Jerome Hawkins v. Commonwealth of Kentucky ( 2017 )

RENDERED: DECEMBER 14, 2017
TO BE PUBLISHED
jsuprttttt 172 S.W.3d 372 (Ky. 2005); Taylor v.
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Commonwealth, 987 S.W.2d 302 (Ky. 1998).
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trafficking charge requires us to .conduct a statutory analysis, which we
perform de novo. s
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B. Cocaine Purity
The Commonwealth argues that the issue involving the purity of the
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cocaine is _not preserved for our review, as Hawkins was not entitled to a
. directed verdict of acquittal of all lesser-included charges related to the cocaine
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trafficking under the evidence adduced at trial. And when Hawkins fail~d to
object to the trial coyrt's jury instruction on first-degree trafficking, four grams
or more, the Commonwealth asserts he failed to pres~rve the_ issue for appeal. 6
We agree with the Commonwealth that.Hawkins did not properly preserve this
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issue. Having lost t)le directed-verdict, motion, Hawkins should have objected
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to the giving of a jury instruction for trafficking in four grams or more of
cocaine.7 But Hawkins asks alternatively for palpable error review, which we
apply today.
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We review unpreserved err_ors under RCr 10.26,s under which we may
grant relief upon a showing of "palpable error. "9, A finding of palpable error
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requires a showing that the alleged error affected the "substantial rights" of a
5Bop Hook Chevrolet lsu~, Jnco.,Porated v. Commonwealth Transportation.
· Cabinet, 983 S.W.2d 488, 490 (Ky. 1998) ("The coristniction and application of
statutes is a matter oflaw and may be,reviewed de nova.").
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In addition to fir~t-degree trafficking in cocaine, four grams or more, the trial
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~ourt gave lesser-included offense instructions on first-degree trafficking in a
controlled substance, less than four grams, and first-degree possession of a controlled
substance. · ·
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7 Kimbrough v. Commonwealth, 550 S.W.2d 525, 529 (Ky. 1977) ("When the.
evidence is insufficient to sustain the burden of proof on one or more, but less than
all, of the issues presented by the case, the correct procedure is to objeet to the giving
of instructions on those. particular issues.").
s Kentucky Rules of Criminal Procedure 10.26.
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9 Id.
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defendant, for whom relief may be granted "upon a determination that manifest
injustice has resulted from the error."10
When weighing the Court of Appeals' holding involving statutory
construction, we apply a·de novo standard.11 Hawkins· asserts that a convicti~::m
of trafficking in four grams or more of cocaine requires the Commonwealth to
prove he was in possession of four grams or more of pure cocaine, and because
the Commonwealth did not produce any evidence as to the purity of the .
cocaine weighed, that he should have been. entitled to a directed verdict. In a
split opinfon, the Court of Appeals majority held that the plain language of KRS
218A~1412, paired with the definition of cocaine in KRS 218A.010(5), creates a
statutory scheme where1Jy the Commonwealth is not required to prove that
pure cocaine accounted for the weight of four grams or more. We agree with the
majority of that court~
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Hawkins was convicted under KRS 2lBA.1412(1 )(a), trafficking in cocaine
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four grams or more. The pertinent part of the statute reads as follows:
(1) A person is guilty of trafficking in a· controlled substance in the
first degree when he or she knowingly and unlawfully traffics in:
(a) Four (4) grams or more of cocaine;
(b) ... ;
(e) Any quantity of a controlled substance specified in
paragraph (a), (b),-or (c) of this subsection in an amount less
than the amounts specified in those paragraphs.
(2) ... ;
(3) (a) Any person who violates the provisions of su,bsection (l)(a) ...
of thi.s section shall be guilty of a Class C felony for the first
offense and a Class B felony for a second or subsequent offence.
(c) Any person who violates the provisions of subsection l(e) of
this section:
(1) Shall be guilty of a Class D felony for the.first offense and
a Class C felony for a second or subsequent offense[.]
10 Id.
11 Bob Hook Chevrolet Isuzu, Incorporated, 963 S.W.2d at 490.
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Cocaine is defined in KRS 218A~Ol0(5) as, "a substance containing any
quantity of cocaine, its salts, optical anq geometric isc;nners, and salts of
isomers."
Again, Hawkins argues that ~his Court should rea~ the statutes\ as
requiring that the weight refers to "pure" cocaine-exclusive of cutting
agents and other foreign substances. We disagree.
In our analysis, we turn first tp our printiples of statutory
construction:
In construing statutes, our goal, of course, is to give effect to
the intent of the General Assembly. We_ derive that intent; if
at all possible, from the language the General Assembly
chose, either as defined by the General Assembly or as
generally understood in the context of the matter under .
consideration. Osborne v. Commonwealth, 185 S.W.3d 645
(Ky. 2006). We presume that the General Assembly intended
for the statute to be construed as a whole, for all of its parts
to have meaning, and for it to harmonize with related
statutes. Hall v. Hospitality Resources, Inc., 276 S.W.3d 775
_(Ky. 2008); Lewis v. Jackson Energy Cooperative Corporation,
189 S.W.3d 87 (Ky. 2005). We also presume that the
General Assembly did not intend an absurd statute or an
unconstitutional one. Layne v. Newberg, 841 S.W.2d 1_81
(Ky. 1992). Only if the statute is ambiguous or otherwise
frustrates a plain reading, do we resort to extrinsic aids such
as the statute's legislative history; the canons of
construttion; or, espedally in the case of model or uniform
statutes, interpretations by other courts. MPM Financial
Group, Inc. v. Morton, 289 S.W.3d 193 (Ky. 2009); Knotts.v.
Zurich, 197 S.W.3d 512 (Ky. 2006); Stephenson v. Woodward,
182 S.W.3d 162 (Ky. 2005).12,
Here, the statute is not ambiguous, therefore, ·we need not look to
legislative_ intent. KRS 218A.010(5) defines cocaine as, "a substance
containing any quantity of cocaine, its salts, optical arid geometric
12 Shawnee Telecom Res., Inc. v. Brown, 354 S.W.3d 542, 551 (Ky. 2011).
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isomers, and salts of isomers." To interpret the statute as Hawkins
would suggest, we would have to hold that the legislature did not mean
"mixture" when it used the word "substance" in the definition.
. . However,
that interpretation would go against the statute's plain meaning and fail
to construe it in a way "for all of its parts to have meaning." 13
The statute clearly defines "a substance containing any quantity of
cocaine"·as
. cocaine.14 It is impossible to give effect to the
. words
"containing any quantity of cocaine" if the definition is read to apply only
to pure cocaine. It goes without saying that pure cocaine contains a
quantity of cocaine.. This definition was not meant to be read so
narrowly, though. By its ownwords, it includes a.substance containing
any quantity of cocaine. Any other interpretation strains_ the plain
meaning of the statute.
In the current case, the. forensic analysis was of a solid appearing
to be crack cocaine weighing .5.4 75 grams·. · Webster's Dictionary defines
substance as "b. a mate.rial of a particular kind or constitution."
. Webster's II New Riverside University Dictionary (1984) (emphasis added).
The "constitution" of the solid in this case included both pure cocaine
and cutting agents.
.
The key is that the solid contained. "any quantity of
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cocaine," as required by the statute .. Combining Webster;s definition of
substance with the definition of cocaine found in the statute makes it
13 Jd.
14 KRS 218A.010(5).
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clear that the entirety of th-e solid tested must be considered cocaine-
not only those amounts that are "pure."
For these reasons, the Court of Appeals' opinion is affirmed as to
this alleged error.
C. KRE 508
Because we are asked to review an evidentiary ruling, we review the trial
court's decision for abuse of discretion.15 KRE 508 graJ?.tS the Commonwealth
the privilege to refuse to disclose the identity of a confidential informant, but
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the privilege is not indefinite.16 If a defendant makes a prima fade case that the
informant's identity "is. relevant ... to the defense of an accused, or is essential
to a fair ~etermination of a cause," the.Cl's identity should be,_revealed. 17
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When deciding whether to reveal the identity of a CI, the trial court
follows a procedure set forth in Heard v. Commonwealth: 1B "[the] defendant
must first make a proper showing that an exception [to the Commonwealth's
privilege] applies."19 .If the defendant makes a showing that one of the ,
exceptions applies then "the burden shifts to the Commonwealth to overcome
this inference."20 Factors a court "would normally consider 'include whether the
:
15 .Goodyear Tire and Rubber Company v. Thompson, 11 S.W.3d 575, 577 (Ky.
2000) ("[A]buse of discretion is the proper standard of review of a trial court's
evidentiary ~lings.").
16 Heard, 172 S.W.3d 372.
11 Id.
1s Id.
19 Id. at 374.
20 Id.
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 informant's. life would be in d~nger were his identity .revealed or if he is needed
for other undercover work. .. "21
In ~he case at hand, the trial court properly conducted a Heard analysis
and did not abuse its discretion in its conclusion. When Hawkins moved to
have the Cl's
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name revealed, the trial court held a hearing on the motion. The _/
hearing
. was conducted
.. in chambersr where Detective Newman, under oath,
, was
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questioned about the CI. During his in-chambers testimony, Detective Newman
testified that the CI bad been an informant for over one year, had been used in
multiple i;arcotics cases, had always been found reliable, had several felony
. convictions himself, and the information, he had provided for warrant purposes
had proved to be consistently accurate. Furthermore, Detective Newman
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testified that the CI was still performing confidential work for the police.on ·
multiple cases and exposing his. or her identity would compromise. the
investigations and put the CI'~ life in danger. Haying properly weighed the
testimony of Detective Newman and the surrounding facts, the trial court .
withheld disclosure of the Cl's identity.
Hawkins argues that denying his ability to call the CI as a witness
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prevented him from examining
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a material witness and cites
.
BurkS v.
Commonwealth to support the position, "when an informer participates qr
. . .
pl~ces himself in the position of observing a criminal transaction-he ceases to
be ~erely a source of information and becomes a witness."22 But those are not
the facts today. The CI was not a witness to the crime ch~rged, rather the
21 Id.
~2 Burks v. Commonwealth, 471 S.W:2d 298, 301-02 (Ky. 1971).
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trafficking charge was based on the drugs found upon the execution of the
search warrants, and therefore the CI was not a material witness to the crime
charged.23
Hawkins further asserts that the inadvertent disclosure of the Cl's name
durir;ig the suppression hearing operated as a waiver of the Commonw~alth's ,
ability to assert its privilege. After review of the record, we agree with the Court
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·of Appeals that this argument was never presented to the trial court and it is'
therefore unpreserved.
,,
As a result; we will not delve into the argument made
today about the witness's inadvertent disclosure resulting in waiving the
Commonwealth's privilege.
Furthermore, Hawkins does not ·have a valid claim under the
Confrontation Clause to call the CI as a witness at his suppression hearing. It
has been stated that, "The main purpose of confrontation is to insure the right·
of cross-examination and protect the accused. from conviction by means of ex
parte testimony or affidavits given in his absence. It is a rule concerned with .
the method by which evidence is produced during trial. "24 Our holding is
supported, by Thompkins v. Commonwealth where we stated, "The
Confrontation clause does not give a defendant the right to discover the· identity
of an informant at a pretrial hearing under the guise of attacking his/her
reliability."25 Hawkins had ample ability .to question Detective New~an about
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\ the CI at the suppression hearing, incluqing the fact that the CI was a
23 Taylor v. Commonwealth, 987 S.W.2d 302, 304' (Ky. 1998) ("The informant in
this case was not a material witness to the crimes charged ... the informant was not
present or near the vehicle when the charged crime was co:minitted. ").
24 Harris v. Commonwealth, 315 S.W.2d 630, 632 (Ky. 1958) (citations omitted).
2s Thompkins v. Commonwealth, 54 S.W.3d 147, 152 (Ky. 2001)~
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convicted criminal and had been paid in the past for the information he
provided against others.
As a result of the careful steps taken by the trial court, we find no abuse
of discretion.
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III. CONCLUSION
For the foregoing reasons we affirm the- Court of Appeals.
All sitting. Cunningham, Hughes, Keller, VanMeter, Venters and Wright,
JJ., concur. Minton, C.J., concurs in part and "dissents in part by separate
opinion.
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MINTON, C.J., CONCURRING IN PART AND DISSENTING IN PART: I
fully concur with the majority's holdirig in regard to the confidential informant,
but I must dissent from the majority's reading of KRS 218A.1412(1)(a) because
it allows prosecution for trafficking in cocaine without proof of the quantity of
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pure cocaine involved. ·.
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Hawkins was convicted under KRS 218A.1412(1)(a), trafficking in cocaine
four grams or more. The statute provides, "A person is guilty of trafficking in a
controlled substance in the first degree when he or she knowingly and
unlawfully traffics in ... four (4) grams or more·ofcocaine."26 Cocaine is defin~d
in KRS 218A.010(5) as, "a substance conta,ining any quantity of cocaine, its
salts, optical and geometric isomers, and salts of isomers. "2 7
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26 KRS 218A. l 412( 1)(a).
21 KRS 218A.010(5).
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I am persuaded by Hawkins's argument that substance, as used in
this statute, is rtot the same as mixture.. Included in the dictionary
definition of substance is "matter of particular or definite chemical
constitution. "2s Hawkins argues the definite chemical structure required·
is actual cocaine.·This definition of substance supports Hawkins's
argument that when the General Assembly defined cocaine using the
term substance, it did so for. the purpose of punishing more severely
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those persons trafficking in larger quantities of the actual narcotic . I
cocaine, and not the cutting agents used in the final product.
As the majority reads the statute, substance is interchangeable
with mixture. So the presence; of any traceable amount of cocaine, no
matter how small, allows the aggregate weight of the product is to be
used to enhan~e the severity of the charge and penalty to be imposed,
leading to what I believe is an absurd result.29
It is worth noting, when defining marijuana under KRS
218A.210(21), the General Assembly explicitly u.sed the term mixture~ 30
Marijuana is defined as·" ... every compound, manufacture, salt,
derivative, 1J1,ixture, or preparation of the plant, its seeds or resin or any
compound, mixture, or preparation which contains any quantity of these
substances."31 In the same definitions section, the General Assembly did
2s Substance, Merriam-Webster D~ctionary (11th ed. 2003).
Layne v. Newberg, 841 S.W.2d 181, 183 (citing Ovemite Transportation
29
Company v. Gaddis 793 S.W.2d 129 (Ky. Ct. App. 1990)) (As a court ~e should not
read a statute "in such a manner as to render [its] application an absurdity;").
30 KRS 218A.210(21).
31 Id.
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not include mixture when defining cocaine. It is not illogical then to
conclude that when defining two terms in the same section, the General
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Assembly was aware of the range of words it could use and purposely
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omitted the word mixture in defining cocaine.
The definition of cocaine and the statute pertaining to trafficking
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drugs was revised by HB 463, a comprehensive statutory revision aimed
at reducing the rising costs associated with the burgeoning population of 1
state prisoners serving sentences for low-level drug possessio'n.
In furtherance of this goal, lowering the prison population, the
General Assembly heard from and studied· plans implemented in other
states. Representatives of other states that had passed legislation with
the same goal gave guidance to the General Assembly, three of the states
explicitly discussed on the General Assembly floor were Texas, South
.___,, Carolina, and. Kansas. 32 Each of these states revamped their drug laws
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·and specifically indicated in their statutes that when weighing the drugs
recovered, that the weight was to be taken as the aggregate weight. 33
Each of these states was clear in their purpose to include the aggregate
weight, and the General Assembly was aware of the· approach taken by
these states. After study of these states and their statutes, the General
32 KET Archived Legislative Coverage, Senate Chambers-February 28, 2011,
(
1:37:28, . ) .
https: / /www.ket.org/legislature /?archive&program=WGAOS&epoch=2011 &nola=WG
AOS+012113.
· 33 SC ST §44-53-370(e)(2) r'ten grams or more of cocaine or any mixtures
containing cocaine ... "); V.T.C.A. §481.112 ("aggregate weight, including adulterants or
dilatants .... "); KS ST 2'1-5705(g) ("the total amount of any substances, including a
compound or a mixture, which contains any quantity of a controlled substance or
controlled substance analog.").
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Assembly chose not to include the same language, indicating its intent
not to weigh the drugs by the aggregate weight of the mixture used.
\ Because I believe the Commonwealth is required· to prove the purity of
the substance recovered by authorities, whicli was not done in this case, I
would reverse the Court of Appeals on this point.
COUNSEL FOR APPELLANT:
Robert Chung-Hua Yang
Assistant Public Advocate
COUNSEL FOR APPELLEE:
Andy Beshear
Attorney General of Kentucky
Bryan Daryvin Morrow
Assistant Attorney General·
)
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