*1 PENMAN, Appellant, Michael Kentucky,
COMMONWEALTH
Appellee.
No. 2004-SC-000726-MR. Kentucky.
Supreme Court 18, 2006.
May
Opinion of the court Justice SCOTT. charged and convict- on four ed in the Jessamine Circuit Court trafficking counts of controlled sub- (second stances, first-degree subsequent or offense) possession and one count of (second substances, first-degree controlled offense) subsequent to a sentenced forty-five years. total of *4 Ky. appeals right, He now as a matter of 110(2)(b), § trial court alleging the Const. (1) suppress it refused to erred when (2) in resulting reports, cocaine and lab (3) analysis admitting drug of ac- failing grant to a directed verdict quittal on all counts for the Com- reasons chain of prove monwealth failed to beyond of the cocaine a reasonable (4) doubt, allowing of docu- introduction pursu- provided ments not defense (5) 7.24, denying Appellant’s ant to RCr suppress the cocaine seized from motion (6) vehicle, denying Appellant’s chal- his juror forcing him to lenge for cause to (7) by peremptory challenge use a 03-CR-00093, joining indictments 03-CR- and 04-CR-00155 for trial. record, we affirm reviewing After convictions and sentence. Appellant’s
FACTS caught by the K.A. was Nicholasville (NPD) half Department with a Police agreed ounce of cocaine and to “work off’ charges by acting as a confidential his other deal- making buys from informant — Fears, Rhorer, Emily R. Holt Shelly such, three “controlled ers. As he made Frank- Department Advocacy, of Public on Appellant, from the one each buys” fort, Appellant. for 28, 2003, 15, 2003, April May March buy was made under “con- 2003. Each Stumbo,
Gregory Attorney D. General of by the buy” protocols, supervised trolled Kentucky, George Seelig, Assistant At- G. audio, tapes, or video General, officers. Either Ap- torney Office of Criminal Frankfort, were made of the transactions. peals, Appellee. on another count was indicted buy May on After the last trafficking in a controlled sub- Ap- first-degree arrest made NPD to decision was stance, cocaine, thereafter to indictment day. pursuant later that He was pellant driving the was and followed while This count located 04-CR-155. number had Expedition, which he used handgun black Ford of a alleged exchange based on an transactions, drug of the other in some an Appellant and between the for cocaine get (and stopped then and ordered male, occurred unknown white Expedition, As he exited the ground. “con- during K.A.’s taped) had audio fled, ar- however, caught and he but was 15,2003. buy” April trolled immediately, approximately rested almost 7, 2004, the trial court sustained May On Expedition was then away. a block in- motion to consolidate prosecution’s searched, revealing approximately 03- dictment numbers 03-CR-00093 A in the console. grams of cocaine center indictment July CR-00135. On at the time uncovered search of his wallet also consolidat- number 04-CR-00155 of which currency, the serial numbers indictments. Howev- previous ed with to the serial numbers used were identical er, this last acquitted buy.” in the earlier “controlled indictment. *5 bond, later on but rear- He was released tried the Jessa- Appellant was before 31, 2003, May the arrest rested on once 5-9, August on 2004. mine Circuit Court his indictment was issued. warrant for trial, contention was point main At arrest, attempted stop and he During this custody” drugs taken the “chain of end turning drove off until into a dead vehicle, or his which from street, At whereupon stopped. he packages, in five presented separate were passenger time he had a in the front seat. po- by marked the Nicholasville originally packet of cocaine was stop, After the (March 28, buy), lice as DU03027 in area of the vehicle. passenger found buy), DU03043 (April DU03039 having after Appellant, (May buy), DU003044 (May “Mirandized,” agreed the cocaine was his. vehicle) and Penman 2003 search of indicated, by indicted As he was of Penman (May 2003 search DU03048 30, 2003, May Circuit Jessamine Court vehicle). trafficking on four counts of a controlled fact, wit- out of seven Commonwealth (second substances, first-degree or subse- trial, four witnesses’ testi- offense) nesses used quent April for the March 28 and Har- mony Wininger, Heather 7,May buys and the two instances on —Jennifer ris, police and officer Kathy Humphrey, 2003, pursuant to indictment number 03- solely to Harvey devoted Scott August Appel- CR-00093.1 On —were custody of involving the chain of questions in a con- trafficking lant was indicted for others, (second Two Detective drug packages. first-degree trolled substance Travis, offense) Officer Brian Kevin Grimes and subsequent May for the custody, the chain of but upon also touched stop.2 traffic One week before prior to degree, dismissed per- which was later 1. He was also indicted at that time as a offender, degree. felony second How- sistent ever, defective also. trial as charge was defective and dismissed prior to trial. case, of the Commonwealth’s 3.At the close rested. no witnesses and the defense offered Again, indictment included a sentence- this offender, persistent felony second enhancing to, from, Harris, the NPD to the Ken- Heather the forensic chemist (KSP) tucky NMS, State Police crime lab. with testified she examined the drugs in this case and found that all tested custody, In regard to the chain of offi- positive explained as cocaine. She NPD chain cers established the evidence comes in to NMS an evi- when drug for the from ei- exhibits logs the evidence in and dence technician buys ther K.A.’s or the vehicles from assigns then it an additional number. NMS the two other amounts were taken— which The technician then stores it a secure to, up through, and back—from the KSP until evidence vault is retrieved weights separate crime lab. chemist, by tested the forensic packages of substances transferred are reports this case was Ms. Harris. Lab by KSP crime lab were established prepared samples then on each of the re- testimony of the officers as to four of the here, and, flecting testing were testi- by request transfers and the KSP for ex- by to and filed in evidence Ms. Harris. fied to a fifth. amination form as analysis, places Once she finishes her she At the time of the transfer of the sub- storage them back into the secure testing, stances for the KSP labs were Then, time, evidence room. at a later up,” To “catch and avoid overwhelmed. the evidence and other technicians remove delays, plan by formulated further referring agencies, them to the return testing to “outsource” the to other lab case, this KSP also secured transfer private testing firms. As the exhibits assigned tracking an through FedEx with in this other cases were be tested number. numerous, it was determined KSP pack- on all NMS retains business files by registered the transfer cost mail would *6 and tested and these forms ages received prohibitive. It was then decided that (Defendant’s by were filed (FedEx) of- by Express transfer Federal 2) through 1 record exhibits & the trial security tracking fered similar with the the flow of Ms. Harris. These forms show package so the could be followed numbers receipt through from package/sample at find out where it was. time to original testing, reshipment, to back to the National Medical Laboratories Services Although it documented that source. was (NMS) Pennsylvania was selected to all were sent to NMS and packages five trial, in this case. At test substances reports actual test indicate that all five Chemist, Drug KSP Forensic Jennifer drug in- police were tested at NMS—the Wininger, testified as to the transfer to prepared by chain of forms ternal that re- and from NMS. She testified she only receipt disclose of four NMS of cocaine from packages ceived the five packages/samples. five Ms. Harris testi- police the Nieholasville officers on two however, received, fied, all that five were dates, 17, 25, and 2003. April June and sent back. tested then marked each of the evidence She At each of specifically she reviewed assigned items and them a KSP control and their identifi- packages the five noted 27, 2003, she number. On October numbers, on well as her initials cation as shipped packages all five to via Fe- NMS package. No the inside and outside of the on before October dEx to be delivered as to the 28, her, one else from NMS testified According pack- to all five 2003. packages/samples with handling ages shipped single were box with packages The were then received NMS. tracking FedEx number. testing brought and to the them back her desk by KSP later transferred back them put trial. resealed them and during and exhibited and she then NPD left one in the secure vault. This back (from labs), trial, Ms. KSP Wininger At in the evidence unresolved. question separate packages/sam- also reviewed origi- her from her ples and noted initials 28, from the March package/sample NMS, noted receipt prior nal transfer to at weighed by the NPD buy was assigned by numbers KSP the various including How- grams the containers. 14.9 packages they noted were NMS on ever, NMS lab by noted no sealed and testified that there was still grams. sample package was 13.97 they tampered that evidence had been 1, weighed April buy was from with. grams, yet only at 15.5 14.67 by the NPD 7,May testimony grams by the NMS lab. The handling In her to the as NPD, by in at separate packages/samples buy weighed grams was 16.9 labs, grams by Ms. that the five the NMS lab. yet only NMS Harris noted 11.74 ship- Appellant’s had in on two taken packages/samples come The substance 28, 7,May on October and October ments as a result the search on vehicle contradictory by This was to the testi- weighed grams 2003. in at 212 was Wininger, all mony they NPD, of Ms. were only by 109.118 the NMS yet grams in one shipped box October taken from sample package lab.4 The by be delivered October 2003. Howev- 31, 2003 search of vehicle May Appellant’s er, upon further Ms. Harris questioning, grams, at 31 weighed the NPD acknowledge did the files contained all grams NMS lab.5 only but 29.51 indicating FedEx one one document witnesses, ar- Offering the defense Also, shipment date of October its the unreliabili- gued and rested case on tracking samples all the NMS labels on the thus, its “chain of ty custody” were dated 10/28/03. inadmissibility subsequent proof additional Har-
During questioning, Ms. taken the substances from the that it possible ris testified that all the cocaine. were in fact packages/samples in as one unit and came THE TO REFUSAL SUPPRESS I. *7 the dispute when asked whether the as to LAB RE- AND COCAINE RESULTING could jeopardize integri- time received the PORTS ty packages/samples, of the she testified the that it not would months before samples would since the Several opened drugs the suppress not have been until she had moved testify they weighed at that them differ- 4. NPD officers Grimes and Travis testified vis did weight drugs, trial that the total of the includ- ently, package without. one with the and one ing paper bag plastic bag the brown the and the one testified to fact in front of Yet no this grams, weighed but without was 212 when jury. testify did she tested the Ms. Harris that baggies, bag, plastic brown the the and the twice, weight gave expected sample but grams. protocol, they weight per was 200 As say field test would loss other than that the testing. a small removed amount for field milligram. approximately In one consume a instance, the established that other evidence missing theory 5. The Commonwealth’s 7, May buy, the NPD records as to the weight was that the was different cocaine bag- cocaine in a indicate the was recovered police weighed packaging, the it with because gie. baggie to the NMS That never made it not, did the scales were and the lab labs, records it was received whose indicate 17, 2004, fact, February at different. the piece paper. a of white in folded hearing, suppression Harris and Tra- Officers resulting reports questions lab the basis of concerning admissibility the disparity weight the the between NPD evidence shall by be determined the court. weights ultimately and the amount noted determination, In making its is not by testing. the NMS lab for The motion evidence, bound the rules of except February was heard on the privileges. As best we can determine court, trial which a entered detailed order record, including from the the or- court’s denying Appellant’s motion: motion, Appellant’s sup- der and the suppress pression premised upon
Motion to motions were denied. Detective disparity weight Kevin that report- samples Grimes testified their between the ed weight drugs analyzed. seized tendered and At hearing includes Grimes, packaging. NPD, Heather Harris testified Detective from the testified that the weight pack- lab’s excludes the reported weight their included the packag- aging. reasonably The evidence ex- ing, whereas Ms. Harris testified NMS’s plains discrepancy the po- between weight excluded the packaging. Believing weights. drugs lice and lab The to reasonably explain evidence the dis- resulting reports lab are admissible for crepancy, court Appel- then denied Any each of the disparity offenses. be- motion, noting lant’s that disparity “the Dept, tween the Nicholasville Police .weights between [NPD].. and the lab weights weights goes and the lab to the weights goes weight to the of the evidence weight of the evidence rather than its admissibility.” rather than its The court admissibility. is a There reasonable also found that “there is a reasonable probability that the evidence has not probability that the evidence had not been any been altered in material respect. in any respect.” altered material Later filed an additional analy The court was correct in its reconsider,” se “motion to pro again sis. evidence “Where state’s otherwise was denied with the following order to a reasonable probability establishes court: substances at introduced trial are the Denied. proof hearing at the indi- seized, discrepan same as the substance in question cated the substance has incy weight goes of the substances not been altered in aspect. material evidence, credibility not its ad Bd.], Mollette Kentucky [v. Personnel State, missibility.” Hancock v. 587 So.2d ([Ky.App.]1999). [sic] (Ala.Crim.App.1991) (noting testimony indicated pound discrepancy); two and a half see disparity police was the result of in- also, Stanley, States v. 24 F.3d United cluding the containers and the lab ex- (11th Cir.1994) (noting that officers cluding the containers in their measure- weigh grams, cocaine at 105.6 lab *8 ments. Mitchell, v. 796 grams); United States just prior The motion was renewed to (D.D.C.1992) F.Supp. (noting 13 officers again the commencement of the weighed grams, grams— at 30 lab at 19.33 motion was denied. discrepancy chemist was asked about at 1101(d) provides hearing
KRE
that the rules of
the motion
and stated difficult to
(other
privileges)
weight
evidence
than
do not
the cause of
difference
ap-
establish
Anderson,
ply
preliminary
any certainty); People
to the determination of
with
questions
(Colo.App.1992)(noting
of fact
is to
P.2d 293
500.1
when the issue
be
officers,
by
testimony
at
at
by
grams
determined
the court under KRE 104.
lab—
104(a) provides
preliminary
hearing
discrepancy
KRE
that
motion
indicated
testimony
appears
it
weighing
wrap-
solely
and without
ted
that
result
with
object
unchanged
court
fail to
to be
actual
in an
pings and
stated “we
see how
the
However,
fungible
any
discrepancy
weight
so-called
in the
condition.
the more
cocaine,
evidence,
its
unexplained,
significant
the
even if
could be
the
the more
condition,
higher
susceptibility
or the
exculpatory.”).
its
to
the more
the foun-
change,
elaborate
being
discretion,
no
There
abuse of
Par-
dation must be.
Commonwealth,
(Ky.
tin v.
overruled. “All not possibility tampering does It .that negated. have to is sufficient.. A trial decision to court’s preserve integrity to actions taken an item whether of evidence is essential of the evidence are reasonable under ly the same it was at condition as the time Thomas, circumstances.” and, therefore, of the crime a whether sufficient laid is foundation was renewable under an abuse of discretion standard. nothing present There in this case Thomas v. a the co- probability which rises to (Ky.2004). “The of... requirement identi trial caine into at the admitted evidence a precedent fication as condition admis acquired was not cocaine in the “con- sibility by is satisfied evidence sufficient to trolled or the con- buys,” vehicle searches finding that the matter in support ques there are Admittedly, ducted the NPD. claims.” KRE proponent tion is what testi- weight. variances in 901(a). mony suppression hearings estab- at the it so
Logically, requires foundation lished the court’s satisfaction and proper found, explained proponent prove prof- that the variances were weighing in the tech- fered evidence was the same evidence differences weighed actually question niques. Harris testified she involved the event Ms. containers, wrappings un- materially remains without with basically weighed of the event until changed the time whereas NPD *9 Additionally, necessary the material. its admission. The foundation containment that materials were depends upon given the nature of the evi- evidence was the by subjected test readily identifiable to three tests —a field dence. Evidence initial a subse- may be the NPD and an test and impervious change admit- 246 thus,
quent by by test the NMS it is was necessitated the tremendous back- labs— reasonable believe additional substances log and a desire to testing accelerate the were consumed in these tests.6 That be- delays and avoid further trial in Kentucky, said, ing the mere possibility that some- subject which had the arti- several one, somewhere, “pinched” some of the in regard cles to the KSP lab in earlier prove cocaine is insufficient to actual the parts year. steps of the All of these substances taken from were not subject witnesses were to cross-examina- accurately analyzed as to what remained. fact, In put tion. this was the sole defense by Appellant, grueling. and it was participated Officers who in the “con- buys” trolled and the searches testified to the ... “Where evidence otherwise the events and circumstances of such. probability establishes to a reasonable that The location from which each item of evi- introduced at trial is the substance dence was recovered was identified. The seized, discrepan same as the substance manner in which each item was for tagged go cies of the substance described, identification was both for the evidence, credibility not its ad officers, the lab and the KSP NMS lab. State, missibility.” Hancock v. 587 So.2d The manner in which the evidence was 1040, 1046 (Ala.Crim.App.1991). Decisions NPD, secured at the the KSP lab and the concerning admissibility of evidence explained, NMS lab was as was the test- required higher are not to meet the bur ing. along testimony, appro- And with the “beyond den of a reasonable doubt” for priate “chain custody” documents from verdicts; rather the standard for admissi detailing KSP lab and the NMS lab bility security preponderance. Lego and transfer and be- v. Twom steps within 477, 488-89, ey, tween the labs were filed as exhibits for 404 U.S. 30 S.Ct. (1972). Thus, perusal Wininger and review. Both Ms. evidentiary L.Ed.2d 618 Harris, respective and Ms. from their KSP standard is unrelated to the burden of labs, and NMS testified as to their lab’s proof Bourjaily on the substantive issue. materials, handling of restrictions States, v. United 483 U.S. open
on who could and handle the materi- (1987). Plainly, S.Ct. 97 L.Ed.2d als, and the documentation of their initials adequacy “the of the chain of In packages/samples introduced. question, jury a factual resolved fact, Wininger Ms. noted her initials both against Appéllant.” v. United States pack- on the inside and the outside of the (5th Graham, 464 F.2d Cir. ages along with those of NMS. Both testi- 1972).
fied, upon review of the exhibits there unnecessary “It ...
appeared tampering, during to be even police every account hand-to-hand by tracking the transfer the secured meth- items; if the transfer of the it is sufficient Moreover, od used FedEx. it was not- assur evidence demonstrates a reasonable ed that the use of FedEx under these ance the condition of the item remains the unusual offered similar se- circumstances obtained, it was until same the time curity normally em- are assurances Price, “out- its introduction at trial.” State ployed by the KSP labs and sourcing” sampling (Mo.Ct.App.1987). exhibits these weighing evidence of the different Harris testified to these differences before the suppression hearings. techniques between the NPD and NMS was trial court in the How- ever, jury, jury consumption not introduced for consideration was aware of the testing. although aspect we do note that the officers Ms. *10 Commonwealth, to induce a reasonable is sufficient v. 55 S.W.3d dence Love beyond doubt a chain to believe a reasonable upheld validity jury the of (Ky.2001),we Thompson v. guilty. custody the who cen that the Defendant where technician Commonwealth, 22 (Ky.2004). called as a trifuged sample was not “is, if under appellate test on review per there was other The witness. whole, clearly a in evidence as would evidence the case to indicate suasive only guilt, for a find jury the centri unreasonable sample during remained sealed to a directed there is then the defendant entitled fuge process. this instance v. acquittal.” offi “persuasive evidence” that verdict of Commonwealth Benham, (Ky.1991). in the buys cers involved and seizures and the lab technicians and NMS both KSP in presented A of the evidence review in an unsealed ever handled material trial clearly this case indicates manner, had the The evi ability to. that a reason- correctly determined judge supported the that the sam dence belief reasonably guilt could find be- juror able times. remained sealed at all other ples yond a reasonable doubt. probability Consequently, reasonable THE RCr 7.24 VIOLATIONS IV. evidence has not been is that the at issue also that the court Appellant argues The tampered with or in fashion. changed allowing the of vari- erred in introduction Muncy “chain of documents related to the ous (Ky.2004). Having examined the rec- substance, illegal for rea- custody” of the ord, we believe the chain had not been sons that documents sufficiently under these established Appellant pursuant to the RCr provided circumstances. to, objected are con- 7.24. The documents DI- III. FAILURE A TO GRANT and 14. exhibits 8 tained Commonwealth ACQUITTAL RECTED IN VERDICT OF tracking a form shows Exhibit 8 FedEx THAT THE COMMONWEALTH back to packages for the NMS FAILED TO PROVE THE CHAIN OF labs, request for examination KSP AND CUSTODY AUTHENTICATION OF and the forms the NPD to KSP lab THE COCAINE A REASON- BEYOND from KSP of evidence release forms record ABLE DOUBT 14 includes the back to NPD. Exhibit labs argues, The on the also control doc- property internal evidence II, grounds as set I and same out issues illegal ument for the substances while trial court granting that the erred in not NPD, request possession of directed verdict of after the Com acquittal record of by KSP and the examination lab failed to the chain of prove monwealth lab for each evidence released KSP custody and the cocaine identification of packages. All of the docu- separate beyond put, Simply reasonable doubt. generated af- question ments in had been Bourja Lego that is not the test. See entry discovery ter the order ily, supra. by the compliance initial therewith Commonwealth. for a standard of review ini- court, ruling arraigned on for direct trial a motion verdict, July The order charges is that trial court must tial ed arraignment, appears reflecting draw all fair and inferences reasonable order, discovery un- form ordered from the evidence of the Common to be a favor wealth, if 7.24 and 7.26: and then determine such evi- der RCr *11 days of entry
Within of this undisputed that the Ap- Order, shown, received, absent good pellant cause through subsequent dis- provide covery Commonwealth shall to the De- from the all the or, attorney reports laboratory fendant’s if the of the Defendant is forensic examina- se, acting pro copy ultimately to the Defendant a tions conducted on the sub- discovery and reports disclosure stances. These authorized from NMS docu- 7.26, numbers, under RCr 7.24 and ment copy RCr the NMS control the KSP (or available) number, tape transcript laboratory if disclose the results grand jury testimony analysis, custody related to this In- state “that all chain of dictment, any order,” and exculpatory material documents were in that “the and required by custody Due Process chain of applicable and documentation is on at file case law to be disclosed to the National Medical Defen- Services Inc.”—the ad- dant. dress of report, which is contained on the phone as well as the reports number. The
Upon the compliance Commonwealth’s 5-6, are dated 2003. November Order, Defendant, subject with this objection cause, shall within 15 thereto, Subsequent filed days provide to the Commonwealth the a Motion for Bill of Particulars on Novem- reciprocal discovery and disclosure au- 12, 2003, subsequent ber and a Motion to 7.24(3)(A). thorized under RCr Suppress resulting drugs “the lab re- is a continuing discovery
This order. ports,” attaching copies thereto the Any materials that un- reports analyses are discoverable of the substance paragraphs der above copies come NMS. The attached have facsimile (fax) possession, custody fact, into or control of the date of December them, party required provide shall be parties and the court had discussed promptly provided party’s to the other having suppression hearing on the 17th attorney. of February hearing at the court on Janu- 29, 2004, ary along necessity with the Thereafter, 17, 2003, July Depart- Harris, having Ms. technician NMS lab Advocacy ment of Public ap- entered its analysis, who did the appear testify pearance through Appellant’s counsel as held, regards hearing thereto. The attorney. chain of docu- Harris, along and Ms. with Detective ments that existed this time were the NPD, appeared Grimes and testified logs internal that the NPD established to the reasons for the differences alleged illegal the transfer of the sub- weights samples/packages. of the various stances to its secure evidence locker. The Thereafter, the court denied the motions Appellant acknowledges that he received noting, “any disparity suppress, be- discovery this from the Commonwealth at weights weights and lab tween NPD time, objects but because he did not goes to the of the evidence rather subsequently receive the created documen- admissibility. than its There is a reason- tation, which was created as the materials probability able the evidence has not were later transferred from NPD to KSP been altered in material respect.” and then back from KSP to the NPD. No documents, objection Appel- made to the NMS Thereafter on March court, provided, Appel- pro which also were not but late wrote a se letter to the objecting ruling sup- lant introduced those himself as Defen- to the court’s “the de- pression dant’s exhibits and does not com- motion and noted NPD plain testimony thereof. & lab on record will tectives disclosed, or it suffice, just the material not I need to the court evidence show *12 just evidentiary police may material recov- may the the enter such other orders of undocumented for a total ered was under the circumstances. days laboratory until the it from a received in these of standard review coupled with courier inconsistent Beaty v. an abuse of matters is discretion. Although measurements.” we do not have Commonwealth, (Ky. the tape a video of examinations conducted 2003). the Although argues the Appellant only it is during suppression hearings, 7.24(1), of this section violation is RCr appeared to assume that Harris fair Ms. aof pertains to statements or confessions hearing at the and testified with NMS or men physical and results of defendant containing all connected file documents tests or tal scientific examinations and/or separate samples/substances.7 with re analysis of experiments. reports Further, the morning Appel- of to and no given Appellant were sults motions, lant filed two additional one to more complaints made thereof. This is suppress results search and vehicle argument properly an made under RCr suppress hearsay to another statements 7.24(2), requires of a de which a “motion (cell telephone phone), from his cellular “may after which court or fendant” to, objected time of which at the the call a cor triggers disclosure—which then der” Thus, possession
was in the of the NDP. obligation defendant responding upon the it did although appears the Commonwealth he so tangible his exhibits—if to disclose its supplement not initial disclosure with Noting request ap elected. no such the chain documentation creat- record, arguable in the that the pears it is analysis, ed the transfers for other than order, not a form such court should utilize themselves, analysis reports neither it here on for reasons arraignment, did compli- did the further request infringes upon given that it the election though ance even it obvious that was 7.24(2) and the defendant under RCr existence, documents transfer were in 3A(ii). having said, That “[neverthe existence of which was disclosed less, the order was valid until overruled.” reports analysis. face of the Commonwealth, Hodge v. 7.24(9)provides: RCr Moreover, (Ky.2000). whether If at time during the course discovery is inadver provide failure to proceedings brought to the atten- tent, intentional, immaterial. or the court failed party tion of that a has Anderson v. comply with or an order this rule (Ky.1993). thereto, pursuant may issued the court however, Here, court was as noted party discovery such or permit
direct
it felt
to enter such an order as
inspection
previously
not
entitled
materials
disclosed,
Ap-
continuance,
“just
under the
grant
pro-
circumstances.”
recess, or
party
introducing
requested
into
counsel
pellant’s
hibit
from
discrepancies
pellant's
7. The briefs disclosed that the clerk’s office
counsel knew what
hearing tapes
could not find the
for this hear-
time.
could be found within her file at that
ing
during
it was
the lunch
Moreover,
since
conducted
it was the
who intro-
during
ongoing
hour break
another trial
documents,
reports,
duced
other than
February
tapes
trial
Ms. Harris’s NMS file as defendant’s
from
appeared
show that Ms. Harris
at trial with
1 and
also disclosed the
exhibit
records,
targeted
her file and
and the
tracking
priority overnight
materials.
FedEx
Ap-
questioning
defense indicates
relief,
other
other than a
away
bar to their
er since he
almost a
block
introduction, notwithstanding that the wit-
the vehicle when arrested.
ness
orally
involved had testified
as to the
States,
Thornton
United
541 U.S.
transfers, receipt
handling
of the ex-
124 S.Ct.
FROM APPELLANT’S VEHICLE incriminating evidence at risk of conceal- 7,2003 MAY ON ment or destruction. The Fourth buy”
After the last “controlled require Amendment does not such a from Appellant May gamble. NPD made a decision to arrest the Appel Thornton, 621-22, 124 541 U.S. at S.Ct. at
lant. The officers then located him and 2131. sometime, him stopped followed for then Moreover, right to an “the search car, him. He was ordered out of the but item incident to exists even if that arrest away. fled was arrested almost a block longer to the defen item is accessible The from he vehicle fled was the long dant at the time of the search. So as Expedition same Ford that he had been im the defendant had the item within his driving drug in connection with the trans arrest, mediate control near the time of his April actions of March 28 and arrested, subject item remains to search incident his Expedition Once he was White, to an arrest.” v. 131 large searched and a amount of cocaine United States (6th Cir.2005) (quoting Appel Fed.Appx. was found in the center console. 58 lant 265 F.3d 379 improp- Northrop Trippett, now contends the search was
251
juror
objected to
Cir.2001)).
Appellant
(6th
commentators
many
As
cause,
challenge was
and when this
noted,
under Belton
the rule
have
overruled,
peremp
utilized
the fact
upon
based
longer
is no
Thornton
juror 448
weapon
to remove
might grab
tory challenge
that the arrestee
Myron
Thus,
argues error
item from his car.
evidentiary
jury.
Commonwealth,
Moskovitz,
a Reason:
A Rule in Search
Marsch v.
under
Chimel
Re-examination
v. Com
Empirical
An
and Thomas
(Ky.1988)
657, 675;
L.Rev.
and Belton
Wis.
onwealth,
(Ky.1993),
Silk,
Bright Lines Break
David M.
When
Morgan v.
overruled
Limiting
v. Belton 136
Down:
New York
(Ky.2006).
Appel
Pa. L.Rev.
290-291.
U.
question
dire
about
response
to a voir
lant, however,
im
having fled the vehicle
enforcement, juror 448 noted
ties to law
arrest,
mediately
qualifies
to this
prior
police offi-
was a retired
that her husband
under Thorn
occupant” thereof
*14
a “recent
cer,
“very pro-police.”
and thus she was
ton.
to
would like
also stated she
she
Commonwealth,
Moreover, in
v.
Clark
listen
be honest and
think that she would
101,
(Ky.App.1993),
107
it was
868 S.W.2d
if
asked
she
to the information. When
ar-
legal
incident to
that searches
stated
police
on a
officer’s
put
would more
automobiles,
in relation to
“provide,
rest
testimony,
lay person’s
a
testimony over
sup-
cause to
probable
that where there is
not,”
hope
that she “would
she answered
arrest,
probable
that same
port a custodial
to,”
“wouldn’t
try not
that she
she “would
justifies a
of the entire auto-
cause
search
“listen and
intentionally,” that she would
compartment.”
(Citing
passenger
mobile
impartial and “lis-
my very
do
best” to be
Ramsey,
744 S.W.2d
Commonwealth
ten to the information.”
Belton,
(Ky.1987); New York v.
419
lay
454, 460-63,
to remember that
2864-
It is well
453 U.S.
S.Ct.
(1981)).
have
panel may never
persons
answers to
where
448 indi-
court,
Giving due deference to the trial
essentially
cated that
she hopes she would
statements,
who not
heard the
but
good juror,
gave
she was asked and
juror’s
viewed the
demeanor
her re-
many
answers or indications of answers to
sponse
questions
by Appellant’s
asked
questions,
more
one of which was essen-
counsel,
say
cannot
an
we
there was
abuse
*15
tially whether or not
fair
she could be
and
Therefore,
of
find
discretion.
we
no error.
impartial in
application
her
of the facts to
Furthermore,
juror 448 did not sit in
the law and
given
follow the instructions
ruling,
this trial. Even if the trial court’s
by the court in this case.
in Appellant having
resulted
to use a
peremptory
juror,
strike to remove this
juror
It has also
held that a
been
past
would have been error in the
under
qualified
to serve
a
unless there is
show
Thomas, supra, we would find no error
bias,
Commonwealth,
of
ing
Polk v.
574
today,
specifically
since we
overruled
335, 336-37 (Ky.App.1978),
S.W.2d
but it is
Morgan
Thomas to this effect in
v. Com
upon
party claiming
incumbent
bias or
monwealth,
(Ky.2006).
In Kentucky, per April May even law enforcement of March and 7, automatically 2003, sonnel are not along excluded from with the cocaine seized from Commonwealth, 2003, 7, jury panel. Appellant’s May Sholler v. vehicle on buys.” 969 v. his for the (Ky.1998); upon S.W.2d 708-09 Mabe arrest “controlled Commonwealth, (Ky. 884 671 Indictment No. 03-CR-00135 was for the S.W.2d 1994); Commonwealth, Appellant’s Bowling v. 942 cocaine found vehicle subsequently af- (Ky.1997). S.W.2d when he was re-arrested 03- or ... in the ter the issuance of indictment number der of two more offenses if Indictment No. 04-CR-00155 same indictment ... the offenses are CR-00098. or or are trafficking was an additional transaction of the same similar character audiotaped and acts or transactions actually occurred based same during buy” Appellant’s together parts the “controlled connected or constitute April During plan. record a common or store on scheme instance, a male came record this into the Brown v. while “controlled was in buy”
store permits (Ky.1970). “RCr 9.12 two progress traded the a hand- more indictments to be consolidated gun for cocaine. offenses have together trial if the could ” joined single .... indictment Pursuant to motions the Common- trial judge Id. The has broad discretion wealth to consolidate 03-CR-00135 regards joinder and the decision of May filed the court 03-CR-00093 judge trial will not be overturned in the ordered consolidation the two indict- absence of a of a clear demonstration May 20, 2004, ments order dated not- abuse discretion. Violett Common ing: wealth, (Ky.1995). It S.W.2d 03-CR-00135, alleges Count one of traf- is not an abuse of discretion for a trial ficking in a controlled first substance joint join into a trial judge offenses (cocaine) degree on 3-31-03. Counts simple, crime where evidence of each through one four of all 03-CR-00093 time, closely related in the offenses are 3-28-03, allege 4- the same offense on demonstrably and there is unreasonable 15-03 5-7-03. The are of offenses prejudice shown to the defendant as a ‘the same or similar character’ and are Brown, result of the consolidation. close enough time their relevance at 447. outweighs any prejudicial far effect. Brown, joined charges were The consolidation is RCr consistent with *16 escape of armed robbery and 6.18 and RCr 9.12. in one indictment and another rob- armed Thereafter, 2004, 29, on July bery carrying weapon a concealed in a Appellant arraigned was on the third Therein the not- second indictment. court indictment, 04-CR-00155, which afore as though that “even such of ed evidence said, during one previous occurred crimes might distinct not have been admis- charges. arraignment charge, At of this trials, in of separate promotion sible orally the Commonwealth moved to consol economy judicial efficiency adminis- two, idate this indictment with other tration of multi- avoidance needless granted and the oral motion was outweighed by any trials not plicity of was trial court. trial date still remained demonstrably prejudice to unreasonable event, August any during In 2004.8 the Defendant a result of the consolida- as trial, acquitted of indict Brown, at 447. tions.” ment number 04-CR-00155. Violett,
RCr 6.18 and RCr 9.12 are relevant indictment problem. permits join- sodomy 6.18 charging RCr the Defendant with allegations suggest given copy 8. The makes no that he did not he was not underlying was not aware of the facts in- discovery audiotape pursuant to the of that allegation, 03-CR-00093, volved this transaction number from indictment audiotape was contained within the buys.” which dealt the "controlled with buy day. Appellant controlled made on step-daughter joined above, his in with the For the reasons set out affirm we him charging rape dictment with of his bi the Appellant’s conviction.
ological daughter, even though the of
LAMBERT, C.J.,
allegedly
years apart.
fenses
occurred four
GRAVES and
“A significant
determining
factor in
WINTERSHEIMER,
JJ.,
wheth
concur.
joinder
er
unduly
offenses
trial is
ROACH, J.,
I, II, III,
fully
concurs
prejudicial is whether evidence of one of
IV, VI,
VII,
only
but concurs in result
the offenses would
admissible in a sepa
as to section V.
Violett,
rate trial for the other offense.”
other offenses are so connected or inter-
States,
In Thornton v. United
541 U.S.
woven
being
they
with the one
tried that
124 S.Ct.
lant acquitted on 04-CR-00155.
Thus, we find no abuse of discretion. so, 404(b)(1).
9. Even it was also admissible under KRE