Jerry Allen Stewart v. Commonwealth of Kentucky
2020 CA 000496
| Ky. Ct. App. | Apr 7, 2022Background:
- Police surveilled Stewart’s Barbourville home for ~8 hours; ~20 short visits observed; several visitors later arrested and one for drugs.
- Search warrant executed next day: methamphetamine found in an upstairs jacket, plus scales, baggies, needles, and handguns; Stewart had no drugs on his person.
- Facebook Messenger records linked accounts "Ken Tucky" and "Jet Jones" to co-defendant Broughton and to messages suggesting drug sales; investigators believed "Jet Jones" was Stewart.
- Broughton testified the drugs and jacket belonged to him and pleaded guilty to possession; Stewart denied social media accounts, claimed he let Broughton stay temporarily, and denied ownership of the drugs.
- Jury acquitted Stewart of meth possession but convicted him of conspiracy to traffic (charged as second/subsequent offense) and possession of drug paraphernalia; trial court sentenced him to 10 years (maximum as repeat offender).
- On appeal Stewart raised challenges including directed verdict, second-or-subsequent designation, voir dire reference to enhancement, references to firearms, adequacy of conspiracy instruction, and cumulative error.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Directed verdict on conspiracy | Commonwealth: circumstantial evidence (surveillance, drugs, paraphernalia, Facebook messages) supports submission to jury | Stewart: evidence insufficient; verdict rests on unreasonable inferences | Affirmed — evidence sufficient; jury could reasonably infer conspiracy |
| Second-or-subsequent offender classification | Commonwealth: KRS 218A.1402 makes conspiracy subject to same penalties as underlying drug offense, so prior 218A conviction enhances sentence | Stewart: never previously convicted of conspiracy; KRS 218A.010(48) applies only to offenses within Chapter 218A; enhancement improper | Reversed as to enhancement — remanded for resentencing without second/subsequent designation |
| Voir dire mention of “second offense” | Commonwealth: fleeting reference harmless; prior trafficking conviction was later admitted by Stewart | Stewart: trial court improperly exposed jurors to enhancement during guilt phase | Not reversible — statement was an error but not palpable; moot after resentencing |
| Testimony mentioning handguns | Commonwealth: identifying items found in house was proper testimony | Stewart: mention of guns prejudiced jury after acquittal on felon-in-possession charge | No palpable error — brief references harmless given other evidence |
| Jury instruction (overt-act/unanimity) | Commonwealth: instruction adequate; evidence identified methamphetamine and co-conspirator | Stewart: instruction failed to specify overt acts and substance, causing unanimity error | No palpable error — instruction imperfect but not so flawed to require new trial; jury could unanimously find an overt act in furtherance of single conspiracy |
Key Cases Cited
- Culver v. Commonwealth, 590 S.W.3d 810 (Ky. 2019) (standard for directed verdict review)
- Southworth v. Commonwealth, 435 S.W.3d 32 (Ky. 2014) (circumstantial evidence and limits on inferential stacking)
- Benham v. Commonwealth, 816 S.W.2d 186 (Ky. 1991) (directed verdict test)
- Hayes v. Commonwealth, 175 S.W.3d 574 (Ky. 2005) (prior convictions for enhancement reserved to penalty phase)
- Dedic v. Commonwealth, 920 S.W.2d 878 (Ky. 1996) (introduction of prior conviction during guilt phase is prejudicial)
- Brewer v. Commonwealth, 206 S.W.3d 313 (Ky. 2006) (firearms evidence may be harmless where ample other proof supports conviction)
- Johnson v. Commonwealth, 405 S.W.3d 439 (Ky. 2013) (unanimity concerns when multiple instances presented)
- Cox v. Commonwealth, 553 S.W.3d 808 (Ky. 2018) (alternative theories and unanimity do not require jurors to agree on the same means)
- Mitchell v. Commonwealth, 516 S.W.3d 803 (Ky. 2017) (palpable error / manifest injustice standard)