Dashawn Johnson v. Commonwealth of Kentucky

• Court: Kentucky Supreme Court
• Decided: August 16, 2018
• Docket: 2017-SC-0037
• Status: Unpublished

Opinion

RENDERED: AUGUST 16, 2018 TO BE PUBLISHED

2016-SC-000615-MR & 2017-SC-000037 OAT

DASHAWN JOHNSON APPELLANT

ON APPEAL FROM HENDERSON CIRCUIT COURT V. HON. KAREN LYNN WILSON, JUDGE HENDERSON CIRCUIT COURT NO. 16-CR-00073

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION OF THE COURT BY JUSTICE CUNNINGHAM

AFFIRMING

On January 26, 2016, Appellant, Dashawn Johnson, was arrested in

Henderson County, Kentucky, when law enforcement officials recovered illegal

drugs at his residence. A handgun was also discovered under a bed.

Appellant, along with his wife, and a third person were present at the residence

at the time of the search. As a result of the search. Appellant was indicted on

two counts of first-degree trafficking in a controlled substance (heroin and

methamphetamine), one count of felony possession of firearm, and being a

first-degree persistent felony offender (PFO).

Appellant chose a bench trial on the felony firearm possession charge

and was convicted. A Henderson Circuit Court jury convicted Appellant of the

remaining charges. He was sentenced to a total of twenty years’ imprisonment. Appellant now appeals his judgment and sentence as a matter of right

pursuant to § 110(2)(b) of the Kentucky Constitution. Several issues are raised

and addressed as follows.

Suppression Motion

For his first argument, Appellant alleges that his conviction and sentence

should be reversed because the illegal search of his residence violated his

rights under the Fourth Amendment. He specifically argues that the search

warrant in this case was invalid and that the court erroneously denied his

suppression motion as a result.

“Our review of a trial court's ruling on a motion to suppress ‘requires a

two-step determination . . . [t]he factual findings by the trial court are reviewed

under a clearly erroneous standard, and the application of the law to those

facts is conducted under de novo review.”’ Brown v. Commonwealth, 416

S.W.3d 302, 307 (Ky. 2013) (quoting Cummings v. Commonwealth, 226 S.W.3d

62, 65 (Ky. 2007)). More specifically, we must “determine whether under the

‘totality of the circumstances’ presented within the four corners of the affidavit,

a warrant-issuing judge had a substantial basis for concluding that probable

cause existed.” Commonwealth v. Pride, 302 S.W.3d 43, 49 (Ky. 2010).

The affidavit indicated that the affiant detective identified Appellant’s

residence by referencing police records, confirming that the Appellant lived

there, and claiming that he had received “numerous complaints” about “drug

activity” there involving Appellant. A controlled drug buy was conducted at

Appellant’s residence less than three months before the warrant was issued. The affiant detective also stated in the warrant that he spoke with a credible

confidential informant who claimed that he observed drug trafficking inside

Appellant’s residence within the past forty-eight hours. The affiant detective

testified to the forgoing information during Appellant’s suppression hearing.

Appellant specifically argues that the warrant was defective because it

incorrectly described the front door to his residence as black when, in fact, the

door was brown. Appellant’s first name was also misspelled in the warrant.

However, neither of these minor discrepancies requires suppression of the

contraband discovered at the residence.

Appellant further claims that the handgun discovered under a bed

should have been suppressed because the warrant was for drugs and not guns.

Searching under a bed is clearly within the bounds of where drugs could have

been placed. Upon discovery of the weapon, the officers’ acted appropriately in

retaining the weapon and subsequently introducing it into evidence against

Appellant who was, at the time of the search, known to be a prior convicted

felon. Therefore, Appellant’s rights under the Fourth Amendment were not

violated here.

Double Jeopardy

Appellant next argues that reversible error occurred when the trial court

instructed the jury on two counts of trafficking instead of one because heroin

and meth were listed in the same subsection of the first-degree trafficking

statute—KRS 2 ISA. 1412. The ultimate question here is whether Appellant’s

right to be free from double jeopardy was violated. See Commonwealth v. Burge, 947 S.W.2d 805, 811 (Ky. 1996) (adopting Blockburger v. United States,

284 U.S. 299 (1932)).

Appellant’s argument is premised in part on the fact that KRS 218A. 1412

was amended in 2017 by placing heroin in a separate statutory subsection

than meth. He analogizes this to categorizing drugs by schedule. According to

Appellant, this indicates that, in 2017, the General Assembly intended to treat

the trafficking of meth and the trafficking of heroin as two separate crimes. As

such. Appellant infers that the legislature did not intend such a result in the

2016 version of KRS 218A. 1412, under which Appellant was sentenced. That

version places meth and heroin under the same subsection and thus, by

analogy, the same schedule.

Appellant incorrectly assumes that KRS 218A. 1412 does not allow for the

charging of more than one crime for trafficking more than one drug. KRS

218A. 1412(1) begins, “A person is guilty of trafficking in a controlled substance

. . . .” The statute criminalizes the trafficking of a controlled substance—if the

defendant is attempting to traffic multiple drugs, multiple charges may be

brought against the defendant. In other words, the statute does NOT state, “A

person is guilty of trafficking controlled substances . . . .” Because KRS

218A.1412(1) criminalizes the trafficking of a, singular, controlled substance,

the Commonwealth may bring multiple charges under KRS 218A.1412(1) when

the defendant is found to have been trafficking multiple substances, regardless

of their statutory grouping. This is the same line of thinking we used in Early v. Commonwealth:

“KRS 2 ISA.286(3) prohibits trafficking in ‘a prescription blank’ or ‘a forged

prescription for a controlled substance.’ The legislature’s use of the singular ‘a

forged prescription’ demonstrates its intention to punish the trafficking of each

forged prescription as a separate and distinct trafficking offense.” 470 S.W.3d

729, 738 (Ky. 2015).

However, we must also address Appellant’s reliance on Commonwealth v.

Grubb, 862 S.W.2d 883 (Ky. 1993). From the outset, we acknowledge that

Grubb is problematic. In Grubb, the Court held that the defendant could not be

convicted of multiple counts of drug trafficking for two drugs from the same

schedule where all counts arose from the same transaction. “Transaction” was

interpreted as a direct transfer from the hands of the dealer into the hands of

the buyer. The Grubb Court discussed its reasoning as follows: “[a] single sales

transaction between the same principals at the same time and place which

violates a single statutory provision does not justify conviction or a sentence for

separate crimes, even though more than one item of a controlled substance (of

the same schedule) is involved.” Id. at 884.

In his dissent. Justice Wintersheimer cited contrary decisions from

several other jurisdictions in support of his conclusion that “the clear

legislative intent is to provide punishment for those who sell or possess specific

individual drugs regardless of the schedule which lists the drugs.” Id. at 887.

We most recently discussed Grubb in our 2015 case Early v. Commonwealth: Grubb was convicted of trafficking in two controlled substances, . . . and the decision primarily relied on the “single impulse” test established in Ingram v. Commonwealth, which was later overruled in Commonwealth v. Burge, 947 S.W.2d at 811, in favor of the Blockburger test and KRS 505.020 analysis. Nevertheless, even Grubb recognized that “[a] single act, under circumstances not found herein, could, however, threaten compound consequences.”

470 S.W.Sd at 739 (citing Grubb, 862 S.W.2d at 885).

The confusion arising from our precedent has not gone unnoticed. A

recent unpublished case from the Sixth Circuit Court of Appeals denied an

ineffective assistance of counsel claim on the basis that Grubb was effectively

overruled by subsequent Kentucky cases. Manns v. Beckstrorn, Nos. 15-6025,

695 Fed.Appx. 883 (6th Cir. June 9, 2017). However, the dissenting opinion in

Manns cogently addressed several concerns as follows:

[l]n 2011, fifteen years after Burge was decided, the Kentucky Supreme Court cited Grubb in Jones v. Commonwealth, 331 S.W.3d 249, 251 n.l (Ky. 2011), explaining why Jones was charged with only one count for delivering two listed substances at the same time. The Court explained: “The alprazolam and clonazepam purchased during the second buy constituted only one transaction because they are both Schedule IV narcotics. See Commonwealth V. Grubb, 862 S.W.2d 883 (Ky. 1993).” Further, Kentucky's Criminal Practice and Procedure Series continues to cite Grubb and repeat the proposition that “multiple sentences for a single drug transaction of drug trafficking may not be imposed when the defendant has trafficked in different named substances which are criminalized in the same schedule.” Thus, 1 cannot agree that Grubb was no longer the law in Kentucky when [defendant] was tried.

Id. at 888-89 (White, J., dissenting) (footnote omitted).

Further complication arises from following Grubb in non-transactional

trafficking cases, as we have here. Appellant was charged with trafficking by

possession with intent to transfer. He possessed two separate drugs yet to be sold. He may have intended to traffic the heroin and meth separately or

together. Or both. We do not know. The application of Grubb becomes

unworkable. It is therefore necessary to clarify our previous decisions.

To do this, we return to the time-proven Blockburger test. In

Blockburger, the United States Supreme Court held that “where the same act or

transaction constitutes a violation of two distinct statutory provisions, the test

to be applied to determine whether there are two offenses or only one, is

whether each provision requires proof of a fact which the other does not.”

Blockburger, 284 U.S. at 304. Pursuant to this test, “[a] defendant is put in

double jeopardy when he is convicted of two crimes with identical elements, or

where one is simply a lesser-included offense of the other.” Turner v.

Commonwealth, 345 S.W.3d 844, 847 (Ky. 2011).

It is clear that Appellant’s trafficking convictions required proof of two

different facts—knowingly possessing meth and knowingly possessing heroin.

Therefore, even though Appellant was convicted of trafficking in two different

drugs listed under the same subsection of KRS 218A, we conclude that there

was no double jeopardy violation here. To the extent that Grubb conflicts with

this ruling, it is overruled.

Directed Verdict

Appellant next alleges that the Commonwealth failed to prove that he

possessed the contraband. Although not styled as such. Appellant essentially

argues that he was entitled to a directed verdict of acquittal. We will reverse

the trial court’s denial of a motion for directed verdict “if under the evidence as

7 a whole, it would be clearly unreasonable for a jury to find guilt[.]”

Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991) (citing

Commonwealth v. Sawhill, 660 S.W.2d 3 (Ky. 1983) (emphasis added)).

The record establishes that the Commonwealth presented sufficient

evidence that would allow the trier of fact to reasonably convict Appellant. In

the case of the firearm possession charge, .the trier of fact was the trial judge.

Possession is defined as having “actual physical possession or otherwise to

execute actual dominion or control over a tangible object.” KRS 500.080(14).

The officers’ procurement of the handgun from under the bed satisfies this

standard. See Johnson v. Commonwealth, 90 S.W.3d 39, 42-43 (Ky. 2002)

(overruled on other grounds by McClanahan v. Commonwealth, 308 S.W.3d 694

(Ky. 2010)). Reviewing the evidence as a whole, it was not clearly unreasonable

for the trier of fact to convict Appellant of felony possession of a firearm.

Similar logic applies to Appellant’s argument concerning the drugs.

Unlike the previously discussed firearm charge, however. Appellant failed to

preserve this argument. Therefore, we will review for palpable error. See RCr

10.26; and McCleery v. Commonwealth, 410 S.W.3d 597, 606 (Ky. 2013) (we

will not reverse unless “it can be determined that manifest injustice, i.e., a

repugnant and intolerable outcome, resulted from that error.”).

We have previously held that “[t]wo or more persons may be in

possession of the same drug at the same time and this possession does not

necessarily have to be actual physical possession. It may be constructive as

well as actual.” Franklin v. Commonwealth, 490 S.W.2d 148, 150 (Ky. 1972);

8 see also Pate v. Commonwealth, 134 S.W.3d 593, 598-99 (Ky. 2004) (applying

active and constructive possession principles to KRS Chapter 218A).

Appellant testified that he occasionally resided at the home where the

contraband was discovered. Detective Ramsey testified that Appellant stated

prior to the search that “everything in the house was his and that his wife had

nothing to do with it.” Reviewing the evidence as a whole, it was not clearly

unreasonable for the jury to convict Appellant of trafficking in heroin and

methamphetamine. There was certainly no palpable error.

Expert Funds

Next, Appellant argues that reversible error occurred when the trial court

denied his request for funds so that an expert could review a recording of a

preliminary hearing. Appellant specifically claims that Detective Eric Ramsey’s

testimony at the hearing contradicted what he attested to in the affidavit used

to procure the search warrant. The alleged discrepancy involves Det. Ramsey’s

statements concerning drug buys involving Appellant in a previous case.

The test for determining whether an indigent defendant is entitled to

expert funding was addressed in Benjamin v. Commonwealth as follows:

1) whether the request has been pleaded with requisite specificity; and 2) whether funding for the particularized assistance is “reasonably necessary”; 3) while weighing relevant due process considerations. Upon review, however, this Court's analysis is limited to whether the trial court has abused its discretion.

266 S.W.3d 775, 789 (Ky. 2008) (Internal citation omitted).

In his first ex parte motion for funds. Appellant argued that “the video

has been edited, to remove the false statement, perhaps in an effort to protect the detective.” Appellant requested $3,000 for an expert to review the video for

possible tampering. The court authorized $330. Appellant then filed a second

ex parte motion requesting an additional $660 which was denied by the court.

Considering the initial allowance by the trial court and the dubious nature of

Appellant’s claim, we cannot say that the trial court abused its discretion here

in denying Appellant’s additional request for expert funding.

Sentencing

Lastly, Appellant argues that the length of his sentence violates KRS

532.110(l)(c) and KRS 532.080{6)(b). Those provisions apply to Class B and

Class C felonies by placing an upper sentencing limit of twenty years’

imprisonment. Appellant was sentenced to serve twenty years total in the

present case. However, the trial judge ordered that the sentences run

consecutively to any and all other sentences. This includes a prior trafficking

conviction where Appellant received a ten-year sentence. Appellant contends

that his grand total sentence is thirty years’ imprisonment, thus, in violation of

KRS 532.110(1) and KRS 532.080(6)(b).

Contrary to Appellant’s contention, the relevant sentencing statutes do

not extend to sentences resulting from previous cases. Appellant’s ten-year

sentence resulted from a previous indictment and trial. That case was pending

before the Court of Appeals. There was no sentencing error here.

10 Conclusion

For the foregoing reasons, we hereby affirm the judgment of the

Henderson Circuit Court.

All sitting. All concur.

COUNSEL FOR APPELLANT:

Samuel N. Potter Assistant Public Advocate

Kathleen Kallaher Schmidt Assistant Fhiblic Advocate

COUNSEL FOR APPELLEE:

Andy Beshear Attorney General of Kentucky

Jeffrey Allan Cross Assistant Attorney General