*1 to rule then testified he was able examiner match
out a between fatal bullet ri- Wetherby bullets fired from three
test apparent- rifles
fles from Ohio. Those were at or about time
ly manufactured the same the rifle from the seized residence
Ragland’s purpose mother. The
testimony Rag- was showed murder
land’s rifle could have been the The evidence was relevant
weapon. outweigh not its
any prejudicial effect did jury con-
probative value. The testimony. There
fused or misled Simpson
was no abuse of discretion. Cf.
(Ky.
1994).
A in the record review the evidence af-
requires the conviction should be in all respects.
firmed
GRAVES, J., joins. MATHENEY,
Jeffrey Appellant, Kentucky,
COMMONWEALTH
Appellee.
No. 2002-SC-0920-MR. Kentucky.
Supreme Court
March 2006. April
As Modified 2006. June 2006.
Rehearing Denied *3 Advo- May,
Euva D. Assistant Public cate, Frankfort, Appellant. Counsel for General, Stumbo, Attorney Gregory D. Fuchs, Attorney Gregory C. Assistant General, Heilman, A. Assistant Elizabeth General, Frankfort, Attorney Counsel Appellee.
Opinion the Court Justice ROACH.
Appellant Jeffrey Matheney was convict jury of Hopkins ed Circuit Court methamphetamine and of manufacturing being a persistent felony offender He degree. second was sentenced twenty appeals to years imprisonment and Appellant matter of right. this Court as a he did all argues possess that since necessary to meth chemicals manufacture must be re amphetamine, his conviction v. Common pursuant versed Kotila wealth, (Ky.2003). We wrongfully Kotila was decid conclude that Appellant’s conviction. ed affirm Kotila I. Issue accompa- Appellant, On March children, traveled to nied his wife Madisonville, Madisonville, Kentucky. In Matheney boxes of purchased Mrs. two Appel- at the Dollar cold medicine Store. boxes of cold purchased lant then two at the More for Less Store. The medicine family parts to an then traveled auto store Pyro (starting purchased three cans of fluid) store and then went a hardware purchased gallon Liquid Fire. shopping They traveled another then of Su- purchased center and two boxes (b) dafed. purchase, After this family Possesses the chemicals or equip- yet center, traveled to shopping another ment for the manufacture of metham- Appellant where purchased two more box- phetamine the intent to manufac- es of drug Sudafed from a Rite Aid store. methamphetamine. ture manager store of this Rite Aid recog- Assembly The General has now amended Appellant nized as the same individual who person to read that a had bought two boxes of Sudafed three guilty of manufacturing methamphet- weeks earlier and police called the to re- “(b) amine when he knowingly lawfully port purchases. A police officer con- with intent methamphet- manufacture Appellant fronted in the parking lot and possesses amine two or more chemicals *4 ultimately Matheneys consented to a or two or more equipment items of for search of their car. The trunk contained the manufacture of methamphetamine.” 396 cold allergy pills containing ephed- and (effective Kentucky 150, § 2005 Laws ch. rine or pseudoephedrine, gallon Liquid 2005). June Fire and three Pyro. Appellant cans of and Commonwealth, In Kotila v. his wife S.W.3d were arrested. (Ky.2003), this Court held that The evidence at trial established that 218A.1432(l)(b) version of in KRS then the following necessary chemicals are required effect possession of all the chemi- (i) methamphetamine: manufacture ephed- equipment necessary cals or to manufac- (ii) rine or pseudoephedrine; potassium, ture methamphetamine. Essentially, this lithium, (iii) metal; or some other reactive Court found that the statute’s use of the (iv) (v) ammonia; anhydrous ether; acid; word “the” person meant that a could be (vi) potassium.1 and salt or Appellant pos- (l)(b) subpart convicted under of the stat- (in only ephedrine sessed the Sudafed and ute for all the chemicals pills), (Liquid cold acid Fire can serve as (as equipment opposed “any” or acid), requisite (starting ether “some” of equipment) the chemicals or for ether). fluid contains This case was tried the manufacture of methamphetamine. Kotila, jury before our decision in thus the The majority Kotila based this conclusion was not instructed that Appellant had to on grammatical construction and subse- possess all of the necessary chemicals quent statutory enactments the General the manufacture of methamphetamine. Assembly. attempting While to discern Counsel for Appellant object did not to the Assembly’s by analyz- General intent instructions, Appellant but claims that the ing subsequent legislation, majority error palpable constitutes error. opinion precise conceded that the intent of 15, 1998, July From when manufactur- Assembly ambiguous. the General was ing methamphetamine was first made a Commonwealth, crime in this until June rejected majority applica- The also 218A.1432(1) 20, 2005, simply provid- KRS bility attempt of criminal under KRS ed: 506.010 equip- unless all the chemicals or person
A guilty manufacturing necessary ment to manufacture metham- methamphetamine when he knowingly phetamine present. were Keller Justice unlawfully: opinion relating concurred the Court’s (a) 218A.1432(l)(b). However, methamphetamine; Manufactures to KRS he be- 1. This list of chemicals is consistent with the S.W.3d at 236. Kotila, expert testimony in Kotila. In applied Varble v. S.W.3d
lieved 506.010 “defen- KRS (Ky.2004), upheld who to manufacture metham- this Court dants intend 128A.1432(1)(b) phetamine who undertake ‘substantial conviction under KRS manufacturing metham- steps’ towards anhydrous except all chemicals where ma- knowingly accumulating phetamine equipment except all the ammonia and so, but are necessary terials to do who held present. a filter were Court they complete can apprehended before anhydrous “the odor of ammonia” Meth- Manufacturing nature a dust unspecified “filter by knowingly pos- amphetamine offense sufficient evidence filter mask” were sessing all of the chemicals or all of the satisfy Id. at 254. Justice Kotila. Chief equipment necessary to manufacture holding Lambert remarked Kotila, 114 methamphetamine.” significant depar “a represented Varble (Keller, J., concurring part and dis- rule bright ture from line announced senting part). (Lambert, C.J., con Kotila.” at 256 Id. Chief Justice Lambert authored a dis- curring). sent, joined by Justice Winter- Additionally, Justice ex Graves’s *5 argued Chief Lambert sheimer. Justice in Kotila dissent press disavowal of his if Assembly that the General had intended Fulcher, have four members this Court majority to as the the statute be construed necessarily demonstrate cast votes that did, surely “it would have used word the ” holding disagreement their with Kotila’s general rather than ‘all’ the more ‘the.’ regarding KRS 506.010 application the
Kotila, C.J., (Lambert, at 256 (Criminal Attempt) methamphetamine dissenting). the One member of Kotila Kotila, 114 manufacturing offenses. See majority subsequently has that admitted (Keller, J., concurring in S.W.3d at by metaphysical “was infatu- he seduced dissenting part); id. at 256 part absurdity” ation which to an con- led (Lambert, C.J., dissenting joined part, cluded that Kotila “does violence to the Wintershiemer, J.); Fulcher v. Com concept of common sense.” Fulcher monwealth, (Ky.2004) 149 S.W.3d Commonwealth, (Ky. (Graves, J., dissenting). 2004) (Graves, J., dissenting). Fulcher,
In despite the fact that rendered, two Since Kotila was over possessed plethora equip- defendant years ago, increasingly clear it has become and chemicals to make methamphet- ment in that Graves was correct Justice amine, the that since Court held there was of all chemicals requiring possession lithium, no or evidence sodium metal under equipment uphold or a conviction possess defendant did not all the chemicals 128A.1432(l)(b) defies common sense. KRS necessary methamphet- to manufacture decisis though And considerations stare addition, amine. In since there no were Koti- normally guide us adhere to would bowls, pliers, mixing stirring devices la, overlook fact that simply we cannot possess also failed to defendant all reasoning in deci- subsequent the Court’s equipment necessary to manufacture 218A.1432(l)(b) has addressing sions KRS methamphetamine. already significantly from departed Therefore, one bright-line go rule. we struggled
This Court has with the ef- con- hold that Kotila’s step This further and day of Kotila from one. is clear fects in- struction bright the fact line rule of from for about six months. correct. Kotila survived
We do not reverse lightly. Kotila sess two or more chemicals or items of As the dissent observes its extensive equipment with the intent to manufacture discussion, stare decisis is an important methamphetamine to fall within the stat- guiding principle in jurispru American ute. This construction is based on a com- dence. point, On that we are in complete ,approach mon sense gives proper im- agreement. However, as this Court has port to plural the use of the “chemicals.” recently, noted course, any Of conviction satisfy must also
the doctrine of stare decisis
does
requirement
the scienter
contained in KRS
commit us to the sanctification of ancient
218A.1432(l)(b).
light
In
of this construc-
relatively
fallacy.
recent
While we
tion, we need not
Appellant’s
consider
ar-
recognize this Court should decide cases
gument
error,
regarding palpable
because
respect
with a
precedent,
this re-
no error occurred regarding
jury
in-
spect
require
does not
blind imitation of
structions.
past
or unquestioned acceptance ad
Rather,
infinitum.
many
ways, re-
Appellant
argues
also
that KRS
spect
precedent
proper
demands
re-
218A.1432(1)(b) is unconstitutionally void
consideration when we find
legal
sound
for vagueness. Essentially, Appellant ar
question
reasons to
the correctness of gues
218A.1432(1)(b)
if
that KRS
is inter
prior
our
analysis.
preted
encompass
possession of less
Commonwealth,
Morrow v.
than all the
equipment
chemicals or
neces
(internal brackets,
(Ky.2002)
quotation
sary for the manufacture of methamphet
marks,
omitted),
and footnotes
overruling
amine,
required
then a citizen is
guess
Gray v.
We construe the
what
KRS
218A.1432(1)(b)
difficult,
that
“It would be
if
impossible,
states “the chemicals
or equipment
person
for the
inadvertently purposely
manufacture of meth
to
amphetamine” to mean that one
pos- knowingly
must
take action in furtherance of the
that, although
2. We note
Accordingly,
Morrow reversed the
silentio.
and mindful of stare
ques
decisis,
Court's construction of the
Court,
statute in
join
opinion
I
tion,
Cooper
joined
Justice
nonetheless
its
primarily
punitive
to ensure that the
dam-
majority opinion.
ages analysis
majority
receives a
vote. I do
Curiously,
Cooper’s
Justice
dissent
so, however,
cites to
hope
with the
that in due time a
concurring opinion Kentucky Dept,
his
majority
recognize
the Court will
and cor-
McCullough,
Corrections v.
123 S.W.3d
rect the
made
error
in Furr. See Scott v.
(Ky.2003),
involving
another case
statuto-
Illinois,
367, 374-75,
440 U.S.
99 S.Ct.
construction,
ry
fidelity
to demonstrate his
to
1158, 1162-63,
amine.” Therefore, we conclude that KRS prosecu- Appellant alleges next that the unconstitutionally is not argu- during closing the law tor misstated vague. Specifically prosecu- ment. he claims the stating: tor erred Ephedrine
II. Prior
Purchase
into the
Assembly] put
General
[The
chemi
people
possess
who
statute
also
due
Appellant
claims he was denied
necessary to
equipment
cals and/or
process
the trial
evi-
when
court admitted
manufacture,
those
with intent
ephedrine
of a
from
prior
purchase
dence
be used
equipment
chemicals
Aid
final
the Rite
where he made his
violating
are guilty
manufacture
[of
al-
ephedrine purchase. The trial court
218A.1432(1)(b)
not fall into
Do
].
why
lowed the evidence because it showed
do
the defense
trap,
not let
manager
Rite Aid
police:
called the
*7
law,
make me
counsel rewrite the
to
recognized
person
had
Appellant
she
prove
they
to
that
themselves were
have
large
purchased
who had
an additional
that I
manufacturing
to do the
going
only a few
quantity
cold/allergy pills
they
manu
prove
going
to
to
have
were
Appellant
before.
to
weeks
cites
Sanborn
product
That is
facture the
themselves.
Commonwealth,
(Ky.
v.
We first note that Appellant is cor Barnes v. 91 S.W.3d prosecutor technically rect mis (Ky.2002) (citing 568 United States v. Car stated language the law. The of KRS roll, (6th Cir.1994); 26 F.3d 218A.1432(l)(b) is requisite clear Bess, United States v. 593 F.2d intent is to manufacture metham “inten[t] (6th Cir.1979)). Because Appellant did phetamine,” not intent that the chemicals trial, object at only we need evaluate equipment (by be used someone and/or prosecutor’s whether misstatement else) in methamphet the manufacture of “flagrant.” amine. prosecutor’s description The prosecutor appears have only appropriate law would if Appellant misstated the law the one time noted prosecuted had been for complicity During closing above. the rest of his ar manufacturing methamphetamine as al intent, gument, lowed KRS 502.020 criminal facili when he referred to he tation under KRS 506.080. simply Appellant stated that had to have possessed the chemicals “with intent”— support To his claim that reversal again defining, correctly without or incor is required, Appellant points Mattingly rectly, single term. This misstate Commonwealth, (Ky. mitigated by ment was also the fact that App.1993),3 Appeals where the Court of jury the trial correctly court’s instructions reversed a during conviction where they required reflected the law in that prosecutor trial the misstated the law jury to find that Appellant possessed the insanity defense and the defendant had or equipment chemicals “with the intent to “very made a strong insanity.” case Id. presumed manufacture.” Juries are to fol However, alone, at 800. a misstatement low the instructions of the trial court. objected especially when it is not to at Johnson v. trial, automatically require does not rever (Ky.2003); also see Scobee Don sal. ahue, Ky. A claim prosecutor that the mis (1942) (“It jury is to be assumed that the in closing argument stated the law is a ..; followed the evidence and instructions prosecutorial claim of misconduct. We fol entirety.”); in their United States v. approach Appeals low the of the Court of Davis, (6th Cir.2002) 306 F.3d reviewing the Sixth Circuit when al (“Juries in presumed are follow the misconduct, leged prosecutorial thus they given.”). structions are And Appel for prosecutorial we reverse misconduct lant, defense was that he did not whose in a if closing argument only the miscon intent, obviously requisite have the did not *8 “flagrant” duct is or if each of the fol that prosecutor’s think the misstatement lowing three is satisfied: conditions flagrant object was since he did not at (1) guilt Proof defendant’s is not jury correctly trial. Given that the was overwhelming; instructed the court and that the trial objected; Defense counsel and prosecutor backed off from his misstate closing argument ment of the as his law court failed to the' The trial cure say proceeded, we cannot that his mis admonishment
error with sufficient to jury. flagrant to the statement rose the level of Appellant mistakenly Mattingly Appeals, decision the review of 3. claims that Court of fact, was rendered this Court. In it was a which was denied this Court. brief, goes that this states reply Appellant misconduct.4 for pills the possessed he whether Testimony Employee IV. School fact of is not a purpose, which a lawful person that a proof But consequence. that Appellant next claims ephed- pills containing possess not does improperly shifted the burden prosecutor lawful for a claimed rine/pseudoephedrine by introducing nonprobative evi proof evidence that is circumstantial impeach purpose his out-of-court state dence for an unlaw- pills cold those why possessed person possesses he ments about manufacturing testify namely for allergy pills, purpose, and when he did ful evi- objection at in turn is there was no Again, methamphetamine, trial. such, introduction of trial, now asks us to review As Appellant dence of intent. error, pal- error. much less palpable the matter was not the evidence pable error. objects to testi- Appellant Specifically, use of mony offered about his children’s Testimony Medical V. allergy pills. Appellant When
cold
arrested,
police
he
that he
told
issue with
Appellant also raises
bought
allergy pills
be-
had
cold
testimony
introduced to
that was
similar
allergies
cause he and his children have
pills
took the
his claim that he
refute
pills
and because he would send
po
allergies. Appellant told
his own
statement
school with his children. This
allergy pills per
12-16
lice that he took
was introduced at trial. The school nurse
introduced, and
day. This statement was
guidance
Appellant’s
counselor
to refute
prosecutor
proceeded
then
children’s school testified that it would vio-
testimony
large,
that such
medical
policy
pills
late school
to send the
to school
consumption
pseudoephedrine
sustained
children,
with the
that the school had been
“significant
prob
medical
would lead to
any
notice of
given
problems,
no
medical
lems,”
hypertension
including extreme
and,
children,
including allergies, of the
actually
Appellant
an elevated heart rate.
importantly,
most
the children’s
objected
testimony at trial and now
to this
pill
reported allergy
teachers would have
improper
claims that its introduction was
report
use to the
but no such
had
nurse
matter.
impeachment on a collateral
Appellant argues
been made.
proba-
more
than
prejudicial
evidence was
consis
Kentucky
has
The law
tive, showing only
Appellant
lied to
collater
impeachment on
tently prohibited
intent
police
and not that he had
Commonwealth,
al
facts. See Metcalf
methamphetamine.
manufacture
(Ky.2005); Purcell v.
382, 397-98
claim to the
Despite Appellant’s
Commonwealth, 95
Neal v.
contrary,
(Ky.2004);
offered and
this evidence was
(Ky.2003);
Slaven Com
his intent.
In his S.W.3d
was relevant
show
(in
pos-
Appellant
was substantial evidence
form
4. We
that even if
had
also note
misconduct,
ephed-
a substantial amount of
flagrant
because there
session of
shown
trial,
rine/pseudoephedrine
and other chemicals
objection
have
was no
we would also
manufacturing
repeated
process,
in the
Appellant suffered "manifest in-
used
to find that
*9
multiple
buy pills con-
any
trips to
retail stores to
justice”
grant
we
relief to
before
could
Appel-
taining ephedrine/pseudoephedrine) of
might
as to the
have been entitled
he
methamphet-
intent
to manufacture
unpreserved
CR 10.26. Given that the
lant's
error.
amine,
say
Appellant
simply cannot
that
properly
the
we
trial court’s instructions
stated
injustice.
manifest
Appellant’s intent and that there
suffered
law as to
monwealth,
(Ky.1997).
agree
962 S.W.2d
I
expla
with the dissent’s learned
testimony
question,
The
importance
medical
nation of
history
howev
the
of the
er,
Rather,
was not about collateral facts.
doctrine of
As the
stare decisis.
dissent
Appel
out,
was circumstantial
points
evidence
“stare decisis
means
[is]
lant’s
unlawful use of
drugs
intended
which we
that
the law
ensure
will
merely
he had
because it
purchased
change erratically,
develop
showed that
but will
he had purchased
intelligible
far more than
medi
in a principled
fashion.”
cally necessary or
(quoting Vasquez
even advisable to use. Ante
v. Hil
618-19
265-66,
testimony
lery,
was proper.
medical
U.S.
S.Ct.
(1986)).
However,
contained therein. preferred Stare decisis is the course be-
Concurring opinion
evenhanded,
of Justice GRAVES.
cause it promotes
pre-
dictable,
development
consistent
It is
evident
the dissent feels pas
legal
judi-
fosters reliance
principles,
on
sionately about the issues under consider
decisions,
cial
and contributes
the ac-
ation.
I
dissent
respect
giv
and have
and, perceived integrity
judi-
tual
of the
However,
en careful consideration.
for the
n
Adhering
precedent
process.
cial
previously
my
set forth in
reasons
dissent
usually
policy, because in most
the wise
Commonwealth,
ing opinion in
v.
Fulcher
important
matters it is more
(Graves,
(Ky.2004)
381-82
applicable rule of law be settled than it
J., dissenting) and consistent with the ba
Nevertheless,
right.’
be settled
when
chemistry explained
sic
principles
are unworkable or
governing decisions
Hayward,
Commonwealth
reasoned,
badly
are
‘this Court has nev-
674 (Ky.2001),
majority’s
I concur with the
precedent.’
er felt
to follow
constrained
analysis
disposi
sound
and well reasoned
Stare
is not an inexorable com-
decisis
tion in this case.
mand;
principle
policy
rather it ‘is
polemics
polarizing
ar-
Unyielding
and not
formula of
a mechanical
adher-
necessary for
guments
presen-
are not
ence to the latest decision.’
explanation
legal
tation
rational
of a
Tennessee,
808, 827-30,
justification
change
my
Payne
vote
501 U.S.
2609-11,
111 S.Ct.
609 Conliffe, 170 S.W.3d Lambert); Stopher v. (citations omit concurring) quotations Keller); by St. ted). 307, (op. J. (Ky.2005) adhered to 310 Kentucky, In we have 510, Commonwealth, 140 understanding of the doc S.W.3d Clair v. prevailing this Court); See, e.g., Crayton 532, (Ky.2004) (op. v. Common of trine. 572 (“it wealth, 684, (Ky.1993) 689 846 S.W.2d 133 S.W.3d Hampton v. Graves); continually our duty 438, by our to re-examine Ra (Ky.2004) (op. J. 442 560, of prevent perpetuation (Ky. prior decisions 564 Philpot, 130 S.W.3d pier v. Combs, error”); Lodge also, v. 2004) Johnstone); Motor Re Corbin see (op. by J. 944, (precedent (Ky.1987) 1, 946 (Ky. 740 S.W.2d 2 142 Phelps, v. S.W.3d genstreif com the need is may be overturned where 2004) Keller)(overruling Court (op. by J. Hoofnel, 287 Messer, Adm’r v. pelling); Daniel’s 134 Messer v. precedent); Appeals (“This (1941) 834, 469, 471 Ky. 155 S.W.2d 570, (op. by J. Coo (Ky.2004) 573 in is not ] rule decisis [stare wholesome prece Appeals per) (overruling Court require imperative or so flexible dent). ”); McCormack of error .... perpetration status, the ma- disfavored Mindful of its R.R., Ky. & Nashville v. Louisville the merits jority carefully considered (“Upon 161 S.W. determined, has as this Court the case and decisis, of stare the decisions principle two past in the done at least seven times by been rendered a court will
which have warranted compelling reasons years, that by subsequent such court in be adhered by no This was precedent. reversal of cases, manifestly something unless there is activism,” “judicial but display means ....”). erroneous therein perpetua- to halt the obligation rather an Indeed, a of our caselaw sampling brief hindsight, it is error. In egregious tion of no year period over a mere two reveals arose.1 how such error understandable opinions purporting than seven less Kotila, the forensic Unfortunately, previously established precedent overrule maladroit merely described the chemist by this Court. See Fletcher Common operators clandestine process wealth, (Ky.2005) (op. 163 S.W.3d methamphetamine. Subse- manufacture Cooper); Matthews v. Common J. Kotila, the chemi- my research of wealth, quent to (Ky.2005)(op. 26-27 methamphet- Keller); cal literature revealed Mobley, by J. Commonwealth only two manufactured with may amine (Ky.2005)(op. by C.J. Joiner, Breyer, According to Justice some 2. Electric Co. v. Justice 1. In General difficulty” compen- Breyer judges “inherent faced in order to steps noted the should take by judges evaluating is- expertise” when science-related "comparative lack sate for their sues, help steps and the that can be taken pretrial 16’s use of Rule include "increased judge’s "comparative lack compensate for the authority the scientific to narrow conference subject U.S. expertise” in the area. 522 po- hearings dispute, pretrial where issues in 512, 520-21, 147-50, S.Ct. experts subject to examination are tential concurring) (Breyer,J., L.Ed.2d 508 court, special appointment of and the have ("[Jjudges are not scientists and do not Id. specially trained law clerks.” masters and training can facilitate the the scientific case, my prior S.Ct. 512. In decisions.”). Despite making this in- of such Chemistry permitted to review training me Breyer on to difficulty, Justice went herent comprehend chemical litera- the relevant however, diffi- emphasize, that "neither the disputed pertaining to the issue. ture any comparative culty the task nor lack judge from exercis- expertise can excuse the ing 'gatekeeper' duties” that the Daubert imposes. Id. Rule *11 chemicals, namely, a methamphetamine duty to admit a opportu- mistake when the precursor (usually ephedrine psue- or nity and compel circumstances remedia- doephedrine) and a reducing chemical Accordingly, respectfully tion. I concur agent3. The in other chemicals mentioned majority opinion. testimony catalysts of Kotila are either Scott, J., “heartily” concurs in the burial to speed the reaction and other chemical Commonwealth, of Kotila v.
reagents or impurities solvents to remove Ky.2003). Thirty-one years in the byproducts and during synthesis. The Kentucky courtrooms of taught have me auxiliary chemicals convert the crude un- which, many things, one of is “stare deci- methamphetamine distilled which is unsui- sis” does not perpetuation command the consumption table human into refined wrong a decision! And when such a re- methamphetamine which is marketable for jurist spected says as Justice Graves it’s consumption. Upon human further exami- wrong' right! —-he’s cases, nation in subsequent it became obvi- testimony ous that the scientific in utilized Dissenting opinion by Justice COOPER. Kotila was incomplete and that such an startling display judicial activism, In a inadequate understanding of the essential Court, majority of this without benefit methamphetamine chemical elements of briefing argument or oral and without ei- synthesis in resulted an absurd and un- so, party suggesting today ther that it do interpretation applicable workable overrules Kotila v. statute. (Ky.2003), the established alchemy. The decision Kotila is The precedent interpreting the 1998 version of philosophy alchemists mixed and science 218A.1432(l)(b), thereby and re- Ages. the Middle Modern science has dis- writes that criminal statute to substitute alchemy. duty credited ac- We have its notion of public policy own for that cept reality impossible scientific as it is by Assembly. established In General - an opinion of the Court to alter the fixed decided, thirty months it since was we and principles chemistry. immutable have followed Kotila n construction of for- balance, majority On opinion is sci- mer KRS or cited it as entifically legally justified. It controlling authority eight published no coup usurpation means a opinions unpublished opinion, over settled and one law, holding Appeals as Kotila’s essential existed the Court of has done so one for a mere six months began published opinion unpublished before ten chipped away by subsequent opinions. majority’s only apparent decisions (with coming thirty- departing this decision a mere reasons for from the well-estab- rendered). two months after Kotila was lished doctrine of stare decisis is that one I respect changed While the dissent’s view that the Member of this Court has his overruled, holding (though Kotila should not be I mind holding Kotila was wholeheartedly contrary largely premised upon previous opinion believe that Member), majority just view taken is a two written appropriate course within the bounds new Members of the Court would have judicial my joined proper majority they conduct. I consider it the Kotila had been Index, Edition, ter, Manufacture, § Methamphetamine 3. The Merck Thirteenth Secrets of (6th Ed.2002). (Uncle prepd by reducing Chap. p. at 1063 .Can be Fes- [.. ephedrine pseudoephedrine: pub- pseudonym underground Emde. Helv. is a ter for this Unlimited.) by Loompanics Chim. Acta Uncle Fes- lication *12 arrest and conviction. Appellant’s of Also dis- time when it was decided. Members (b) in that at issue portrayal It is subsection turbing majority opinion’s is the in this case. and that is at issue a collection of indecisive Kotila of this Court as alia, addressed, “the whether collegial rather than as a inter judges individual Kotila added) (emphasis equipment” some Members of the Court or body. While chemicals (i. more) e., chemicals or occasionally expressed “any reservations two or have meant Kotila, various or aspects various of as “all of the chemicals equipment” about or respect opinions manufacture necessary Members often do with equipment” they disagree, collegial a Court with which methamphetamine. majority opinions through its speaks Kotila, 114 at S.W.3d As noted consistently followed have opinions those with the offense our first encounter today.
Kotila —until
had
manufacturing methamphetamine
dissenting opinion,
In
I will address
statutory
previous
scheme
been under
(1) why today’s majority opinion violates
in a
trafficking
the offense of
that defined
(2)
construction;
statutory
principles
manufacture, inter
controlled substance
why it violates the doctrine of stare deci-
alia,
precur-
of an immediate
as
(3)
sis;
why
interpretation
its new
of for-
in-
with the
of a controlled substance
sor
mer KRS
renders
stat-
sub-
convert it into a controlled
tent to
(4)
vagueness;
why
ute void
(11),
218A.010(3), (9),
KRS
stance.
Assembly’s
General
2005 amendment
version);
Commonwealth
(pre-1998
interpreta-
the statute does not affect'our
(Ky.
674-75
Hayward,
tion of the 1998 enactment.
2001).
under
Hayward
that
We held
scheme,
statutory
“[possessing the
that
I. STATUTORY CONSTRUCTION.
..., ephedrine
pseu-
or
precursor
primary
218A.1432(1),
enacted in
the other nec-
along with all
doephedrine,
provided:
manufacture of
essary
for the
chemicals
guilty
manufacturing
A
person
legally
suffi-
methamphetamine provided
knowingly
methamphetamine when he
jury
Appel-
for the
to find
cient basis
unlawfully:
methamphetamine.”
trafficking
lant was
(a)
methamphetamine;
Manufactures
added).
If,
fact,
(emphasis
Id.
or
has
of this Court who
the Member
Go)
equip-
Possesses the chemicals or
“was se-
his mind about Kotila
changed
ment for the manufacture of metham-
infatuation which
by metaphysical
duced
manufac-
phetamine with the intent to
ante,
absurdity,”
then
to an
led
methamphetamine.
ture
self-seduction,
very
because that
awas
(Justice Graves) was the
Acts,
606, §
ch.
59. This is the
same Member
Ky.
Hayward.1
the statute that existed at the
author
version of
Fester,
Secrets
(13th ed.2001),
and Uncle
separate
concurring
opinion in this
1.
In his
case,
(Loompanics
Methamphetamine
does not so much dis-
Justice Graves
Manufacture
ed.2002),
determined
6th
with the Kotila
agree
requirement
of "all of
Unitd.
chemicals,
etc.,”
may
"methamphetamine
be manufactured
expert
as with the
chemicals, namely, a metham-
only two
Kotila
who testified that
the manufacture
(usually ephedrine
just
phetamine
precursor
requires
methamphetamine
more than
reducing
and a chemical
reports
pseudoephedrine)
Justice Graves now
two chemicals.
Ante,
ante,
609-10,
Having
agent.”
reviewed
at 609-10.
concurring
opinion,
in his
literature,
literature,”
The Merck
I find that
the same
that he has consulted "chemical
methamphetamine
reports
Index
§
specifically The Merck Index
§
at 1063
“accord
Following Hayward the first rule of
rects us to construe our statutes
i.e.,
construction,
usage of
language
ing
approved
“the
to the common and
statutory
States v.
itself,”
concluded that “the
United
language,”
we then
of the statute
Possibilities, P.S.C.,
Health
equipment”
meant “all of the
207 F.3d
chemicals
(6th Cir.2000),
neces
Kotila
applied
equipment
then
chemicals or all of the
338-39
methamphetamine.”
elementary
English gram
sary
to manufacture
principle
an
today’s majority opinion, Kotila
Id. Unlike
as a func
“[u]sed
mar: The word “the” is
*13
decided;
hastily
it
the culmi
plural
denoting
a
a was not
was
tion word before
noun
year
opinions
of a
of draft
and
group
group
to indicate reference to the
as
nation
Kotila,
memoranda,
that
including
opinion
one
(quot
a
Kotila was decided or Commonwealth, of Varble v. acterization overruled, hardly “it should be is ante, 603, (Ky.2004), 125 246 S.W.3d to ‘second chair’ the [Common- Court way from depart any not that case did .... strategy to alter is wealth] [its] [I]t simply It held that the elements Kotila. dispensation not clear that a similar would in KRS of offense described granted be a criminal defendant however 218A.1432(l)(b), any like the elements Connelly, claim.” strong his Colorado v. offense, proven by circum criminal can be 786-87, 1050, 1052, 785, 474 106 U.S. S.Ct. Thus, the Id. at 254. stantial evidence. (1986) (Mem. Brennan, 763 88 L.Ed.2d anhydrous ammo presence of an odor J., in on an opposition ordering briefing ah’ tanks and of emanating from two nia Government). issue not raised contained packs that had empty blister Here, the Court did not even order brief- ev tablets was circumstantial 500 Sudafed ing on the Kotila issue. anhy possessed had Appellant idence that 250, However, Id. at argu- oral drous ammonia and Sudafed. the Court did order evidence, cou on 254. This circumstantial ment this case two issues: wheth- Appellant’s object pled to the trial with direct evidence Appellant’s er failure to of the other possession of all manufacturing on meth- concurrent court’s instruction necessary to manufacture meth palpable chemicals amphetamine was renewable as ev 10.26; was held to be sufficient amphetamine, whether error under RCr a conviction under KRS trial on idence to sustain jeopardy precluded double a new 218A.1432(l)(b). It an ele Id. at 254. is the lesser included offense 218A.500(2), jurispru mentary principle of criminal drug paraphernalia, KRS proven can here, any fact at issue where, jury not dence as was instructed Ky. precursor). 2002 methamphetamine before Appellant's offense was committed 2. Acts, 170, Assembly’s § the 2002 General enactment 1. ch. (unlawful possession of a 218A.1437 614 wealth, (Ky.2005) circumstantial evidence. Baker v. 174 490 (op. S.W.3d
Commonwealth, Lambert, C.J.); (Ky. by Robinson v. Common 1957) (“Indirect wealth, and circumstantial evi (Ky.2005) (op. by S.W.3d J.). Scott, may establishing Likewise, dence be the basis of in Elkins v. Com offense.”); monwealth, necessary elements of an Den (Ky.App. S.W.3d Ky. 2004), ham unpublished and in ten additional (1931) (“The (which corpus delicti I not specifically decisions will cite may be established circumstantial evi but which are on reviewable Westlaw any (Quo dence fact in other the case.” among the total of 71 citing authorities omitted.)). tation No Member of this Kotila rendered on since was June participated 2003), Court who in the numerous of Appeals recognized the Court discussions, written, oral both controlling interpretation Kotila as the ultimately 218A.1432(l)(b). opin culminated the Kotila former KRS This is in ion ever claimed that the elements of the plea agreements3 addition to numerous proven by offense could not be circum jury prem instructions that have been stantial evidence. The reason that issue upon ised Kotila since it was decided. addressed Kotila was because significance plethora of this of authorities presented no circumstantial evidence was that have cited relied on our hold and/or in that case. ing grounded in Kotila the ancient principle of stare decisis. *15 II. STARE DECISIS. quieta “Stare decisis et non movere: To Varble, In addition this Court contin precedents, adhere to and not to unsettle ued to follow or cite Kotila as the control things which are established.” Black’s ling construction of the 1998 version of (6th ed.1990); Dictionary Law 1406 Bal 1432(1)(b) in unpublished KRS 218A. one Comm’n, County Ky. County lard Debt Commonwealth, opinion, Marshall v. Nos. (1942). 770, 771, 290 162 Ky. S.W.2d 773 2003-SC-0068-TG, 2002-SC-0026-MR & “While, perhaps, important is more as 314654, Feb.19, 2004), (Ky. *1 2004 WL juridical principles far-reaching following published opinions and in the right merely should than court authored six different members of the decisions, in harmony previous (in order): Beaty court chronological civilization, light higher later and Commonwealth, 196, (Ky. 125 212 S.W.3d authorities, more careful examination of 2003) J.); (op. by Cooper, Taylor v. Com thorough wider and more discussion and monwealth, 216, (Ky.2004) 125 220 S.W.3d upon policy more mature reflection Wintersheimer, J.); (op. by Johnson v. law, of the it nevertheless is vital that (Ky. 134 S.W.3d 568 stability in courts in adher- there be 2004) Johnstone, J.); (op. by Pate v. Com deliberately made after ing to decisions monwealth, (Ky.2004) 597 ample consideration.” Keller, J.); (op. by Fulcher v. Common wealth, (Ky.2004) (op. County, (quot- Ballard 162 at 773 284-85). J.); § P. by Cooper, ing v. Common Am.Jur. Clemons drug possession paraphernalia, KRS 3. Prosecutors have advised me at various con- or, 218A.500(2), ferences that both before and after Kotila was the offense was committed if rendered, they who would allow a defendant 15, 2002, July a unlawful after possessed less than all of the chemicals or methamphetamine precursor, equipment necessary to manufacture meth- 218A.1437. amphetamine plead to the lesser offense of “not ever, cases was Bracton’s use of many of a conversation I am reminded law, authority as sources of on their based at- prominent practicing a years ago with for the personal respect upon his but torney, later served with distinction who them, belief and his judges who decided I asked Judge. Court Kentucky a Circuit ques discuss[ed] and they raise[d] every case as why always appealed him he considered] he upon tions lines which allow. appellate process far as the would Plucknett, A Con F.T. Theodore sound.” today, “I know the law is replied, He what Law History cise Common knows it will be tomorrow?” but who what (1929). cases “use of decided Bracton’s fact, in the significant In the most moment discussing ... lawyers accustomed Supreme not legal profession is when cases, significant step [was] It is renders a seminal decision. Court system.” of a case law development attorney: inquires of an when a client Tubbs, Law The Common James W. facts; my your are what is advice?” “These Early Modem Con Mind: Medieval in the stability predictability Without (2000). ceptions law, may a skilled attorney an become example might have fostered Bracton’s an in- will never become litigator but Books, Year Pluck- reason, publication If for no other formed counselor. nett, digest of court cases supra, at decisis. importance therein lies the stare during approximate period compiled However, many are other reasons. there century. to the mid-sixteenth from 1283 decisis, of stare or of The doctrine Books, Year Healy, at 58. The supra, cases, law of has adhering to the decided system of bind although supporting years. gradually evolved over hundreds law, Tubbs, supra, at did ing case Healy, Thomas Stare Decisis as a Consti application of conception “the affect L.Rev. Requirement, tutional W. Va. Allen, Law in Kemp precedent.” Carleton (2001). roots in The doctrine has its (7th ed.1964). In the fif Making 55-56, England, medieval id. *16 re century, pleadings when written teenth reached its final form the United States the Year Books be placed pleadings, oral during part the latter of the nineteenth issues in on the substantive gan to focus Jr., century. Kempin, Frederick G. Prece cases, binding fostering the notion of thus dent and Stare Decisis: The Critical Potter, His Harold Potter’s precedent. Years, Legal Am. Hist. 1800 to J. and English Law torical Introduction (1959). 28, 50-51 (A.K.R. ed., Kiralfy its Institutions Lewis, History ed.1958); The 4th T. Ellis A. Decisis in the Stare IV, L.Q. Rev. Precedent Judicial of England. Courts of (1932). in “Judges also became 231-32 century, Henry de In the mid-thirteenth deci way of the their creasingly conscious Bracton, discussing in his famous treatise supra, Healy, the law.” shape would sions cases, suggested first approximately concept early use of the at 60. An “If year in the law: new precedents the value of recorded in the precedent was have not stated: unusual matters arise which named Yelverton judge when a realm, if mat be in the like case has never been seen before been seen this “[F]or like, by fore, present judgement our let them be decided and therefore ters arise hereafter.” pro precedent for for a good is a one will be taken since the occasion Allen, Despite “regard Henry supra, at 198-99. ad similia.” ceeding a similibus decisions,” judges during this Bracton, previous for the Laws and Customs de On ed.1968). (G. prior primarily cases period looked How England 21 Woodbine trouble,” i.e., convenience, and to and others had reason as well as the “save that “causes which con- “considering question judges” by holding de novo if it avoid Plucknett, subjects cern the ... or fortunes of his recently had been decided.” life not to be decided natural reason supra, They prece at 302. did not view are judgment judicial au but the artificial reason and dents as a restraint on their law, Allen, requires long study ... thority. supra, at 199-200. 1343; experience.” Id. Catherine century, the Year In the mid-sixteenth Bowen, The Lion and the Throne: Drinker replaced by a series of law Books were The and Times Sir Edward Coke Life Potter, for their authors. reports named (1957). invocation of “artificial Coke’s “docu- supra, reports 273. The law prece- special place reason” claimed “a gradual emergence over the next ment the decision-making process be- dent precedents centuries of the view that two -long study experience he cause guides help are not instructive essentially learning spoke was consistency, maintain but are authoritative Healy, at 64. supra, cases.” of the law that should be fol- statements theory Healy, After death supra, lowed in most cases.” 62. Coke’s Coke, in consid- practice who served as Chief of stare decisis was Sir Edward Allen, supra, flux. at 209. Some Pleas and erable Justice of the Court of Common to follow King’s judges “expressed obligation an later as Lord Justice of the Chief disliked,” Bench, they decisions while others “con- particularly influential was Plucknett, right disregard at 163-66. tinued to assert development. supra, they thought incorrect.” Hea- precedents force of “ardently Coke believed at 66-67. This “mixed attitude ly, supra, example things legal and tradition in all in the seventeenth and precedent” toward great precedent.” ... faith in he had [and] (1) from eighteenth stemmed centuries Allen, early example In an supra, at 207. “natural belief in the so-called medieval law, Healy, declaratory theory law,” early poor quality that the Year Book supra, at he stated Id. at 67-68. reports. proof “the best what [of] cases were theory “natural law” Allen, jurisprudential supra, law is.” at 207. Coke that there is premised upon the notion precedent a central role for helped secure treatise, ... laws “a Law that transcends individual authoring thirteen-volume ..., ultimately from God.” Kevin thor- derived Reports,” “The which was “the most *17 Coke, Rule Ryan, Et Ratio: ap- Lex ough collection of cases that had ever Power, B.J., Law, Vt. to and Executive citing Year Book cases peared;” “higher” at 10. This law Spring King’s authority to exercise challenge positive actual laws. used to evaluate jurisdiction legal Healy, issues. su- was over law” necessitated Id. Belief in the “natural reports were ex- pra, at 62-63. Coke’s declaratory theory of the and, they “facilitated the use of tremely influential Healy, supra, at ..., deciding in cases. in law the citation of authorities Court declaratory theory, law 67-68. Under the frequent.” much more practice became ideal, were Platonic and “cases Lewis, to existed as a challenge at 235. Coke’s supra, to opposed of the law as in his fa- mere evidence authority culminated King’s F. the law itself.” Christian Roy, comprising del mous decision Prohibitions Southwick, Eighth The (K.B.1607), “Unprecedented: he Eng. Rep. 1342 wherein a Antiguas Vias with Repaves argument that “the Circuit responded to James I’s Doctrine,” 21 Rev. Li- “that New Constitutional reason” and he upon law was found Le- (2002). Determined: Legislation case was Province prior Since a tig. Britain law, Eighteenth-century judge gal Theory “no could of the evidence it, (1989). it of Blackstone absolutely to follow and The views be bound 86-87 ever of this examples be- effectively provide overruled could never be Lord Mansfield always Southwick, judge might at 246-47. subsequent supra, cause a conflict. value.” having leading proponent it as some evidential a treat was Blackstone Harris, & Precedent Rupert Cross J.W. decisis: stare (4th ed.1991). English Law 30 rule to abide For it is an established tidy com- declaratory theory The was where the same precedents, former natural the dictates of promise between litigation: as well again come points growing pressure to follow law and justice even and scale of keep de- precedent. judges regarded Because steady, and not liable waver law, they of the could cisions as evidence opinion; as also be- every judge’s new justify precedent their adherence to being in that case solemn- cause the law weight of the authorities pointing to the determined, before ly declared and what time, given on a issue. At the same indifferent, uncertain, perhaps was they past could evaluate decisions as rale, permanent is now become Thus, any they would other evidence. any subsequent it is not the breast they frequently claimed that a decision from, according to vary to alter or judge was bad evidence of the law because being he sworn private his sentiments: inconvenient, unjust, or absurd. according to his own to determine not omitted). (footnotes Healy, supra, at 68 according to the private judgment, but accurately Today, approach might land; customs of the known laws and described as “result-oriented.” law, delegated pronounce a new not the old one. expound to maintain and but reports before poor quality law century it diffi- the nineteenth also made added) Healy, supra, (emphasis at 70 adopt system binding prece- cult to Blackstone, (quoting 1 Commen- William Law, Holdsworth, dent. W.S. Case *69). this asser- taries Blackstone limited (1934); Lewis, L.Q. Rev. 187-88 su- judges not bound by adding tion were Judges opinions at 230. issued their pra, “evidently con- by precedents that were orally, upon report- bar relied law reason,” Southwick, at 249 trary supra, Martineau, them. J. ers record Robert Blackstone, *69), (quoting supra, A Appellate Argument: The Value Oral Allen, unjust.” supra, “flatly absurd or Wisdom, Challenge to Conventional *70). Blackstone, supra, (quoting (1986). However, the Iowa L.Rev. 7-8 expounded the Blackstone often Though imprecise. unreliable and reports were law, theory writing declaratory Lewis, supra, Judges at 244. could justice of courts of are “the decisions authority rely reports questionable on law,” is common South- evidence of what re- making decisions and sometimes when wick, (quoting n. 1 Black- supra, at 251 319 *18 they could not precedents fused to follow *71), stone, at he was “one of supra, Holdsworth, verify. supra, at 187-88. speak prece- of the rule of first to writers obligation, and he general one of reports began ap- dent as More accurate law his Potter, room for discretion than century, left far less pear mid-eighteenth in the at 70. Lewis, Healy, supra, 274; predecessors.” at but supra, at supra, Mansfield, contrast, often did not follow by conflicting prece- about the force of views 211; Allen, Lieber- Lieberman, supra, at precedent. The persisted. dent David man, and James Madison. Hamilton supra, at 122-33. He “did not hesi- Hamilton points practice tate of arbitrary to reverse erroneous that avoid an dis- “[t]o believed ... courts, when found to be absurd or inconven- in it indispensable cretion Allen, supra, (emphasis ient.” at 216 n. they by that should be bound down strict added) omitted). (quotation precedents, rules and which serve de- duty every in point fine and out their
The conflict between Blackstone particular case that comes before them.” in Mansfield “reached its climax Perrin Lee, Blake,” in Thomas R. Stare Decisis Histori- Healy, supra, at a case con Case, Era cerning Shelley’s Perspective: Founding the Rule which cal From the Court, Lieber promulgated had been Coke. L.Rev. Rehnquist to the Vand. man, Mansfield, supra, ruling at 135-42. (quoting The Federalist Bench, King’s Hamilton) from the declined to follow (Alexander No. at 471 Rule, reason to arguing defied 1961)). (Clinton ed., In con- Rossiter clearly written subvert the intention of trast, a rule of “Madison conceived of (K.B.1770); Healy, Eng. Rep. will. 98 tempered by that was coun- stare decisis However, Blackstone, supra, ruling at 71. tervailing policies exceptions.” Id. Exchequer appeal, from on Chamber judicial precedents 664. He wrote reversed Mansfield’s decision and held on “binding had influence” “when formed power a court did not have the to disturb consideration, and due discussion and (Exch. Eng. the rule. 10 R.C. 689 Ch. deliberately sanctioned reviews and 1771); Lieberman, 138-39. supra, Letter James Madi- repetitions.” from Thus, “[b]y of nineteenth beginning (June 25, Ingersoll son to Charles Jared century, began regard courts [English] 1831), Meyers, The reprinted Marvin absolutely binding,” of a line decisions Sources the Po- Mind the Founder: of “by the latter half of the nineteenth Thought Madison 391 litical James obligation an century, [they] asserted added). However, Mad- (emphasis cases, no incor prior follow all matter how an de- ison did not claim that individual Healy, supra, at 72. rect.” i.e., cision, by reviews one not sanctioned binding on subse- repetitions, B. Decisis in American Courts. Stare judges. Healy, supra, at 87. quent Adoption of the rule of stare decisis James Kent’s views on stare decisis gradually occurred be- United States Lee, Kempin, supra, at to those Madison. tween 1800 and 1850. were similar During pre-revolutionary period, Influenced the de- supra, 50. at 665-66. cases, law, colo- “despite fidelity past that: theory some he wrote claratory of the by prece- law, did not feel bound nial courts point upon “A decision solemn likely to search for dents and were more case becomes an au- arising any given than for a decision on principles the law case, because it is the thority in a like Healy, all fours with the case at hand.” which we can have highest evidence declaratory theory supra, at 78. at 666 subject.” to the Id. applicable law sway independence, the law still held after Kent, on 1 James Commentaries (quoting “significantly to it retarded and adherence (O.W. ed., Holmes, Law 475 Jr. American binding precedent.” the solidification Little, Brown, ed., Boston, & Co. 12th Southwick, supra, 263. 1896)). founding-era “The doctrine uneasy state of thus was in an precedent precedent is evi- The Framers’ view *19 Id. internal conflict.” writings of Alexander denced individuals, thereby contributes However, commitment American “[t]he system of our constitutional strengthened integrity gradually decisis to stare appearance both mainly government, century, the nineteenth due during reports fact. emergence of reliable law to the Healy, conception of law.” positivist and a 265-66, Hillery, 474 U.S. Vasquez Legal positivists at 87. “conceived supra, (1986). 88 L.Ed.2d 106 S.Ct. judge-made of the common law in terms of States, 485 also Mathews v. United See
law, not as mere evidence of the law’s
883, 888-89,
58, 66-67,
108 S.Ct.
U.S.
Southwick,
Logi-
supra,
content.”
253.
(1988) (Brennan, J., concur-
L.Ed.2d 54
of as
cally, “prior decisions were conceived
(“I
I
separately only because
ring)
write
positive law
carried the force
[that]
joined
four
previously
have
or written
and, thus,
law,”
...
laid the
“[pjositivism
from
hold-
opinions dissenting
this Court’s
Id. at
binding precedent.”
foundations for
is
predisposition
that the defendant’s
ings
253-54. However:
entrapment defense....
relevant
to the
adopted
courts never
the nine-
American
slate,
I
judging
I
on
clean
would
Were
prece-
century English
teenth
rule that
adopt
inclined to
the view that
still be
in all cir-
absolutely binding
dents are
should focus exclusive-
entrapment defense
They
cumstances.
instead reserved
I am
ly on the
conduct. But
Government’s
right
to overrule decisions that were
slate;
the Court has
writing
not
on clean
egregiously
incorrect. How-
absurd
There-
spoken definitively
point.
on this
ever, during
period
the “formative
of the
”);
fore,
....
I bow to stare decisis
Scott
1850,”
...
they
doctrine
from 1800 to
Illinois,
367, 374-75, 99
440 U.S.
S.Ct.
prior
pre-
accepted
decisions were
(1979) (Powell,
1158, 1162,
gard
they
special
offer some
tion of the
laid
others who
courses
justification
supra,
gone
had
before him.
doing
Healy,
so.”
also,
52;
see
Dickerson
United
Cardozo,
Benjamin
The Nature
Ju
of
States,
428, 443-44,
530 U.S.
120 S.Ct.
(1921).
Process 149
A
rule
general
dicial
(“The
2326, 2336,
621
” Marshall, supra, at 181
prior
decision is entitled to def were involved.’
whether
(footnotes omitted)
Rail
Erie
thought
it is later
to be in
(quoting
erence when
822).
Lee, supra,
road,
77,
at 654. The answer
error.”
at
ty Today, its how- co-extensive with the the influence ever, have, justification” with no which its decisions must is evident. “special to do conclusive, so, Its mandates are Rumsey, even U.S. S.Ct. 2310-11, its in all the dicta are attended to inferi- majority of this Court revises *22 pub- or courts. No sooner is a decision of former our construction lished, it operates pattern than as a and retroactively applies and tribunals, standard in all other and Appellant that construction a[s] to direct —in course, a matter of all other of of decisions contradiction the doctrine stare deci- court, it. If in conform to this settled sis. adjudication overturned, course of is D. in Kentucky. Stare Decisis then the trouble and confusion revers- ing former causes succeeds the inferi- Kentucky generally recognized is as one tribunals; and the credit even of the earliest of the individual to states shaken, respect due to this court is adopt the doctrine of stare decisis. See A has lost phenomenon that his 46-47; Southwick, Kempin, supra, at su- ground gains same B cause on the that 263; Nelson, pra, supra, at at 68 n. 224. his. And not do these conse- opinion might be [W]hatever follow, quences but some still more seri- court, new, question was the court this no may perhaps ous ensue. For court depart adjudi can not from the former may society strike vitals of ought cations conceives the matter capricious depar- than a deeper wound to be rest. in this court from one of its ture estab- adjudications. ought, lished We there- said, it It has been that not so often is fore, to cautious to leave a be course that important rightly the law should be understood; nothing well but the settled, as that it should remain stable justi- imperious justice could demands true, after it is This is settled. fy it. Here there no such demand is attempts judicial the course change upon us. decision, pretext correcting under the Mon.) Taul, (7Ky. 23 T.B. Tribble v. error, are like experiments quack added). (emphasis 456-57 body. They constantly on the human body of case jeopardize harass often it. There is a substantial law (in Here Kentucky following that rule. Heirs, (7 Heirs v. Ky. South’s Thomas’ 23 order) our chronological most are few Mon.) (1828). T.B. 62-63 Less than significant cases Tribble: decided since later, predecessor three months our court expounded importance further on (1 Parker, Ky. v. Morgan’s Heirs 31 law, stability Dana) in the (1833) (“This viz: 444, 444 having, court decisions, identity that on of an point If we were this two settled convinced will, object in an wrong originally, entry, called for subse the law was settled we evidence, cases, liberty quent upon ad not feel ourselves same should it; aware, though it is great- here the former depart from decisions— may pres society, opposing the rule seem to importance to evidence er stable, than that ent Blanken judges preponderate.”); be uniform and should Co., ship Ky. Op. & 6 possible rule that v. Bartleston it should be the best (1872) (“It law should adopted. supreme In the court is better that the could be state, judicial is, so far as action possessing, permanent with but remain of a concerned, exceptions, judicial although originally settled appellate power few it jurisdiction pre where court within the principles, than that upon doubtful ”); Ky. .... Comm’rs Utils. subject to constant fluctuations vails Bd. should be Co., opinions Ky. according to the views (“It by the court as con the ordinances might duty entertained is our to consider stituted, question time the same interpreted at the antedating of 1935 as we arise.”); subsequent might at time cases, some if they and not as them those Co., v. Louisville Gas Commonwealth for the presented were now to us first (1909) (“Had 164,166 Ky. 824,122 we S.W. time.”); Hoofnel, Daniel’s Adm’r of that construc doubt of the correctness (1941) (“Re Ky. tion, liberty depart not feel we should of the court as gardless of the views what *23 so and long from it after it has been to the may now constituted be as sound settled, the the and business of definitely given originally ness of the construction it.”); adapted Jack state has become the in Commonwealth v. Constitution Co., Ky. son’s Adm’r v. Asher Coal 153 Haly, supra, opinion we are of (1913) (‘When 136, 547, a 137 156 S.W. construction should be adhered under constructions, fairly open to two statute is the doctrine decisis. The maxim of stare carry pur either of which will out its one phrase or et non quiet is: ‘Stare decisis court, pose, upon and this full consider mover,’ to by precedents stand ation, constructions, adopts one of these it This points. disturb settled wholesome to, when, especially adhered as should be imperative rule is not or so as to inflexible instance, it has become a settled this error, require perpetration depar but law.”); part of the McCormack v. Louis from it can policy ture declares be R.R., 465, Ky. ville 156 161 & Nashville justified only grounds.”); upon substantial (1913) (“In 518, Cooley’s S.W. 520 Consti Orphans Presb. City Louisville v. Home that, it is said a tutional Limitations when Louisville, 566, Soc’y Ky. 299 186 rule deliberately adopted has been once (1945) (“[Stare 194, S.W.2d 199 decisis is] declared, ought it not to be disturbed judicial judicial a creation and within con review, by appeal unless a court of trol, necessary purpose, it but serves a court, except never by very the same law, stabilization and should not be reasons, urgent upon clear manifes substantially impaired. abandoned or Its error; tation of and that if practice salutary stabilizing on effect as a influence otherwise, were be leaving would us Common preserved.”); the law must be perplexed uncertainty to the Upon law. 132, Blair, (Ky. wealth v. 133 decisis, the principle of stare the decisions 1979) (“Judicial be consistency must ob by a which have been rendered court will responsible served in to maintain order by subsequent adhered to such court system.”). and efficient court cases, something manifestly there is unless therein, or the rule or principle erroneous Combs, Lodge v. See also Motor Corbin by law established such has decisions (“Unless 944, (Ky.1987) 946 by legislative been changed enactment.” compelling, the law is change the need (Citations omitted.)). opinion majority court is of the of this in the law is of sufficient Brawner, stability See v. Ky. also Herndon 180 (“[Under 807, that we not over- 727, importance require 729 203 S.W. which itself is precedent turn decisis we established doctrine stare should not now premise.”); depart [statutory] construction, upon based a reasonable from that 630, Schoenle, 782 633 completed Schilling S.W.2d after all the statute is (Ky.1990) courts should follow given highest (“Appellate construction to it 624 precedent
established
unless there is a
passed upon
has been
on a single occa
compelling
urgent
to depart
reason
sion,” so that the
just
“decision can in no
destroys
therefrom which
or completely
in,”
sense be
acquiesced
said
have been
policy
purpose
overshadows the
estab-
Trimble,
Montgomery County Fiscal
v.Ct.
precedent.”);
lished
Yeoman v.
629,
(over-
Ky.
104
47 S.W.
776
Commonwealth,
Bd.,
Policy
Health
983 ruling
Louisville,
Belknap
City
(“Unlike
(Ky.1998)
S.W.2d
some
(1896)),
Ky.
dant all the chemicals 92 S.Ct. Papachristou, 405 U.S. right equipment constituting the added) (emphasis (quoting Thornhill virtually combination eliminates Alabama, 88, 97-98, 60 310 U.S. S.Ct. arbitrary subjective en- possibility (1940)). A statute 84 L.Ed. Finally, ... the additional virtually unrestrained police forcement. “confers on with requirement possession be power charge persons to arrest and methamphet- the intent to manufacture ... violation fails to establish stan- [if it] any uncertainty to the amine cures may which the determine dards officers ” proscribed. nature of the conduct We suspect complied has with its whether conclude that KRS is Kolender, 461 at 360- proscription. U.S. unconstitutionally vague. not added) (emphasis 103 S.Ct. (citations omitted). added). improb- quotations The (emphasis Id. at 249 ability combina- of the exact inquiry of the purpose The of the second equipment necessary tion of chemicals minimal vagueness doctrine is to establish methamphetamine to manufacture is subjective and dis guidelines preclude heightened by the fact that at least one enforce cretionary enforcement law ammonia) necessary (anhydrous chemical Morales, City Chicago ment officers. necessary equip- and at least one item of 41, 61-62, 1849, 1861- 527 U.S. 119 S.Ct. am- (storage anhydrous ment container for (1999). 62,144 hold that an L.Ed.2d 67 To tank) monia, propane often a modified are governing the conduct requirement intent ordinary household items. limiting of the accused is a standard majority opinion concludes that the arresting exercise of an officer’s discretion requirement statute’s intent alone satisfies is not pure sophistry, is the discretion Ante, vagueness doctrine. at 604-05. upon whom the party exercised satisfy requirement While the intent does imposed. Holding requirement intent is inquiry by curing any the “notice” uncer- alone resolves requirement that the intent tainty in the mind of the defendant as to disingen vagueness especially issue is Koti- proscribed, nature conduct light holdings uous in of the consistent la, majority’s 114 S.W.3d at con- in a that the element of intent this Court requirement clusion that the intent over- proven by can mere infer criminal case vagueness challenge comes the because conduct, prohibited from the itself. ence pro- “makes certain what conduct Stopher v. *27 ante,
scribed,” 604, completely ignores (“[I]ntent may inferred (Ky.2001) be important inquiry the more into whether person presumed from because a is actions encourages arbitrary and dis- the statute conse logical probable to intend the and criminatory enforcement. conduct, person’s and a quences of his actions gov- may ... state of mind from
Where
there are no standards
inferred
charged of
preceding
following
and
the
erning the exercise
the discretion
of
Commonwealth,
fense.”);
ordinance,
the scheme
Hudson v.
granted
106,110 (Ky.1998); Parker v. Com
encourages arbitrary and S.W.2d
permits and
monwealth,
(Ky.1997).
952 S.W.2d
discriminatory enforcement of the law.
is
inquiry
that an
into intent
a
for “harsh We have held
It furnishes
convenient tool
Hudson,
matter,”
subjective
979 S.W.2d
discriminatory
enforcement
local
“a
fluid),
among
{e.g.,
and that “neither the inference nor
ether
starter
sulfuric
cleaner), salt,
presumption
mandatory.”
{e.g.,
of intent
acid
drain
denatured
[is]
fuel),
Id.
no additional
requires
{e.g.,camping
{e.g.,
This standard
alcohol
methanol
antifreeze),
factual
from
showing beyond
battery,5
the conduct
antihista-
a lithium
or
arises,
very
tablets,
a
which the inference
low
mine
Fulcher
majority’s
indeed.
threshold
Under
accom-
(Ky.2004),
368-69
construction,
statutory requirement
of panied by an inference of intent from such
methamphetamine
intent
to manufacture
possession,
grounds
mere
is
for arrest and
may
possession
be inferred from mere
of
majority’s
conviction under the
construc-
two or more of the chemicals or items of
Anyone
tion of the statute.
who has ever
(often
equipment necessary to do so.
driven a
requir-
carbureted vehicle
fluid)
ing
carrying
starter
while
a cell
Here, Appellant possessed
tab-
Sudafed
phone (likely powered by a lithium bat-
lets,
cleaner,
gallon
a
of drain
and three
tery) possessed items sufficient to sustain
majority’s
cans of starter fluid. Under the
for an arrest under this
probable cause
218A.1432(l)(b),
construction of KRS
Likewise, anyone
has
construction.
who
prove nothing
Commonwealth need
more
(salt
fuel),
gone camping
camping
ever
guilt. Although Appellant
to establish
open ga-
or done mechanical work in an
Sudafed,
possessed
large quantity
a
one
(starter fluid, antifreeze,
rage
drive-
and/or
majori-
under the
box would have sufficed
salt),
way
provided probable
has
cause for
fact,
ty’s analysis.
analysis,
In
under that
an arrest.
Appellant could have been convicted under
218A.1432(l)(b)
possessing only
KRS
for
enough
If
not common
the chemicals are
the drain cleaner and the starter
fluid.
concern,
majority’s
construction
low,
Because this threshold is so
and the
permits
also
arrest
may
conduct from which intent
be inferred
any
and conviction for
two of
(possession
prod-
of common household
(creat-
following
“equipment”
items of
ucts)
universal,
potential
so
for arbi-
is
course,
ing,
requisite
inference
trary
discriminatory
enforcement
intent):
filters,
balls,
coffee
cotton
a heat-
officers, prosecutors,
law enforcement
or
{e.g., Pyrex
Corning-
bowl
or
resistant
juries
readily apparent.
“[The
even
ware),
tool,
stirring
glass
a
a
non-metallic
legis-
void-for-vagueness
requires
doctrine]
jar, nearly any
plastic
{e.g.,
type of
vessel
guidelines
reasonably
latures to set
dear
bottle,
container,
or
gas
plastic ketchup
a
and triers
law
bottle),
dishwashing detergent
plastic
enforcement officials
a
‘arbitrary
prevent
order
funnel,
hose,
plastic tubing
fact
rubber
”
discriminatory
Goguen,
enforcement.’
Fulcher,
at 368-69.
pliers.
(em-
572-73, 94
at 1247
415 U.S. at
S.Ct.
household
unimaginative,
For the
few
added).
phasis
may
A criminal statute
satisfy possession
functions
would
sweep
allows
“permit
[that]
standardless
re-
pieces
“equipment”
two-or-more
juries
pur-
policemen, prosecutors,
(fil-
operating a coffee maker
quirement:
predilections.” Id. at
personal
sue their
pot);
coffee
ters and a heat
resistant
added).
(emphasis
(a)a vessel; phosphorus; reaction *30 (n) anhydrous unap- in an an- of ammonia conjunction lithium in with session to manu- the intent container with proved ammonia. hydrous prove methamphetamine would facture Id. at 18-19. offense, in as defined KRS both that 218A.1432(l)(b) contrast, stands By KRS 250.489(1) 250.991(2),and manu- and KRS the statute in the United alone as methamphetamine under KRS facturing of criminalizing possession States the 218A.1432(l)(b). Kotila, manufac- equipment or for the chemicals 218A.1432(l)(b) required if 239. But KRS identify- ture methamphetamine of without and all anhydrous of ammonia possession ing posses- the equipment the chemicals necessary manu- of the other chemicals criminal sion of which would constitute latter methamphetamine, the re- facture to ours is conduct. The closest statute offenses, distinguished the two quirement 5-64-403(c) §Ann. crimi- Ark.Code which Id. at 239- avoiding jeopardy. double thus of possession drug parapherna- nalizes light in retrospect, of 40. In when viewed lia intent to use in the manufacture with majority opin- of today’s the ramifications However, “drug methamphetamine. of ion, probably incorrect. that dictum in Ark. is defined in detail paraphernalia” 5-64-101; thus, § Arkansas Ann. Code Kotila, Appellant in like The defendant than more like 218A.500 scheme is KRS possess any not of Matheney, quantity did 218A.1432(l)(b). noted that KRS Kotila However, because anhydrous ammonia. by least three there are at methods witness in testified that expert Kotila manufactured, can methamphetamine anhydrous ammonia is a chemical neces- requiring possession each of a different sary methamphetamine to manufacture equipment, of chemicals or combination (“Nazi”) method, ephedrine reduction making thus identification of chem- specific anhydrous of ammonia was a unwieldy equipment icals or the statute necessary offense under the element if impossible. at 249. The interpretation KRS Kotila 218A.1432(l)(b) only fact that saved KRS 218A.1432(l)(b), i.e., “all of the chemicals” being vagueness from void for under the necessarily anhydrous am- include would subjective inqui- arbitrary or enforcement Likewise, “all of the chemicals” monia. ry statutory was the that the requirement necessarily methamphet- include would possess defendant all of chemicals or such as the Sudafed tab- precursor, amine right all equipment constituting time at the possessed Appellant lets necessary manufacture combination arrest, pro- also possession of which is his Id. methamphetamine. statute, by a separate scribed KRS 218A.1437, felony. D Under the majority opinion’s a Class The construction majority opinion’s analysis, proof also affects the dou- KRS methamphetamine both a ble-jeopardy problem anticipated person possesses dictum and one additional but otherwise argued precursor Kotila. Commonwealth e.g., product, drain the words “the chemicals innocuous household Kotila cleaner, “any permit violat- meant or more chem- would convictions equipment” two KRS ing now both 218A.1437 equipment,” icals or construction 218A.1432(l)(b). Thus, vagueness majority the new this Court. adopted by that, arbitrary enforce- analysis respect under that We out Kotila pointed construction, jeopardy pos- implicates if also the double one the chemicals ment because, police anhydrous analysis potentially, sessed the defendant was ammonia, in his home on a pos- could arrest defendant evidence the defendant’s *31 possession
warrant for of a methamphet- IV. AMENDMENTS. precursor amine with intent to manufac- majority opinion, As noted the the then, methamphetamine, e.g., ture “discov- Assembly 2005 General amended KRS view, a plain er” can of drain cleaner in 218A.1432(l)(b) to read: charge and violating the defendant with (1) A person guilty of manufacturing both KRS 218A.1437 and KRS methamphetamine when knowingly he 218A.1432(l)(b), enhancing one offense unlawfully: offenses, from a D felony Class to two separate D Class and Class B felonies. If (b) With intent to manufacture meth- so, double-jeopardy analysis the in the Ko- amphetamine possesses two or tila dictum could not withstand constitu- equipment more items of for the man- scrutiny tional today’s the context of of methamphetamine. ufacture 218A.1432(l)(b) construction of if KRS one Acts, Thus, Ky. § ch. 9. the of the two or more chemicals used to con- present version of the statute now reads methamphetamine vict of that offense is a exactly majority opinion’s the same as the precursor ammonia, anhydrous or because interpretation of the previous version. possession of either of those chemicals However, the majority opinion fails to separate would be both a offense a mention that the 2005 General Assembly necessary element of the offense of manu- also enacted a new section of KRS facturing methamphetamine, a thus lesser 218A010 that reads: 505.020(2)(a). included offense. KRS any “Intent to manufacture” means vague Statutes so as to enable law en- person’s evidence which demonstrates forcement officials arrest on such broad objective conscious to manufacture a or “bear[ ] nebulous terms the hallmark methamphet- controlled substance or police City state.” Shuttlesworth v. amine. Such evidence includes but is 87, 90-91, Birmingham, 382 U.S. 86 S.Ct. statements, not limited to a chemical (1965). 211, 213, 15 “It L.Ed.2d 176 would usage, quantity, substance’s manner of if certainly dangerous legislature the storage, proximity to other chemical large enough could set a net to catch all equipment substances or used to manu- offenders, possible and leave it to the facture controlled substance meth- courts step say inside and who could be amphetamine. detained, rightfully and who should be set 7(14) Acts, 150, § Ky. (emphasis ch. would, extent, large. This to some sub- added). judicial stitute legislative the de- unnecessary It is now whether decide partment government.” U.S. v. heightened evidentiary requirement Reese, (2 Otto) 214, 221, 92 U.S. 23 L.Ed. proof (1875). intent to manufacture new In overruling Kotila and mis- 218A.010(14) KRS the facial overcomes 218A.1432(l)(b), ma- construing KRS vagueness constitutional of the amended jority just large does that: sets a net 218A.1432(l)(b). Appel version of KRS enough virtually every to catch or arrest lant under the was arrested convicted Commonwealth, premised citizen of the previous statutory scheme did solely upon of two or more unenumerated, heightened evidentiary include the stan universally-owned house- Yet, majority dard for of intent. proof products hold it to the courts “leave[s] opinion today previous construes the ver step say [may] rightfully inside and who 218A.1432(1)(b) having sion of majority opinion’s be detained.” The mis- KRS meaning construction of ren- same as the amended version KRS saving vagueness. possible provision ders the statute void for without 218A.010(14). Obviously, the Gener KRS Assembly recognized constitu
al has infirmity
tional amended version 218A.1432(1)(b), alone, standing
KRS
hopes that enactment new
218A.010(14) provide will the cure.6 *32 Assembly
fact that General did
enact statute similar to KRS
218A.010(14) originally it enacted when 218A.1432(l)(b) in 1998 indicates legislative intent then than now.
different
Unfortunately, unlike the Assem General Court, in addition
bly, majority of this decisis, ignoring the doctrine of stare recognize
has failed to the 2005 ver 218A.1432(l)(b), standing
sion of KRS
alone, vagueness there is void and has statutory
by interpreted the preexisting so as render it
scheme unconstitutional.
Accordingly, I dissent. COMPANIES, H Auto
GAINSCO & H Sales,
& Trailer and David Appellants
Holder GENTRY,
Darrell as Guardian for Josh- Gentry; Booth, Allen
ua Joe Booth, a Mi-
Guardian Jonathan
nor; Kentucky Farm In- Bureau Company Appellees
surance
No. 2004-SC-0276-DG.
Supreme Kentucky. Court 23, 2006.
March
Rehearing Denied June 2006. course, Assembly will wrong inquiry), the if and the amended the notice General 6. Of deleting altogether is subse- succeeded in version of KRS have vagueness equipment” basis "possession chemicals or quently declared void for under manufacturing arbitrary inquiry metham- that doctrine for a conviction enforcement 218A.010(14) (KRS purports phetamine. to address notes Court 50). Thus, to the hundreds of provide guidance around “the founda- clear country that confront binding precedent tion for in America was courts across the daily. Accordingly, and complete, persistently problem and the law moved this decisis, Southwick, join opinion in that of stare I direction thereafter.” mindful Court.”). supra, at 274. Supreme gives The United States Court States, decisis is In the United “stare heed to the doctrine of stare decisis even prece to mean that generally understood may disagree when individual Justices In presumptively binding. dent is other Nelson, Deci precedent. Caleb Stare words, depart previous courts cannot from Demonstrably sis and Erroneous Prece simply they disagree because decisions (2001). dents, L.Rev. 2-3 Va. Healy, swpra (emphasis at 52 with them.” (“The added); Nelson, supra, at 8 decisis the means see also [S]tare [is] decisis would indeed be merely we that the doctrine of stare ensure law will if free to erratically, develop in a no doctrine at all courts were change but will simply because intelligible past fashion. That overrule a decision principled and reached a deci society presume they would have permits doctrine different original (Emphasis matter.” principles are founded sion as an bedrock added.)). However, judges may “disre proclivities law rather than
Notes
notes
also
the belief
prior
and above
that a
case
Lines, Inc.,
375, 403,
Marine
U.S.
decided”).
wrongly