfield v. Commonwealth, 410 S.W.3d 589 (Ky. 2013), to argue it is. Springfield is factually distinguishable. In that case, defense counsel "tendered proposed written jury instructions, which included instructions on entrapment and criminal facilitation to trafficking in a controlled substance." Id. at 595. The same cannot be said in Gambrel's case. His attorney tendered no instructions, was satisfied with the trial court's version, accepted the trial court's instructions as written, and made no objections.
It is inaccurate to refer to facilitation as a lesser-included offense of trafficking. Rather, it is a "lesser-culpability situation." Id. at 596. --------
Because the alleged error was not "adequately presented to the trial judge" as required by RCr 9.54(2), review is unavailable. Counsel's decision to request no facilitation instruction could reasonably be interpreted to have been trial strategy. Moreover, no evidence was introduced supporting such an instruction. Therefore, the judgment and sentence entered by the Knox Circuit Court is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Julia K. Pearson
Assistant Public Advocate
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Ken W. Riggs
Assistant Attorney General
Frankfort, Kentucky