RENDERED : MARCH 18, 2010 NOT TO BE PUBLISHED
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BILLY MASH APPELLANT
APPEAL FROM MCCRACKEN CIRCUIT COURT V. HONORABLE R. JEFFREY HINES, JUDGE NO. 08-CR-00179-004
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Appellant Billy Mash appeals his convictions in the McCracken Circuit
Court for trafficking in cocaine and possession of drug paraphernalia. He
challenges three decisions by the trial court admitting evidence and testimony
against him . Finding no reversible error, we affirm .
I. Background
Appellant's arrest and subsequent convictions were instigated by the tips
of two incarcerated informants. The first informant, Brenda Taylor, was a drug
dealer herself and had already provided police with information leading to
another arrest. She informed police that Appellant had sold her cocaine on
approximately fifty occasions in the past year, most recently, the previous
week. The day after receiving Taylor's tip, a second informant, Olivia Dike,
independently came forward with a corresponding tip. She told police that a black male named "Billy" had sold her drugs approximately one hundred times.
Although Dike knew Appellant only by his first name, she positively identified a
photograph of him as the man who had sold her drugs . While the two
corresponding tips were both offered by incarcerated women within a narrow
timeframe, testimony at trial established that they were held in separate jail
cells and did not know each other.
As part of a sting operation, the police asked Dike to call Appellant and
place an order for cocaine to simulate an illegal drug transaction . Deputies
from the police department taped the phone conversation in which the order
was placed, and the prosecution played it for the jury at trial. The recording
begins with Dike greeting "Billy" and asking him to bring her an "eight ball ."
During the phone conversation, Dike did not explain what she meant by an
"eight ball," nor did Appellant ask what it was. Testimony at trial, however,
revealed that an "eight ball" is slang for a 3.5 gram portion of cocaine .
Appellant asked the caller who she was and Dike responded that she was
"Olivia." He then asked where she was located and Dike simply responded that
she was at her home . Appellant said he could be there in 30 to 40 minutes .
Two police detectives were charged with tracking the delivery. Detective
David Knight immediately went to Appellant's home, where he reported a white
Ford Ranger parked outside and identified Mash from a photograph he had
been shown. Meanwhile, Detective Jesse Riddle headed to Dike's residence,
where the transaction was agreed to take place . By the time Detective Riddle
arrived at Dike's trailer park residence, there was already a white Ford Ranger
moving toward Dike's trailer. Detective Riddle recognized the truck as 2 resembling the one Detective Knight reported outside Appellant's home and
confirmed that the license plate matched as well . Detective Riddle was also able
to identify Appellant from photographs he had seen.
When Appellant exited his truck and walked toward the trailer, Detective
Riddle, without activating his blue lights, got out of his vehicle and identified
himself. Appellant appeared nervous and stated he was there to see Dike .
Detective Riddle asked Appellant if he had any weapons on him and Appellant
responded that he did not. Detective Riddle did not have his handcuffs with
him, but told Appellant to place his hands behind his back so Riddle could pat
him down . During the pat down, Appellant tried to pull away, so Detective
Riddle had to hold onto him to keep him still. In patting Appellant down, Riddle
felt a large plastic baggie, along with an object that he perceived to be a wad of
currency. He could not feel for certain what was in the plastic baggie, but later
testified there was "a ninety-nine percent that it was going to contain cocaine
based on the totality of the circumstances." Upon emptying Appellant's
pockets, Riddle turned out to be correct . The baggie contained 2 .9 grams of
cocaine and in the same pocket was $2,250 in cash . There was an additional
$380 in another pocket. Detective Riddle then arrested Appellant, read him his
Miranda rights, and took him to jail.
A third officer, Detective Sergeant Matt Carter, interviewed Appellant in
jail and then "Mirandized" him again before transporting him for further
interviewing at the sheriff's office . Detective Carter testified that Appellant
admitted to bringing the cocaine to Dike in exchange for sex. Police
subsequently obtained a search warrant for Appellant's home and, based on 3 further information, got a second warrant to search Appellant's brother's
residence . There, police found a safe containing over 57 grams of cocaine .
Appellant admits this cocaine belonged to him but claimed it, along with the
cocaine found earlier in his pocket, was for personal use. At trial, the
Commonwealth introduced as evidence the large amount of cocaine found in
the safe to prove that Appellant's intent was not personal use.
Appellant was convicted of trafficking in cocaine, subsequent offense,
and possession of drug paraphernalia and sentenced to 20 years in prison. He
now appeals to this Court as a matter of right. Ky. Const . § 110(2) (b) .
II. Analysis
Appellant claims as error three decisions by the trial court to admit
evidence and testimony against him. First, he argues that the cocaine and cash
found in his pocket, along with all other fruits of that initial discovery, should
have been suppressed under the exclusionary rule . Second, he contends that
evidence of the cocaine from his brother's safe should not have been admitted,
as it was proof of other bad acts. Third, he claims that allowing testimony on
the legal definition of drug trafficking was reversible error.
A. Items Found on Appellant
Prior to trial, Appellant moved to suppress the evidence obtained by
Detective Riddle following his pat down, as well as all other fruits of that
search . The trial court denied the motion and the evidence was admitted at
trial.
Appellant claims the evidence should have been suppressed under the
exclusionary rule . Of course, the exclusionary rule only applies if the initial 4 search was unconstitutional under the Fourth Amendment, as incorporated by
the Fourteenth Amendment. Mapp v. Ohio, 367 U.S. 643 (1961) . This Court's
inquiry, therefore, must focus on whether Detective Riddle's warrantless pat
down of Appellant, and his emptying Appellant's pockets, complied with the
Fourth Amendment to the U.S. Constitution . The Commonwealth contends
that it was a legitimate search incident to a lawful arrest, with which this Court
agrees .
While "[g]enerally, the police may not search an individual without a
warrant, . . . one of the recognized exceptions to the rule . . . [is] a search
incident to an arrest." Stewart v. Commonwealth, 44 S.W .3d 736, 379 (Ky.
2000) . The question, therefore, becomes whether Appellant was lawfully
arrested.
Appellant's arrest was authorized by Kentucky law. Kentucky has long
followed the rule that a warrantless arrest for a felony is authorized if there are
"reasonable grounds for making the arrest." Williams v. Commonwealth, 147
S . W.3d 1, 6 (Ky. 2004) . This rule is codified in KRS 431 :"A peace .005(1)(c)
officer may make an arrest . . . without a warrant when he has probable cause
to believe that the person being arrested has committed a felony."
Kentucky's probable cause standard is entirely consistent with
constitutional strictures. "A warrantless arrest of an individual in a public
place for a felony . . . is consistent with the Fourth Amendment if the arrest is
supported by probable cause ." Maryland v. Pringle, 540 U .S . 366, 370 (2003) .
In evaluating probable cause, a court must look at "the totality of the
circumstances ." Id. The circumstances in this case included the corresponding tips from two
informants, the revealing phone conversation, and Appellant's behavior in
conformity with that conversation . In determining whether informants' tips
equate to probable cause, the key inquiry is into the "relative indicia of
reliability accompanying [them] ." Lovett v. Commonwealth, 103 S .W.3d 72, 78
(Ky. 2003) . As we stated in Williams, "[A]n informant's tip predicting future
behavior, which is then corroborated by observations of the investigating
officers, can result in a finding of probable cause ." 147 S .W .3d at 8 (citing
Illinois v. Gates, 462 U .S. 213, 243-46 (1983)) . In Williams, the informant's
correct descriptions of the suspect and predictions of his future actions
provided "sufficient objective indicia of reliability." 147 S .W.3d at 6. Moreover,
tips from known informants are entitled to more weight than those from
anonymous sources. Lovett, 103 S.W .3d at 78.
In this case, the tips, coming as they did from known informants,
contained "sufficient objective indicia of reliability." The corresponding nature
of the tips from two separate informants, that Appellant had engaged in many
cocaine transactions with each of them, served to verify one another's tip .
Furthermore, Taylor had already demonstrated her reliability by contributing
information to a previous arrest. Most importantly, Dike's claim to have
regularly bought cocaine from Appellant was strongly corroborated by their
revealing telephone conversation. Through that conversation, Appellant
confirmed, albeit tacitly, that he (1) was familiar with the informant on a first-
name basis, (2) knew where the informant lived, (3) knew what an "eight ball"
was, and (4) was readily able and willing to deliver an "eight ball" to her. Dike's 6 account of frequent transactions with Appellant was further endorsed by
Appellant's quick arrival at her trailer and his admission to Detective Riddle
that he was there to see "Olivia." The police had sufficient confirmation to rely
on the two informants.
Based on the corresponding tips from two independent informants
accompanied by the inferences reasonably drawn from Appellant's phone
conversation and subsequent appearance at Dike's trailer, Detective Riddle had
probable cause to believe Appellant had committed a felony. Specifically, the
evidence all pointed the police department and Detective Riddle to the
conclusion that Appellant had committed (or was in the process of committing)
drug trafficking. Thus, there was probable cause to arrest Appellant .
As Detective Riddle had the legal and constitutional authority to arrest
Appellant, it follows that his search of Appellant's pockets was a legitimate
search incident to arrest . While Appellant insists that a search incident to a
lawful arrest must logically occur after the arrest, he admits his position is
contrary to the rulings of both this Court and the United States Supreme
Court . See Rawlings v. Kentucky, 448 U .S . 98, 111 (1980) ; Williams, 147
S .W .3d 1, 9 . It is immaterial whether police choose to search immediately after
or prior to arresting a suspect. See Rawlings, 448 U .S . at 111 ; Williams, 147
S.W.3d at 9 . "A warrantless search preceding arrest is reasonable under the
Fourth Amendment so long as probable cause to arrest existed before the
search, and the arrest and the search were substantially contemporaneous ."
Williams, 147 S .W .3d at 8 . The case at hand satisfies both requirements . As discussed above,
Detective Riddle had probable cause to arrest Appellant before the search . Also,
the search and arrest were virtually contemporaneous-as soon as Detective
Riddle discovered the money and cocaine and completed his search, he
arrested Appellant, read him his Miranda rights, and took him to jail . As
Detective Riddle performed a search incident to a lawful arrest, the
exclusionary rule is not triggered and thus, the trial court properly denied
Appellant's motion to suppress .
B. Evidence of Additional Cocaine
Appellant next contends that the 57 grams of cocaine found in his
brother's safe, which Appellant admits belonged to him, was improperly
admitted at trial. He moved prior to trial to exclude the evidence, but the trial
court denied his motion .
Evidentiary rulings at trial are reviewed for abuse of discretion . See, e.g.,
Barnett v. Commonwealth, 979 S.W .2d 98, 103 (Ky. 1998) . This Court's inquiry
is, therefore, limited to whether the trial court abused its discretion in allowing
evidence of the cocaine from the safe. "Evidence of other crimes, wrongs, or
acts is not admissible to prove the character of a person in order to show
action in conformity therewith ." KRE 404(b) . However, the same evidence may
be admissible if offered for another, legitimate purpose. KRE 404(b)(1) . It is
uncontested that the cocaine found in the safe was relevant for another such
purpose-namely, intent.
The main issue at trial was whether Appellant possessed the cocaine for
personal use (as he maintained) or, instead, to sell or distribute, within the 8 scope of drug trafficking set forth in KRS 218A. 0 10(40) (as the Commonwealth
argued) . Thus, his intent as to the cocaine was at issue. The Commonwealth
introduced the high volume of additional cocaine belonging to Appellant to infer
that his intent was not to use the cocaine for personal use, but rather for
trafficking. ) Such an inference is legitimate when the amount of cocaine is
large . Parker v. Commonwealth, 291 S.W .3d 647, 674 (Ky. 2009) ; see also
United States v. Faymore, 736 F .2d 328, 333 (6th Cir . 1984) ("intent to
distribute can be inferred by the jury from circumstantial evidence of
possession of large quantities") . Thus, Appellant's 57 grams of cocaine in his
brother's safe, being a large quantity, was relevant to the Commonwealth's
charge of drug trafficking. The additional cocaine met the KRE(404) (b) (1)
"intent" exception.
Nonetheless, Appellant complains that the evidence should have been
excluded due to its high degree of potential prejudice. Appellant is correct that
evidence is not automatically admissible simply because it falls into one of the
exceptions listed in KRE 404(b)(1) . In addition to satisfying a KRE 404(b)
exception, "evidence of criminal conduct other than that being tried is
admissible . . . only if its probative value on that issue outweighs the unfair
prejudice with respect to character." Billings v. Commonwealth, 843 S .W .2d
890, 892 (Ky. 1992) ; see also KRE 403 . In this instance, the resulting undue
prejudice is minimal.
1 The indictment in this case charged Appellant only with trafficking the 2.9 grams of cocaine Detective Riddle found in his pocket. The record does not indicate whether Appellant was separately charged and indicted for a crime related to the 57 grams of cocaine found in the safe. While Appellant cites Billings v. Commonwealth, 843 S .W.2d 890 (Ky.
1992), and Bell v. Commonwealth, 875 S .W .2d 882, 890 (Ky. 1994), for the
proposition that evidence of other crimes is always highly prejudicial to a
defendant, such a reading is overbroad . Both cases note the higher danger of
prejudice from such evidence, but the particular form of prejudice at issue in
those two cases is wholly absent here. In both of the cases relied on by
Appellant, the Court feared the introduction of other criminal acts would
unfairly imply that the defendants had acted in conformity with those acts . See
-Billings, 843 S .W .2d at 894 ; Bell, 875 S.W .2d at 890. Billings and Bell were
both sodomy trials, where the trial courts admitted evidence of remote criminal
sexual acts by the defendants . See Billings, 843 S .W.2d at 892 ; Bell, 875
S.W .2d at 888 . In both cases it was unduly prejudicial to imply that, because
the defendant had committed other criminal acts, he must have committed the
similar acts in question .
Distinct from Billings and Bell, Appellant's possession of cocaine in his
brother's safe was not used to imply he engaged in any other acts . In fact, how
Appellant acted was uncontested at trial. He conceded that he possessed the
cocaine on his body. The factual issue at trial was one of intent, not behavior:
Why did he possess the cocaine? Was it for personal use or was it for
trafficking? Thus, the cocaine found in the safe did not unduly imply
conforming behavior.
Additionally, the "other act" in this case was contemporaneous with the
charged crime, whereas the "other crimes" in Billings and Bell were removed in time . Their remoteness lent more credence to the idea that they were offered
merely to suggest the defendants' criminal dispositions .
Ultimately, any unfair prejudice that might have resulted in this case
was outweighed by the probative value of the evidence . Appellant complains
that the evidence of 57 grams of cocaine might have led to a harsher sentence
than if the jury had only been aware of the 2 .9 grams found in his pocket. He
analogizes this impact to the effect of describing multiple dead bodies in a
single murder trial . It is hard to imagine, however, that additional grams of
cocaine would play on a jury's emotions in the same way as additional deaths
(or additional prior sex crimes, as in Billings and Bell) . In any event, the
probative value of the 57 grams of cocaine is far too great to be outweighed by
other factors. It was critical to the central issue at trial: whether or not the
cocaine was intended for personal use .
C. Testimony on Definition of Trafficking
Appellant's final argument is that permitting Detective Sergeant Carter to
testify to the legal definition of trafficking constituted reversible error . On direct
examination, the prosecution asked Detective Carter what constituted
"trafficking." Appellant objected, noting that it was the trial court's duty to
instruct the jury on the law. Apparently misinterpreting the objection, the court
told the prosecutor to lay a sufficient foundation for the testimony. The
prosecutor went on to ask Detective Carter if he was familiar with the
trafficking statute, and the detective responded that he was . The prosecutor
then asked what two ways one can be guilty of drug trafficking. Detective
Carter replied, "When you actually sell or transfer [a narcotic], or [possess] with 11 the intent to sell or transfer a narcotic to someone, that constitutes the
elements of trafficking."
Contrary to Detective Carter's testimony, possession with the intent to
transfer does not fall within the definition of trafficking pronounced in KRS
218A.010(40) . "Traffic" is defined as "to manufacture, distribute, dispense, sell,
transfer, or possess with intent to manufacture, distribute, dispense, or sell a
controlled substance ." "Noticeably absent from this statutory definition" is
"[possess] with the intent to . . . transfer," the language used by Detective
Carter. Commonwealth v. Rodefer, 189 S.W .3d 550, 552 (Ky. 2006) . Detective
Carter announced an additional form of liability-possession with intent to
transfer-on which the jury was not permitted to convict.
Detective Carter's testimony was inadmissible . While KRE 702 permits
expert testimony that "will assist the trier of fact to understand the evidence or
to determine a fact in issue," it does not permit a witness to aid in the
determination of a legal issue. See Gibson v. Crawford, 259 Ky. 708, 83 S . W.2d
1, 7 (1935) ("The courts never allow a witness to give his conclusion on
questions of law. . . .") ; Foster v. Commonwealth, 827 S .W .2d 670, 678 (Ky.
1991) (upholding trial court's "refus[al] to reopen the case so that Foster's
expert could testify on the definition of extreme emotional disturbance") . Since
it is not the jury's role to determine what the law is, such aid would be
unhelpful . It is well-recognized that the judge is charged with determining the
law and, in turn, instructing the jury on its application to the case . See United
States v. Zipkin, 729 F.2d 384, 387 (6th Cir. 1984) ("Expert testimony on the
law is excluded because the trial judge does not need the judgment of 12 witnesses . . . . The special legal knowledge of the judge makes the witnesses'
testimony superfluous . It is the function of the trial judge to determine the law
of the case . It. is impermissible to delegate that function to a jury through the
admission of testimony on controlling legal principles .") . Simply put, it is error
to allow a witness, expert or otherwise, to testify as to the content of the law . In
this case, the error was compounded by Detective Carter making not merely an
improper statement of law, but an improper misstatement of law.
The Commonwealth seeks to avoid any finding of error by arguing that
Appellant did not properly preserve this matter for appellate review . The
Commonwealth attacks the adequacy of Appellant's objection at trial, stating,
"Appellant did not object on the basis the detective was not an expert or had
specialized knowledge . He objected on the basis that only the trial court could
talk about what trafficking meant ." (Emphasis in original .) In fact, it is the
Commonwealth that has confused the issue : as discussed above, the problem
with Detective Carter's testimony was not his lack of expertise, but the
inappropriate subject matter of his testimony. As the Commonwealth admits,
Appellant's objection was that only the trial court could instruct the jury as to
the law of trafficking. That the trial court's reaction to the objection was non-
responsive (and that the defense did not further object) does not make the
initial objection ineffective for purposes of preservation .
Having found the trial court to be in error, and the error to be preserved,
the question before this Court is whether that error was harmless . See RCr
9 .24 . "A non-constitutional evidentiary error may be deemed harmless . . . if
the reviewing court can say with fair assurance that the judgment was not 13 substantially swayed by the error." Winstead v. Commonwealth, 283 S .W.3d
678, 688-89 (Ky. 2009) (citing Kotteakos v. United States, 328 U .S . 750, 765
(1946)) . "But `[t]he inquiry cannot be merely whether there was enough to
support the result, apart from the phase affected by the error. It is rather, even
so, whether the error itself had substantial influence. If so, or one is left in
grave doubt, the conviction cannot stand ."' Crossland, 291 S .W.3d 223, 233
(Ky. 2009) (quoting Kotteakos, 328 U .S . at 765) (alteration in original) . Only if
Appellant's conviction was substantially swayed by the detective's
"misstatement of law," should -his conviction be reversed.
In ascertaining the influence of Detective Carter's testimony on
Appellant's conviction, this Court must attempt to uncover the reasoning
behind the verdict . The factual inquiry posed to the jury in the present case
was a relatively narrow one : Why did Appellant bring 2 .9 grams of cocaine to
Olivia Dike's trailer? There were two competing explanations presented at trial.
The Commonwealth relied on Detective Carter's testimony that Appellant had
admitted he planned on exchanging the cocaine for sex . On the other hand,
Appellant testified, and the defense maintained, that he had no intention of
giving the cocaine to Dike at all ; he was merely carrying it for his own, personal
use . The jury was asked to pick one of the two .
Regardless of Detective Carter's unfortunate, supplemental legal opinion,
it seems clear that the jury chose the Commonwealth's version . If the jury had
believed Appellant's trial testimony, that the cocaine was for personal use, it
would not have convicted Appellant, even under Detective Carter's erroneous,
somewhat broader definition of trafficking. Following Appellant's story, the jury 14 could not have concluded he had the intent to sell, distribute, or even transfer
the cocaine . 2 The jury could not consistently believe that Appellant planned to
keep the cocaine for himself, while having the intent to transfer it to someone
else. Thus, even in the event that the jury utilized Detective Carter's definition,3
if it believed Appellant, it would have acquitted him of trafficking. Since the
jury did not acquit, it could not logically have believed Appellant's story.
By process of elimination then, this Court deduces that the jury agreed
with the Commonwealth that Appellant intended to trade cocaine for sex. Such
an exchange clearly falls within the meaning of "sell" as defined in the jury
instructions: "to dispose of a controlled substance to another person for
payment or other consideration." (Emphasis added) .4 It also fits the
substantially similar statutory language : "to dispose of a controlled substance
to another person for consideration . . . ." KRS 218A .010(36) . The jury likely
found that Appellant intended to dispose of the cocaine to Olivia Dike in
exchange for "other consideration ." The improper admission of Detective
2 The court only instructed the jury on liability through possession with the intent of selling or distributing. While liability can also arise through the intent to manufacture or dispense, no testimony or instruction was given regarding these forms of liability, so there is no reason they would have formed the basis of the verdict. 3 It is unlikely that the jury followed Detective Carter's definition anyway. The judge's instructions correctly left out "intent to transfer" as a form of liability. "[A] jury is presumed to follow a trial court's instructions . . . . .. Dixon v. Commonwealth, 263 S .W.3d 583, 593 (Ky. 2008) (citing Matheny v. Commonwealth, 191 S.W.3d 599, 606 (Ky. 2006)) . 4 Mash's intention may also qualify as "to distribute ." KRS 218A.010(10) broadly defines distribute as "to deliver other than by administering or dispensing a controlled substance." However, the precise meaning of "distribute" is partially clouded after our ruling in Rodefer, 189 S.W.3d at 553. 15 Carter's legal opinion did not sway the verdict and was, therefore, harmless
error.
IV. Conclusion
For the foregoing reasons, the judgment of the McCracken Circuit Court
is affirmed .
All sitting. All concur.
COUNSEL FOR APPELLANT :
V. Gene Lewter Department of Public Advocacy 100 Fair Oaks Lane Suite 302 Frankfort, Kentucky 40601
COUNSEL FOR APPELLEE :
Jack Conway Attorney General
James Coleman Shackelford Assistant Attorney General Office of Criminal Appeals 1024 Capital Center Drive Suite 200 Frankfort, Kentucky 40601-8204