Opinion
NO. 2014-CA-000931-MR
03-04-2016
HARDIN E. WITHERSPOON APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Kathleen K. Schmidt Brandon Neil Jewell Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General Christian Miller Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM UNION CIRCUIT COURT
HONORABLE C. RENE` WILLIAMS, JUDGE
ACTION NOS. 13-CR-00076 & 14-CR-00028 OPINION
AFFIRMING BEFORE: COMBS, KRAMER, AND STUMBO, JUDGES. COMBS, JUDGE: Hardin Witherspoon appeals his conviction of trafficking in a controlled substance in Union Circuit Court. We affirm.
On September 25, 2013, Witherspoon sold several morphine pills to Charlie Quinn, a confidential informant working for the Kentucky State Police (KSP). A few weeks later, on October 2, Witherspoon sold two Dilaudid pills to another informant, Ryan Kanipe; this transaction was recorded with a camera. Both transactions occurred at 647 West O'Bannon Street in Morganfield. Witherspoon was not the owner of the home, but he was known to stay there.
On November 1, 2013, KSP detectives Matt Wise and Nathan Jenkins went to the O'Bannon Street residence in order to arrest Witherspoon for charges resulting from the two controlled buys. Once inside the residence, Detective Wise observed what appeared to be marijuana. Based on that observation, he left to obtain a search warrant. Witherspoon was arrested and transported to jail while the residence was secured pending issuance of the search warrant.
In the course of the search executed pursuant to the warrant, officers found a substance suspected to be marijuana and a substance suspected to be methamphetamine. They collected pill bottles, syringes, a handgun with ammunition, fifty dollars in cash, and a sign which read: "Please wait in the living room and have a seat, Mr. Credit is dead, please don't ask for him, thank you."
Witherspoon was indicted for three counts of trafficking in a controlled substance. Two counts were based on the controlled purchases of pills, and the third was for trafficking in methamphetamine resulting from the search of Witherspoon's residence. A jury trial was held on May 23, 2014. The trial court granted a directed verdict on the charge of trafficking in methamphetamine. The jury acquitted Witherspoon of the controlled buy by Quinn, but it convicted him on the charge of selling pills to Kanipe. Witherspoon received a sentence of five-years' incarceration. This appeal followed.
Witherspoon's first arguments relate to the suppression of the evidence discovered in the search of his residence. A suppression hearing was held on May 6, 2014, and the court found all the evidence to be admissible in its order of May 21, 2014.
The Fourth Amendment of the United States Constitution and Section 10 of Kentucky's Constitution provide protection against unreasonable searches and seizures. These constitutional provisions dictate that evidence obtained in an illegal or unreasonable search is not admissible in court. Wilson v. Commonwealth, 37 S.W.3d 745, 748 (Ky. 2001). See also Mapp v. Ohio, 367 U.S. 643 (1961).
Our standard of a review for a motion to suppress evidence is two-fold. First, RCr 9.78 provides that: "If supported by substantial evidence the factual findings of the trial court shall be conclusive." We review de novo the trial court's application of the law to the facts. Lynn v. Commonwealth, 257 S.W.3d 596, 598 (Ky. App. 2008).
Kentucky Rules of Criminal Procedure.
Witherspoon first claims that law enforcement officers began searching his home before they obtained the warrant. At the suppression hearing, he presented two witnesses to support this claim. The first was Virginia Johnson, the owner of the home. She testified that she arrived home from running errands between 11:00 and 11:30 on the morning of the search. At that time, officers were already removing items from her home. The other witness was Patricia Post, a neighbor who had also been out on errands. She testified that she saw items being taken out of the residence sometime before noon.
On the other hand, both Detective Wise and Detective Jenkins testified that no search occurred prior to procurement of the warrant. In its order, the court found the testimony of the detectives to be more credible than that of Johnson and Post. The court has discretion to "assess the credibility of witnesses and to draw reasonable inferences" from their testimony. Sowell v. Commonwealth, 168 S.W.3d 429, 431 (Ky. App. 2005).
Regardless, the testimonies of the witnesses and of the officers were not necessarily contradictory. There is no dispute that the warrant was signed at 11:12 a.m. It could have been available for use within minutes. Therefore, if Johnson had come home around 11:30, she would have arrived subsequent to procurement of the warrant. Similarly, Post's testimony that she witnessed removal of items before noon could be absolutely correct and wholly in harmony with the testimony of the detectives. There is no evidence that the court abused its discretion with respect to this issue.
Witherspoon next claims that the warrant was invalid because a time stamp on the faxed copy of the warrant indicated that it was sent to the judge's office the day before the affidavit was filed. Detective Wise testified that he believed the fax machine had an incorrect time setting. Detective Jenkins corroborated that testimony. He testified that the search warrant was obtained on the day of a widespread operation entitled "Operation Black Friday." No other evidence supports Witherspoon's theory that the warrant was obtained without an affidavit. All handwritten signatures and dates indicate that the affidavit and warrant were both executed on November 1, 2013.
Once again, the trial court had discretion to weigh the evidence and to assess the credibility of the witnesses. It believed the detectives who surmised that the fax machine had an incorrect setting. Furthermore, the trial court noted that the judge unquestionably signed the warrant after the affidavit was sworn. It did not abuse its discretion.
Witherspoon also asserts that the evidence obtained pursuant to the search warrant should be suppressed because the warrant was not properly returned. RCr 13.10(3) requires the warrant to be returned to the issuing judge after it has been executed. The return must include an inventory of items that were seized. Leslie Abramson, 8 Ky. Prac. Crim. Prac. & Proc. § 18:89 (5th ed.); Moore v. Commonwealth, 268 S.W. 563, 206 Ky. 779 (Ky. 1925).
In this case, both Detective Wise and Detective Jenkins testified that they had did not make the return to Judge Heady's office. Detective Jenkins testified that they served four warrants that day as part of the larger operation. He surmised that both he and Detective Wise assumed that the other one was making the return.
The predecessor to our Supreme Court has provided some guidance:
Upon the question of the admissibility of evidence obtained by a search made by an officer under a search warrant, it seems to us that it is wholly immaterial whether or not the officer made due or proper or any return thereon, since the legality of the search depends
upon the validity of the warrant and the manner of its execution, rather than upon any subsequent failure of the officer to perform his duty.Moore v. Commonwealth, 268 S.W. at 563. In other words, the mere failure to provide a proper return will not bar admission of evidence obtained by a validly obtained warrant which was properly executed.
More recently, our Supreme Court has provided a test for admissibility of evidence that was obtained subject to a procedural error. The court must consider whether the procedural rule was violated in good faith and whether the violation prejudiced the defendant. Copley v. Commonwealth, 361 S.W.3d 902, 907 (Ky. 2012).
In this case, we do not believe that any error was committed which would warrant suppression of the evidence obtained in the search. First, there is no evidence that the warrant was not valid or was improperly executed. According to Moore, that test alone is sufficient to allow the evidence. Nonetheless, this case also complies with the reasoning of Copley. There is no indication that the detectives acted in bad faith. They were involved in multiple situations, and both assumed that the other was making that particular return. Witherspoon has not demonstrated any prejudice. The inventory of items seized was listed again on forms in evidence which were made available to him. No notice of proof was lost by the failure to make the return. Therefore, we cannot to conclude that the trial court abused its discretion.
Witherspoon next argues that a mistrial should have been granted due to an improper witness statement. It is undisputed that before commencement of the trial, the court ruled that witnesses would not be allow to testify about the identity of substances which had not been tested by the KSP laboratory. One of the items was a bag of suspected marijuana. Nonetheless, Detective Wise testified that he had observed a bag of marijuana in Witherspoon's residence, and Witherspoon objected.
The trial court sustained Witherspoon's objection. However, it refused to grant a mistrial and instead directed the Commonwealth to rehabilitate its witness. The Commonwealth then questioned Detective Wise regarding the substance. Detective Wise then explained that the substance had not been tested and that he did not have any analysis to indicate that it was marijuana. From that point forward, he and all other witnesses referred to untested substances as a "suspected [drug]."
Our Supreme Court has set forth as follows:
A mistrial is an extreme remedy and should be resorted to only when there is a fundamental defect in the proceedings which will result in a manifest injustice. The occurrence complained of must be of such character and magnitude that a litigant will be denied a fair and impartial trial and the prejudicial effect can be removed in no other way.Gould v. Charlton Co., Inc., 929 S.W.2d 734, 738 (Ky. 1996). The standard of review of a denial of a motion for mistrial is abuse of discretion. Id. at 741.
In this case, we are unable to conclude that the error created manifest injustice. The statement was brief and was made in the context of a lengthy narrative. It concerned only one small item among a considerable amount of evidence. Detective Wise corrected his statement clearly and immediately. The error did not occur again during the trial. It did not warrant the extreme remedy of a mistrial. The trial court did not abuse its discretion.
Next, Witherspoon argues that it was error for the trial court to admit three items of evidence which resulted from the search of the residence. Because the trial court granted a directed verdict on charge of trafficking in methamphetamine, it barred the admission of a spoon with residue, baggies, and suspected Lortabs which were found in the house. However, it allowed admission of the gun, the cash, and the sign about "Mr. Credit."
Witherspoon alleges that those three pieces of evidence were irrelevant and unduly prejudicial, that they confused the issues, and that they misled the jury. The court allowed these items of evidence because they were evidence of trafficking, which were the two remaining charges.
Evidence that has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable" is relevant. KRE 401. Relevant evidence "may be excluded if its probative value is substantially outweighed by the danger of undue prejudice[.]" KRE 403. All relevant evidence is presumably prejudicial to the party against whom it is offered. Robert G. Lawson, Kentucky Evidence Law Handbook, § 2.10(4)(b) at 89 (4thEdition 2003). However, evidence that is unduly prejudicial "appeals to the jury's sympathies, arouses its sense of horror, provokes its instinct to punish, or otherwise may cause a jury to base its decision on something other than the established propositions in the case." Id. (quoting Carter v. Hewitt, 617 S.W.2d 961, 972 (3rd Cir. 1980)).
Kentucky Rules of Evidence. --------
We are persuaded that the evidence fits the criteria of relevance. Guns are often associated with drug trafficking. See Lunsford v. Commonwealth, 139 S.W.3d 926, 929 (Ky. App. 2004). Indeed, the association is so strong that our legislature has enacted a statute which enhances a trafficking offense if one possesses a firearm while trafficking. KRS 218A.992. It was not an inappropriate piece of evidence.
Following the directed verdict, the two remaining charges were based upon Witherspoon's transactions with informants. They used cash. Therefore, the presence of cash in Witherspoon's residence was relevant to corroborate their testimony. Likewise, the Mr. Credit sign was indicative that "business" was being conducted in the residence.
The contested items were not unduly prejudicial. Many Kentuckians own guns; people often have some cash in their homes; and many people transact sales of legal items in their homes. The jury could have concluded that they were harmless. Nonetheless, taken together and viewed in light of the testimony of informants who had made controlled buys, the items of evidence supported the allegations of trafficking. Thus, they were relevant but not unduly prejudicial or confusing. They were evidence of the two remaining charges of trafficking; there is no allegation that the jury was confused or misled. Thus, their admission was not erroneous.
Finally, Witherspoon claims that Detective Jenkins improperly bolstered the reliability of Kanipe, the informant who executed the controlled buy for which Witherspoon was convicted. When Detective Jenkins recounted the background of the controlled buys, he testified that both Kanipe and informant Quinn were reliable and that he would not employ informants who were not reliable. Witherspoon did not preserve the issue; therefore, our analysis is for palpable error pursuant to RCr 10.26.
Our Supreme Court has defined palpable error as one that results in "manifest injustice" affecting a party's substantial rights. Martin v. Commonwealth, 207 S.W.3d 1, 3 (Ky. 2006). Martin holds that an appellate court may recognize palpable error as one that "seriously affects the fairness, integrity, or public reputation of judicial proceedings" and that the court should probe the record to determine if the error was "shocking or jurisprudently intolerable." Id. at 4. Our review is focused upon whether we believe that "there is a 'substantial possibility' that the result in the case would have been different without the error." Brewer v. Commonwealth, 206 S.W.3d 343, 349 (Ky. 2006).
In this case, no palpable error occurred. Detective Jenkins made the same statement about both witnesses. The jury acquitted Witherspoon of the trafficking charge involving Quinn. Kanipe's transaction was recorded on a camera, which the jury asked to review again during its deliberations. The charge involving Kanipe was the one upon which Witherspoon was convicted. We cannot conclude that there is a substantial possibility that the outcome would have been different without Detective Jenkins's testimony that he uses reliable informants.
We affirm the Union Circuit Court.
ALL CONCUR. BRIEF FOR APPELLANT: Kathleen K. Schmidt
Brandon Neil Jewell
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General Christian Miller
Assistant Attorney General
Frankfort, Kentucky