*1 peremptory challenges appropri- its at the time,
ate leaving juror the error of panel could not during be reviewed Commonwealth, appeal.
direct Baze v. 817, The ma-
jority opinion now renders the merits of impossible
this issue ever address disposed that issues raised and appeal
on direct proper subject are not the
of review in an 11.42 RCr motion. majority opinion
While the purports to issue,
confront the merits of this it does so having
without heard from trial counsel. testimony
The lack of from that counsel majority opinion’s
makes the discussion of purely speculative, very issue flaw dispose
it Appellant’s uses argument.
I would reverse and remand to trial
court for an evidentiary explore hearing to
the basis of trial counsel’s failure to exer- peremptory
cise the last strike to remove juror jury panel. from the Kentucky,
COMMONWEALTH of
Appellant,
v. MONTAQUE, Appellee.
Tamika M.
No. 1998-SC-1073-DG.
Supreme Kentucky. Court of
April
Rehearing Aug. Denied *2 III, Attorney
A.B. General of Chandler Jr., Kentucky, Floyd, J. Assistant Samuel General, Appellate Attorney Criminal Divi- sion, General, Attorney Office Frankfort, Appellant. for Shaw, Richmond, Ap-
Elizabeth A. pellee.
JOHNSTONE, Justice. Appellee, Montaque, was Tamika con- trafficking victed of in a controlled sub- (KRS (cocaine) degree stance in the first 218A.1412), possessiоn drug parapher- (KRS 218A.500), nalia and was sentenced years’ imprisonment. Additionally, to ten being guilty she found time of the firearm at the commission subjected of these which her to an offenses pursuant KRS 218A.992, precluded possibly and which probation pursuant her from 533.060. The Court of held failing grant the trial erred in Montaque on the а directed verdict issue eligible of whether for sentence she was enhancement under KRS 218A.992. We granted discretionary review affirm Appeals. the Court of Appeals, by As stated the Court are as relevant of this case follows: facts Montaque began on against case December when Louisville аnd officers County police Jefferson execut- apartment ed search warrant occupied she with Ronald Johnson. The approximately nine officers discovered apartment. ounces of cocaine in the scales, knives, digital officers also found plastic phones, bags, аnd cellular some bearing of these cocaine residue items Montaque and all suggesting to distribute the co- Johnson intended caine. and Johnson were indicted. Subse- both arrested and having admitted re- quently, Montaque cocaine from ceived nine ounces of an out-of-state relative and further ad- The standard of review for a trial planned mitted that she had to sell it. court’s factual determination on a motion denied, however, unloaded, that an She for a directed verdict is set forth handgun police semi-automatic later often cited case of Commonwealth v. Ben found in trunk of a car owned ham, Ky., 816 “On parked Johnson’s mother and in the *3 review, appellate the test of a directed apartment building parking played lot is, whole, if verdict under the evidence as a any part drug in her dealing. Montaque it clearly jury would be unreasonable for a claimed belonged the to a friend to find guilt, only then the defendant had who asked her two or three weeks acquittal.” entitled to a directed verdict of before her arrest to it him. store Id. at 187. The facts of this case are said, She had hidden the gun, she in the basically undisputed. Montaque admitted Cadillac, 1985 which she was then bor- having possession drug par of cocaine and rowing from Johnson’s mother. Mon- Further, aphernalia. she admitted to re taque testified that she not using ceiving hiding the firearm the Cadillac at the time of the search it in the trunk of the Cadillac. because a short time before she had dispute there is some as to the extent of purchased a car of police her own. The Montaque’s control of the at Cadillac the found the unloaded gun wrapped time of her arrest. these facts Whether plastic shopping bag along with two am- are sufficient to withstand a directed ver clips munition and a box of loose shells. depends dict on the рroper construction of Because bag was located in the back KRS 218A.992. box, speaker the trunk behind a gun was not accessible at all from the interpretation of a statute is a car’s passenger compartment and was matter of A reviewing law. court is not only awkwardly through accessible аdopt the decisions of the trunk. law, trial court as to a matter of but
In her motions for a directed verdict interpret must according the statute on the firearm enhancement plain meaning of the act and in trial, and for a new Montaque argued legislative accordance with the intent. that contemplates KRS 218A.992 the ex- reviewing question When of law rather istence of some nexus between the fire- fact, than a the reviewing arm and the underlying offense. Be- greater court has a latitude determine cause the prove Commonwealth failed to findings whether the of the trial nexus, Montaque insisted that the stat- suрported by probative were evidence of ute properly could not In be invoked. value. response, the Commonwealth claimed Floyd County Board Education v. Rat- both that an adequate nexus had been liff, Ky., 955 S.W.2d 925 established —in that jury could rea- sonably surmise that would KRS 218A.992 is entitled: En have used the Cadillac in the сourse penalty hancement of when her drug dealing also —and at firearm the time of commission of 218A.992 does not require proof of a provides pertinent offense. The statute nexus but proof posses- of firearm part: contemporaneous underly- sion with the (1) provisions Other of law notwith- offensе, ing which Montaque admitted. person standing, any who is convict- The trial court denied mo- Montaque’s tions, any chapter ed of violation of this but specify did not whether it did (i.e., as a who was at the time of the commis- so matter of fact a nexus was established) (i.e., or as a matter of law sion the offense fireаrm, proof required).... no of nexus shall: (a) (1) weapon possession more penalized Be one class The enhancement for danger of violence
severely
pen-
than
in the
reflects
increased
provided
weapons.
drug
possess
when
traffickers
provision
to that
alty
pertaining
if
adjustment
applied
should be
if
felony;
it
weapon
present,
unless it is
(b)
D felon if
penalized
Be
a Class
was con-
improbable
be a
the offense would otherwise
example,
with the
For
nected
offense.
misdemeanor.
applied
not be
if
the enhancement would
does
actual
The statute
not requirе
defendant,
residence,
at his
arrested
session of a firearm.
In Houston v. Com-
hunting
an
rifle
unloaded
monwealth,
(1998),we
Ky., 975
closet.
may
that “a
violation
be
held
Sanchez,
F.2d
States v.
United
*4
if the viola-
under KRS 218A.992
(6th Cir.1991)
application
(quoting
constructive
of a fire-
possession
tor has
3).
pro-
our
does not
note
While
statute
аrm.”
Id. at 927. The Commonwealth
any
commentary
guidance,
vide
similar
the
argues that either
nexus between
no
in
weapons
dangerous
are no
the
less
required by
the
the
crime and
firearm is
many home-grown
of our all
hands
too
or,
alternative,
statute,
in
the
the
that
Thus,
traffickers.
we believe that
a
requirement
nexus
is satisfied
show-
serves a
our sentence enhancement statute
contemporaneous
ing
possession
of
purpose
the federal sentence
similar
as
correct,
argument
If either
is
firearm.
enhancement statute.
erred, as
clearly
Appeals
then
the Court of
the
belaboring
At the
of
ob
risk
there was sufficient evidence to show
vious,
purpose
the
a criminal statute is
of
in
possession
constructive
deter the commission of crimes. See
to
arrest.
of a firearm at the time of her
Commonwealth, Ky.,
Cox v.
generally
However,
disagree
the Common-
we
with
49, 50
If KRS
218A.992
interpretation
and
wealth’s
of the statute
provide any
does not
nexus between the
requires
the
a nexus be-
hold that
statute
firearm,
possession
and the
of the
crime
pos-
the
the crime committed and
tween
very
real
is created
the
then
risk
firearm.
hold that
session of a
We further
punish non-crimi
could be used to
statute
contempоraneous possession of a
mere
hunting
activity,
nal
such as in the
rifle
satisfy the nex-
firearm is not sufficient to
Further,
above.
the same risk
example
requirement.
us
if
can
requirement
exists
the nexus
be
Houston, supra,
question
addressed the
pos
contemporaneous
with mere
satisfied
the
“possession”
what constituted
under
proof
of
a firearm.
Requiring
session of
interpret
requires
This ease
us
statute.
between the commission of
of
nexus
was, at
“who
the firearm
meaning
phrase,
possession
of
and the
of
fense
offense,
risk without
time
the commission
or eliminates this
reduces
penal
(Emphasis
legitimate
the statute’s
possession
lessening
firearm.”
added).
This
us the
purpose.
leaves
whether,
presented in
upon the evidence
pro-
sentencing guidelines
The federal
case, it
unreasonable
would be
for a similar sentence enhancement
vide
Benham, supra.
jury to find guilt.
2Dl.l(b)(l) of the
KRS 218A.992. Section
to draw a
for a two-
While wе decline
sentencing guidelines provides
conclusively
determine
rule
drug trafficking
bright-line
increase
level
fire-
a nexus between the commission
(including a
whether
dangerous weapon
“[i]f
arm)
possession
and
firearm
in-
the offense
legislative
possessed.”
established,
make
we can
some
the federal sen-
has been
purpose
and
behind
tent
First, whenever it
explained
general
observations.
enhancement
is
tence
inwas
that a defendant
ac-
established
commentary to the rule:
if the violator
possession
tual
of a firearm when arrest-
hanced under KRS 218A.992
ed, or that a defendant had
possession
constructive
has constructive
of a firearm.”
possession
aof
firearm within his or her
Id. at 927. The
issue in Houston was
arrested,”1 then,
“immediate control when
actual,
physi-
whether
statute
sentencing guide-
like under the federal
cal
of a firearm before sentence
lines, the Commonwealth should not have
Moreover,
applicable.
enhancement was
prove any
connection between the of-
the firearms
Houston were
fense
for the sentence
thus,
and,
fully
plain
sight
loaded and
applicable.
enhancement
to be
See San-
within the
immediate
were
defendant’s
chez,
monwealth,
281,
operation
drug dealing
going
interstate
on
(1992) (forfeiture
pursu-
of an automobile
just
apartment,
inside her
while
outside
upheld
ant to KRS 218A.410
on evidence
door,
in
hidden
a car over which she
marijuana plant
that a
drug parapher-
and
control,
exclusive dominion and
nalia were found in the trank of the vehi-
handgun
sеmi-automatic
with a box of am-
cle). Likewise, if there was evidence that
clips.
munition and two ammunition
Montaque used
in
the Cadillac
connection
offenses,
with or to facilitate her
then presented
legally
Commonwealth
gone
case
have
jury.
should
to the
But in
satisfy
sufficient evidence to
eaсh element
case,
nothing
there is
to connect the
statute,
218A.992,
namely
gun or the
possession
Cadillac
provides
penalty
for an
for
which
trafficking
drugs.
Nor was the
possession
when com-
being
firearm
in Montaque’s
possession
actual
or within mitting
drug
offense. The trial court
her immediate control when she was аr-
Appellee
denied a directed verdict for
and
rested.
jury
Appellee guilty.
found
by
only
motivated
what can
be described
Finally,
briefly
impact
we
address the
majority
both the
knowledge,
as infused
this case on our
Houston v.
Commonwealth,
an
grafted
and the Court of
have
Ky.,
ham, ver for a directed on a motion all fair and trial court must draw
dict the from the evidence inferences
reasonable Edmonds v.
favor of Commonwealth.
Commonwealth, Ky., 906 interpretation of KRS majority’s plain lan- inconsistent with
218.992 is not The statute does
guage of the statute. fire- of a nexus between
require proof