BILLY WAYNE JOHNSON V. COMMONWEALTH OF KENTUCKY
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2001-SC-0951-MR
BILLY WAYNE JOHNSON
V.
APPELLANT
APPEAL FROM CHRISTIAN CIRCUIT COURT
HONORABLE JOHN L . ATKINS, JUDGE
2000-CR-0416
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION OF THE COURT BY JUSTICE JOHNSTONE
AFFIRMING IN PART, REVERSING IN PART
AND REMANDING
Appellant, Billy Wayne Johnson, was convicted of one count of manufacturing
methamphetamine ; one count of possession of a controlled substance,
methamphetamine ; one count of possession of drug paraphernalia ; and one count of
possession of marijuana. He was sentenced to twenty years' imprisonment on the
manufacturing charge, five years' imprisonment on the methamphetamine possession
charge, twelve months' imprisonment and a $500 fine on the drug paraphernalia
charge, and a $500 fine on the marijuana possession charge. All the terms of years
were ordered to run concurrently, for a total of twenty years' imprisonment . Johnson
appeals to this Court as a matter of right . He raises a number of issues on appeal,
including whether an incriminating letter was properly authenticated, whether the trial
court erred in sending the letter with the jury to review during its deliberations, and
whether the instruction on manufacturing methamphetamine violated his right to a
unanimous verdict . Because we conclude that Johnson's conviction for both
possession of methamphetamine and manufacturing methamphetamine violate his
constitutional rights, we reverse his conviction and sentence for possession of
controlled substance, methamphetamine . Concluding there was no other error, we
affirm his conviction and sentence for manufacturing methamphetamine, possession of
drug paraphernalia, and possession of marijuana .
Discussion
I.
Authentication of the Letter
Sometime prior to trial, the Commonwealth came into possession of a letter
allegedly written and signed by Johnson . The letter was addressed to a Scott Jimenez,
who was a friend of Johnson. The return address on the envelope was from a James
Salley. The letter was turned over to the Commonwealth by a Tara Stallins, who was a
former friend of Johnson and a witness for the Commonwealth . But the Commonwealth
introduced the letter through Jimenez . The letter states :
Hey Dog,
What's going on with you? I'm glad to hear you back with family
better. Well, I go to trial in nine days on 17th and 18t". I guess all
my so-called friends are going to put me away for awhile . They
offered me fourteen years opposed to probation . They didn't-they
don't have any evidence besides my friends talking . If you see
Mary, tell her if she going to say she was buying dope, that it was,
that is was not from me . They are going to have to prove that I
knew or was selling dope out of my house to take it. In my
discovery, there is one part where she was talking to a CI and
saying she was getting dope from me. She needs to say Tara was
her connection and Tara said she got the shit from me. You know,
if I had not met Tara, I probably would not be in half this much
trouble . If everybody would get shit together, then maybe I would
be able to keep my house. I guess I haven't got long to wait until I
find out something . Tara has got to the prosecution thinking I am a
kingpin and dangerous . She told them I locked her up for three
days in my attic . You know you cannot even lock my attic. If
everybody would just let the jury know what kind of a person I am
really, it would help . Well, enough of me . Ernie is in my cell now.
He told me to say hi to you . I wish you could beam me out of here
Scotty . I've been in here for several months now. I guess if they
find me guilty I will lose everything. It was hard to stop that shit
when you were having so much fun. You know, I never really
fucked up, everybody used me as a scapegoat . They never found
anything on me . Oh well, get you a job and get your shit together,
but I guess I can forget that. Take care of yourself and tell
everybody hi for me . Maybe I see you at my trial. Write back, dog.
Your friend, Bill W. Johnson, Sr. Tell Christie hi. Tell her I want to
see them tits. Ha, ha .
(Then at the top of the back page is a note in different handwriting
that says : "Write me a damn letter too, Ernie .)
Jimenez did not authenticate the letter as being written by Johnson. He could
not identify the signature as being Johnson's, because he claimed that he had never
seen Johnson's signature before . Nor did he verify that the contents of the letter
contained information that uniquely identified Johnson as the author . Nonetheless, the
trial court found that several statements in the letter sufficiently identified Johnson as
the author such that the Commonwealth had met its burden in authenticating the letter.
On appeal, Johnson argues that this ruling was erroneous. We disagree .
KRE 901 (a) states: "The requirement of authentication or identification as a
condition precedent to admissibility is satisfied by evidence sufficient to support a
finding that the matter in question is what its proponent claims ." This rule "treats
preliminary questions of authentication and identification as matters of conditional
relevance according to the standards of [FRE] 104(b) . The condition of fact which must
be fulfilled by every offer of real proof is whether the evidence is what its proponent
claims." United States v. Reilly , 33 F.3d 1396, 1404 (3rd Cir. 1994) (interpreting FIRE
901 (a) and FIRE 104(b)-which are worded identically to KRE 901 (a) and KRE 104(b)-3-
and quoting 5 Jack B . Weinstein & Margaret A. Berger, Weinstein's Evidence T
901(a)[01] at 901-15 (1993)) (internal quotation marks omitted) . The proponent's
burden of authentication is slight, which requires only a prima facie showing of
authenticity to the trial court . Id . at 1404. On appellate review, the trial court's finding of
authentication is reviewed for abuse of discretion . See United States v. Jones, 107
F .3d 1147, 1150 (6th Cir. 1997), cert. denied, 521 U .S . 1127, 117 S . Ct. 2527, 138 L.
Ed . 2d 1027 (1997) (addressing the authentication, under FIRE 901, of a card purported
to have been written by the defendant).
KRE 901 (b) illustrates examples of appropriate methods of authentication or
identification . Of particular relevance here is KRE 901(b)(4), which states : "Distinctive
characteristics and the like . Appearance, contents, substance, internal patterns, or
other distinctive characteristics, taken in conjunction with circumstances ." Under this
illustration, the letter in question could be authenticated by examining passages of the
letter that uniquely identified Johnson as the author.
In finding that the letter had been properly authenticated, the trial court found the
following sufficiently identified Johnson as the author of the letter.
Letter
Corresponding Facts
The letter states, "Well I go to trial in
nine days on the 17th and 18th."
On the top of the back page, in a
different handwriting, the letter states,
"Write me a damn letter too, Ernie ."
The letter states, "Tara has got [] the
prosecution thinking I am a kingpin and
dangerous ."
The letter states, "Tell Christie hi."
Johnson's trial was set to begin on
September 18, 2001
Ernie was a friend of Jimenez and
was in jail with Johnson at the time
the letter was written
Tara Stallins was a key prosecution
witness at Johnson's trial .
Christie was Jimenez's friend.
Upon the above identifying facts, we hold that the trial court did not abuse its
discretion in finding that the letter had been properly authenticated under KRE 901 .
II .
The Letter in Deliberations
After finding the letter to be sufficiently authenticated, the trial court allowed the
Commonwealth's Attorney to read the letter in its entirety to the jury during trial.
Additionally, the trial court sent the letter with the jury during its deliberations . On
appeal, Johnson argues that sending the letter with the jury was reversible error. We
disagree .
The relevant facts of this case are remarkably similar to those of Taylor v.
Commonwealth , 28 Ky. L . Rptr. 1348, 92 S.W. 292 (1906). In Taylor , the appellant was
convicted of forging another person's name to a promissory note . Id . a t 293. During
trial and over the defendant's objection, the trial judge admitted a letter into evidence .
Thereafter, the Commonwealth read the letter written by the appellant to a third party in
which the appellant admitted the forgery . Id . Again, over the appellant's objection, the
trial court sent the letter with the jury to review during its deliberations . Id . On appeal,
the Taylor Court held that Section 248 of the Criminal Code of Practice invested the trial
court with the sound discretion to send the letter with the jury and there was no abuse
of discretion under the facts of the case . Id . at 294.
The criminal rule relied on by the Taylor Court is almost identical to the first
sentence of RCr 9 .72 which states, "Upon retiring for deliberation the jury may take all
papers and other things received as evidence in the case." Like the rule relied upon by
the Taylor Court, RCr 9 .72 gave the trial court the discretion to send the letter with the
jury during its deliberation. We find no abuse of discretion in doing so. Hence, we hold
that there was no error.
III.
Unanimous Verdict
As it is currently written, manufacturing methamphetamine can be proven in two
different ways under KRS 218A.1432 (1), which provides :
(1) A person is guilty of manufacturing methamphetamine when he
knowingly and unlawfully :
(a) Manufactures methamphetamine ; or
(b) Possesses the chemicals or equipment for the manufacture of
methamphetamine with the intent to manufacture methamphetamine .
The trial court instructed on both methods in its instruction on
manufacturing methamphetamine:
You will find the Defendant . . . guilty of manufacturing
methamphetamine under this Instruction if, and only if, you believe
from the evidence beyond a reasonable doubt all of the following:
A.
That in Christian County on or about August 3, 2000 and
before the finding of the Indictment herein[,J he manufactured
methamphetamine[ ;] OR
B.
He possessed the chemicals or equipment for the
manufacture of methamphetamine with the intent to manufacture it .
On appeal, Johnson argues that the instructions given in this case violated his
right to a unanimous verdict because there was insufficient evidence to support his
conviction under Part B of the instruction above, and, therefore, he was denied his right
under the Kentucky Constitution to a unanimous verdict. We disagree .
We begin by noting that there was sufficient evidence to convict Johnson of
actually manufacturing methamphetamine under Part A of the above instruction. This
evidence consisted of five glass jars containing a solid residue of methamphetamine, a
glass jar containing methamphetamine oil, and testimony from a number of witnesses
that either put Johnson in possession of some of the chemicals and equipment
necessary to manufacture methamphetamine or explained how he obtained possession
of these items.
On appeal, Johnson argues that the Commonwealth failed to introduce evidence
that Johnson had possession of either all of the chemicals or all of the equipment used
to manufacture methamphetamine with the intent of manufacturing it. Thus, Johnson
argues that there was insufficient evidence to convict him of manufacturing
methamphetamine under KRS 218A.1432(1)(b), see Kotila v. Commonwealth , Ky., 114
S .W.3d 226, 240-41 (2003), and, therefore, he was denied his right to a unanimous
verdict. See , etc . , Burnett v. Commonwealth , Ky., 31 S.W.3d 878, 884 (2000). (When
a juror is presented, in a single instruction, alternate theories of guilt for the same
offense, "each juror's verdict [must] be based on a theory of guilt in which the
Commonwealth has proven each and every element beyond a reasonable doubt.") But
Johnson ignores the fact that there was sufficient evidence to support his conviction for
actually manufacturing methamphetamine under Part A of the manufacturing
instruction .
A necessary inference from proof of actual manufacture is that, at some point in
time, he must have had possession of both all the equipment and all the ingredients
necessary to manufacture methamphetamine . In other words, just as you can't make
an omelet without breaking some eggs, you can't make methamphetamine without
having possession of the necessary chemicals and equipment . Nor, as demonstrated
in the next section, is it likely that someone would inadvertently combine the chemicals
and use the equipment to manufacture methamphetamine by accident . Thus, intent to
manufacture can be inferred from the act of manufacturing as well . Therefore, we hold
that there was sufficient evidence to convict Johnson under both versions of the
manufacturing instruction . There was no error. Wells v . Commonwealth , Ky., 561
S .W.2d 85, 88 (1978).
IV.
Double Jeopardy
Johnson next argues that his conviction for both possession of
methamphetamine and manufacturing methamphetamine violates the Fifth Amendment
right that no person shall "be subject for the same offence to be twice put in jeopardy of
life or limb ." We agree.
In Beaty v. Commonwealth , Ky., 125 S.W .3d 196, 210 (2003), we applied the
Blockburger ' test to determine whether KRS 218A.1432(1)(a) and KRS 218A. 1 415(l)
(possession of methamphetamine) each require proof of an element that the other does
not. We concluded that the answer turned on whether the defendant was convicted for
possessing the same methamphetamine he was convicted of manufacturing . Id . at
213 . Because actual manufacture necessarily included a certain period of actual
possession of the manufactured methamphetamine, we held that it was unconstitutional
to convict a defendant of possessing the same methamphetamine that he or she was
convicted of actually manufacturing. Id . A close examination of the record reveals that
is exactly what occurred here . Therefore, we reverse Johnson's conviction for
possession of methamphetamine
At trial, the Commonwealth's expert testified that there are several ways to
manufacture methamphetamine, but only testified as to one of these, which he referred
to as the anhydrous, lithium-metal reduction method . In detailing the manufacture of
Blockburger v. United States, 284 U .S . 299, 52 S . Ct. 180, 76 L. Ed. 306
(1932), which provides the test for determining whether multiple prosecutions for the
same course of conduct violates the Double Jeopardy Clause of the Fifth Amendment .
methamphetamine using this method, he explained how glass jars, such as those found
at Johnson's house, are used .
The expert explained that over-the-counter cold medicines containing ephedrine
or pseudoephedrine are first placed in the jar and then a solvent such as lantern fuel or
alcohol is added to the cold medicine to remove the binding agents. This mixture is
allowed to evaporate and what remains is the ephedrine, a necessary ingredient in
making methamphetamine under the described method of manufacture. The next step
is to combine, in the jar, a reactive metal, such as lithium stripped from AA batteries,
and anhydrous ammonia with the ephedrine. When this mixture evaporates or
dissipates, what is left is methamphetamine oil, which is not absorbable by the human
body. To make it absorbable, it must be turned into a water based substance, which is
also typically done in glass jars.
Ether is added to and mixed with the methamphetamine oil to cause further
separation and to purify the oil. The oil is then extracted from the mixture . This oil is
put in a glass jar and ether is again added. Hydrogen sulfide or hydrogen chloride is
bubbled through the methamphetamine . This is the final process that turns the oil into
a water base, which is absorbable by the human body. The finished methamphetamine
is obtained by filtering the mixture in the glass jar through coffee filters or the like . The
jar in which the methamphetamine was "cooked" is commonly called a "seed jar," which
is kept and through which the bubbling step is often repeated in order to obtain more
methamphetamine .
The five jars with the methamphetamine residue introduced against Johnson
were "seed jars ." The jars were evidence of Johnson having completed the final
process of manufacturing methamphetamine . And it was much stronger evidence that
he manufactured methamphetamine than if he were found in possession of
methamphetamine that had been filtered and packaged for sale, storage, or
distribution . The same is true for the methamphetamine oil. The Commonwealth's
evidence did not put Johnson in possession of any other quantity of methamphetamine
other than that found in the glass jars . Thus, we conclude that Johnson was convicted
of possessing the same methamphetamine that he was convicted of manufacturing
and, therefore, reverse his conviction for violating possession of methamphetamine .
V.
Facilitation
Johnson argues that the trial court erred in failing to instruct the jury on
facilitation to manufacture methamphetamine . KRS 506 .080. The basis of this
argument is that there was evidence that Johnson did not manufacture any
methamphetamine, but merely allowed others to use his house and property to
manufacture it. But there was no evidence that anyone else manufactured
methamphetamine in Johnson's house or on his property . Rather, there was only proof
that other persons knew how to manufacture it, which is not the same thing. Further,
there was no evidence that anyone other than Johnson had possession of or obtained
the chemicals used to manufacture methamphetamine . This includes Johnson's own
testimony, in which he professed complete ignorance as to how the glass jars of
methamphetamine came to be in his house, but never testified that he knew or was
aware that others were manufacturing methamphetamine in his house . Without
knowledge that another is committing a crime, there can be no facilitation under KRS
506.080 . Caudill v. Commonwealth , Ky., 120 S.W.3d 635, 670 (2003). Thus, there
was no evidence to support the instruction and, consequently, there was no error in
refusing to give it. See Thompkins v. Commonwealth , Ky., 54 S .W.3d 147, 150 (2001) .
-10-
VI .
Other Errors
Johnson also agues (1) that the trial court erred in allowing the Commonwealth
to amend the indictment to include the charge that he was guilty of manufacturing
methamphetamine under KRS 218A.1432(1)(b), which makes it illegal to posses the
chemicals and equipment used to manufacture methamphetamine with the intent to
manufacture methamphetamine; and (2) that KRS 218A.1432(1)(b) is void for
vagueness . We have reviewed these claims and find them without merit or worthy of
further discussion .
Conclusion
For the reasons set forth above, we affirm Johnson's conviction and sentence for
manufacturing methamphetamine, possession of drug paraphernalia, and possession
of marijuana. Further, we reverse Johnson's conviction and sentence for possession of
a controlled substance, methamphetamine, and remand this case to the Christian
Circuit Court with directions to vacate Johnson's conviction and sentence for
possession of a controlled substance, methamphetamine .
Lambert, C.J. ; Cooper, Graves, Keller, and Stumbo, JJ ., concur.
Wintersheimer, J ., concurs in result only.
COUNSEL FOR APPELLANT :
Richard Hoffman
Assistant Public Advocate
Department of Public Advocacy
100 Fair Oaks Lane, #302
Frankfort, KY 40601
COUNSEL FOR APPELLEE:
Gregory D. Stumbo
Attorney General of Kentucky
Todd D. Ferguson
Michael Harned
Assistant Attorneys General
Office of Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, KY 40601-8204
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