RENDERED : JUNE 25, 2009 P
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BRENT CANTRELL
ON APPEAL FROM JOHNSON CIRCUIT COURT V HONORABLE JOHN DAVID PRESTON, JUDGE NO . 06-CR-00019
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION OF THE COURT BY JUSTICE CUNNINGHAM
AFFIRMING
I. Introduction
On the morning of January 27, 2006, the Johnson County Sheriff's
Department received a tip that a methamphetamine lab was in operation in a
trailer located on property owned by Brent Cantrell's father. Three members of
the Johnson County Sheriffs Department proceeded to the location in three
separate cruisers .
When Deputy Tom Wyatt drove up to the trailer, he noticed Brent
Cantrell and Shawna Dalton climbing out an open window and running away.
Although it was late in January, Cantrell was wearing only a t-shirt, jeans, and
shoes . Dalton was wearing a t-shirt and jeans, but no shoes . Deputy Barry
Mayes also observed Cantrell and Dalton climbing out the window and running away. Officer Mayes ordered the pair to stop and they were apprehended. The
officers detected the odor of ammonia on both Cantrell and Dalton .
Cantrell gave the officers permission to search the trailer. A strong
caustic odor permeated the air around the residence . Upon entry, the officers
encountered a foggy haze and more of the strong caustic odor which had been
detected outside . In fact, one of the officers began coughing so much because
of the fumes that he had to be treated at a local hospital . Inside the trailer, the
officers discovered all the chemicals and equipment necessary for the
manufacturing of methamphetamine . An individual by the name of Dale Wells
was found passed out on a bunk in a back bedroom. A video surveillance
system was also discovered inside the trailer, with the camera focused on the
driveway leading up to the residence.
Deputy Boyce Williams collected and photographed evidence from the
trailer. Among the evidence collected were cans of butane fuel, a butane torch,
ph strips, tubing, kitty litter, a coffee pot, coffee filters, a funnel, a beaker, a
mason jar, and hollowed-out light bulbs . Two hollowed-out light bulbs
containing residue and three bottles were sent to the Kentucky State Police
Laboratory for testing. Lab results showed that these items contained
methamphetamine.
Cantrell was convicted in the Johnson Circuit Court of. complicity to
manufacture methamphetamine; 1 complicity to possession of a controlled
Kentucky Revised Statute (KRS) 218A.1432, KRS 502 .020 substance in the first degree (methamphetamine) ;2 complicity to
use/possession of drug paraphernalia; 3 and being a second-degree persistent
felony offender .4 As a result of his conviction for being a persistent felony
offender, Cantrell's 20-year sentence for manufacturing methamphetamine was
enhanced to 50 years, and his 5-year sentence for possession of a controlled
substance was enhanced to 10 years . Cantrell received a 12-month sentence
on the drug paraphernalia charge . In accordance with the jury's
recommendation, Cantrell was sentenced to a total of fifty (50) years in prison .
11. Discussion
Appealing to this Court as a matter of right, 5 Cantrell raises numerous
issues . His first three arguments deal with the sufficiency of evidence as to the
counts of manufacturing methamphetamine, possession of a controlled
substance, and possession of drug paraphernalia. Next, Cantrell claims the
trial court erred in denying his motion for a directed verdict as to the persistent
felony offender count. Cantrell also argues the trial court erred in allowing the
Commonwealth to introduce evidence of his girlfriend's drug use . Further,
Cantrell argues the court abused its discretion when it failed to grant a
continuance on the second day of trial . Finally, he argues the court committed
reversible error when it overruled his objection to a portion of the
KRS 218A .1415, KRS 502 .020 KRS 218A.500, KRS 502 .020 KRS 532.080 Kentucky Constitution § 110(2)(b) . Commonwealth's closing argument during the penalty phase . Each argument
will be addressed in turn .
A. Sufficient evidence existed to convict Cantrell of manufacturing methamphetamine, possession of a controlled substance, and possession of drug paraphernalia .
Cantrell argues there was insufficient evidence to convict him of
manufacturing methamphetamine, possession of a controlled substance, and
possession of drug paraphernalia . At trial, Cantrell did not contest the
existence of the methamphetamine lab in the trailer, methamphetamine on the
scene, or the recovery of drug paraphernalia from the trailer, but rather
claimed that his estranged wife, Mary, was the owner of everything in the
trailer .
A person is guilty of manufacturing methamphetamine when he
knowingly and unlawfully manufactures methamphetamine or with intent to
manufacture methamphetamine possesses two (2) or more chemicals or two (2)
or more items of equipment for the manufacture of methamphetamine . See
KRS 218A.1432(1) .
A person is guilty of possession of a controlled substance in the first
degree when he knowingly and unlawfully possesses a controlled substance
that contains any quantity of methamphetamine . See KRS 218A. 1415(l) .
A person is guilty of possession of drug paraphernalia when he is found
in possession of any
equipment, products and materials of any kind which are used, intended for use, or designed for use in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, concealing, injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance in violation of this chapter . See KRS 218A . .500(1)
The Commonwealth introduced evidence of numerous items recovered
from the trailer. This included two hollowed-out light bulbs containing residue
and three bottles containing sediment or residue. Lab tests conducted on the
residue or sediment in each of these five items confirmed the presence of
methamphetamine. Further, officers testified that, from their experience, light
bulbs converted in this fashion are used for ingesting methamphetamine.
Unable to challenge the above evidence, Cantrell relies instead on his
claim that the Commonwealth failed to connect him to the trailer. Therefore,
the question before us is whether the Commonwealth introduced any evidence
establishing Cantrell's connection to the trailer.
The Commonwealth introduced evidence that Cantrell was climbing out a
window of the trailer and attempting to flee when officers arrived on the scene.
See Rodriguez v. Commonwealth , wherein this Court recognized that "proof of
flight to elude capture or to prevent discovery is admissible because `flight is
always some evidence of a sense of guilt.' 107 S .W .3d 215, 218-19 (Ky. 2003)
(citations omitted) . Officers also noted how Cantrell and Dalton were
unseasonably dressed when they were apprehended . In addition, officers
testified that there was the presence of a strong odor of ammonia on the
clothes of both Cantrell and Dalton . Cantrell led the officers to believe the
trailer was his home . The written consent form Cantrell signed allowing
5 officers to search the trailer clearly indicated Cantrell was giving them consent
to search "the home of Brent Cantrell ." Cantrell's black truck was parked in
front of the residence. Finally, we note that after the charges were brought,
Cantrell presented the trial court with a motion to suppress evidence seized
from "his home" in violation of his constitutional rights. Before leaving this
issue, we also note that Cantrell was indicted on each of these three offenses as
having acted in complicity with Shawna Dalton and Dale Wells . As this Court
has held: "Complicity liability requires (1) proof of commission of an offense by
another person and (2) proof of the defendant's participation in commission of
that offense." Parks v. Commonwealth , 192 S.W.3d 318, 327 (Ky. 2006)
(citation omitted) . When the evidence presented is taken as true and viewed in
a light most favorable to the Commonwealth, we cannot say it was clearly
unreasonable for the jury to find guilt. Thus, we conclude sufficient evidence
existed to convict Cantrell on each of the three offenses, and we reject his claim
that the trial court erred in denying his motion for a directed verdict as to each
of the three counts .
B. The trial court did not err in denying Cantrell's motion for a directed verdict on the count charging him with being a persistent felony offender in the second degree.
Cantrell argues the Commonwealth failed to establish all the elements of
the count charging him with being a persistent felony offender in the second
degree . In particular, Cantrell points out that the Commonwealth failed to
introduce any evidence as to his age at the time the prior felony was
committed. As with any count of an indictment, the Commonwealth has the
burden of proving every element beyond a reasonable doubt. See Adams v. 6 Commonwealth, 551 S .W .2d 561, 564 (Ky. 1977) ; KRS 500 .070 . In order to
establish the count for being a persistent felony offender in the second degree,
the Commonwealth must show Cantrell was over the age of eighteen (18) years
at the time the first offense was committed, and that he was more than twenty-
one (21) years of age when he was convicted of the current offenses. See KRS
532 .080(2) .
In this case, the Commonwealth relied on the testimony of Cantrell's
father in order to establish his date of birth. During T.C. Cantrell's testimony,
he indicated Brent Cantrell was born in 1976. Since Cantrell was convicted of
the present charges in 2007, the evidence is clear that he was at least 29 years
of age at the time of the conviction . Likewise, we find no error in the evidence
relied on by the Commonwealth for allowing the jury to infer Cantrell was over
eighteen (18) years of age when he committed the first offense . During the
penalty phase, the Commonwealth introduced Cantrell's prior conviction. No
further evidence was introduced during the PFO phase of the trial . The
Commonwealth points out that, based on the prior conviction and the
testimony of Cantrell's father, the jury had evidence that: (1) Cantrell was born
in 1976 ; (2) his prior offense was for possession of a controlled substance ; (3)
the indictment was returned in 2003 (when Cantrell was 26 or 27 years old) ;
and (4) at the time Cantrell received a one-year sentence after pleading guilty in
2004 (when he was 27 or 28 years old), he had been in custody for 124 days.
Based on this evidence, the Commonwealth argues the jury could infer
Cantrell's first offense occurred when he was well past the age of eighteen (18) years. We agree . See Kendricks v. Commonwealth , 557 S.W.2d 417, 419-20
(Ky. 1977) ("[I]f he had been 18 at the time he committed the first offense, it is
unlikely that any court would wait six years to try a person charged with a
criminal offense." [jury inferring defendant was over eighteen (18) years of age
at the time of his conviction since he pled guilty when he was twenty-four (24)
years of age)) . "An inference is the act performed by the jury of inferring or
reaching a conclusion from facts or premises in a logical manner so as to reach
a conclusion ." Martin v. Commonwealth, 13 S .W.3d 232, 235 (Ky. 1999) . This
Court, in Martin, went on to say:
A reasonable inference is one in accordance with reason or sound thinking and within the bounds of common sense without regard to extremes or excess. It is a process of reasoning by which a proposition is deduced as a logical consequence from other facts already proven . Guesswork, on the other hand, is the process of making a judgment without adequate information, or to conjecture, or to speculate .
Finding the evidence before the jury sufficient to support the jury's
inference that Cantrell was more then twenty-one (21) years old at the time he
was convicted of the present charges, and that Cantrell was more then eighteen
(18) years old when he committed the first offense, we find no error in the trial
court's denial of Cantrell's motion for a directed verdict as to the persistent
felony offender in the second degree count.
C. The trial court did not commit reversible error when it allowed the Commonwealth to cross-examine Cantrell's girlfriend concerning her prior drug use . In order to establish his claim that he no longer lived in the trailer on his
father's property, Cantrell presented testimony from his girlfriend, Melissa
Stapleton. During Stapleton's direct examination, she appeared confused and
offered inconsistent testimony. Initially, Stapleton indicated Cantrell had not
stayed with her the on night of January 26th . She later claimed Cantrell had
stayed that night, and that he had left for work on the morning of the 27th. On
cross-examination, the Commonwealth explored the reason for Stapleton's
inability to recall or relate what had occurred on the night of January 26th and
the morning of January 27th. The Commonwealth got Stapleton to admit that
she "sometimes" had difficulties recollecting ; that in the past she had a
methamphetamine problem; and that her prior drug use "probably has not
helped [her ability to recollect what had occurred] ." Cantrell now claims that
allowing this evidence through cross-examination amounts to reversible error.
This alleged error was not preserved at trial. Therefore, we must look at it
under the palpable error standard .
Given the totality of the evidence presented by both sides, we find no
error in allowing the Commonwealth to explore an explanation for Stapleton's
confused and inconsistent testimony, and certainly any error which may have
occurred was not palpable. This issue was addressed by the Seventh Circuit
Court of Appeals in United States v. Molica , 185 F.3d 780 (7th Cir. 1999) . In
that case, the court stated : "Evidence of a witness' prior drug use may be
admitted insofar as it relates to his possible inability to recollect and relate ."
Id. at 788 (citation omitted) . Considering the admissibility of such evidence under Kentucky Rule of Evidence (KRE) 608, Robert G. Lawson concludes
evidence of prior drug use "is admissible to cast doubt on [the witness']
capacity to perceive" as well as the witness' "ability to remember or relate[ .]"
Kentucky Evidence Law Handbook, § 4 .30(1) (4th ed. 2003) . We, therefore,
affirm on this issue .
D. If the trial court erred in denying a continuance to allow Cantrell time to arrive on the second day of trial, we conclude such error was harmless beyond a reasonable doubt.
Cantrell argues the trial court abused its discretion and committed
reversible error when it denied his motion for a continuance . At the start of the
second day of trial, Cantrell's attorney informed the court that Cantrell was
experiencing problems with his vehicle and would be late arriving at the
courthouse . The court, after Cantrell's counsel was unable to provide further
details, denied the motion for a continuance and allowed the Commonwealth to
continue with its case . The Commonwealth then called one of the three officers
who initially arrived on the scene . A couple of minutes after the officer's
testimony began, Cantrell entered the courtroom . Cantrell now contends the
court violated both his right to due process and his right to confront witnesses
against him.
The Kentucky Rules of Criminal Procedure state that a defendant shall
be present at every critical stage of the trial. See RCr 8.28. In determining
whether a stage is critical, "[t]he appropriate question is whether there has
been any interference with the defendant's opportunity for effective cross-
examination." See Kentucky v. Stinger, 482 U .S . 730, 744 n.17 (1987) . The
10 U.S. Supreme Court has indicated that not all constitutional errors
automatically call for a reversal. See Chapman v. California , 386 U .S . 18, 23
(1967) . The Court recognized that "before a federal constitutional error can be
held harmless, the court must be able to declare a belief that it was harmless
beyond a reasonable doubt." Id. at 24 .
Cantrell's absence occurred at the commencement of the second day of
trial . He arrived within a couple of minutes of the start of the officer's
testimony. Cantrell does not contest the Commonwealth's assertion that
during that time the officer testified as to his current and past employment, the
fact that he was involved in the investigation, and a description of what he
encountered when he initially arrived at the trailer . Nor has Cantrell made any
attempt to demonstrate how he was prejudiced by his absence of only a couple
of minutes. In light of these circumstances, we conclude the error was
harmless beyond a reasonable doubt.
E. The trial court did not err in allowing the Commonwealth, over Cantrell's objection, to make a deterrence argument during closing arguments of the penalty phase .
Cantrell notes that the Commonwealth, over his objection, was allowed to
make a "send a message" argument during closing. Cantrell contends this
argument was improper and highly prejudicial in the penalty phase . The
Commonwealth stated:
This is the first case on manufacturing methamphetamine ever heard in Johnson County. You have seen commercials, you have seen the advertisements, you know . . . [interrupted by Cantrell's objection] . . . you know what meth does to communities . You have seen those that are dead, those that are dying. Now is the time for you to speak with one voice and tell people like Mr. Cantrell, who is bringing poison into our community, we don't want you . We don't want you near us . I am going to ask that you go out and bring back a maximum sentence in this matter . . . .
We take this opportunity to review and clarify this Court's position
regarding closing arguments by the Commonwealth at the penalty phase,
commonly referred to as "send a message ."
"The true purpose of punishing one for a violation of the laws against
crime is not for the benefit of the person injuried, but to protect the public and
with the view of preventing further crime." Weber v. Commonwealth, 303 Ky.
56, 67, 196 S.W .2d 465, 471 (1946) . Our U.S . Supreme Court has recognized
deterrence as one of four factors to be considered in imposing a sentence.
Kennedy v. Louisiana, U.S . , 128 S . Ct. 2641, 2649 (2008) . See also
Williams v . People of State of N.Y. , 337 U.S . 241 (1949) ; Taggart v. State, 9,57
So .2d 981 (Miss . 2007) ; State v. Thornton , 800 A.2d 1016 (R.I . 2002) ;
Commonwealth v. McIntyre , 767 N.E.2d 578 (Mass . 2002); State v. Gertsch , 49
P.3d 392 (Idaho 2002) ; and State v. Abraham, 566 P.2d 267 (Alaska 1977) .6
The sentencing guidelines set down for federal courts list factors to be
considered in imposing a sentence. These factors include the need for the
sentence imposed to "promote respect for the law" and "afford adequate
deterrence to criminal conduct." 18 U.S .C .A . § 3553(2)(A)(B) .
6 Appellant relies extensively in his brief on the case of United States v. Solivan , 937 F.2d 1146 (6th Cir. 1991) . This decision, as well as all other federal cases, offers little assistance in our determination . Juries in federal courts decide guilt or innocence only, and the penalty is solely set by judges .
12 Other states have considered and allowed these types of "send a
message" statements to be heard by the jury . See King v. State , 784 So . 2d 884
(Miss . 2001) ; State v. Fletcher, 555 S .E.2d 534 (N.C . 2001) ; Walker v . State ,
327 S .E.2d 475 (Ga . 1985) ; State v. Richards, 896 P.2d 357 (Idaho App. 1995) ;
People v. Lego , 507 N .E .2d 800 (111. 1987) ; State v. Giorgi, 397 A.2d 898 (R.I.
1979) .
Even before "truth in sentencing" legislation, which bifurcated
Kentucky's criminal prosecutions of felonies, this Court has never adopted a
"blanket condemnation of prosecutorial comment relating to deterrence."
Wallen v. Commonwealth, 657 S .W.2d 232, 234 (Ky. 1983) . Prior to the
enactment of KRS 532 .080 in July of 1986, the jury considered guilt or
innocence, as well as the penalty, in one deliberation . We look back over
almost a century of cases where comment on the deterrent effect of a sentence
has been held proper. These include pre-1986 cases where guilt and penalty
were decided by the jury during the same deliberation . See Damron v.
Commonwealth , 687 S .W.2d 138, 140 (Ky. 1985) (approving an argument by
the Commonwealth asking the jury to severely punish the defendant in order to
send a message to the jails and prisons as to the consequences of escape,
thereby deterring future escapes), Caise v. Commonwealth, 610 S .W.2d 605,
607 (Ky. 1980) (did not constitute error for prosecutor to comment during
closing argument about what person can look forward to by committing
robbery in Fayette County) ; Carter v. Commonwealth , 278 Ky. 14, 128 S.W.2d
214, 218 (1939) (reversal not required because of statements of county
13 attorney, in closing argument in murder prosecution, to effect that if jury
acquitted defendant it would be useless to try anyone for any crime in county,
that defendant's good reputation had no bearing on case, and that jury could
not release defendant without paying more attention to mob law than to the
law and evidence); Wallen, 657 S .W .2d at 234 (remark of prosecutor in closing
argument that one way to stop useless killings was for everyone to do their jobs
and see that defendant paid penalty for what he had done was within bounds
of propriety as prosecutorial comment related to deterrence) ; Sarver v.
Commonwealth , 425 S .W.2d 565, 566 (Ky. 1968) (It was within the scope of
proper argument and did not require admonition to jury for prosecutor to state
in closing argument: "As you sleep there is little to protect your property except
the law which is the jury and these good officers whose only interest is in
protecting your property. They have done their part. It is now up to you.") ;
Shepherd v. Commonwealth , 236 Ky. 290, 33 S.W .2d 4, 6 (1930) (In homicide
prosecution, prosecutor's argument to "convict this man and Butler County will
go off the head lines" was held neither improper nor prejudicial.) ; Williams v .
Commonwealth , 153 Ky. 710, 156 S .W. 372, 375 (1913) (While accused's guilt
or innocence must be determined from the facts of the case, and he cannot be
affected by the prevalence of crime, it is within the limits of legitimate
argument to insist upon the jury doing its duty for the purpose of preventing
bloodshed and crime .) . These cases illustrate that so long as the jury is well
aware that it is sentencing the particular defendant before it - with his or her
good points and bad - on the crime for which he or she has been convicted,
14 there is no prejudice in the prosecutor commenting on the deterrent effect of
that sentence.
In Young v. Commonwealth , 25 S .W.3d 66 (Ky. 2000), a post "truth in
sentencing law" case very similar to this one, we held defendant suffered no
"manifest injustice" as the result of prosecution's sentencing phase closing
argument during which he asked the jury to send a message to the
methamphetamine dealers in 1Vluhlenberg County. We noted that the
prosecutor's statements were "responsive to defense counsel's contention that
the jury should recommend the minimum sentence," and that the "full text of
the Commonwealth's sentencing phase closing argument clarified the `send a
message to drug dealers' rhetoric and made it clear that the Commonwealth
wanted the jury to know that [defendant's] methamphetamine manufacturing
placed him in the drug trafficking stream of commerce." Id. at 75 . While
Young deals with palpable error, rather than preserved error, it is essentially
illogical, at the sentencing phase, to say that the prosecutor cannot encourage
the jury to impose a sentence that speaks to deterrence, as well as punishes
the specific crime before it. Deterrence is clearly not intended for that
defendant alone, but rather his sentence sends the message to all others so
inclined that their crimes will be punished, and that a jury made up of local
citizens will not tolerate such offenses. This is a significant part of the benefit
of public trials . We continue, however, to disapprove of this argument at the
guilt stage. And even at the penalty phase, the "send a message" argument
shall be channeled down the narrow avenue of deterrence . Any effort by the
15 prosecutor in his closing argument to shame jurors or attempt to put
community pressure on jurors' decisions is strictly prohibited . Prosecutors
may not argue that a lighter sentence will "send a message" to the community
which will hold the jurors accountable or in a bad light . The penalty argument
in this case directed at the potential meth pushers in Johnson County was not
error.
F. The trial court did not err in allowing introduction of misdemeanor convictions in same proceeding as PF4 phase.
KRS 532 .055 provides for bifurcated criminal trials for felony trials . It
specifically states that the penalty and persistent felony determination shall be
combined into the same procedure . KRS 532.055(3) . There was nothing
improper in this case for the jury to hear evidence of the felonies before
imposing the punishment for the misdemeanor. "[T]he same evidence that is
pertinent toward fixing the penalty is also pertinent for consideration in the
enhancement of sentence . . . ." Commonwealth v. Reneer, 734 S.W.2d 794,
798 (Ky. 1987) . The case cited by Appellant, Commonwealth v. Philpott, 75
S .W.3d 209 (Ky. 2002), is not controlling. That case prohibited the setting of
penalty on a lesser included misdemeanor during the deliberation on guilt or
innocence. Id. at 213. The unpreserved claim of error here is without merit.
For all of the foregoing reasons, we affirm the judgment of the Johnson
Circuit Court.
All sitting. All concur. COUNSEL FOR APPELLANT:
Shannon Renee Dupree Assistant Public Advocate Department of Public Advocacy 100 Fair Oaks Lane, Suite 301 Frankfort, KY 40601
COUNSEL FOR APPELLEE :
Jack Conway Attorney General
Jeffrey Allan Cross Criminal Appellate Division Office of the Attorney General 1024 Capital Center Drive Frankfort, KY 40601