Johnson v. Commonwealth

553 S.W.3d 213
Missouri Court of Appeals·Decided August 16, 2018·No. 2016-SC-000615-MR; 2017-SC-000037-TG·Published·Cited by 11 cases

Opinion

OPINION OF THE COURT BY JUSTICE CUNNINGHAM

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 *216two-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 218A.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, 52 S.Ct. 180, 76 L.Ed. 306 (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.

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Johnson v. Commonwealth, 553 S.W.3d 213 (Mo. Ct. App. 2018).

553 S.W.3d 213 (Johnson v. Commonwealth) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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