Opinion
NO. 2016-CA-001943-MR
04-27-2018
SCOTTIE JO WARNER APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Robert C. Yang Assistant Public Advocate Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky John Paul Varo Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM MUHLENBERG CIRCUIT COURT
HONORABLE BRIAN W. WIGGINS, JUDGE
ACTION NO. 16-CR-00083 OPINION
AFFIRMING
** ** ** ** **
BEFORE: CLAYTON, MAZE, AND THOMPSON, JUDGES. CLAYTON, JUDGE: Scottie Jo Warner appeals from a Muhlenberg Circuit Court judgment imposing a sentence of fifteen years after a jury found him guilty of first-degree trafficking in a controlled substance and being a persistent felony offender in the first degree. He raises three arguments: first, he was entitled to a directed verdict because there was insufficient proof he possessed the statutory amount of methamphetamine to secure a first-degree trafficking conviction; second, he was denied his right to a defense when the trial court refused to admit evidence of an alternative perpetrator's prior conviction for trafficking; and third, the prosecutor committed reversible error in his closing remarks during the penalty phase when he asked the jury to "do something" about the drug problem in society. Having reviewed the record and applicable law, we affirm.
On May 16, 2016, Detective Troy Gibson of the Pennyrile Narcotics Task Force was conducting surveillance on a house in Central City at approximately 1:30 p.m. When a truck parked by the house drove off, Detective Gibson followed it. After he observed the driver make a left turn without signaling, the detective turned on his blue lights. The truck eventually pulled into the driveway of a different house. As Detective Gibson approached the truck, the driver, Warner, got out and walked towards him. He had a cell phone in his hand and was moving his arms hysterically. Warner tried to show the detective something on the phone and talked about either his wife or ex-wife sending him pictures and doing something with someone else. Detective Gibson tried to calm Warner down, but he would not be still and kept trying to go back towards his truck. Detective Gibson returned to his vehicle to call for assistance. As he did so, Warner opened the truck door, grabbed a black bag and ran towards the house. Detective Gibson shouted at Warner to stop and then chased him around the house, across a ditch and down to some railroad tracks. After several hundred yards, Warner tripped. Detective Gibson caught up and detained him until another officer arrived on the scene. Detective Gibson arrested Warner and searched the black bag. He found a thermos containing a bag of suspected methamphetamine weighing about twenty-five grams, smaller baggies of suspected methamphetamine, a bag of suspected marijuana, a bag of suspected cutting agent, a baggie of hydrocodone pills, empty baggies, and a spoon. Inside Warner's truck, Detective Gibson found a pipe suspected of being used to smoke methamphetamine, a bag of suspected valium, and a meat cleaver. The detective also recovered Warner's cell phone and $901 in cash.
Warner was tried on one charge of first-degree trafficking in a controlled substance - two or more grams of methamphetamine and one charge of being a first-degree persistent felony offender.
One of the main defense theories was that Warner did not possess the methamphetamine with the intent to traffic and consequently at most he could only be convicted of possession. This theory hinged on the interpretation of the first-degree trafficking statute, Kentucky Revised Statutes (KRS) 218A.1412, in which the quantity of the drugs recovered is a decisive factor in determining the degree of the offense. The statute states in pertinent part that "[a] person is guilty of trafficking in a controlled substance in the first degree when he or she knowingly and unlawfully traffics in . . . [t]wo (2) grams or more of methamphetamine[.]" KRS 218A.1412(1)(b). "Methamphetamine" is defined as "any substance that contains any quantity of methamphetamine, or any of its salts, isomers, or salts of isomers[.]" KRS 218A.010(26) (now (31)).
Warner was found with multiple bags of a white solid. The largest bag, containing approximately twenty-five grams of a white substance, was tested and found to contain methamphetamine. Detective Gibson testified that he believed Warner was engaged in trafficking because of the large amount of methamphetamine recovered. He explained that very few people can afford to buy even one ounce of methamphetamine for personal use, and the street value of the twenty-five grams recovered from Warner was approximately $2,500. He testified that the presence of the multiple baggies and the cutting agent, which is added to methamphetamine as a filler to make it weigh more, were also indications of trafficking, and that the pipe found in the truck indicated that Warner probably has a methamphetamine habit himself.
According to Warner, the plain meaning of KRS 218A.1412(1)(b) required the Commonwealth to prove the actual weight of pure methamphetamine contained in the twenty-five grams of recovered substance. Warner acknowledges that during the pendency of his appeal the Kentucky Supreme Court accepted discretionary review of a case raising the same question of statutory interpretation. In that case, Hawkins v. Commonwealth, 536 S.W.3d 697 (Ky. 2017), reh'g denied (Feb. 15, 2018), the appellant was convicted of trafficking in four or more grams of cocaine after he was found in possession of eighteen grams of a white substance which was found to contain cocaine. The laboratory did not conduct an analysis of the actual amount of pure cocaine contained in the substance seized. The Kentucky Supreme Court held that under the plain meaning of the statutes, the Commonwealth was not required to prove that pure cocaine accounted for the weight of four grams or more. Hawkins, 536 S.W.3d at 702-703 (Ky. 2017). "[A]s an intermediate appellate court, this Court is bound by established precedents of the Kentucky Supreme Court. SCR 1.030(8)(a). The Court of Appeals cannot overrule the established precedent set by the Supreme Court or its predecessor Court." Smith v. Vilvarajah, 57 S.W.3d 839, 841 (Ky. App. 2000). Because the pertinent statutes did not require the Commonwealth to prove the weight of pure methamphetamine contained in the twenty-five grams of substance obtained from Warner, the trial court did not err in denying Warner's motion for a directed verdict.
Another of the theories put forward by the defense was that the methamphetamine recovered from the black bag did not belong to Warner, but to an alternative perpetrator, Tim Ward. Approximately two weeks before Warner's trial, Ward had pleaded guilty to first-degree trafficking in a controlled substance. The primary proof that Ward was the alternative perpetrator consisted of text messages recovered from Warner's cell phone, which were introduced into evidence by the Commonwealth. The first message was sent from the phone two days before Warner's arrest. It stated, "This is scotty." The second text was sent about three hours before the arrest and stated, "I got twp [sic] oz paid for aready [sic]." Detective Gibson testified that two ounces would be a very large amount of drugs for the average person.
On cross-examination, Detective Gibson testified that he spelled Warner's first name as "Scottie." He also testified that other individuals had signed in to the phone, including a Google sign-in with a username of tim1966ward@gmail.com. The same username was used for Google Drive and a "Timmy Ward" with the same email address had signed into Google+.
There were also text messages recovered from the phone which appeared to be sent to Ward rather than Warner. One message, sent three days before Warner's arrest, stated, "Why you being so shitty with me? I call you, no answer. You say you'll be down in a few minutes. 3 times you stood me up. Then you pull in my driveway with some bitch in the car with you . . . after fuking with Amy & Kenny allnight . . . WTF Tim?" On the next day, a text message was sent to the phone stating, "Hey Timmie. It's Gayle. I'm on my son's phone." Finally, a text was received at 3:05 a.m. on the day Warner was arrested, stating, "Scotty jo new all about what u was up to u could of justtold me the truth and I havent done anything I havent been n."
Warner's defense counsel moved to introduce a certified copy of Ward's trafficking conviction into evidence, arguing that the text messages showed that Ward had the phone in his possession on the day of Warner's arrest, and that evidence of Ward's conviction, along with the misspelling of "Scottie" would allow the jury to infer that he was the individual who was trafficking around the time of Warner's arrest. The trial court overruled the motion after finding that the probative value of the judgment was low, whereas it had the real potential to mislead and confuse the jury.
Our standard when reviewing a question of admissibility of evidence is whether the trial court abused its discretion. Johnson v. Commonwealth, 105 S.W.3d 430, 438 (Ky. 2003). "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).
Kentucky Rules of Criminal Procedure (KRE) 404(b) bars the admission of evidence of prior crimes "to prove the character of a person in order to show action in conformity therewith." It generally applies to the prior crimes of the defendant. "Reverse 404(b)" evidence "is evidence of an alternative perpetrator's other crimes, wrongs, or acts offered by the defendant to prove that the alternative perpetrator committed the offense with which the defendant is charged." Beaty v. Commonwealth, 125 S.W.3d 196, 207 n. 4 (Ky. 2003), overruled on other grounds by Gray v. Commonwealth, 480 S.W.3d 253 (Ky. 2016). A "lower standard of similarity" between the crimes governs "reverse 404(b) evidence because prejudice to the defendant is not a factor." Blair v. Commonwealth, 144 S.W.3d 801, 810 (Ky. 2004) (internal citations omitted). "If the evidence has relevance, then it should be excluded only upon application of KRE 403 principles, i.e., that its probative value is substantially outweighed by considerations of confusion of the issues, misleading the jury, or undue delay." Id.
The trial court in this case properly applied this balancing test. It found that the sentencing document was of little probative value regarding whether Ward had the opportunity to traffic drugs on May 16, 2016, or what his motive would have been. It further found that there was "real potential" that the jury would be misled or confused by evidence and conclude that just because Ward committed the offense of trafficking on another occasion, he likely committed the offense on the occasion in question. The trial court observed that this was exactly the type of scenario KRE 404(b) and 403 are designed to prevent.
Warner argues that the trial court's decision prevented him from mounting a full defense. He argues that without the evidence of Ward's trafficking conviction, the jury was left with the impression that Ward was just someone using the cell phone. He contends that he was prevented from presenting the theory that Ward had set Warner up as the "fall guy," and was responsible for Detective Gibson conducting surveillance at the house where Warner's truck was located.
In our view, Warner was not prevented from presenting a full and effective defense by casting Ward as the alternative perpetrator. The jury learned that Warner had access to the phone, as evidenced by the presence of multiple Google accounts in his name as well as the texts he received. The jury also learned of the inconsistent spelling of "Scottie." Admission of Ward's criminal conviction was the type of propensity evidence that could mislead the jury into assuming Ward had committed the offense on this occasion, even though he had no tangible connection to the contraband recovered from Warner. Because the trial court's analysis was based on a proper application of the relevant legal principles and was not arbitrary, unreasonable, or unfair, it did not abuse its discretion in refusing to admit the evidence.
Third and finally, Warner argues that the prosecutor improperly asked the jury to protect society in his closing arguments during the penalty phase of the trial. The prosecutor told the jury that "we all know" that there is a problem with drugs, including methamphetamine, and that Warner "is a problem." He stated that while Warner is a person "we have a lot of other people that we have to look out for and protect in this society." Defense counsel objected, arguing that the prosecutor was improperly placing a burden on the jury to protect the community. The trial court overruled the objection, and the prosecutor continued, stating
How many of you are sitting around and heard, "When are they going to do something?" Ladies and gentlemen, today, this time following the testimony that's been presented in this trial, they are. Power and authority, I submit to you, the duty to you in this case is clear. For that reason, I ask you return a verdict, recommendation in this case of twenty years on the persistent felony offender, first-degree, after you recommend a sentence of ten years on first-degree trafficking.
The jury recommended a total sentence of fifteen years, less than the possible maximum of twenty years but more than the ten years requested by Warner.
Prosecutors are allowed greater latitude in their closing statements in the penalty phase of the trial, because
it is essentially illogical, at the sentencing phase, to say that the prosecutor cannot encourage the jury to impose a sentence that speaks to deterrence, as well as punishes the specific crime before it. Deterrence is clearly not intended for that defendant alone, but rather his sentence sends the message to all others so inclined that their crimes will be punished, and that a jury made up of local citizens will not tolerate such offenses. This is a significant part of the benefit of public trials.Cantrell v. Commonwealth, 288 S.W.3d 291, 299 (Ky. 2009).
The Kentucky Supreme Court has cautioned, however, that the "send a message" argument must "be channeled down the narrow avenue of deterrence." Id. Thus, any attempt to "shame jurors or attempt to put community pressure on jurors' decisions is strictly prohibited. Prosecutors may not argue that a lighter sentence will 'send a message' to the community which will hold the jurors accountable or in a bad light." Id.
Under these guidelines, the Supreme Court held that the following statement by a prosecutor was permissible:
This is the first case on manufacturing methamphetamine ever heard in Johnson County. You have seen commercials, you have seen the advertisements, you know . . . what meth does to communities. You have seen those that are dead, those that are dying. Now is the time for you to speak with one voice and tell people like Mr. Cantrell, who is bringing poison into our community, we don't want you. We don't want you near us. I am going to ask that you go out and bring back a maximum sentence in this matter[.]Id. at 297-98.
The prosecutor's remarks in Warner's case are essentially similar, and fully within the parameters for penalty phase arguments. There was no effort to shame the jurors or threaten community reprisal if they did not impose a harsh sentence. Therefore, the trial court did not err in overruling the objections of defense counsel.
For the foregoing reasons, the judgment of the Muhlenberg Circuit Court is affirmed.
JUDGE MAZE CONCURS.
JUDGE THOMPSON DISSENTS WITHOUT A SEPARATE OPINION. BRIEFS FOR APPELLANT: Robert C. Yang
Assistant Public Advocate
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky John Paul Varo
Assistant Attorney General
Frankfort, Kentucky