Bolen v. CommonwealthBolen v. Commonwealth
- Reporters:
- , ,
- Before:
- Johnstone
Appellant, Scott Bolen, appeals from his McCracken Circuit Court conviction for possession of drug paraphernalia (second offense), first-degree possession of a controlled substance, resisting arrest, and first-degree persistent felony offender. The jury recommended a total sentence of twenty-five years’ imprisonment which was reduced without objection to twenty years’ imprisonment. We affirm in part, reverse in part, and remand.
Bolen was in the wrong place at the wrong time. On February 7, 1998, the Paducah Police received a call concerning a domestic violence complaint at a particular residence. Officer Grimes was the first police officer to arrive at the residence. With permission, Grimes entered the residence. Inside, he saw Bolen in an adjoining room. Grimes observed Bolen drop what appeared to be a crack pipe and subsequently attempted to place him in custody. Bolen resisted the officer’s efforts. Two other officers intervened in order to subdue him. A search of Bolen’s person yielded a metal crack pipe and two cotton balls. Testing confirmed that both crack pipes contained cocaine residue.
I. PERSISTENT FELONY OFFENDER ENHANCEMENT
Between the time Bolen was indicted and tried,
No conviction, plea of guilty, or Alford plea to a violation ofKRS 218A.500 shall bring a defendant within the purview of or be used as a conviction eligible for *909 making a person a persistent felony offender under this section.
Bolen moved the trial court
in limine
to allow him to take advantage of the benefits of this new subsection of the statute,
i.e.,
he argued that the amendment precluded a sentence for a possible conviction for possession of drug paraphernalia (second offense) from being enhanced under
First of all, we note that clearly Bolen was entitled to take advantage of the benefits of the statute.
If any penalty, forfeiture or punishment is mitigated by any provision of the new law, such provision may, by the consent of the party affected, be applied to any judgment pronounced after the new law takes effect.
This statute creates an exception to the general rule that “[n]o statute shall be construed to be retroactive, unless expressly so declared.”
The amendment to
Bolen’s conviction for possession of drug paraphernalia (second offense) was a conviction for violation of
II. POSSESSION OF A CONTROLLED SUBSTANCE
Bolen contends that his conviction for possession of a controlled substance cannot be upheld since the amount of cocaine found in each pipe was not measurable. Testing by the Commonwealth revealed that a non-weighable amount of residue existing on each pipe contained the molecular structure of cocaine.
Bolen asserts that the statute calls for “any quantity” and that quantity implies a measurable amount.
See
III. FAILURE TO STRIKE JUROR FOR CAUSE
Bolen also argues that the trial court erred in its refusal to strike a juror for cause. Bolen believes that the juror had already formed an opinion as to Bo-len’s defense which deprived Bolen of his constitutional right to an impartial jury.
See
Consistent with a defendant’s federal and state constitutional right to trial b ’ an impartial jury, RCr 9.36 states in relevant part, as follows:
When there is reasonable ground to believe that a prospective juror cannot render a fair and impartial verdict on the evidence, he shall be excused as not qualified.
The standard of review for a trial court’s decision on a challenge for cause is whether there was an abuse of discretion. Bowling v. Commonwealth, Ky., 942 S.W.2d 293 (1997), cert. denied, 522 U.S. 986, 118 S.Ct. 451, 139 L.Ed.2d 387 (1997). In order to find reversible error, Bolen must demonstrate a probability of bias or prejudice based on the particular facts of the case. Pennington v. Commonwealth, Ky., 316 S.W.2d 221, 224 (1958). See also Tayloe v. Commonwealth, Ky., 335 S.W.2d 556 (1960).
During voir dire, the challenged juror volunteered information pertaining to her experience as a schoolteacher and the frail excuses she received from her past students. She questioned whether an individual could commit a crime without actually knowing it. However, she specifically indicated that she had not heard all the facts of this particular case. There was no suggestion that she would not consider all of the evidence presented nor apply the law as instructed. The juror in this case demonstrated that she could lay aside her opinion and the trial court judge accepted this assurance. Therefore, there was no abuse of discretion by the trial court in its refusal to strike the juror for cause.
IV. OTHER ERRORS
Bolen makes three additional claims of error: (1) whether expert testimony via closed circuit television violates the Confrontation Clause; (2) whether there was prosecutorial misconduct during voir dire; and (3) whether his convictions for both possession of drug paraphernalia and possession of a controlled substance violated the constitutional prohibition against double jeopardy. All three of these issues are unpreserved. We have carefully reviewed these and conclude that each one is without merit and none deserve to be discussed further.
For the reasons set forth above, we affirm Bolen’s convictions for possession of drug paraphernalia (second offense), first-degree possession of a controlled substance, resisting arrest, and PFO I based on his conviction for first-degree possession of a controlled substance, and reverse his conviction for PFO I based on his conviction for possession of drug paraphernalia (second offense), and remand for a new sentencing hearing consistent with this Opinion.
All concur.