Opinion
2023-CA-1378-MR
10-04-2024
RODNEY GRIMES APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Joshua M. Reho Louisville, Kentucky BRIEF FOR APPELLEE: Russell Coleman Attorney General of Kentucky Courtney Hightower Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM JEFFERSON CIRCUIT COURT HONORABLE MITCHELL PERRY, JUDGE ACTION NO. 19-CR-000604
BRIEFS FOR APPELLANT: Joshua M. Reho Louisville, Kentucky
BRIEF FOR APPELLEE: Russell Coleman Attorney General of Kentucky Courtney Hightower Assistant Attorney General Frankfort, Kentucky
BEFORE: EASTON, GOODWINE, AND TAYLOR, JUDGES.
OPINION
EASTON, JUDGE:
The Appellant ("Grimes") challenges the judgment sentencing him to serve ten years after a jury convicted him of multiple counts of drug trafficking. He claims three errors: denial of a suppression motion based on an initial traffic stop, use of the theory of "dispensing" drugs in the jury instructions, and allowing the jury to see a dismissed charge and an amended charge in a prior order during the sentencing phase. Concluding that the suppression motion was correctly denied, we also conclude that any other errors claimed were harmless and affirm the Jefferson Circuit Court.
FACTUAL AND PROCEDURAL BACKGROUND
During the daylight hours of January 10, 2019, LMPD Officer Hammock observed excessive tint of the windows of Grimes' white Cadillac Escalade. Hammock also observed Grimes fail to signal repeatedly as he entered and left parking lots. Hammock pulled Grimes over. Another officer assisted by blocking Grimes from the opposite direction.
Louisville Metro Police Department.
As he approached Grimes, Hammock smelled marijuana. Grimes admitted possession and recent use of marijuana. With this evidence of drug possession, Hammock arranged for a K-9 search which revealed more drugs. A search pursuant to a warrant found more drug evidence in the vehicle. A key to a storage unit was located. A contract with the storage facility listed Grimes' address but had another and dissimilar name. Police obtained another search warrant for the storage unit where more evidence was found. Overall, large amounts of methamphetamine and marijuana were found along with other drugs.
Grimes argues all evidence discovered in this series of steps must be suppressed because of a faulty first step in the process, the traffic stop. Grimes' argument continues that the evidence was fruit of a poisonous tree branching from the initial stop. The circuit court denied the suppression motion. After over three dozen court appearances, the case eventually proceeded to a jury trial over the course of four days.
The circuit court instructed the jury on the trafficking charges with language indicating possession of drugs with the intent of "selling, distributing, or dispensing" them. The jury convicted Grimes of Trafficking in Methamphetamine and two felony counts of Trafficking in Marijuana. We need not discuss the mixed results on other mostly misdemeanor charges.
Two counts resulted in two separate acts of possession on different dates: one for the marijuana in the vehicle, and the other for the marijuana in the storage unit.
During the sentencing phase, the jury learned that Grimes had been convicted of Murder as a teenager. He served twenty-three years of a twenty-five year sentence, being released on January 2, 2018. The jury also learned of another case. Grimes had been given conditional discharge for misdemeanor marijuana trafficking in Bullitt County in 2022. The jury was given only the certified Order from the Bullitt Circuit Court.
The jury fixed Grimes' penalties at ten years for the methamphetamine trafficking, one year for the first marijuana trafficking, and two years and nine months for the second marijuana trafficking. The jury recommended the sentences be served consecutively for a total of thirteen years and nine months. At the sentencing, the circuit court imposed a sentence of ten years to serve. After denial of a motion for a new trial, Grimes filed this appeal.
The jury wrote the penalty as 2.75 years.
In its Judgment, the circuit court referenced Kentucky Revised Statute ("KRS") 532.070(1) as authority to reduce the sentences, but no sentence was actually reduced. Rather, the circuit court effectively rejected the jury's recommendation for consecutive sentences.
STANDARD OF REVIEW
For the suppression decision, our review is bifurcated. We must accept findings of fact supported by substantial evidence, but we review legal application to those facts de novo. Pitcock v. Commonwealth, 295 S.W.3d 130, 132 (Ky. App. 2009). We recognize the discretion of the trial court to assess which witnesses and evidence to believe in making its findings. Id.
Jury instructions present questions of law which we review de novo. Howell v. Commonwealth, 296 S.W.3d 430, 432-33 (Ky. App. 2009). The admission of evidence, such as the Bullitt Circuit Court Order of which Grimes complains, is reviewed for an abuse of discretion. An abuse of discretion occurs when a "trial judge's decision [is] arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Evans v. Commonwealth, 116 S.W.3d 503, 509 (Ky. App. 2003) (citations omitted). Thus, an error of law alone may result in an abuse of discretion. Miller v. Eldridge, 146 S.W.3d 909, 915 n.11 (Ky. 2004).
ANALYSIS
Grimes believes the absence of any video showing his failure to signal as he turned must mean it did not happen. This ignores the reality of how cameras connected with vehicles may be activated at the same time as emergency equipment or that officers may not keep body cams on while driving just to record mostly their steering wheels or other parts of the inside of their vehicles. Having reviewed the available video, we see that the beginning corresponds with activation of lights for the stop. The video clearly shows the dark window tint, which would turn out to measure 14% as opposed to the minimum allowed light blockage of 35%. KRS 189.110.
As for the observed failures to signal, in addition to Hammock's testimony, we note a comment made by another officer on the scene about the same observation. This comment can be heard on the video. The circuit court's finding of observed traffic violations is supported by substantial evidence and is not clearly erroneous. The events after the initial stop provided additional suspicion and ultimately probable cause for further searches.
For example, there was no improper extension of the traffic stop because marijuana was detected and possession admitted before the dog sniff. While a stop based on a traffic violation alone cannot be extended to allow for a dog sniff, something may happen during a traffic stop which will give sufficient suspicion of other criminal activity to permit further detention. Davis v. Commonwealth, 484 S.W.3d 288, 292 (Ky. 2016). In this case, the plain smell of marijuana with admitted use was sufficient cause to permit further detention and a dog sniff. Mayfield v. Commonwealth, 590 S.W.3d 300, 302 (Ky. App. 2019). The circuit court committed no error in denying the suppression motion.
As the defense counsel correctly argued, the focus of the case was on the belief that Grimes possessed the drugs to sell them. Grimes did not complain about the use of the word "distributing" in the jury instructions but complained only about "dispensing." We first must decide if Grimes actually preserved the objection to this word being in the instructions.
Defense counsel made a comment about "dispensing" when instructions were being discussed. He correctly pointed out that the dispensing theory is designed to deal with "pharmacy crimes" as opposed to the typical selling of drugs. But then counsel later said: "As long as it's those three (selling, distributing, and dispensing), I'll maintain my objection, but . . . as long as it doesn't have transfer or manufacturing, then we'll keep it going." One might argue that this is not a clear objection to the use of the word "dispensing."
The discussion of this part of the jury instructions appears in the Trial Record ("TR") at 2:22:49-2:25:55 on 8-16-23.
Not standing on a technical view of the need to express an unequivocal objection, we find it was error for the circuit court to use the word dispensing in the jury instructions. Our criminal statutes often contain any number of ways by which a particular law may be violated, in this case trafficking drugs. Not everything in a statutory list will apply in every case. If it does not apply, it should not be in the jury instructions.
We find the error harmless in this case as there was no chance any juror was confused as to the actual theory of the case. RCr 9.24. See Travis v. Commonwealth, 327 S.W.3d 456 (Ky. 2010). In his closing argument, defense counsel explained the phrase "selling, distributing, or dispensing" in the instructions. According to the attorney, the words all mean "delivering." Counsel continued the argument that the Commonwealth thought Grimes had the drugs to sell them and that they produced no evidence of any actual delivery of any of the drugs to anyone, by sale or otherwise. Of course, the law, which requires only "possession with intent," did not require such evidence, and the jury rejected the defense argument for the three trafficking convictions.
Kentucky Rules of Criminal Procedure.
TR at 3:41:30-3:42:11 on 8-16-23.
The last issue raised pertains to Commonwealth's Exhibit 2 introduced during the sentencing phase of the trial. Commonwealth's Exhibit 1 was the certified Judgment convicting and sentencing Grimes for Murder. The second exhibit was a certified copy of the conditional discharge Order from the Bullitt Circuit Court.
The problem with Exhibit 2 was what else it disclosed. The Order noted the original felony charge of trafficking marijuana near a school, which had been amended to a misdemeanor of trafficking marijuana. The Order also noted a dismissed Count 2 without explaining what that charge had been. Grimes' counsel objected to this Order being submitted to the jury. The circuit court dismissed any concern about the Order's contents: "They (the jury) are not going to read that that closely."
We note for informational purposes only that the dismissed second count was for Grimes being a Second-Degree Persistent Felony Offender ("PFO"). Bullitt Circuit Court Case No. 20-CR-00174.
TR at 2:51:06-2:53:00 on 8-17-23.
KRS 532.055(2) permits introduction of evidence of prior "convictions," which the statute also refers to as "prior offenses." The Kentucky Supreme Court has repeatedly explained the limitations for such sentencing evidence. The statute allows for evidence about the "nature" of the prior offenses. KRS 532.055(2)(a)2. This does not allow calling witnesses, such as prior victims, to testify about the nature of the prior offense. Nature of offense evidence "is limited to conveying to the jury the elements of the crimes previously committed. We suggest this be done either by a reading of the instruction of such crime from an acceptable form book or directly from the Kentucky Revised Statute itself." Mullikan v. Commonwealth, 341 S.W.3d 99, 109 (Ky. 2011).
This case does not present a Mullikan violation. The witness called by the Commonwealth simply explained that Grimes had been convicted of Murder and trafficking in marijuana, without specifying if the trafficking conviction had been amended. Given the specific prior offenses involved, it is understandable that the Commonwealth saw no need to provide further information about the nature of the prior offenses.
In this case, we have the problem presented by presentation of evidence of dismissed or amended charges. Introduction of evidence of dismissed or amended charges is erroneous. Chavies v. Commonwealth, 354 S.W.3d 103, 115 (Ky. 2011). See also Martin v. Commonwealth, 409 S.W.3d 340, 348 (Ky. 2013). In both Chavies and Martin, the introduction of such information was held not to be palpable error.
We recognize the challenges presented by the law about evidence of convictions only in jury sentencing. We have observed how some circuits have learned to avoid this problem by having the Commonwealth make the certified records of prior judgments a part of the record, but, instead of having them sent back to the jury, an exhibit is created listing only convictions from the judgments. Defendants tend to agree with this practice because otherwise the jury is given documents which are redacted, leaving the jury to wonder about what they are not seeing, despite any admonition given by the court not to speculate about redactions.
In this case, the error was preserved, and the palpable error standard does not apply. These standards are not opposites. They are different and often depend on preservation by timely objection. See Martin v. Commonwealth, 207 S.W.3d 1, 5 (Ky. 2006). We must determine whether the introduction of prohibited information here was a harmless error under RCr 9.24.
We start by evaluating the evidence actually introduced. First, the dismissed second charge was never identified. The PFO charge was identified in Chavies, and it was still not considered enough to constitute a reversable error. A PFO status is not a conviction itself, only a penalty enhancement for a conviction and thus PFO status applied to prior convictions should not be introduced during sentencing. See Owens v. Commonwealth, 329 S.W.3d 307 (Ky. 2011) (even when PFO status evidence allowed, it was still a harmless error).
The identified and amended charge was for marijuana trafficking.
The felony of being near a school was amended to remove that element. The jury heard that Grimes was trafficking marijuana either way. We are not persuaded that this information is such that a denial of relief based on the error "would be inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding that does not affect the substantial rights of the parties." RCr 9.24.
In its closing argument (which lasted for one minute and fifteen seconds) for sentencing, the Commonwealth first pointed out the prior Murder conviction and then never mentioned the amendment or the dismissed charge in the Bullitt County case, although the Commonwealth did accurately point out Grimes had committed a crime involving marijuana trafficking while this case was pending.
The jury gave Grimes the minimum of one year on the first marijuana trafficking count and an almost middle ground sentence of 2.75 years on the second marijuana trafficking charge. The circuit court then lessened the impact of those sentences even more by running them concurrent with the methamphetamine trafficking charge for a total sentence of ten years. When we consider the evidence in this case and the end result, we find the error of admitting the Order containing references to a dismissed charge and an amended charge to be harmless. Any cumulative effect of the two errors discussed also does not require reversal.
CONCLUSION
The circuit court did not err in denying Grimes' Motion to Suppress. The arresting officer observed multiple traffic violations justifying the initial stop. The subsequent developments created additional suspicion and ultimately probable cause for the additional searches. While the circuit court may have erred with the use of the "dispensing" language in the jury instructions, there was no possibility of confusion by the jury as to the actual theory of the case. Finally, while the circuit court erred in admitting the evidence of a dismissed charge and an amended charge in the sentencing phase, the error was harmless. We affirm the Jefferson Circuit Court.
ALL CONCUR.