Commonwealth v. Whitmore

76

islative intent behind grant Stephens’ Subtitle 33. Follow- summary judg motion for ing unambiguous language of the ment. above statutes would not nullify serve to reasons, For the aforementioned I re-

the provisions of the Executive Branch spectfully dissent and would affirm the Ethics, Code of much negatively less im- judgments of the Court of Appeals pact the ability Commission’s to institute Franklin Circuit Court. proper actions any that do not conflict with purview judicial matters within the JOHNSTONE, J., joins this dissent. branch. I Finally, do not believe that the issue of moot,

summary judgment is and I would

hold summary judgment was properly

granted in “Summary this case. judgment properly

is if pleadings entered and all

relevant discovery indicate that there is no

genuine any issue as to material fact and moving party judgment is entitled to Kentucky COMMONWEALTH of as a matter of Toyota law.” Motor Manu Appellant/Cross-Appellee U.S.A., facturing, Epperson, Inc. v. Ky., (1996). 413, 946 S.W.2d 414 Additionally, it necessary is to view the record in the Raymond Appellee/Cross- WHITMORE light most party favorable to the opposing Appellant the motion for summary judgment, and 2000-SC-0932-DG, No. any doubts must be resolved in that partic 2001-SC-0669-DG. Steelvest, ular party’s favor. Inc. v. Scan Center, Inc., steel Ky., Service 807 S.W.2d Supreme Kentucky. Court 476, (1991). 480 Here the circuit court found, and the agreed, 21, Nov. genuine there existed no issue of ma 23, Rehearing Denied Jan.

terial for Stephens’ fact trial. motion for summary judgment supported by affi

davits that were not in any contested form

or fashion the Commission. “If uncon- clearly

troverted affidavits which disclose

the facts show that a genuine issue does exist,

not the opposing party has an obli

gation do something more than rely

upon allegations of his pleading.” Casualty

Continental Company, Inc. v.

Belknap Manufacturing Hardware & Ky.,

Company, S.W.2d

Stephens provided genu evidence that no

ine issue of material fact present,

the Commission put failed to forth

information to merit a dismissal of the Thus,

summary judgment motion. I find

no error the circuit court’s decision to sitting

Whitmore was on a couch and a recognized that he fit the description of an individual sought for questioning in connection with the assault. The officer observed that he fidgeting was jacket around with his hand in pocket. his Whitmore turning away was from the offi- cer so she exactly could not see what he was doing with his hands. She asked Whitmore his name untruthfully and he identified himself as “Mike.” The officer then asked him to stand and take his hand out of his pocket which he refused to do. Eventually he did stand conducted down search to ensure that he carrying any weapons. not The officer a bulge right felt in the front III, Albert B. Chandler Attorney Gen- pocket light of the nylon jacket Whitmore eral, Shepherd, Dennis W. Assistant At- was wearing. She testified at suppres- General, torney Courtney Hightower, J. hearing sion experience based on her Attorney General, Assistant Ap- Criminal arrests, with previous drug believed she pellate Division, Frankfort, Counsel for the sense of touch bulge that a Appellant/Cross-Appellee. pocket his was a bag of crack cocaine. Goyette, Heft, Jr., Daniel’T. Frank Wm. The officer bulge described the as round Office of the Jefferson District Public De- edges hard with that protruded. She fender, Louisville, Counsel for Appel- arrested Whitmore and conducted a more lee/Cross-Appellant. complete search discovering bulge that the approximately pieces contained 20 to 25 THE OPINION OF COURT cocaine, crack individually wrapped, and appeal This is from a decision of the then wrapped plastic bag. The Court of Appeals which reversed the con- approximately amount of cocaine was 6.24 viction of Whitmore of one count of first- grams or 0.21 oz. degree trafficking in a controlled sub- At suppression hearing, the trial

stance. He had a six-year received sen- evidence, judge refused to suppress tence imprisonment. finding that it came within the “plain feel” questions

The presented are whether trial, rule. At claimed that Whitmore constitutional; the search of Whitmore was crack cocaine and that was not his he was whether the seizure of the crack cocaine in holding it for his he would cousin and soon his pocket proper “plain under the him. return it to Whitmore was convicted rule, feel” and whether the first-degree trafficking a controlled tions principles violated of unanimity of years substance and sentenced to six verdict. prison.

The went to a residence to serve The Appeals Court of reversed the con- an Crowder, arrest warrant They for an assault. citing viction Commonwealth v. (1994), were allowed inside Ky., resident where holding 884 S.W.2d 649 that a they found approximately six people. simple bulge pocket jacket in the of the may innocent to a qualify being immediately ap- appear could not as from facts that parent required contraband as under the reviewing and that a court lay person “plain ap- feel” rule. The Commonwealth weight due to the assessment give should pealed the decision of the Court of credibility of the the trial court excluding the seized contraband and of the infer- officer and the reasonableness cross-appealed on the issue of ences. granted instructions. This Court both the motion and cross-motion and ac- Pat Down Lawful I. cepted discretionary review. per A which is protective search

A. Standard of Review a warrant on the mitted without basis of Our standard review of a deci suspicion probable of reasonable less than sion of the circuit suppression court on a strictly cause be limited to that which must following motion a hearing is twofold. necessary discovery weapons is for the of First, the factual findings of the circuit might which be used to harm the officer or court are conclusive if they supported are Ohio, 1, nearby. Terry others v. 392 U.S. 9.78; by substantial evidence. RCr Canter 1868, (1968); see 88 S.Ct. 20 L.Ed.2d 889 Commonwealth, Ky., 870 219 S.W.2d Crowder, supra. purpose also The (1994). Second, when findings the of fact limited to search is not discover evidence evidence, are supported substantial the crime, of a but to allow the officer to question then becomes whether the rule of pursue investigation the without fear of applied law as the to established facts is Dickerson, violence. Minnesota v. 508 Commonwealth, Ky., violated. Adcock v. 366, 2130, U.S. 113 124 L.Ed.2d 334 S.Ct. (1998). 967 6 Kentucky S.W.2d has (1993). adopted approach the standard of review Here, expressed the United States Supreme officer had a be- the reasonable States, in Ornelas v. United 517 lief that Whitmore was armed. The offi- 690, 1657, 116 U.S. S.Ct. 134 L.Ed.2d 911 a in police housing cer was liaison Banks, Ky., See Commonwealth v. project high which was crime and (2001). Ornelas, 68 347 swpra, S.W.3d drug trafficking area. had been to She states in part as follows: apartment, where Whitmore general

[A]s matter determinations numerous had staying, times before and of suspicion probable reasonable weapons seen there. When the officer cause should be reviewed de novo on apartment, began entered the this, appeal. Having said we hasten fidgeting turning away from her. He point to out reviewing that a court gave then officer false name take should care both to review find- remove refused to his hand from his ings of historical fact for clear pocket upon to- request. Considering the give error and to due infer- weight to circumstances, tality of offi- police ences drawn from those facts resi- cer had sufficient facts to form a reason- judges dent and local law enforcement able belief that Whitmore was armed and officers. to a protec- she was entitled conduct 1663, 517 U.S. at 116 S.Ct. at 134 trial pat judge tive down search. The at L.Ed.2d correctly sup- overruled the motion to press the crack cocaine evidence based on The court recognized Ornelas may activity claim an illegal pat draw inferences unlawful down.

II. Plain Feel ticipated over drug arrests. She stated that wearing Whitmore was a light a police lawfully When nylon jacket and that pat when she did the pats down the outer clothing suspect of a search, bag down crack cocaine was object and feels an whose contour or mass immediately recognizable based on her ex- identity makes its immediately apparent, perience. The officer testified to specific privacy there is no violation of beyond that and articulable facts that the bulge already permitted by down search nylon jacket contained contraband. She Dickerson, for weapons. supra. The war- amount, described the the shape and the rantless seizure of such justi materials is packaging unique feel of the sub- fied under the same principles expressed and. stance. She stated that these facts indi- the plain view doctrine. her, cated experience, based on her In Kentucky, in determining whether a bulge Moreover, was crack cocaine. “plain “plain feel” or touch” applica- rule is the substance in any was not container ble, it has been concluded that a narrowly identity. shielded its The seizure of exception drawn requirement for a the crack cocaine lawful and the trial warrant appropriate require- is when the judge overruling was correct the motion ments Terry, supra, are otherwise met suppress. findings The factual of the nonthreatening contraband is im- trial judge this situation are conclusive. mediately apparent from a sense of touch. RCr 9.78. The the trial judge decision of Commonwealth, See Pitman v. Ky.App., a pat correct as matter of law. The (1995); 896 S.W.2d 19 Crowder. down of Whitmore and the seizure of the persuaded by We are those federal crack pocket cocaine from his did not vio- circuit court decisions that hold that evi late either the federal or state constitution dence can be properly seized under the in any regard. We reverse the Court of plain feel doctrine unless the officer doing Appeals on this issue. manipulated object down way some determining before it to be con Jury III. Instructions if traband or the contraband in a is con tainer, thus, making identity its not imme cross-appeal desig On diately apparent. Hughes, See U.S. v. 15 nated an additional issue which was not (8th Cir.1994), F.3d 798 where it was held reached Appeals, the Court of to-wit: that properly evidence was seized under unanimity jury of the verdict. Whit- plain feel doctrine after an officer im trafficking more tendered a instruction mediately recognized the crack cocaine as which to convict him if it jury allowed the contraband and there was no manipulation found cocaine possessed that he crack with of the Ashley, contraband. See U.S. v. 37 the person. intent to sell it to another The (D.C.Cir.1994), F.3d 678 it where was held trafficking given by instruction the trial properly evidence was seized under judge jury allowed the to find Whitmore because, plain feel doctrine based on if guilty possessed it found that he crack officer, experience of an identity of distribute, cocaine the intent to dis “with the crack cocaine immediately appar sell, pense, per or transfer it to another ent. Craft, See also U.S. v. 30 F.3d 1044 argues son.” Whitmore that the evidence (8th Cir.1994). only support trafficking at trial would

Here, finding pos the officer testified at the conviction based on a that he sup- pression hearing years that she had four with an intent to it to sessed cocaine sell Thus, experience par- as a had person. another he asks this Court Any trafficking supported by to consider whether a instruc- the evidence.” instruc- him a conviction on the jury-to permits tion which allows the convict tion which supported on theories were not basis of alternative theories that are not right evidence violates his constitutional the evidence runs afoul of supported ju- a unanimous He that a that each process requirement verdict. contends the due trafficking theory guilt instruction violates the unanim- on a ror’s verdict be based of ity requirement Kentucky of the constitu- proven which the Commonwealth has tion, Two, and Eleven as every beyond Sections Seven each and element reason- 9.82(1) Here, well as RCr and the federal consti- able doubt. there was insufficient tution, presents jury if it with possessed theories the co- evidence WTdtmore guilt supported by that are not with to manufacture or dis- caine intent it, evidence. He cites Burnett v. Common- pense trafficking and thus the wealth, Ky., 31 S.W.3d 878 unanimity requirement. tion violated the

Burnett, supra, held that a defendant is judgment of conviction is reversed The denied unanimous verdict when the and this matter is remanded to the circuit presented is with alternate theories of court for a new trial at which the is to instructions, guilt in the and one or more it can find be instructed WTfit- theories, all, unsup- those but not are guilty trafficking possessed more if he ported by majority the evidence. The in the cocaine with the intent to sell or dis- error, that case held that pre- such when it, accompanied by statutory tribute served, subject was not ato harmless er- definition of those terms. analysis. ror opinion The is Here, the evidence was sufficient for the reversed and matter is remanded to jury guilty to believe that Whitmore was of the circuit court for a new trial. possessing cocaine with intent to sell it. Whitmore concedes jury as much. The COOPER, GRAVES, JOHNSTONE could easily also infer that he possessed it STUMBO, JJ., concur. with the intent to distribute it. The inac- KELLER, J., by separate concurs curacy with the instruction was that it also opinion. included the elements of manufacturing and dispensing. inaccuracy Such stems J., WINTERSHEIMER, dissents to statutory

from the definitions in KRS by separate opinion joined Part III and is 218A.010. Subsection 28 of that statute LAMBERT, C.J. manufacture, defines “traffic” as “... to distribute, sell, dispense, Justice, pos- KELLER, transfer or Concurring. manufacture, distribute, sess with intent to Although agree completely I with the dispense, or sell a controlled substance.” majority opinion’s bottom-line conclusion case, In this there was no evidence that that, while down of Wfiiitmore “[t]he possessed the cocaine with the and the seizure of the crack cocaine from intent to dispense manufacture or it. pocket his did not violate either the federal Burnett, constitution,”1 As noted in “It cannot convic- Appellant’s be or state ascertained from the verdict form oth be and remanded for a or tion must reversed jurors trafficking from the that all “the erwise record the new trial because theory unanimity requirement,”2 voted to convict the defendant on a tion violates the Majority Opinion at 92 S.W.3d at 80 Id. at 81. in- trial court’s rectly do observes that the separately I write because I not believe majority opinion adequately describes a permitted jury to return structions in this the instructional errors case another rea- yet non-unanimous verdict for a permitted jury to return non-unani- the ele- they erroneously “included son— verdict, I that a more mous believe and no evi- manufacturing”5 of ment[] analysis complete of those errors will be support a dence was introduced at trial to the bench and bar. benefit Appellant possessed co- conclusion “manufacture”6 it. caine with the intent to case, In No. 1 set forth Instruction course, an examination of instruction the trial court’s instruction on Of FirsiADegree Trafficking offense trial court’s No. 1 will reveal Substance: Controlled FirsF-Degree as to substantive instruction Defendant, in a Substance does Trafficking Controlled Raymond You will find Whitmore, “manufacture” or guilty under this Instruction not contain the word if, if, you believe from left unan- question derivation of it. The beyond evidence a reasonable doubt all therefore, majority opinion, swered following: erroneously instructions is “how did the And, County, theory?” A. That Ken- the ‘manufacture’ present Jefferson day tucky, on or about the 22nd I believe that an answer to because April, the Defendant had may help Kentucky trial courts question quantity of possession in his future, I write avoid similar errors Cocaine; answering it. hopes in the separately Defendant doing, B. That so 1, standing No. Although Instruction Cocaine; knew the substance alone, permitted improperly AND verdict under return a non-unanimous That he had the Cocaine his C. No. 1 unfor- “dispense” theory, Instruction with the intent to dis- possession Instead, the tunately did not stand alone. tribute, dispense, sell or transfer No. 3 included trial court’s Instruction person.3 it to another of the term “traffick- separate definition alone, this instruction violated Standing that that mirrored the definition of ing” Appellant’s right to a unanimous verdict 218A.010(28) presented term in KRS there was no evidence introduced because theory unsupported the “manufacture” theory Appel- support at trial to the the evidence: cocaine with the intent to possessed lant manufacture, to “Trafficking” “dispense” Kentucky’s it Controlled as —Means sell, distribute, transfer or dispense, term.4 The Act defines Substances manufacture, case, however, the intent to possess cor- with majority opinion this subject by pursuant to the or con- user or research In to the unanimous verdict addition including instruction er- practitioner, cerns identified elsewhere this the order of a lawful appellant roneously permitted jury the to find compounding neces- packaging, labeling, or trafficking guilty first-degree if it believed sary prepare substance for that deliv- to possessed with the intent to that he cocaine ery.”). general assembly has not "transfer” it. The "possession with the intent to trans- defined Opinion, supra at 81. Majority note 218A.010(28). trafficking. fer” as See KRS 218A.010(7) (" 'Dispense' means to 4. See KRS 218A.010(13). 6. See KRS substance to an ultimate deliver a controlled distribute, dispense, or sell a controlled The evidence at trial demonstrated that possessing substance. was either the co- sell, according caine with the intent to or past, In the this has Court observed that him, Thus, his cousin. holding it for no jury purporting instructions to “define” have juror reasonable could convicted separately criminal offenses from substan- possession Whitmore of but with anything jury tive are “surplusage, instructions possession. intent to sell or mere In order since the substantive instructions em- guilty possession find Whitmore with bod[y] the essentials of definition.”7 dispense, intent to distribute or transfer I expressed And have previously my fear cocaine, would jury have had to a separate, definition of abstract ignore presented. the evidence As noted offense, especially criminal when it differs dissenting opinion Justice Graves in his jury from instruction sets forth Burnett, any error harmless. elements of in particular that offense I would case, reverse decision of the jury “risks confusion invites er- affirm original Court of That apparently ror.”8 fear has come conviction. roost, home to as the instructions

case, when totality, viewed their risked LAMBERT, C.J., joins this dissent. only non-unanimous verdict not because presented

Instruction No. 1 a “dispense”

theory evidence, unsupported but misleading

also because the definition of

“trafficking” contained in Instruction No. 3

presented a theory unsup- “manufacture” When,

ported here, the evidence. as same set of instructions contains two Jerry HORN, Movant, L. crime, different definitions of the same we

cannot with degree of confidence as- that, in deliberating sert the defendant’s ASSOCIATION, KENTUCKY BAR guilt, considered one of the Respondent. Accordingly, two definitions. I again “cau- No. 2001-SC-0454-KB. tion the trial courts of the Commonwealth abstractly risks of defining an of- Supreme Kentucky. separately fense within the 19, 2002. Dec. tions.”

WINTERSHEIMER, Justice,

Dissenting. respectfully

I must dissent from the

opinion written for majority

matter because possible error in the was totally pursuant

instruction harmless

to RCr 9.24. Commonwealth, (Keller, J., Tharp concurring).

7. 40 S.W.3d Id. at 369 (Keller, J., concurring). Id. at 370

Case Details

Case Name: Commonwealth v. Whitmore

Court Name: Kentucky Supreme Court

Date Published: Nov 21, 2002

Citation: 92 S.W.3d 76

Docket Number: 2000-SC-0932-DG, 2001-SC-0669-DG

Court Abbreviation: Ky.