Denarrius Terry v. Commonwealth of Kentucky

• Court: Kentucky Supreme Court
• Decided: March 20, 2025
• Docket: 2023-SC-0373
• Status: Unpublished

Opinion

IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED “NOT TO BE PUBLISHED.” PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, RAP 40(D), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. RENDERED: MARCH 20, 2025 NOT TO BE PUBLISHED

Supreme Court of Kentucky 2023-SC-0373-MR

DENARRIUS TERRY APPELLANT

ON APPEAL FROM LOGAN CIRCUIT COURT V. HONORABLE JOE W. HENDRICKS, JR., JUDGE NO. 20-CR-00257

COMMONWEALTH OF KENTUCKY APPELLEE

MEMORANDUM OPINION OF THE COURT

AFFIRMING

A Logan County jury found Denarrius Terry (“Terry”) guilty of complicity

to first-degree trafficking in a controlled substance, second offense

(methamphetamine > two grams); first-degree trafficking in a controlled

substance, second offense (cocaine > 4 grams) (firearm enhanced); possession

of drug paraphernalia; and possession of a handgun by a convicted felon. The

Logan Circuit Court sentenced Terry to twenty years in prison. Terry now

appeals as a matter of right and challenges his convictions. Ky. Const. § 110

(2)(b). Having reviewed the record, the arguments of the parties, and the

applicable law, we affirm the judgment of the Logan Circuit Court. I. BACKGROUND

In August 2020, Central Kentucky Drug Task Force officers acted on

information they received and did a “trash pull” on a residence where Terry, his

wife, Jennifer Cross (“Cross”), and their children lived. The officers pulled six

bags of trash and found several cut straws with suspected drug residue and

baggie corners with suspected drug residue in them.

The officers used this evidence to obtain a search warrant for the

residence. Both Terry and Cross were present during the execution of the

search warrant. In their shared bedroom, the officers found a bag containing

baggies with 46 grams of methamphetamine and 42 grams of cocaine. Officers

also found numerous empty baggies, scales, and two guns, one with the serial

number filed off. In another room, officers found a digital scale, 38 grams of

cocaine in a larger bag, and a rolled-up dollar bill. Scattered throughout the

residence, officers found marijuana and other drug paraphernalia.

Terry and Cross were arrested and interviewed by law enforcement. Terry

admitted he “messed with cocaine” and that the cocaine found in the house

was his, but he did not say where he got it. Terry also claimed not to know

anything about the methamphetamine or guns.

Cross told officers that she and Terry trafficked drugs together. She said

she sold methamphetamine, and Terry sold cocaine. Cross said she often used

Terry’s money to go purchase the cocaine for him. Cross said they bought three

to four ounces of cocaine per week for $1,800 to $2,000 per ounce. She said

she bought two ounces of methamphetamine every couple of weeks at $900 per

2 ounce. Cross said one of the pistols was hers, and the one without the serial

number was not hers.

Cross entered a guilty plea to amended drug charges 1 and was sentenced

to a total of fourteen years, probated for five years. As part of her plea

agreement, she agreed to forfeit her home and other property and testify

against Terry.

Terry was indicted by a Logan County grand jury on charges of

complicity to first-degree trafficking in a controlled substance, second offense

(methamphetamine > two grams); first-degree trafficking in a controlled

substance, second offense (cocaine > 4 grams) (firearm enhanced); possession

of a defaced firearm and possession of drug paraphernalia. A superseding

indictment also charged Terry with possession of a handgun by a convicted

felon; and being a second-degree persistent felony offender (PFO 2nd).

Both Cross and Terry testified at trial. The jury acquitted Terry of the

defaced firearm charge and found him guilty of all other charges under the

original indictment. The circuit court held a separate guilt phase on the charge

of possession of a handgun by a convicted felon. The clerk read into the record

Terry’s prior conviction for possession with intent to traffic cocaine. The jury

found Terry guilty of possession of a handgun by a convicted felon. The trial

moved into the penalty phase. The circuit court declined to instruct on the

1 Per CourtNet, Logan Circuit Court case 20-CR-00258, Cross pled to first-degree

trafficking in a controlled substance, first offense (methamphetamine > two grams); facilitation to first-degree trafficking in a controlled substance, first offense (cocaine > = 4 grams); and possession of marijuana.

3 PFO 2nd as an impermissible “double enhancement.” KRS 2 532.080 (10).

Record (R.) at 181.

Pertinent to this appeal, during the guilt phase, the circuit court

instructed the jury on the cocaine trafficking charge with firearm enhancement

and the jury found Terry guilty of the cocaine trafficking charge with the

firearm enhancement. During the penalty phase, the Commonwealth called

Karen Palmer from probation and parole to testify on truth in sentencing. She

testified about Terry’s prior conviction of possession with intent to traffic

cocaine. Though there was no contemporaneous challenge to her testimony,

Palmer inaccurately testified that the second offense cocaine trafficking charge

was a Class A felony but carried only a 20% parole eligibility. She explained

Terry was eligible to obtain good time, meritorious, and work credits.

The jury recommended a sentence of thirty-five years on the cocaine

trafficking charge, second offense, with firearm enhancement, with all other

sentences to run concurrently. Before entering the final judgment, the circuit

court addressed the inaccurate testimony on Class A felony service time. Terry

was entitled to 85% parole eligibility instead of 20% as Palmer testified. The

Commonwealth believed the error was palpable, and Terry would be entitled to

a new penalty phase. Thus, the Commonwealth agreed to a sentence of twenty

years, the minimum penalty for a Class A felony, while preserving Terry’s right

to appeal any pretrial or trial issues. The circuit court accepted the parties’

2 Kentucky Revised Statutes.

4 agreement and sentenced Terry to twenty years in prison. Further facts are

developed as needed below. This appeal followed.

II. ANALYSIS

On appeal, Terry argues the circuit court erred in: (1) improperly

instructing the jury on the Class A penalty range for the cocaine trafficking

charge, second offense with a firearm enhancement; and (2) denying his motion

for a mistrial when the Commonwealth failed to disclose evidence regarding

prior investigations.

A. The trial court correctly enhanced Terry’s charge to a Class A felony.

First, Terry argues the circuit court erred in improperly instructing the

jury on the Class A penalty range for the enhanced cocaine trafficking charge.

Terry argues that the circuit court placed the penalty phase instructions for the

firearm enhancement and second offense enhancement in an improper order.

He argues that providing the penalty instruction for the firearm-enhanced

cocaine trafficking offense before the cocaine trafficking second offense with the

firearm enhancement was a palpable error. Terry argues that because the jury

did not reach the conclusions in the proper order and the highest maximum

sentence for a second trafficking offense is the Class B felony range, the circuit

court palpably erred in instructing on the Class A felony range. Terry fails to

cite any case law in support of his argument.

Under the guilt phase instructions, the jury found Terry guilty of first-

degree cocaine trafficking enhanced by a firearm, which is permissible under

our precedent. See Mills v. Department of Corrections Offender Information 5 Services, 438 S.W.3d 328 (Ky. 2014). While reserving the firearm enhancement

to the penalty phase is permissible, there is no prejudice in putting the issue

before the jury in the guilt phase, where some connection between the

underlying offense and the firearm is necessary.

In the penalty phase instructions, the circuit court instructed on the

trafficking charge with the firearm enhancement and then on the second

offense enhancement. First, the circuit court instructed the jury to determine

Terry’s sentence for the first-degree trafficking in cocaine greater than four

grams charge with the firearm enhancement. This instruction contained the

firearm-enhanced Class B felony penalty range of ten to twenty years, and the

jury recommended a sentence of twenty years. On the next page, the court

instructed the jury to determine whether this was Terry’s second offense of

first-degree trafficking in cocaine greater than four grams with the firearm

enhancement. This instruction contained the Class A felony penalty range of

twenty to fifty years or life in prison. The jury recommended a sentence of

thirty-five years.

Terry concedes this argument is unpreserved and requests palpable error

review under RCr 3 10.26. Under RCr 10.26, if an unpreserved error is found to

be palpable and affects the defendant's substantial rights, the appellate court

may grant appropriate relief if manifest injustice has resulted from the error.

An error is palpable when it is “easily perceptible, plain, obvious and readily

3 Kentucky Rules of Criminal Procedure.

6 noticeable.” Brewer v. Commonwealth, 206 S.W.3d 343, 349 (Ky. 2006). “When

an appellate court engages in a palpable error review, its focus is on what

happened and whether the defect is so manifest, fundamental and

unambiguous that it threatens the integrity of the judicial process.” Martin v.

Commonwealth, 207 S.W.3d 1, 5 (Ky. 2006).

Under KRS 218A.1412(1)(a), “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.” A first offense is a

Class C felony with a penalty range of five to ten years, and a second offense is

a Class B felony with a penalty range of ten to twenty years. KRS

218A.1412(3)(a); KRS 532.060(2).

Additionally, KRS 218A.992(1)(a) provides: “any person who is convicted

of any violation of this chapter who, at the time of the commission of the

offense and in furtherance of the offense, was in possession of a firearm, shall:

(a) Be penalized one (1) class more severely than provided in the penalty

provision pertaining to that offense if it is a felony.”

In Mills, this Court held:

“a firearm enhanced drug offense is actually charged at the higher level regardless of the procedural circumstances. This reading comports with the common understanding among the bench and bar that such a trafficking offense is charged as an ‘enhanced’ offense and is classified as a higher level offense at the time of charging. In fact, this Court has in the past equated the firearm enhancement with other statutory enhancements that elevate the classification of an offense, even at the charging level.”

7 438 S.W.3d 333-34 (quoting Jackson v. Commonwealth, 363 S.W.3d 11, 23-24

(Ky. 2012)).

The combination of the second offense enhancement and firearm

enhancement clearly elevated the first-degree cocaine trafficking offense to the

Class A penalty level. The only question is whether the order of the penalty

phase instructions was proper. Though the order of the instructions may have

been confusing, the language of the instructions was proper and followed the

sample jury instructions outlined in COOPERS & CETRULO, KENTUCKY

INSTRUCTIONS TO JURIES, CRIMINAL (2022). So, the question is, did the order of the

instructions confuse the jury and lead it to apply the wrong standard or

recommend the wrong penalty? Even if the instructions were given out of their

proper order, the unpreserved error was not palpable and does not entitle the

defendant to relief.

The circuit court did not err in introducing the trafficking in a controlled

substance, second offense, until after the firearm enhancement. If the circuit

court had reversed the order of the instructions and placed the second offense

with the Class B penalty range before the firearm enhancement with the Class

A penalty range, the outcome would have been the same.

Terry cannot show the “probability of a different result or error so

fundamental as to threaten a defendant's entitlement to due process of law.”

Martin, 207 S.W.3d at 3. The circuit court sentenced Terry to twenty years in

prison. Twenty years is the maximum penalty for a Class B felony and the

minimum penalty for a Class A felony. Thus, the circuit court did not palpably

8 err in the order of the penalty phase instructions, and Terry is not entitled to

relief.

B. The trial court did not abuse its discretion in denying Terry’s motion for a mistrial.

Second, Terry argues that the circuit court abused its discretion in

denying his motion for a mistrial when the Commonwealth failed to disclose

evidence regarding prior investigations. After jury selection and before opening

statements, defense counsel approached the bench and moved for a mistrial.

Counsel told the circuit court that he just received some information not

disclosed in discovery from an officer that would have been useful in trial

preparation. Defense counsel claimed an unnamed officer told him that at

some point during the investigation of Terry and Cross, a confidential

informant (CI) tried to make a drug buy from them. Cross sold the CI drugs,

but Terry refused. Defense counsel argued it would have been useful to show

that Terry was not selling drugs. Counsel asked the circuit court to declare a

mistrial and order the officers to provide him with any information they had

about failed drug buys.

The Commonwealth responded that it had also just learned about this,

and defense counsel misunderstood what the officer said. The Commonwealth

told the court that the officer said that the CI was aware Terry and Cross were

drug dealers, but they were not his dealers. The CI once attempted to buy

drugs from another person when Cross was present, not that the CI tried to

buy from Terry and Cross, but Terry refused. Defense counsel did not challenge

the Commonwealth’s interpretation of the officer’s comments. Rather, defense 9 counsel responded, “Okay.” In his brief reply, Terry argues that the tone of

“okay” did not come through. The circuit court denied the motion for a

mistrial.

We review the denial of a motion for a mistrial under the abuse of

discretion standard. Commonwealth v. Padgett, 563 S.W.3d 639, 645 (Ky.

2018). It is within the circuit court’s discretion to grant or deny a mistrial

based on “the circumstances of each individual case.” Id. at 647. “[A] mistrial is

an extreme remedy and should be resorted to only when there is a fundamental

defect in the proceedings, and there is a ‘manifest necessity for such an

action.’” Id. at 646 (quoting Woodard v. Commonwealth, 147 S.W.3d 63, 68 (Ky.

2004)).

Here, the circuit court’s denial of defense counsel’s motion for a mistrial

was not an abuse of discretion, given the evidence against him. Not only did

officers find methamphetamine and cocaine in his shared residence with Cross,

but Cross also testified against Terry at trial, admitting she trafficked

methamphetamine and Terry sold cocaine.

At best, if defense counsel’s representation of the officer’s statements was

true, the CI might have testified that Terry did not sell drugs to him on one

occasion. The defense counsel merely stated that the information would have

been helpful but failed to show how this information would have altered his

defense theory. Based on our review there was no “manifest necessity”

requiring a mistrial. Thus, the circuit court did not abuse its discretion in

denying Terry’s motion for a mistrial.

10 III. CONCLUSION

Based on the foregoing, we affirm the judgment of the Logan Circuit

Court.

All sitting. Lambert, C.J.; Bisig, Conley, Goodwine, Keller, and Nickell,

JJ., concur. Thompson, J., concurs in result only.

COUNSEL FOR APPELLANT:

Sarah D. Dailey Assistant Public Advocate

COUNSEL FOR APPELLEE:

Russell Coleman Attorney General of Kentucky

Jenny L. Sanders Assistant Attorney General