Commonwealth of Kentucky v. James Joiner ( 2021 )

RENDERED: MARCH 26, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-0513-MR
COMMONWEALTH OF KENTUCKY APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE CHARLES L. CUNNINGHAM, JR., JUDGE
ACTION NO. 18-CR-000867-002
JAMES JOINER APPELLEE
OPINION
VACATING
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BEFORE: GOODWINE, TAYLOR, AND K. THOMPSON, JUDGES.
GOODWINE, JUDGE: The Commonwealth appeals from the March 23, 2020
order of the Jefferson Circuit Court dismissing three counts against James Joiner
on grounds that prosecution was prohibited by the double jeopardy clauses of the
United States Constitution and the Kentucky Constitution. After careful review,
the March 23, 2020 order is vacated.
BACKGROUND
On November 8, 2017, Joiner was arrested following a traffic stop in
Nelson County, Kentucky. Police officers found marijuana and firearms in his
vehicle. During the same evening, police executed a search warrant on Joiner’s
residence in Jefferson County, Kentucky. Joiner remained in police custody while
the search was conducted. Police officers recovered marijuana and firearms from
the residence.
On December 20, 2017, a Nelson County grand jury indicted Joiner
on several offenses including one count of possession of a handgun by a convicted
felon1 and one count of complicity in trafficking five or more pounds of
marijuana.2 On March 21, 2018, a Jefferson County grand jury indicted Joiner on
ten counts including possession of a handgun by a convicted felon; possession of a
firearm by a convicted felon; and complicity to traffic eight ounces or more but
less than five pounds of marijuana while in possession of a firearm by a convicted
felon.3 On August 9, 2019, Joiner was convicted of the Nelson County charges
and was subsequently sentenced to five years’ imprisonment.
1
Kentucky Revised Statutes (KRS) 527.040, a Class C felony.
2
KRS 218A.1421(4), a Class C felony; KRS 502.020.
3
KRS 218A.1421(3), a Class D felony; KRS 218A.992.
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Joiner then moved the Jefferson Circuit Court for dismissal of the
counts for possession of a handgun by a convicted felon, possession of a firearm by
a convicted felon, and trafficking in marijuana while in possession of a firearm by
a convicted felon arguing prosecution would violate his right to be free from
double jeopardy. The Commonwealth argued Joiner could be prosecuted in
Jefferson County because the two indictments resulted from separate courses of
conduct.4 The trial court granted Joiner’s motion. This appeal followed.
STANDARD OF REVIEW
“The double jeopardy clause prohibits a second prosecution for the
same offense after acquittal, a second prosecution for the same offense after
conviction, and multiple punishments for the same offense.” Foley v.
Commonwealth, 233 S.W.3d 734, 736 (Ky. App. 2007) (citing Brown v. Ohio, 432
U.S. 161, 165, 97 S. Ct. 2221, 2225, 53 L. Ed. 2d 187 (1977)). We review the trial
court’s decision relating to double jeopardy de novo. See Watkins v. Kassulke, 90
F.3d 138, 141 (6th Cir. 1996).
ANALYSIS
On appeal, the Commonwealth argues the trial court erred in
determining prosecution of the Jefferson County charges would violate the
4
The Commonwealth concedes Joiner may only be convicted of either possession of a handgun
by a convicted felon or possession of a firearm by a convicted felon.
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constitutional prohibition against double jeopardy. Specifically, the
Commonwealth argues the Jefferson County charges arose from a separate course
of conduct from the course of conduct which resulted in the Nelson County
conviction. Joiner claims the two indictments stemmed from a single course of
conduct.
Kentucky’s statutory scheme provides a method for analyzing double
jeopardy challenges. KRS 505.020(1) states in relevant part:
When 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:
...
(c) [t]he 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.
Generally, “[c]ontinued possession of contraband is a single course of
conduct that gives rise to a single offense.” Williams v. Commonwealth, 336
S.W.3d 42, 45 (Ky. 2011) (citation omitted). However, “an arrest constitutes legal
process sufficient to interrupt the possession of contraband[.]” Id. at 46 (citations
omitted).
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In Williams, the defendant was arrested for trafficking in a controlled
substance resulting from cocaine police found in the vehicle in which he was a
passenger. Id. at 44. After his arrest, Williams attempted to swallow a second
quantity of cocaine, which led to his indictment on a second count of trafficking in
a controlled substance. Id. The Kentucky Supreme Court, in holding the two
charges did not constitute double jeopardy, determined Williams “possessed two
discrete quantities of cocaine—the quantity found in the car and the quantity that
he tried to swallow[.]” Id. at 45. The Court further held that, even if it were to
consider the second quantity of cocaine part of the stash recovered from the
vehicle, Williams was not entitled to relief because his course of conduct was
interrupted by his arrest. Id.Herein, Joiner first possessed marijuana and firearms in his vehicle in
Nelson County where he was arrested. Subsequently, police recovered separate
quantities of marijuana and firearms from his residence in Jefferson County. Like
Williams, Joiner possessed two discrete quantities of marijuana and firearms in
two distinct locations. Id. at 44. Joiner’s arrest in Nelson County also constitutes
sufficient legal process to interrupt his course of conduct such that the Jefferson
County charges are not prohibited under KRS 505.020(1)(c).
Relatedly, the trial court primarily relied upon Hinchey v.
Commonwealth, 432 S.W.3d 710 (Ky. App. 2014), in dismissing the charges
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against Joiner. Therein, this Court, in setting aside one of Hinchey’s two
convictions for possession of a handgun by a convicted felon, held “[s]ince the
statute does not explicitly designate separate offenses for each firearm found in the
possession of a convicted felon, Hinchey’s possession of two firearms in the
vehicle constitutes a single course of conduct.” Id. at 714.
This matter is easily distinguished from Hinchey, and it “is a
difference that makes a difference[.]” Record at 56. Herein, police in two counties
separately recovered firearms from different locations at different times. In
contrast, both of Hinchey’s firearms were recovered from his vehicle at the time of
his arrest. Hinchey, 432 S.W.3d at 712. Furthermore, Hinchey’s possession was
uninterrupted by legal process while Joiner’s was interrupted by his arrest. While
Hinchey’s possession was properly characterized as a single course of conduct,
Joiner’s cannot be so classified.
In sum, because Joiner’s conviction in Nelson County and indictment
in Jefferson County arose from distinct courses of conduct, the Jefferson County
charges do not violate the constitutional prohibition against double jeopardy.
CONCLUSION
For these reasons, the March 23, 2020 order of the Jefferson Circuit
Court is hereby VACATED.
ALL CONCUR.
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BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Daniel Cameron Yvette De La Guardia
Attorney General of Kentucky Louisville, Kentucky
Jeanne Anderson
Special Assistant Attorney General
Louisville, Kentucky
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