Opinion
NO. 2011-CA-001928-MR
05-17-2013
LEQUON D. GREER APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Shannon Dupree Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Joshua D. Farley Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE KIMBERLY N. BUNNELL, JUDGE
ACTION NO. 10-CR-01080
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE; CAPERTON AND NICKELL, JUDGES. CAPERTON, JUDGE: Lequon D. Greer appeals from his conviction following a jury trial for trafficking in a controlled substance, first-degree; fleeing or evading police, second-degree; resisting arrest; and persistent felony offender, first-degree. Greer was sentenced to a total of twelve years' imprisonment. He additionally appeals the trial court's denial of his motion to suppress the evidence. Finding no reversible error, we affirm.
On August 24, 2010, Greer was indicted by a Fayette County Grand Jury on one count of trafficking in a controlled substance, first-degree; one count of fleeing or evading police, second-degree; one count resisting arrest; one count of harassment; and one count of persistent felony offender, first-degree.
At trial, the Commonwealth called Officers Anthony Young and Benjamin Walker who testified that they were both on patrol in downtown Lexington, Kentucky, in an area known for narcotic sales on June 23, 2010. While on bike patrol they encountered Greer. They observed Greer walking with another male near Fifth Street and as they continued south towards Greer he saw them and immediately moved to the corner of Fifth Street and Smith Street. At this point the officers were 15-20 yards away from Greer.
Prior to trial Greer filed a motion to suppress the evidence based on an illegal stop. A hearing was held and the trial court overruled the motion.
Once at the corner, the officers witnessed Greer engage another male subject and to behave furtively. It appeared to the officers that Greer was attempting to transfer or conceal something at waist level while in the presence of the other man. The officers stated that when Greer saw them he became visibly startled and began walking quickly away from them and he attempted to shove something into the zipper of his shorts. The officers testified that "he practically had his whole arm in his shorts." Officer Young told Greer to stop in an effort to effectuate a Terry stop because the officers believed that Greer was trafficking in narcotics and wanted to ensure that Greer did not have any weapons on him, especially after seeing Greer place something into his pants.
After Officer Young told Greer to stop, Officer Young got off his bike and grabbed Greer's arm. As Officer Young attempted to pat him down, Greer took off running north on Smith Street, hurdling Officer Walker's bike. The officers caught up with Greer on the opposite side of the road and Greer began wrestling with Officer Walker. Officer Young told Greer to stop resisting or he would be tased. Greer did not stop his struggles and Officer Young tased him. Greer was then placed under arrest for harassment, fleeing or evading, and resisting arrest. In searching him incident to arrest they located a large quantity of crack cocaine in a baggie, hanging out of his zipper, in front of his shorts. The crack cocaine discovered on Greer weighted approximately 81.1 grams. While the crack cocaine was contained in one baggie it was broken up into multiple pieces. The officers testified that Greer did not possess anything indicative of crack cocaine usage but did possess a large sum of cash totaling approximately $624 and a cell phone. The cash was comprised of one $100 dollar bill, two $50 dollar bills, seventeen $20 dollar bills, six $10 dollar bills, four $5 dollar bills, and four $1 dollar bills. Officer Young testified that Greer told him that he ran from them because he was scared and that he had stuffed some marijuana into his pants; however, the officers did not locate any marijuana.
Officer Walker explained that it is common for drug dealers to sell crack cocaine in $20 quantities.
The Commonwealth also called Detective Keith Ford, a narcotics expert with the Lexington Police Department. Detective Ford testified that the biggest difference between possession for personal use and trafficking in crack cocaine was the quantity. He testified that crack cocaine users tend to be addicts who purchase a small quantity of crack cocaine at a time and smoke it immediately, whereas traffickers will carry a large quantity of crack cocaine on their person. Detective Ford testified that in his experience any quantity in a person's possession over 10 grams was indicative of trafficking and that the amount found on Greer, approximately 80 grams, was indicative of trafficking. Detective Ford testified that crack cocaine is usually purchased in roughly .2 grams, which is sold for $20, and the amount is eyeballed by the dealer rather than actually weighing it out. Thus, Detective Ford was not surprised that no scales were found on Greer.
Detective Ford estimated the value of crack cocaine found on Greer to be $7,276. He stated that this was approximately 363.8 doses, or enough to smoke crack cocaine once every hour, 10 hours per day, for 36 days straight. Detective Ford noted that this was one of the largest amounts he had personally seen recovered from a defendant in approximately 2,000 narcotics cases. Detective Ford testified that the large quantity of crack cocaine found on Greer, combined with his cell phone and the large number of $20 dollar bills, indicated that he was trafficking in crack cocaine.
Greer presented one witness who testified that he was talking to Greer the evening in question when the officers arrested Greer and that Greer had not been doing anything with his hands.
After deliberations, the jury acquitted Greer of harassment but convicted him of trafficking in a controlled substance, first-degree; fleeing or evading police, second-degree; resisting arrest; and persistent felony offender, first-degree. Greer was sentenced to a total of twelve years' imprisonment. Greer now appeals his conviction and the trial court's denial of his motion to suppress the evidence.
On appeal Greer presents three arguments, namely: (1) the trial court erred in failing to suppress the evidence because the officers did not have reasonable and articulable suspicion that criminal activity was afoot; (2) the trial court erred when it failed to instruct the jury on criminal attempt to traffic in a controlled substance; and (3) the court erred by denying his motion for a directed verdict and instructing the jury on trafficking in a controlled substance. The Commonwealth disagrees with Greer's arguments and instead asserts: (1) suppression was not mandated; (2) Greer was not entitled to a criminal-attempt-to-traffic instruction as this is not a valid instruction under Kentucky law because any attempt to traffic is defined as trafficking; and (3) the trial court correctly overruled the directed verdict motion. We now turn to the first issue, whether the trial court erred in denying Greer's motion to suppress the evidence.
In support of his argument that the trial court erred in denying his motion to suppress the evidence, Greer argues that the officers did not have reasonable and articulable suspicion that criminal activity was afoot when they stopped him, to which the Commonwealth disagrees.
In review of the trial court's decision on a motion to suppress, this Court must first determine whether the trial court's findings of fact are clearly erroneous. Under this standard, if the findings of fact are supported by substantial evidence, then they are conclusive. Kentucky Rules of Criminal Procedure (RCr) 9.78; Lynn v. Commonwealth, 257 S.W.3d 596, 598 (Ky. App. 2008). "Based on those findings of fact, we must then conduct a de novo review of the trial court's application of the law to those facts to determine whether its decision is correct as a matter of law." Commonwealth v. Neal, 84 S.W.3d 920, 923 (Ky. App. 2002) (citing Adcock v. Commonwealth, 967 S.W.2d 6, 8 (Ky. 1998); Commonwealth v. Opell, 3 S.W.3d 747, 751 (Ky. App. 1999)). This Court has held that we will review de novo the issue of whether the court's decision is correct as a matter of law. Stewart v. Commonwealth, 44 S.W.3d 376, 380 (Ky. App. 2000).
Since the decision in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), it has been well-established that a brief detention by a police officer may constitute a seizure within the meaning of the Fourth Amendment of the United States Constitution, and thus may properly be undertaken only if the police officer has a reasonable suspicion based upon objective, articulable facts that criminal activity is afoot. See Henson v. Commonwealth, 245 S.W.3d 745 (Ky. 2008); Fletcher v. Commonwealth, 182 S.W.3d 556 (Ky. App. 2005); Docksteader v. Commonwealth, 802 S.W.2d 149, 150 (Ky. App. 1991). "The court must consider the totality of the circumstances in determining whether a police officer had a particularized and objective basis for suspecting that a person stopped may be involved in criminal activity." Bauder v. Commonwealth, 299 S.W.3d 588, 591 (Ky. 2009) (citing United States v. Cortez, 499 U.S. 411, 417-18, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981)).
"Whether a seizure is reasonable requires a review of the totality of the circumstances, taking into consideration the level of police intrusion into the private matters of citizens and balancing it against the justification for such action." Baker v. Commonwealth, 5 S.W.3d 142, 145 (Ky. 1999). A seizure does not require a showing of probable cause that a crime was committed. Nichols v. Commonwealth, 186 S.W.3d 761, 763 (Ky. App. 2005). Furthermore, "the level of articulable suspicion necessary to justify a stop is considerably less than proof of wrongdoing by preponderance of the evidence." Commonwealth v. Banks, 68 S.W.3d at 351. In order to justify a stop, police must only have reasonable suspicion of criminal activity afoot. Terry, 392 U.S. at 30, 88 S.Ct. at 1885. "Whenever a police officer accosts an individual and restrains his freedom to walk away, he has 'seized' that person." Kotila v. Commonwealth, 114 S.W.3d 226, 232 (Ky. 2003)(abrogated on other grounds by Matheney v. Commonwealth, 191 S.W.3d 599 (Ky. 2006)), citing Terry v. Ohio, 392 U.S. 1, 16, 88 S.Ct. 1868, 1877(1968).
As such, "When an officer is justified in believing that the individual whose suspicious behavior he is investigating is armed and presently dangerous to the officer or to others," the officer may conduct a pat-down search "to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm." Terry, 392 U.S. at 24, 88 S.Ct. at 1881-82. However, the protective pat-down is not automatic after a Terry stop. Instead, "in the case of a pedestrian reasonably suspected of criminal activity, the police must harbor reasonable suspicion that the person subjected to the frisk is armed and dangerous." Arizona v. Johnson, 555 U.S. 323, 327, 129 S. Ct. 781, 784, 172 L. Ed. 2d 694 (2009).
Sub judice, the trial court found that there was reasonable and articulable suspicion that criminal activity was afoot because of the fact that Greer walked away from the officers on two separate occasions, that the officers observed what they believed to be a hand-to-hand transaction and the hiding of an object in Greer's shorts through the zipper area of his shorts. Here the officers observed Greer make what the officers believed that they witnessed a hand-to-hand drug transaction and Greer actively try to hide something upon his person, in a geographic area known for narcotic activity. This resulted in a particularized and objective basis for suspecting that Greer was involved in criminal activity; accordingly, the initiation of the stop was proper. Finding no error we turn to Greer's second basis for appeal.
The trial court also found that the officers had a reasonable belief that Greer could be armed and dangerous so as to justify the frisk. We disagree with the trial court's conclusion that the frisk for weapons was warranted. We do not believe that sub judice the police harbored reasonable suspicion that the person subjected to the frisk was armed and dangerous. See Arizona v. Johnson, supra. However, this ultimately has no bearing on our decision today as the stop of Greer was proper and he subsequently fled, resulting in a new crime having been committed in the presence of the officers. See Kentucky Revised Statutes (KRS) 520.100(1)(a). Here, officers had an articulable reasonable suspicion that a crime had been committed by Greer, which justified the original stop of Greer, and then he fled from the officers, who were clearly recognized as peace officers. Once the officers apprehended Greer and he was placed under arrest, then the officers properly conducted a search incident to arrest. See Commonwealth v. Fields, 194 S.W.3d 255, 256 (Ky. 2006) (discussing the propriety of a search incident to a misdemeanor arrest). We may affirm a circuit court on any grounds when it has reached the correct result, as the trial court correctly denied the motion to suppress. See Wright v. Sales ,257 Ky. 338, 78 S.W.2d 23, 24-25 (1935).
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Greer next argues the trial court erred when it failed to instruct the jury on criminal attempt to traffic in a controlled substance. The Commonwealth argues that Greer was not entitled to a criminal-attempt-to-traffic instruction as this is not a valid instruction under Kentucky law because any attempt to traffic is defined as trafficking.
At the outset, we note that our review of a trial court's rulings with respect to jury instructions is for abuse of discretion. Cecil v. Commonwealth, 297 S.W.3d 12, 18 (Ky. 2009) citing Ratliff v. Commonwealth, 194 S.W.3d 258, 274 (Ky. 2006). The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles. Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999) (citing 5 Am. Jur. 2d Appellate Review § 695 (1995)).
As stated in Manning v. Commonwealth, 23 S.W.3d 610, 614 (Ky. 2000):
A trial court is required to instruct on every theory of the case reasonably deducible from the evidence. Ragland v. Commonwealth, Ky., 421 S.W.2d 79, 81 (1967); Callison v. Commonwealth, Ky. App., 706 S.W.2d 434 (1986) (In a criminal case, it is the duty of the court to prepare and give instructions on the whole law. This general rule requires instructions applicable to every state of [the] case covered by the indictment and deducible from or supported to any extent by the testimony.)Manning at 614.
However, the trial court's duty to instruct "does not require an instruction on a theory with no evidentiary foundation." Houston v. Commonwealth, 975 S.W.2d 925, 929 (Ky. 1998), citing Barbour v. Commonwealth, 824 S.W.2d 861, 863 (Ky. 1992), overruled on other grounds, McGinnis v. Commonwealth, Ky., 875 S.W.2d 518 (1994); Neal v. Commonwealth, Ky., 303 S.W.2d 903 (1957). See also RCr 9.54. Moreover, "[a]n instruction on a lesser-included offense should be given if the evidence is such that a reasonable juror could doubt that the defendant is guilty of the crime charged, but conclude that he is guilty of the lesser-included offense." Webb v. Commonwealth, 904 S.W.2d 226, 229 (Ky. 1995), citing Luttrell v. Commonwealth, 554 S.W.2d 75, 78 (Ky. 1977).
At issue, KRS 218A.010(49) defines trafficking as "Traffic, except as provided in KRS 218A.1431, meaning to manufacture, distribute, dispense, sell, transfer, or possess with intent to manufacture, distribute, dispense, or sell a controlled substance."
The Commonwealth argues that said definition encompasses any attempt to traffic. Based on Slaughter v. Commonwealth, 45 S.W.3d 873 (Ky. App. 2000), we must disagree. In Slaughter, the defendant's conviction and sentence for attempted trafficking in a controlled substance, second-offense (KRS 218A.1412), was upheld by this Court. Greer's conviction for trafficking in the first degree stems from the same statute, KRS 218A.1412. However, Greer's argument is unavailing. Greer had possession of an amount of cocaine that squarely brought him within the statute, more specifically he possessed an amount of cocaine from which the jury could infer that he intended to traffic; that is the crime. This is not a case where he was not found to possess cocaine but took substantially all those steps necessary to organize a drug transaction, thus, an attempt to commit a trafficking crime. Accordingly, we must conclude that Greer was not entitled to an attempt-to-traffic instruction; accordingly, we find no reversible error.
Last, we address Greer's argument that the court erred by denying his motion for a directed verdict and instructing the jury on trafficking in a controlled substance.
In assessing whether Greer was entitled to a directed verdict, 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). When confronted with a motion for 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. Paulley v. Commonwealth, 323 S.W.3d 715, 722 (Ky. 2010).
Greer argues that the Commonwealth failed to prove that Greer knew the approximately 81 grams of crack cocaine was indeed crack cocaine; that said, crack cocaine was intended to be sold as opposed to being reserved for personal use or that any drug transaction had ever been completed based on Greer approaching two men in the street at two different times. We find such argument to be without merit. The Commonwealth produced evidence sufficient to induce a reasonable juror to believe beyond a reasonable doubt that Greer was guilty of trafficking in crack cocaine based on the testimony of the amount of cocaine possessed. Accordingly, the trial court properly overruled Greer's motion for a directed verdict.
Finding no reversible error, we affirm.
ALL CONCUR. BRIEFS FOR APPELLANT: Shannon Dupree
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Joshua D. Farley
Assistant Attorney General
Frankfort, Kentucky