Commonwealth of Kentucky Court of Appeals

Transcription

1 RENDERED: MAY 19, 2017; 10:00 A.M. NOT TO BE PUBLISHED Commonwealth of Kentucky Court of Appeals NO CA MR DONALD REDD APPELLANT APPEAL FROM CAMPBELL CIRCUIT COURT v. HONORABLE JULIE REINHARDT WARD, JUDGE ACTION NO. 15-CR COMMONWEALTH OF KENTUCKY APPELLEE OPINION AFFIRMING ** ** ** ** ** BEFORE: COMBS, MAZE, AND STUMBO, JUDGES. MAZE, JUDGE: Appellant, Donald Redd, appeals from his conviction and sentence in Campbell Circuit Court on charges of importing heroin and first-degree trafficking in a controlled substance (TICS). He argues that the trial court s instruction of the jury on both charges violated the federal and state constitutional prohibitions of double jeopardy. Redd also contends that the trial court erred when

2 it failed to instruct the jury to disregard evidence of an outstanding warrant for Redd. As the latter alleged error is unpreserved, and because it is clear that the General Assembly intended that importing heroin be punished cumulatively to other drug offenses, we observe no error in the trial court s judgment of conviction and sentence. Hence, we affirm. Background The facts of this case are undisputed. On June 8, 2015, Newport Police Officer Chris Gallichio observed a white Cadillac speeding and changing lanes without signaling on Interstate 471. Officer Gallichio radioed Officer Brandon Laffin to stop the Cadillac. As Officer Laffin approached the vehicle, he observed the driver, Redd, lean or reach for something inside the vehicle. While running Redd s information, officers learned from a dispatcher that Redd had an outstanding warrant for non-support. Officers arrested Redd and placed him in the back of Officer Laffin s police cruiser. With Redd s verbal consent, officers conducted a search of the Cadillac with the assistance of a canine unit. The canine alerted to the door of the vehicle as well as to a small package on the floorboard. This package contained less than two grams of heroin. A grand jury indicted Redd on charges of importing heroin and first-degree TICS. Prior to trial, Redd s counsel filed a motion to strike one count of the indictment on the grounds that proceeding with both charges would have violated -2-

3 the United States and Kentucky Constitutions respective prohibitions on double jeopardy. Following a hearing, the trial court overruled this motion. At Redd s February 2016 trial, Officer Laffin testified that Redd eventually confessed to buying the heroin in Cincinnati and driving to Kentucky to sell it. According to Officer Laffin, Redd stated that he was on his way to meet a buyer when he was stopped. During Officer Laffin s testimony, the Commonwealth introduced in-car video depicting Redd s arrest. During the video, a radio dispatcher was heard informing Officer Laffin that there was an outstanding e-warrant for Redd on a child support charge. A few minutes later, according to a stipulation the parties and the trial court had agreed upon during a prior bench conference, the trial court informed the jury that the parties stipulated that Redd s arrest was lawful. Redd s counsel made no objection, and the trial proceeded. Following proof and the submission of jury instructions, the jury convicted Redd of importing heroin and TICS in the first degree. At the penalty phase of trial, Redd s counsel renewed his objection concerning double jeopardy. The trial court noted the objection and proceeded. The jury recommended consecutive sentences of seven and three years on the importation and TICS convictions, respectively. However, the trial court ordered Redd to serve the proposed sentences concurrently for a total of seven years imprisonment. This appeal follows. Analysis -3-

4 I. Double Jeopardy In 2015, the General Assembly enacted a new drug offense, importing heroin. KRS 218A.1410 reads, in its entirety, (1) A person is guilty of importing heroin when he or she knowingly and unlawfully transports any quantity of heroin into the Commonwealth by any means with the intent to sell or distribute the heroin. (2) The provisions of this section are intended to be a separate offense from others in this chapter, and shall be punished in addition to violations of this chapter occurring during the same course of conduct. (3) Importing heroin is a Class C felony, and the defendant shall not be released on probation, shock probation, conditional discharge, or parole until he or she has served at least fifty percent (50%) of the sentence imposed. Redd contends that this statute, in combination with the statute proscribing TICS, punishes the same conduct and that his conviction under both statutes violated the federal and state prohibitions against double jeopardy. As this is largely a matter of statutory interpretation, construction, and application, the question before us is one of law. As such, we review the trial court s decision de novo. See, e.g., Commonwealth v. Love, 334 S.W.3d 92, 93 (Ky. 2011) (citing Commonwealth v. McBride, 281 S.W.3d 799, 803 (Ky. 2009)). The Fifth Amendment to the United States Constitution and Section 13 of the Kentucky Constitution forbid a person from being twice put in jeopardy of life or limb for the same offence. U.S. Const. amend. V; Ky. Const. 13. Though the two provisions are identical in the import of their prohibition against double jeopardy[,] see Jordan v. Commonwealth, 703 S.W.2d 870, 872 (Ky. -4-

5 1985), the federal provision also applies to this Commonwealth through the Fourteenth Amendment to the United States Constitution. See McNeil v. Commonwealth, 468 S.W.3d 858, 866 (Ky. 2015) (citing Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L. Ed. 2d 707 (1969)). In the past, Kentucky courts have utilized the Blockburger test for determining whether two or more charges arising from the same incident place a defendant in double jeopardy. See Commonwealth v. Burge, 947 S.W.2d 805, 811 (Ky. 1996) (citing Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L. Ed. 306 (1932)). This test seeks to determine identity of offenses based upon whether each provision requires proof of a fact which the other does not. Blockburger at 304. Additionally, Kentucky statutes speak on the subject of double jeopardy and even codify the Blockburger test. See McNeil, 468 S.W.3d at 867, citing Burge, supra. KRS states, in its entirety, (1) [w]hen a single course of conduct of a defendant may establish the commission of more than one (1) offense, he may be prosecuted for each such offense. He may not, however, be convicted of more than one (1) offense when: (a) One offense is included in the other, as defined in subsection (2); or (b) Inconsistent findings of fact are required to establish the commission of the offenses; or (c) The offense is designed to prohibit a continuing course of conduct and the defendant's course of conduct was uninterrupted by legal process, unless the law expressly provides that specific periods of such conduct constitute separate offenses. -5-

6 (2) A defendant may be convicted of an offense that is included in any offense with which he is formally charged. An offense is so included when: (a) It is established by proof of the same or less than all the facts required to establish the commission of the offense charged; or (b) It consists of an attempt to commit the offense charged or to commit an offense otherwise included therein; or (c) It differs from the offense charged only in the respect that a lesser kind of culpability suffices to establish its commission; or (d) It differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property or public interest suffices to establish its commission. Our Supreme Court has held that this statute clearly contemplates that a single course of conduct may result in and establish the commission of more than one offense but prohibits bifurcating a single crime which is established in statutory degrees into additional crimes, as an included offense, and, by import, prohibits multiple punishments. Jordan, 703 S.W.2d at 872. A. Blockburger and the Role of Legislative Intent Redd argues that Blockburger controls and that a statute such as KRS 218A.1410 cannot supersede a constitutional edict such as double jeopardy. Generally, this is true. See, e.g., Commonwealth v. Barroso, 122 S.W.3d 554, 558 (Ky. 2003). The federal Constitution is the paramount law of the land. A statute of a state in conflict with it is void. Commonwealth v. Int l Harvester Co. of Am., 115 S.W. 703, 706 (Ky. 1909), overruled on other grounds by Gay v. Brent, 179 S.W. 1051, 1058 (1915). However, in the seventy-five years since Blockburger, -6-

7 case law has come to indicate that the Blockburger analysis is not universally applicable and that state statutes can provide for multiple punishments without running afoul of double jeopardy. In Missouri v. Hunter, 459 U.S. 359, 366, 103 S.Ct. 673, 74 L. Ed. 2d 535 (1983), the state proceeded against a defendant on the charges of first-degree robbery and armed criminal action. The statute regarding the latter charge read as follows: [A]ny person who commits any felony under the laws of this state by, with, or through the use, assistance, or aid of a dangerous instrument or deadly weapon is also guilty of the crime of armed criminal action and, upon conviction, shall be punished by imprisonment by the department of corrections and human resources for a term of not less than three years. The punishment imposed pursuant to this subsection shall be in addition to any punishment provided by law for the crime committed by, with, or through the use, assistance, or aid of a dangerous instrument or deadly weapon. No person convicted under this subsection shall be eligible for parole, probation, conditional release or suspended imposition or execution of sentence for a period of three calendar years. Mo. Ann. Stat (West 2015). When the defendant challenged his conviction on double jeopardy grounds, the Missouri Supreme Court asserted that which Redd submits to us today: that the constitutional prohibition of double jeopardy must be supreme to any contrary legislative edict. That court agreed, refusing to hold otherwise [u]ntil such time as the Supreme Court of the United States declares clearly and unequivocally that the Double Jeopardy Clause... does -7-

8 not apply to the legislative branch.... State v. Haggard, 619 S.W.2d 44, 51 (Mo. 1981) (vacated and remanded, Hunter, supra.). The United States Supreme Court, addressing what it deemed as the Missouri Supreme Court s misreading of federal Supreme Court precedent, vacated, holding that where a state legislature clearly intends punishment to be cumulative, state and federal double jeopardy considerations must yield. Hunter, 459 U.S. at The Court held that while the double jeopardy clause protects an already-convicted or acquitted individual from subsequent prosecutions, as it applies to multiple punishments for a single act, the double jeopardy clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended. Hunter, 459 U.S. at 366. In this context, according to the Court, the Blockburger test is merely a rule of statutory construction, a default method of discerning legislative intent where the General Assembly has not stated its intent clearly. Id. at 367, citing Albernaz v. United States, 450 U.S. 333, 340, 101 S.Ct. 1137, 1143, 67 L. Ed. 2d 275 (1981). Therefore, like any rule of statutory construction, the Blockburger test should not be controlling where, for example, there is a clear indication of contrary legislative intent. Albernaz at 340. Kentucky s Supreme Court has endorsed this reasoning. See McNeil, 468 S.W.3d at ; see also Lloyd v. Commonwealth, 324 S.W.3d 384, 390 (Ky. 2010) ( the Blockburger test must yield to contrary expression of legislative intent ). Most recently, when faced with a 2015 challenge based upon Kentucky s double jeopardy provision, the Court looked past differences between Missouri s -8-

9 and Kentucky s constitutional provisions regarding double jeopardy 1 and held flatly, [i]f the legislature wants to impose multiple punishments for the same offense, it may do so. A court s task, then, when determining the permissibility of imposing multiple punishments for a single transaction or course of conduct is simply to determine the legislature s intent. McNeil, 468 S.W.3d at (internal citations omitted). In his reply brief and at oral argument, Redd cited to State v. Guillaume, 975 P.2d 312 (Mont. 1999), in which the Montana Supreme Court held unconstitutional a state statute providing for cumulative punishment for use of weapon in the commission of a crime. The Court declined to follow Hunter on the basis that the double jeopardy challenge before them was exclusively based in the state s constitution, not its federal counterpart. Therefore, the Court asserted its power to judge the constitutionality of legislative action, even when the legislature clearly expresses the intent behind that action. Constitutional guarantees are not mere vessels to be left empty or filled at the whim of the legislative branch. Rather, they have intrinsic meaning which is independent of any legislative intent. Guillaume, 975 P.2d at 316 (quoting State v. Zabawa, 928 P.2d 151, 161 (Mont. 1996)). We agree in principle. However, the Montana Supreme Court had a few luxuries this Court does not enjoy. First, we are an intermediate appellate 1 Article 1, Section 19 of the Missouri Constitution states, That no person shall be... put again in jeopardy of life or liberty for the same offense, after being once acquitted by a jury.... Its Kentucky counterpart is more general, stating, No person shall, for the same offense, be twice put in jeopardy of his life or limb.... Ky. Const

10 court; and as such, we are bound by the decisions of our Commonwealth s Supreme Court. SCR 1.030(8)(a); see also, e.g., Kindred Healthcare, Inc. v. Henson, 481 S.W.3d 825, 829 (Ky. App. 2014). Second, in McNeil, that Court spoke clearly on this issue. Unlike the Montana Supreme Court, our Supreme Court expressly adopted the analysis in Hunter, and it did so in the context of a challenge to the Kentucky Constitution s double jeopardy provision. Redd has failed to inform this Court how we could possibly avoid application of this precedent, and this is because we cannot. McNeil, with its adoption of Hunter, applies. Accordingly, our task is to determine whether the language of KRS 218A.1410(2) constitutes a clear expression of the General Assembly s intent for the crime of importing heroin, and the sentence that it carries, to apply cumulatively to other crimes, including TICS. If we hold that the General Assembly s intent is clear, we need not resort to Blockburger and other rules of statutory construction. Rather, we must then determine whether the punishment the trial court imposed on Redd for both crimes exceeded that which the legislature intended. See Hunter, 459 U.S. at 366. The intent behind KRS 218A.1410(2) could not be clearer when looking to its express language. It is obvious to this Court that the single purpose behind that paragraph is to underscore the General Assembly s desire that the crime of importing heroin carry a punishment cumulative to others in this chapter[.] Like the Missouri statute in Hunter, which provided that [t]he -10-

11 punishment imposed [for armed criminal action] shall be in addition to any punishment provided by law for robbery, KRS 218A.1410(2) clearly provides a separate charge and a cumulative punishment to that of TICS, also proscribed in Chapter 218A. In light of this clear intent, we cannot resort to the Blockburger analysis, as Redd urges us to do. Pursuant to Hunter, McNeil, and Lloyd, Blockburger must yield, and our review for any violation of double jeopardy is limited to whether the trial court sentenced Redd in excess of that which the General Assembly intended. KRS 218A.1410 states that the crime of importing heroin is a Class C felony, punishable by a maximum sentence of ten years imprisonment. KRS (1)(b). The trial court sentenced Redd to seven years imprisonment on the TICS conviction and three years on the importing heroin conviction, to run concurrently for a total sentence of seven years imprisonment. This sentence did not exceed the express intention of the General Assembly, as stated in KRS 218A.1410(3). Therefore, no double jeopardy violation occurred. II. Testimony and Admonition on Redd s Outstanding Warrant Redd also argues that the trial court s inadvertent admission of the reason for his arrest his outstanding warrant prejudiced him in the eyes of the jury whom the trial court admonished with the simple, uncontested fact that Redd s arrest was lawful. However, there is a question as to whether Redd preserved this alleged error for appeal. Redd argues that it is partially preserved while the Commonwealth contends that it is unpreserved, noting that Redd did not object -11-

12 after the jury heard the inadvertent reference to Redd s warrant, Redd did not assert that the trial court s admonition was insufficient, and Redd sought no further relief from the trial court. In light of the facts and circumstances, we must conclude that the issue Redd raises on appeal is unpreserved. While the trial court discussed the general matter with the parties prior to playing the tape in an effort to prevent what eventually occurred, once the agreed-upon course of events did not go as planned and the jury heard reference to Redd s warrant, it was incumbent upon Redd to alert the trial court that prejudice had occurred and that the agreed-upon admonition was insufficient. Redd did neither. The issue is unpreserved on appeal. We review unpreserved errors for palpable error. See Martin v. Commonwealth, 207 S.W.3d 1, 3 (Ky. 2006), citing RCr As such, we look for whether the alleged error affects the substantial rights of a party resulting in manifest injustice. RCr That means that if, upon consideration of the whole case, a substantial possibility does not exist that the result would have been different, the error will be deemed nonprejudicial. Martin at 3 (quoting Graves v. Commonwealth, 17 S.W.3d 858, 864 (Ky. 2000)). The alleged error resulting from the inadvertently admitted evidence of Redd s outstanding warrant was not palpable error. The weight of the evidence against Redd, including his statements to Officer Laffin upon interrogation, renders 2 Kentucky Rules of Criminal Procedure. -12-

13 the effect of the improper and inadvertent evidence upon the outcome of Redd s trial minimal at best. By definition, that is not palpable error. Conclusion Writing in dissent in Hunt, Justice Thurgood Marshall maligned the fact that the majority opinion promoted a disparate application of the federal double jeopardy clause: I do not believe that the phrase the same offence should be interpreted to mean one thing for purposes of the prohibition against multiple prosecutions and something else for purposes of the prohibition against multiple punishment. 459 U.S. at 369 (Marshall, J., dissenting). He went on to opine, [i]f the prohibition against being twice put in jeopardy for the same offence is to provide meaningful protection, the phrase the same offence must have content independent of state law in both multiple prosecution and multiple punishment cases. Id. at 374. Justice Marshall may well have had a point. As we have indicated, we are sympathetic to Redd s constitutional argument. Surely, even the legislature s immense power under our constitutional system cannot completely divest individuals of their most fundamental rights, nor this, or any, court of the power to say such action is unconstitutional. However, the Supreme Courts of the United States and Kentucky have each spoken on the matter, and they have done so in a manner which yields completely to clear legislative intent discerned from state statutes permitting multiple punishments for a single offense. KRS 218A.1410(2) is such a statute, and its intent is clear. Therefore, we are bound by our Supreme Court s prior decisions. -13-

14 Accordingly, the trial court correctly denied Redd s motion premised on his argument that KRS 218A.1410(2) violates the federal and state prohibitions against double jeopardy. The March 16, 2016, judgment of conviction and sentence is affirmed. STUMBO, JUDGE, CONCURS. COMBS, JUDGE, CONCURS IN RESULT AND FILES SEPARATE OPINION. COMBS, JUDGE, CONCURRING: Because of SCR 1.030(8)(a), I am compelled to concur. However, I am persuaded by the superior wisdom of Justice Thurgood Marshall in his dissent in Hunt. Our majority opinion duly showcases his position on the sacrosanct constitutional principle of the prohibition against double jeopardy. I would add that the danger is no less serious simply because a legislature deems it to be so. Perhaps the danger is even greater especially where the courts give carte-blanche deference to legislative enactments in potential derogation of the Bill of Rights. The legislature has great power and latitude in prosecuting criminal behavior and in assigning appropriate penalties. It can amend statutes and enhance punishments when it deems it necessary or appropriate. A prosecutor has the option of selecting the statute under which to proceed in charging and trying a defendant. -14-

15 Multiple punishments applied seriatim are by their very nature a questionable erosion of the prohibition against double jeopardy. Thus, both the legislative and executive branches should be held accountable by the judicial branch to prevent an incremental abuse of this important Fifth Amendment right. BRIEF FOR APPELLANT: Steven J. Buck Frankfort, Kentucky ORAL ARGUMENT FOR APPELLANT: Steven J. Buck Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Emily Bedelle Lucas Assistant Attorney General Frankfort, Kentucky ORAL ARGUMENT FOR APPELLEE: Emily Bedelle Lucas Assistant Attorney General Frankfort, Kentucky -15-