Scott McDermott v. Commonwealth of Kentucky

• Court: Court of Appeals of Kentucky
• Decided: December 6, 2024
• Docket: 2023-CA-0166
• Status: Unpublished

Opinion

RENDERED: DECEMBER 6, 2024; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals

NO. 2023-CA-0166-MR

SCOTT MCDERMOTT APPELLANT

APPEAL FROM FAYETTE CIRCUIT COURT v. HONORABLE LUCY A. VANMETER, JUDGE ACTION NO. 21-CR-00120

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION AFFIRMING

** ** ** ** **

BEFORE: CETRULO, A. JONES, AND KAREM, JUDGES.

JONES, A., JUDGE: Scott McDermott appeals from the judgment sentencing him

to ten years’ incarceration following his convictions at his jury trial. Following our

review of the facts and the law, we affirm.

I. BACKGROUND

The incident in this case arose during the late afternoon of November

19, 2020, when police were conducting a seatbelt enforcement exercise (“Click it or Ticket”) in downtown Lexington. At one point during the exercise, a spotter

noticed that the driver of a white GMC Envoy did not appear to be wearing his

seatbelt, and Officer Justin Muravchick conducted a traffic stop of the vehicle. As

Officer Muravchick approached, he detected a strong odor of marijuana wafting

from the GMC. Believing the driver may be impaired, Officer Muravchick radioed

for assistance. Two officers arrived, Sergeant Brandon Muravchick1 and Officer

Haley Patterson.

While the Muravchicks were conducting field sobriety tests on the

driver, Officer Patterson was standing watch over the other two occupants of the

vehicle. The appellant in this case, McDermott, was the sole occupant of the

GMC’s back seat. Officer Patterson noticed McDermott fidgeting and rummaging

for objects in the pockets of his grey hooded sweatshirt, which caused her to ask

McDermott to keep his hands where she could see them. Shortly thereafter,

McDermott suddenly opened the rear passenger-side door and fled. Officer

Patterson and several other officers pursued McDermott as he ran through several

streets in downtown Lexington during the evening rush hour. Officer Patterson

testified later regarding her belief that officers were in danger of being struck by

vehicles during the pursuit.

1 Sergeant Brandon Muravchick is Officer Justin Muravchick’s brother. Both Muravchicks are police officers working for the Lexington Police Department.

-2- McDermott was eventually apprehended by an officer on a

motorcycle, who essentially just followed McDermott until he tired out and

surrendered. When McDermott was searched, approximately $1,600.00 in cash

was found on his person, along with his cell phone. In addition, police found

McDermott’s grey sweatshirt, which he had discarded at some point during the

chase. Near the sweatshirt was a clear plastic bag containing eighty-four small

blue pills. These pills were counterfeit pharmaceuticals meant to resemble

Percocet, a medication containing oxycodone. Instead, the pills contained

fentanyl, a significantly stronger opioid. Meanwhile, a search of the GMC

uncovered approximately one hundred and ninety-five white rectangular tablets of

counterfeit Xanax, along with a quantity of marijuana.

As a result of this incident, the Fayette County grand jury indicted

McDermott on three counts: (1) first-degree trafficking in a controlled substance

(fentanyl),2 (2) first-degree fleeing or evading police (on foot),3 and (3) being a

first-degree persistent felony offender (PFO).4 Notably, McDermott was not

charged based on the counterfeit Xanax or marijuana found in the vehicle.

2 Kentucky Revised Statute (KRS) 218A.1412(1)(d), a Class C felony. 3 KRS 520.095(1)(b), a Class D felony at the time of this incident. The General Assembly has recently amended this statute, elevating the offense to a Class C felony. 2024 Ky. Acts ch. 174, § 47 (effective Jul. 15, 2024). 4 KRS 532.080(3).

-3- McDermott’s trial took place over the course of two days, during

which the Commonwealth presented testimony from several police officers,

including Officer Patterson and the Muravchicks, which conformed to the

foregoing narrative. The Commonwealth also presented testimony from a forensic

specialist with the Kentucky State Police laboratory, who confirmed the presence

of fentanyl in the counterfeit pills found with McDermott’s sweatshirt.

Additionally, the Commonwealth presented testimony from Detective Joseph

Sisson, a computer forensics specialist with the Lexington Police Department.

Detective Sisson testified regarding his analysis of the text messages found on

McDermott’s cell phone. The cell phone had numerous outgoing text messages

which stated, “Yo, percs are in,” “Percs 30 are in,” or some variant thereof.

Another outgoing text message from the cell phone, responding to an apparent

inquiry regarding price, stated, “25 a pop right now.”

Finally, the Commonwealth presented testimony from Detective Jared

Curtsinger, a narcotics expert with the Lexington Police Department. Detective

Curtsinger testified about counterfeit Percocet and Xanax, their origins in factories

run by Mexican cartels, and how one could distinguish the counterfeit narcotics

from the genuine medications. He also attested that the large amount of pills

found, along with the large quantity of cash found on McDermott, generally

indicated narcotics trafficking rather than simple drug possession by a user.

-4- Following its deliberation, the jury returned a guilty verdict on the

first-degree trafficking and first-degree fleeing or evading charges. McDermott did

not testify during the guilt-or-innocence phase, but he provided testimony about his

personal life, including a difficult childhood, during the penalty phase. During this

testimony, when asked about the harm from illegal drugs, McDermott admitted he

would “do a sale from time to time.” After the conclusion of all testimony in the

case, the jury found McDermott guilty of being a first-degree PFO. Thereafter, the

jury recommended a sentence of ten years enhanced to ten years (i.e., effectively

no enhancement at all) for the trafficking charge, as well as two years enhanced to

ten years for the fleeing or evading charge. The jury further recommended that the

sentence be served concurrently, for a total term of ten years’ incarceration. The

trial court sentenced McDermott in conformity with the jury’s recommendation.

This appeal followed.

II. ANALYSIS

McDermott presents two overarching issues on appeal. First, he

argues the trial court abused its discretion in allowing certain portions of Detective

Curtsinger’s expert testimony. Second, McDermott argues he was prejudiced

when the trial court allowed evidence of uncharged crimes, specifically the

testimony surrounding the counterfeit Xanax and marijuana which were found in

-5- the GMC. Several of McDermott’s arguments are not preserved, and he asks for

palpable error review. We consider each issue in turn.

Regarding McDermott’s first assertion of error, regarding Detective

Curtsinger’s testimony, there are three distinct sub-issues. In his first argument,

McDermott initially contends the trial court erred when it allowed Detective

Curtsinger to testify as an expert. McDermott argues the summary of the

detective’s testimony failed to provide the “facts or analyses” upon which his

testimony would be based, while the Commonwealth asserted that Detective

Curtsinger would testify based on his “training and experience.” (Appellant’s

Brief at 6.) The trial court overruled McDermott’s objection.

Because this argument was preserved, we use the usual standard of

review for evidentiary issues, which is abuse of discretion; see Brown v.

Commonwealth, 416 S.W.3d 302, 309 (Ky. 2013) (citation omitted) (“A trial

court’s determination as to whether a witness is qualified to give expert testimony

is subject to an abuse of discretion standard of review.”). “The test for abuse of

discretion is whether the trial judge’s decision was arbitrary, unreasonable, unfair,

or unsupported by sound legal principles.” Commonwealth v. English, 993 S.W.2d

941, 945 (Ky. 1999) (citations omitted).

Here, McDermott argues that the trial court’s failure to require

Detective Curtsinger to present “the scientific facts, data, and reasons” for his

-6- opinion prevented him from conducting an effective cross-examination.

(Appellant’s Brief at 9.) However, the Kentucky Supreme Court has repeatedly

held that police officers may give expert testimony based on experience and

training, without a reliance on the “strict factors of Daubert”5 necessary for more

traditional scientific expert testimony. Brown, 416 S.W.3d at 310 (citing Dixon v.

Commonwealth, 149 S.W.3d 426, 431 (Ky. 2004)).

Detective Curtsinger testified that he worked with the Lexington

Police Department for approximately twenty-one years, with fifteen of those years

as part of a narcotics unit. His current assignment at the time of the trial was as

part of a Drug Enforcement Agency (DEA) taskforce. There is no question that

Detective Curtsinger had the sort of “specialized knowledge” that would aid the

jury in understanding the evidence under the expert testimony rule, KRE6 702.

Furthermore, the Commonwealth provided the defense in this case with discovery

which included a copy of Detective Curtsinger’s curriculum vitae and notice that

he would give his opinion about the seized narcotics, which allowed the defense

the fair opportunity to cross-examine the detective appropriately. We discern no

abuse of discretion in allowing Detective Curtsinger to testify based on his

experience and training.

5 Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). 6 Kentucky Rule of Evidence.

-7- Next, McDermott argues the trial court erred when it allowed

Detective Curtsinger to testify about the fentanyl within the seized pills and the

text messages on McDermott’s cell phone, when the jury had already heard these

details from other Commonwealth witnesses. McDermott now asserts that this

testimony was a “needless presentation of cumulative evidence” under KRE 403.

This argument is not preserved, and McDermott has requested

palpable error review under RCr7 10.26. “Under RCr 10.26, an unpreserved error

may generally be noticed on appeal if the error is ‘palpable’ and if it ‘affects the

substantial rights of a party.’ Even then, relief is appropriate only ‘upon a

determination that manifest injustice resulted from the error.’” Martin v.

Commonwealth, 409 S.W.3d 340, 344 (Ky. 2013) (emphasis omitted) (quoting RCr

10.26). Despite McDermott’s complaint that Detective Curtsinger’s testimony was

cumulative of earlier testimony, the Kentucky Supreme Court has held

[n]ot all evidence that is duplicative is therefore cumulative, and evidence should not be excluded on this ground merely because it overlaps with other evidence. Multiple witnesses bring multiple viewpoints and testimony from multiple sources about the same event is likely to differ in ways that are helpful to the factfinder.

Doneghy v. Commonwealth, 410 S.W.3d 95, 109 (Ky. 2013) (internal quotation

marks and citations omitted). In this case, Detective Curtsinger was able to

provide a different viewpoint than the Commonwealth’s forensic specialists, who

7 Kentucky Rule of Criminal Procedure.

-8- were able to say what chemical was in the seized narcotics, and what text messages

were on the seized cell phone. Detective Curtsinger was able to proffer testimony

that aided the jury in determining how and why the seized items were indicative of

narcotics trafficking. There was no palpable error in allowing this testimony.

For his third and final issue regarding Detective Curtsinger’s

testimony, McDermott argues the trial court erroneously overruled its objection as

to relevance, regarding the origin of the seized fentanyl in clandestine laboratories

run by Mexican cartels. McDermott argues the origin of the pills was not relevant

to any of the elements in either his trafficking charge or his fleeing or evading

charge. The Commonwealth contends the testimony was necessary and relevant so

that the jury might understand why fentanyl was found in pills resembling

legitimate medications. We agree. In Sargent v. Commonwealth, 813 S.W.2d 801

(Ky. 1991), the Kentucky Supreme Court held that police officers could testify in

narcotics cases to “aid[] the jury in understanding the evidence and resolving the

issues.” Id. at 802. It was not unreasonable for the Commonwealth to aid the

jury’s understanding of the evidence, specifically regarding the origin of the illicit

drugs in this case. The trial court did not abuse its discretion in denying

McDermott’s objection and allowing the detective to testify about the origin of the

seized pills.

-9- In his second overarching assertion of error, McDermott argues he

was prejudiced by the introduction of uncharged offenses, specifically testimony

about the counterfeit Xanax and marijuana that was found in the GMC. He argues

this testimony should have been excluded as “evidence of other crimes, wrongs, or

acts” under KRE 404(b). This claim of error is unpreserved, and McDermott

requests review for palpable error under RCr 10.26.

For its part, the Commonwealth argues this evidence is admissible

under one of the exceptions to KRE 404(b) exclusion, that the evidence was

“inextricably intertwined with other evidence essential to the case[.]” KRE

404(b)(2). We agree, at least in part. “KRE 404(b)(2) allows the Commonwealth

to present a complete, unfragmented picture of the crime and investigation . . .

including a picture of the circumstances surrounding how the crime was

discovered.” Kerr v. Commonwealth, 400 S.W.3d 250, 261 (Ky. 2013) (internal

quotation marks and citations omitted). Officer Justin Muravchick’s investigation

into whether the driver of the GMC was under the influence began with the smell

of marijuana coming from the vehicle. In addition, some of the text messages

coming from McDermott’s cell phone spoke of “bars,” a slang term for Xanax.

Testimony about the presence of counterfeit Xanax and marijuana in the GMC

may have allowed a complete and unfragmented picture of the circumstances in

this case.

-10- Even so, it may have been possible for the trial court to exclude the

mention of Xanax and marijuana if McDermott had argued and preserved such a

position in a timely motion ad limine. Because he did not do so, we are left to

review for palpable error, in which we will only grant relief if there has been

manifest injustice. “[W]hat a palpable error analysis ‘boils down to’ is whether the

reviewing court believes there is a ‘substantial possibility’ that the result in the

case would have been different without the error.” McDaniel v. Commonwealth,

415 S.W.3d 643, 649 (Ky. 2013) (quoting Brewer v. Commonwealth, 206 S.W.3d

343, 349 (Ky. 2006)).

With this in mind, there is no possibility that this claimed error would

have changed the result in this case because the evidence against McDermott was

overwhelming. He ran from a traffic stop in which he was simply a passenger.

“As a general rule, proof of flight to elude capture or prevent discovery is

admissible because ‘flight is always some evidence of a sense of guilt.’” Day v.

Commonwealth, 361 S.W.3d 299, 303 (Ky. 2012) (quoting Rodriguez v.

Commonwealth, 107 S.W.3d 215 (Ky. 2003)). His grey sweatshirt, discarded

during his flight from police, was discovered with a large quantity of illicit drugs

alongside it. His cell phone contained numerous outgoing text messages asserting

“percs are in,” and quoted a price. When on the stand during the penalty phase,

McDermott himself freely admitted that he would “do a sale from time to time.”

-11- There is no real question as to McDermott’s guilt in this case. We discern no

manifest injustice and no palpable error arising from the inclusion of testimony

regarding the counterfeit Xanax and marijuana.

III. CONCLUSION

For the foregoing reasons, we affirm the judgment of the trial court.

ALL CONCUR.

BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:

Julia K. Pearson Daniel J. Cameron Frankfort, Kentucky Attorney General of Kentucky

Melissa A. Pile Assistant Attorney General Frankfort, Kentucky

-12-