Opinion
NO. 2015-CA-001466-MR
01-13-2017
ROBERT ANTHONY MADISON APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Gene Lewter Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Leilani K. M. Martin Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE JAMES D. ISHMAEL, JR., JUDGE
ACTION NO. 13-CR-00833-001 OPINION
AFFIRMING
** ** ** ** **
BEFORE: KRAMER, CHIEF JUDGE; D. LAMBERT AND TAYLOR, JUDGES. KRAMER, CHIEF JUDGE: Robert Anthony Madison appeals the Fayette Circuit Court's judgment convicting him of trafficking in marijuana, greater than five (5) pounds, first offense. After a careful review of the record, we affirm because the circuit court did not err in denying his motion for a directed verdict.
Robert Anthony Madison and his co-defendant, Leondraye Fonzelle White, were indicted on the charge of trafficking in marijuana, greater than five (5) pounds, first offense. Their trials were severed, and Madison was originally tried by a jury. However, that trial resulted in a mistrial.
In addition to the trafficking charge, Madison's co-defendant, Leondraye Fonzelle White, was also indicted on the charge of third-degree criminal trespassing.
During subsequent proceedings, Madison moved to represent himself during trial and, following a hearing pursuant to Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), his motion to represent himself in whole or in part was granted. Months later, another Faretta hearing was held, and the circuit court again determined that Madison was permitted to represent himself, in whole or in part, but the court also appointed the Lexington Public Defender's Office to represent Madison as hybrid counsel.
In Faretta, the United States Supreme Court held that a criminal defendant is entitled to represent himself at trial if, after conducting a hearing, the circuit court finds that the few exceptions to this rule of law do not apply.
Madison opted for a bench trial for his second trial, and he was found guilty of trafficking in marijuana greater than five (5) pounds, first offense. The circuit court sentenced him to five years of imprisonment, but it suspended the imposition of the sentence, and ordered Madison to be placed on probation for five years subject to certain specified conditions. This sentence was ordered to be served consecutively to any previous felony sentence imposed against Madison.
Madison now appeals, contending that his due process rights were violated when the circuit court denied his motion for a directed verdict at the close of the Commonwealth's evidence.
On motion for a directed verdict, the trial judge 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. The standard for appellate review of a denial of a motion for a directed verdict based on insufficient evidence is if, under the evidence as a whole, it would not be clearly unreasonable for a jury to find the defendant guilty, he is not entitled to a directed verdict of acquittal.Williams v. Commonwealth, 178 S.W.3d 491, 493-94 (Ky. 2005) (citations omitted).
Madison was convicted of trafficking in marijuana, greater than five (5) pounds, first offense, which is a Class C felony, according to KRS 218A.1421(4)(a). Pursuant to KRS 218A.1421(5), "[t]he unlawful possession by any person of eight (8) or more ounces of marijuana shall be prima facie evidence that the person possessed the marijuana with the intent to sell or transfer it."
Kentucky Revised Statute. --------
Madison alleges that his motion for a directed verdict should have been granted because the Commonwealth did not prove that he possessed the marijuana at issue. The Kentucky Supreme Court has held "that 'possession' for purposes of KRS Chapter 218A includes both actual and constructive possession. To prove constructive possession, the Commonwealth must present evidence which establishes that the contraband was subject to the defendant's dominion and control." Pate v. Commonwealth, 134 S.W.3d 593, 598-99 (Ky. 2004) (internal quotation marks and footnotes omitted).
Susan Robinson, an employee of the Kentucky State Police's forensic laboratory, testified that she received for testing a sealed box that contained three large heat-sealed plastic bags and a small Ziploc bag, all of which contained green plant material. The three large plastic bags alone contained a total of 10.3 pounds of green plant material. Ms. Robinson tested the green plant material in the three large plastic bags, and the tests revealed that the plant material in the three bags was marijuana. She did not test the plant material in the small Ziploc bag or determine the weight of the plant material in the small plastic bag because five pounds of marijuana is all that is required to receive the highest penalty for marijuana trafficking, and the total weight of the three large bags of marijuana was already greater than ten pounds.
Detective Danny Paige, a narcotics detective with the Lexington Police Department, testified that the amount of drugs involved in this case is indicative of drug trafficking because those possessing marijuana for personal use possess one to two ounces of marijuana, and anything over that amount and packaged in the manner this marijuana was packaged is indicative of trafficking. Detective Paige attested that the street value of this marijuana was between three and seven thousand dollars. He stated that the marijuana in this case was contained in a box that was wrapped in "Hello Kitty" wrapping paper. Additionally, the name of the recipient who was to receive the package did not match the address where it was to be sent.
Detective Paige attested that he and United States Postal Inspector Kyle Erhardt drove separately to the delivery address. Agent Erhardt was driving a fake United States Postal Service vehicle, and Detective Paige drove his police unit. They arrived at the delivery address at the same time. When they arrived there, Detective Paige saw a Red Jeep Cherokee with a driver sitting in it near the residence associated with the delivery address. Detective Paige watched Agent Erhardt exit his vehicle and approach the door of the residence with the package. At that point, the individual exited the Jeep and approached Agent Erhardt. It was soon discovered that this person was Leondraye White. Detective Paige saw White place a telephone call, accept the package, and Agent Erhardt motion for Detective Paige to "move in," which he did. White then opened the package.
After opening the package in front of the officers, White placed telephone calls to Madison on speaker phone, which were audio recorded. Madison initially instructed White to take the package to Madison's house, but he then stated that White could bring it to him at his place of employment, which was the Kroger on Richmond Road. Madison told White that because he was working, he would send a female named "Amanda" outside to take the package. Madison advised that "Amanda" would be wearing black pants.
When the officers arrived at Kroger, a woman was in the location where they were supposed to meet "Amanda," and this woman was wearing black pants. When they approached the woman, she identified herself as Amanda Amburgy. The officers detained her and began speaking with her. She informed the officers that she did not know what was in the package; she was only asked to pick it up for Madison.
Madison was then approached and detained outside the Kroger, the situation was explained to him, and his rights were read to him, and Madison responded: "Do what you gotta do." At the scene, Madison told the officers he thought the package contained furniture, but subsequently in the case, he said that he thought the package contained a dog house.
Agent Erhardt testified that certain factors will cause the post office to flag a package as being suspected of containing drugs. Some of the factors that caused the package in this case to be flagged were: (1) It was sent from Brownsville, Texas, which is a "source city," i.e., a city from where many illegal drugs are sent; (2) the name of the recipient on the package did not match the address where it was being sent; (3) the sender's street address was nonexistent; and (4) the distinctive wrapping on the package. Agent Erhardt stated that the Brownsville, Texas Post Office had seen this package and called it to his attention. They told Agent Erhardt that the package was being removed from the mail stream and sent directly to him.
Agent Erhardt attested that when he went to deliver the package, he saw a Jeep parked near the house, and the driver, White, approached Agent Erhardt and told him that the package was his. Agent Erhardt knocked on the front door of the residence and received no response. White told Agent Erhardt that he was the recipient's brother, and that he was there to pick the package up for his brother. White said that the package should be addressed to someone with the last name of "Johnson," and Agent Erhardt told him it was not. White then phoned Madison, who told him that the package would have been sent from Texas. Because the package had been sent from Texas, Agent Erhardt gave the package to White, and White opened it after he gave Agent Erhardt consent to search it. Agent Erhardt testified that White seemed surprised when he saw the contents of the package. White told Agent Erhardt that he was supposed to take the package to Madison at his place of employment at Kroger on Richmond Road in Lexington.
Madison told White that a female, who was later identified as Amanda Amburgy, would take the package from White at Kroger because Madison was working. The officers intercepted Amburgy in the Kroger parking lot before they approached Madison. She had no knowledge of the marijuana in the package, but she told the officers that Madison had asked her to get the package and take it to his residence. Agent Erhardt testified that when the officers spoke with Madison outside the Kroger, he told them to "do what you have to do." Madison did not ask why he was being arrested, but he was read his rights. Agent Erhardt turned the package over to the Lexington Police Department (LPD), and Madison was charged by the LPD.
Amburgy testified that she was in an intimate relationship with Madison at the time the events in question occurred and that she had lost a good friend as a result of this case, but she continues to text Madison occasionally to see how he is doing. Amburgy stated that she could not remember what she had stated while testifying during Madison's prior trial. Therefore, the recording of her prior testimony was played during this trial. In that prior testimony, Amburgy attested that Madison had given her his apartment key and he told her to unlock the door for a friend of his whom she had never met. She was uncertain what was supposed to happen after she unlocked the door, i.e., whether the friend would be dropping something off inside the apartment or giving Amburgy something to put inside the apartment, etc. However, Madison had told Amburgy to return the key to him afterwards.
John Steele, who is Madison's cousin and the owner of the residence where the package was to be delivered, also testified at trial. Steele stated that his mail is delivered when he is at work and that everyone knows he works the first shift at a local factory. Steele did not recall most of his testimony from the first trial, so the recording of his testimony was played back during the trial in the present case. In the prior trial, Steele testified that about a week before the delivery date, Madison asked if he could have a package delivered to Steele's house, and Steele told him he could. Steele attested that Madison never gave him a reason why he needed to have a package delivered to Steele's house. Steele denied knowing that the package contained marijuana. Steele spoke with Madison on the day the package was scheduled to be delivered, and Madison confirmed that he was expecting the package to be delivered that day. Steele reminded Madison that he would not be home at the time of the delivery. On cross-examination by Madison, Steele testified that he did not know Madison to be a drug dealer, that Madison always had two to three jobs, and that he had never known Madison to smoke marijuana.
We find that the circuit court properly denied Madison's motion for a directed verdict based upon the evidence showing that Madison constructively possessed the marijuana. Madison exercised dominion and control over the package of marijuana by: Having the package delivered to Steele's address; arranging for White to pick the package up from Steele's address the day it was scheduled to be delivered there, because he knew Steele would not be home when it was delivered; telling White to bring the package to him at work at Kroger; arranging for Amburgy to get the package from White when he arrived at Kroger; and arranging for Amburgy to deliver the package to him (Madison). All of these "arrangements" constitute Madison's acts of exercising dominion and control over the package. Therefore, Madison constructively possessed the package, and because the package contained ten pounds (i.e., more than eight ounces) of marijuana, his possession of that quantity constitutes prima facie evidence that he intended to sell or transfer it, pursuant to KRS 218A.1421(5). Consequently, the circuit court did not err in denying Madison's motion for a directed verdict.
Accordingly, the judgment of the Fayette Circuit Court is affirmed.
LAMBERT, D., JUDGE, CONCURS.
TAYLOR, JUDGE, CONCURS IN RESULT ONLY. BRIEF FOR APPELLANT: Gene Lewter
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Leilani K. M. Martin
Assistant Attorney General
Frankfort, Kentucky