IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED “NOT TO BE PUBLISHED.” PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD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 OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. RENDERED: SEPTEMBER 24, 2020 NOT TO BE PUBLISHED
Supreme Court of Kentucky 2019-SC-0023-MR
GILBERT HALL APPELLANT
ON APPEAL FROM BRACKEN CIRCUIT COURT V. HONORABLE STOCKTON B. WOOD, JUDGE NO. 17-CR-00031
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
A circuit court jury convicted Gilbert Hall of second-offense trafficking of
a controlled substance in the first degree and recommended a sentence of
twenty years’ imprisonment. He now appeals the resulting judgment as a
matter of right.1 He argues that the trial court erred by denying his motion to
suppress evidence obtained under a warrant to search his residence and that
palpable error resulted from extraneous information contained in trial exhibits
available for the jury’s review during deliberation.
We affirm the judgment. We hold that the trial court properly denied
Hall’s motion to suppress because the issuance of the search warrant for the
residence was supported by probable cause and because any error resulting
from the jury’s access to exhibits containing extraneous information was
1 Ky. Const. § 110(2)(b).
1 waived by trial counsel’s failure to object, and otherwise fails to rise to the level
of palpable error.
I. FACTUAL AND PROCEDURAL BACKGROUND
Trooper Currans believed individuals with outstanding arrest warrants
were staying in Gilbert Hall’s residence. He therefore called Hall and obtained
his permission to enter the residence to search for these individuals. Once
inside, Currans observed two padlocked doors downstairs and three women
upstairs, all with outstanding arrest warrants.
Currans first approached Chelsey Curtis, who was sitting in a room with
a hole in the wall that visibly held a green Crown Royal bag. The bag contained
needles and a spoon with residue. When asked if the bag was hers, she stated
she would claim it but that it contained “a little bit of everyone’s things.” She
also informed Currans that a needle was in the drawer of the dresser.
In another room, Currans located two other women, Chylynn Elliot and
Hope Elliot. On a table inside the room they occupied, Currans observed a
plate holding a syringe, a razor blade, and a plastic bag. As he was leaving, he
saw in an unoccupied room a spilled trashcan containing needle caps.
Based on these observations, Currans sought and obtained from the trial
commissioner a search warrant for the premises. The search revealed
additional drug paraphernalia and a locked safe. He then obtained a second
search warrant for the safe and found inside methamphetamine, marijuana, a
digital scale, cash, a rolled-up dollar, straws, a cell phone, needles, and a
needle cap.
2 Hall was later indicted on one count of trafficking a controlled substance
of more than two grams of methamphetamine in the first degree, second
offense. He moved to suppress the evidence against him based on a lack of
probable cause for the first search warrant, but the trial court denied his
motion.
II. ANALYSIS
A. The Trial Court Properly Denied the Defendant’s Motion to Suppress.
In reviewing a trial court’s suppression-motion ruling, an appellate court
first determines if substantial evidence supports the factual findings.2 The
proper factual findings are then reviewed to determine if the trial court
accurately decided that the issuing judicial officer had a substantial basis for
concluding probable cause existed.3 So we review the trial court’s conclusion
that a substantial basis existed for the trial commissioner’s determination of
probable cause.4 The trial commissioner’s decision is given deference, and a
reviewing court only considers the information within the four corners of the
affidavit.5
2Commonwealth v. Pride, 302 S.W.3d 43, 49 (Ky. 2010); Beemer v. Commonwealth, 665 S.W.2d 912, 915 (Ky. 1984) (applying the “substantial basis” test to the decision of the warrant-issuing judge to determine if there was probable cause). 3 Pride, at 49. (“The proper test for appellate review of a suppression hearing ruling regarding a search pursuant to a warrant is to determine first if the facts found by the trial judge are supported by substantial evidence, and then to determine whether the trial judge correctly determined that the issuing judge did or did not have a ‘substantial basis for . . . conclud[ing]’ that probable cause existed.”) (citing Illinois v. Gates, 462 U.S. 213, 238 (1983)). 4 Id. 5 Id. (“[A]ll reviewing courts must give great deference to the warrant-issuing
judge's decision . . . . ”) (citing Gates, 462 U.S. at 238).
3 The Fourth Amendment of the U.S. Constitution and Section 10 of the
Kentucky Constitution protect a citizen from unreasonable searches and
seizures. A search warrant is required to “allow a neutral judicial officer to
assess whether the police have probable cause to make an arrest or conduct a
search.”6 Any valid search warrant must be adequately supported by probable
cause.7 In determining if probable cause exists, the issuing judicial officer
evaluates the totality of the circumstances, as described in the supporting
affidavit.8 The issuing judicial officer must consider the circumstances stated
in the affidavit and determine if they establish a fair probability that
contraband or evidence of a crime will be found in the place to be searched.9
In the present case, substantial evidence supported the trial court’s
finding that the warrant was supported by probable cause. The totality of the
circumstances described in the affidavit indicated that evidence of drug
trafficking would likely be found at Hall’s residence. The affidavit stated that
Currans, after entering the home with Hall’s permission, observed various drug
paraphernalia, such as needle caps, razor blades, and residue on spoons.
Further, the affidavit described that he found three women with outstanding
arrest warrants who were staying there. Additionally, most of the
paraphernalia Currans observed remained unclaimed at the time he applied for
a warrant. The green Crown Royal bag was partially claimed by Curtis, who
6 Id. 7 Id. 8 Beemer, 665 S.W.2d at 914. 9 Id. at 915.
4 stated it was hers but that it contained everyone’s things. However, no one
claimed the discarded needle caps or the plate, syringe, or razor blade. The
unclaimed items, the padlocked doors, and the fact that Currans saw drug
paraphernalia in three different rooms located near or in the possession of two
women staying at Hall’s residence established that additional evidence of drug
trafficking would likely be found inside the residence.
Therefore, substantial evidence supported the trial court’s determination
that probable cause existed because the affidavit provided the issuing trial
commissioner a substantial basis to conclude evidence of drug trafficking
would likely be found at Hall’s residence. As such, we affirm the trial court’s
denial of the suppression motion.
B. Hall is not entitled to a new penalty-phase trial.
Hall contends that he is entitled to a new penalty phase because he was
prejudiced by extraneous information contained in the Commonwealth’s
exhibits introduced during the penalty phase of the trial. During the penalty
phase, the jury heard testimony from Hall’s parole officer listing his extensive
history of criminal convictions. The Commonwealth then introduced copies of
these prior convictions as trial exhibits. And the trial court sent these exhibits
into the jury room, making them available for review by the jury during
deliberation. The Commonwealth does not dispute that some of these exhibits
contained extraneous information: a listing of an amended charge and the
names of two of Hall’s prior victims.
5 1. Hall waived for this appeal the issue of extraneous information appearing in the Commonwealth’s penalty phase exhibits.
As an initial matter, we note that any error resulting from the
information within the exhibits was invited and, therefore, could be properly
considered waived on appeal.10 Lack of objection can result in either the issue
being unpreserved or waived.11 An issue is waived when there is a knowing
relinquishment of a right.12 This requires some affirmative act by the waiving
party.13 For example, in Quisenberry v. Commonwealth, the defense approved
jury instructions after being able to review them and raise any objections.14 As
a result, any error arising from the instructions was invited because any issue
with the instructions should have been raised after reviewing them.15 So the
right to challenge the instructions on appeal was relinquished.16 Similarly in
Graves v. Commonwealth, an error in jury instructions was waived because
defense counsel was informed of the defect at trial by opposing counsel but
raised no objection and subsequently approved them.17 The trial counsel’s
awareness and acceptance of the proposed, defective jury instructions invited
10 Salisbury v. Commmonwealth, 556 S.W.2d 922, 927 (Ky. App. 1977). 11 Quisenberry v. Commonwealth, 336 S.W.3d 19, 37–38 (Ky. 2011). 12 Id. at 38. 13 Id. 14 Id. at 37, 38. 15 Id. at 38. 16 Id. at 37 (“[H]owever, at the close of proof, when the trial court and parties were discussing the jury instructions, Quisenberry himself requested facilitation instructions and referred the court to evidence he claimed supported them. These alleged errors, therefore, were not merely unpreserved, they were invited.”). 17 384 S.W.3d 144, 152 (Ky. 2012).
6 any instructional error such that any challenges to them were waived on
appeal.18
Further, even if counsel is unaware of an issue, if it could have been
discovered through adequate investigation it is waived on appeal. For example,
in McQueen v. Commonwealth, a jury selection issue was not raised during trial
because counsel was not aware of it.19 But the issue was waived on appeal
because “[t]hrough the exercise of reasonable diligence, McQueen's counsel
could have discovered the disqualification of Juror S.S. prior to examining the
jurors . . . . As such, we hold that McQueen waived his jury selection
argument.”20 Trial counsel could have discovered the issue and objected at
trial, but having failed to do so, could not later raise the issue on appeal.21
Likewise, in Cummings v. Commonwealth, a jury-empanelment issue was
waived because there was “no indication in the record that the defense should
not have been similarly aware of the erroneous presence of Juror #25.”22 The
issue was not merely unpreserved but waived because counsel had the
opportunity to know of the error and to object during trial.23
In this case, Hall has waived his right to challenge the Commonwealth’s
penalty-phase exhibits because any prejudicial information in the exhibits
18 Id. at 152. 19 339 S.W.3d 441, 446–47 (Ky. 2011). 20 Id. at 447. 21 Id. 22 560 S.W.3d 844, 846 (Ky. 2018). 23 Id. at 845.
7 could have been discovered through a reasonable investigation and defense
counsel allowed them to be submitted to the jury without reviewing them. Any
error that resulted from the extraneous information in the exhibits was invited
because all counsel had ample opportunity to review them and make proper
objections. The issue at hand is like that in McQueen where counsel would
have been aware of the jury-empanelment issue if a reasonable investigation
had been made.24 Here, defense counsel, the Commonwealth, and the trial
court engaged in two bench conferences to discuss the exhibits and their
contents. Defense counsel made no objection or request to review the
documents at the bench conferences or any other time during trial. Defense
counsel could have become aware of any extraneous information in the exhibits
if she had exercised reasonable diligence in reviewing them.
Further, counsel’s actions affirmatively relinquished the right to
challenge the exhibits on appeal. Quisenberry and Graves found jury-
instruction issues to be waived on appeal when the attorneys approved them
without objection.25 In the current matter, Hall’s counsel did not specifically
approve the exhibits, but during the first bench conference in which the
exhibits were discussed, the Commonwealth seemed uncertain about the
information within them, and Hall’s counsel specifically told the trial court she
had not seen them. The Commonwealth’s uncertainty as to the information in
the exhibits and the defense counsel’s acknowledgment that she had not
24 McQueen, at 447. 25 Quisenberry, 336 S.W.3d at 38; Graves, 384 S.W.3d at 152.
8 reviewed them should have resulted in either a request from defense counsel to
examine them, or an objection. During the second bench conference, it
became clear that the jury would have access to the exhibits during
deliberations. Even though the Commonwealth stated it had double-checked
them for extraneous information, Hall’s counsel still made no request to review
them herself and made no objection. Therefore, defense counsel invited any
error resulting from the jury’s access to the exhibits. Defense counsel was
aware that she had not reviewed them, that the jury would have access to
them, and that earlier uncertainty existed as to the information they contained.
Thus, any challenge to the extraneous information in the exhibits was waived
on appeal.
2. The extraneous information in the Commonwealth’s penalty phase exhibits did not result in palpable error.
Because neither party addressed the waiver issue on appeal, we will
analyze, as requested by Hall, the errors that appear of record arising out of
extraneous information found in the exhibits sent to the jury room. Because
this issue was unpreserved, we review for palpable error.26 Palpable error
occurs when the defendant suffers egregious prejudice that seriously affected
the fairness of the proceeding and creates a substantial possibility that the
26 Stansbury v. Commonwealth, 54 S.W.3d 293, 300 (Ky. 2015).
9 result would not have been the same despite the error.27 Overall, the error
must have resulted in a manifest injustice.28
a. The improperly admitted amended charge did not result in palpable error.
Under KRS 532.055, admissible evidence during the penalty phase
includes: (1) minimum parole eligibility, prior convictions of the defendant,
both felony and misdemeanor; and (2) the nature of prior offenses for which he
was convicted. But, “[t]he evidence of prior convictions is limited to conveying
the jury the elements of the crimes previously committed . . . . Additionally,
the trial court should avoid identifiers, such as naming of victims, which might
trigger memories of jurors who may—especially in rural areas—have prior
knowledge about the crimes.”29
During the penalty phase of Hall’s trial, the jury was potentially exposed
to extraneous information including a prior amended charge of second-degree
burglary, names of two prior victims, one of whom was from the surrounding
area, and a court document stating he was likely to recidivate. Overall, it was
27Id. at 300 (“A palpable error ‘affects the substantial rights of a party . . . and appropriate relief may be granted upon a determination that manifest injustice has resulted from the error.’ To ascertain the existence of manifest injustice, ‘a reviewing court must plumb the depths of the proceeding . . . to determine whether the defect in the proceeding was shocking or jurisprudentially intolerable.’”) (citing Martin v. Commonwealth, 207 S.W.3d 1, 4 (Ky. 2006)). 28 Prescott v. Commonwealth, 572 S.W.3d 913, 922 (Ky. App. 2019) (“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.”). 29 Mullikan v. Commonwealth, 341 S.W.3d 99, 109 (Ky. 2011).
10 error for the jury to have access to the amended charge and names of victims,
but this did not result in a manifest injustice.
The jury’s exposure to Hall’s amended charge did not egregiously affect
his sentence. In deciding if improperly admitting dismissed or amended
charges constitutes palpable error, the reviewing court considers if the
defendant was ultimately sentenced to the maximum penalty and how directly
the jury was introduced to the extraneous prejudicial information.30 For
example, in Blane v. Commonwealth, the jury’s exposure to improper direct
testimony about incorrect and ultimately dismissed charges created a palpable
error and warranted resentencing.31 The live, incorrect testimony about the
defendant’s prior charges was unduly prejudicial and likely had a significant
effect on the jury’s penalty deliberations.32
In contrast, in Martin v. Commonwealth no palpable error occurred even
though the jury had access to the defendant’s amended charges during their
penalty deliberations because the trial testimony about the prior convictions
was proper.33 The jury’s less direct exposure to the defendant’s amended and
dismissed charges during deliberations, as compared to hearing live, incorrect
testimony, decreased the risk that the extraneous information would
egregiously affect the outcome.34 The Court found it was more likely the jury’s
30 Martin, 409 S.W.3d at 348–49. 31 364 S.W.3d 140, 153 (Ky. 2012). 32 Id. at 153. 33 409 S.W.3d at 348–49. 34 Id. at 349.
11 sentence was influenced by the defendant’s criminal history and the crime
committed instead of the amended charges.35 Similarly, in Miller v.
Commonwealth, the erroneous discussion of the defendant’s uncharged prior
bad acts was error but did not result in a manifest injustice because the jury
was properly aware of the defendant’s three prior convictions, multiple parole
violations, and continued drug use on parole.36 The jury’s exposure to his
uncharged conduct was erroneous, but the jury was not so unfairly influenced
by it to constitute palpable error in light of his other criminal conduct.37
During deliberation in Hall’s penalty phase, the jury had access to an
exhibit listing his amended charge of second-degree burglary. The discrepancy
between the indictment charging him with first-degree burglary and the
judgment explaining his plea to second-degree appears on separate pages.
Appellant contends the indictment was the first page of the documents sent
back to the jury. It is uncertain whether the jury viewed the exhibits because
the documents were handed to the bailiff only to give to the jury if they
requested to see them. While it is unclear if the jury saw this extraneous
information, this analysis will presume it did.38
35 Id. 36 394 S.W.3d 402, 405–408 (Ky. 2011). 37 Id. at 408. 38 Martin, at 348 (Ky. 2013); Parker v. Commonwealth, 482 S.W.3d 394, 407 (Ky.
2016) (“The trial record does not make clear that the certified documents were, in fact, admitted into evidence. And even if they were introduced, the record further does not establish that the jury had access to them. Nevertheless, as in Martin we may presume that the unredacted certified records were erroneously provided to the jury when it retired to deliberate.”) (citation omitted).
12 It was error to show the amended charge. But we are satisfied that such
error did not likely influence the jury’s sentence. By way of live testimony given
by Hall’s parole officer, the jury was made aware of Hall’s prior convictions and
this was one prior conviction among eight. Additionally, unlike in Blane, where
the jury heard trial testimony about incorrect amended and dismissed charges,
Hall’s jury was never directly informed of the amended charge.39 Here, the
circumstances are more like Martin, as the jury was only exposed to an
amended charge during the deliberations, and it was for the same crime of
which Hall was eventually convicted, just for a lesser degree. Additionally, the
jurors heard testimony regarding his prior offenses and were aware of the
second-degree burglary charge. So, while the jury may have considered his
prior offenses in determining his sentence, it is unlikely it specifically
considered that he was originally charged with first-degree burglary but
pleaded to second-degree. While this information should not have been
submitted to the jury, it does not seem likely it was heavily considered in
deciding Hall’s sentence.
b. Exposure to the names of Hall’s prior victims did not result in palpable error.
Hall’s jury also had access to exhibits containing the names of two of his
victims from earlier crimes, but we again conclude such error did not
egregiously affect his sentence. In Stansbury v. Commonwealth, the jury’s
39 Blane, 364 S.W.3d at 152-53. Also, the Court notes that in Taulbee v. Commonwealth, 438 S.W.2d. 777, 779 (1969), prejudice was presumed because of the jury’s exposure to direct inflammatory testimony by the prosecutor; however, the current facts involve no issue with trial testimony.
13 access to the defendant’s amended charges and the names of his prior victims
who were from the same small county as where the jury was seated resulted in
palpable error.40 In a rural area, when the jury is exposed to the name of a
victim from the same venue as the trial, it is perhaps more likely a juror might
know the victim or their family.41 Further, Stansbury’s jury was also exposed
to his amended charge for one out of two of his prior convictions.42 An
amended charge among a limited criminal history is more prejudicial than
when it is listed within an extensive criminal history because it becomes more
likely the jury will notice it and give it weight in their deliberations.43 The
combination of the substantial prejudice from the jury’s exposure to the
victim’s names and the amended charge resulted in a manifest injustice.44
In the present case, the jury was exposed to the name of Jennifer Hall,
who is from Fleming County, because that name appeared on the exhibit
evidencing Hall’s prior domestic-violence charge in that county. Hall argues
that because Fleming County is near Bracken County, where the present trial
took place, and both are rural counties, palpable error occurred as in
Stansbury. But during voir dire at Hall’s trial the prospective jurors were
asked if any of them knew Jennifer Hall because she is Hall’s former spouse.
Additionally, the chance of a jury member knowing Jennifer Hall is lessened by
40 454 S.W. 3d 293, 304–05 (Ky. 2015). 41 Id. at 304. 42 Id. at 305. 43 Id. 44 Id.
14 her residing in Fleming County rather than Bracken County. Bracken and
Fleming Counites are both within the 19th Judicial Circuit but are separated
from each other by Mason and Robertson counties. There is a remote chance
that a member of the jury did not forthrightly respond during voir dire
concerning their knowledge of Jennifer Hall, but the inquiry removes the
likelihood of prejudice as identified in Stansbury. The trial taking place in a
venue different from the venue where the prior charge was prosecuted
combined with the screening during voir dire renders unlikely the prospect that
the appearance of Jennifer Hall’s name as a victim in Hall’s criminal history
was extremely prejudicial to Hall.
In another exhibit, the jury had access to the name of Hall’s previous
victim, “Officer Charlie Sims,” who is listed in Hall’s 2001 Adams County, Ohio
indictment for intimidation of a witness. However, there is no evidence or
indication that any member of the jury knew the officer, or that he was from
Bracken County. Further, the incident apparently arose in Adams County,
Ohio, which lessens the probability that a member of this Bracken County jury
knew Officer Charlie Sims. We are satisfied that the appearance of Officer
Charlie Sims’s name in an exhibit potentially viewed by the jury did not result
in the extreme prejudice as in Stansbury.
Although the names of the previous victims were admitted alongside an
amended charge, unlike Stansbury, where the defendant only had two prior
convictions and the amended charges related to one of the two, Hall has an
extensive criminal history and his jury was properly made aware of his seven
15 prior convictions during the trial.45 Therefore, while it was error for the jury to
have access to the amended charge and the names of his prior victims, the
probability that the outcome was egregiously affected by these errors is low and
does not constitute palpable error.
c. The jury’s access to information that Defendant was likely to reoffend did not result in palpable error.
Also available to the jury were documents stating Hall had violated his
community control for prior crimes, had committed new offenses before
completing parole, and that he was likely to recidivate. For example, page two
of the Commonwealth’s Exhibit #13 lists a finding that Hall is likely to reoffend
because he has committed offenses while on community control in Ohio and
has a repetitive criminal history. The jury knew of his criminal history because
of his parole officer’s testimony about Hall’s seven prior convictions and that he
was a repeated felony offender. The jury could reasonably infer from the
testimony that because he had repeatedly offended in the past, he was likely to
do so again, and therefore the maximum penalty should be imposed. Further,
the jury asked one question during their brief deliberations regarding how long
Hall had served for his previous eleven-year sentence. This may suggest that
the jury was contemplating his prior convictions and the effectiveness of his
45 454 S.W. 3d at 305 (“Stansbury's only prior convictions consisted of two counts of third-degree burglary and third-degree criminal mischief and one count each of third-degree assault and third-degree arson. We cannot say that introduction of the dismissed wanton endangerment charge, which was filed in conjunction with the assault and arson charges, did not have an impact. Furthermore, we cannot say that the introduction of the identities of local victims with whom the jurors might have had a connection did not have an impact.”).
16 past punishments. While it cannot be said that the jury’s sentence of twenty
years was not influenced by the extraneous information, it did not cause such
egregious error to result in a manifest injustice.
Hall’s jury was erroneously exposed to extraneous information during
deliberation of the penalty phase of Hall’s trial in the form of an amended
charge, names of the two prior victims, and a statement that Hall was likely to
reoffend. We find that this exposure did not create a substantial likelihood of
manifest injustice. The jury’s recommended sentence of twenty years was more
likely the result of consideration of Hall’s extensive criminal history,
ineffectiveness of previous punishments, and lack of acceptance of
responsibility. Moreover, we are persuaded that Defense counsel waived the
erroneous nature of the exhibits. We conclude that Hall is not entitled to a new
penalty phase.
III. CONCLUSION
For the reasons stated above, we affirm the judgment.
All sitting. All concur.
COUNSEL FOR APPELLANT:
Molly Mattingly Department of Public Advocacy
COUNSEL FOR APPELLEE:
Daniel Jay Cameron Attorney General of Kentucky
James Patrick Judge Assistant Attorney General