MICHAEL JOE HENSLEY V. COMMONWEALTH OF KENTUCKY
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RENDERED : APRIL 20, 2006
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2005-SC-0344-MR
MICHAEL JOE HENSLEY
V
APPELLANT~ _-
APPEAL FROM WHITLEY CIRCUIT COURT
HONORABLE JERRY D . WINCHESTER, JUDGE
04-C R-133
COMMONWEALTH OF KENTUCKY
APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
A Whitley Circuit Court jury convicted Appellant, Michael Joe Hensley, of
manufacturing methamphetamine, KRS 218A.1432, enhanced by his contemporaneous
possession of a firearm, KRS 218A.992. He was sentenced to twenty years in prison
and appeals to this Court as a matter of right, Ky. Const. § 110(2)(b), asserting four
claims of reversible error: (1) the evidence was insufficient to support the firearm
enhancement ; (2) there was insufficient proof of chain of custody to admit the laboratory
test results of the evidence used to convict him of manufacturing methamphetamine ; (3)
members of the jury observed Appellant in handcuffs ; and (4) a state police detective
testified as both a fact witness and an expert witness . Finding no error, we affirm .
On October 24, 2003, the Kentucky State Police ("KSP") received an anonymous
tip that methamphetamine was being manufactured at a house owned by Appellant at
35 Texas Avenue, Corbin, Kentucky. Two police officers, state troopers Bowling and
Martin, proceeded to that address and knocked on the door . When Appellant
answered, the troopers requested permission to enter the house. Appellant first
refused, advising the troopers to obtain a search warrant . However, when the troopers
advised Appellant that he would not be permitted to re-enter the house until after the
warrant was obtained, he reluctantly consented to the search . Appellant admitted to the
troopers that he owned the house but claimed that he actually lived at his girlfriend's
residence . He also claimed that his house consisted of two apartments, one on the first
floor and another on the second floor, and that Robert Smallwood had previously rented
the first floor apartment . Although he had evicted Smallwood, the former tenant
continually returned to the house without permission when Appellant was absent.
Appellant stated that he was present at the house that evening because a neighbor had
telephoned him and reported that Smallwood was in the house again. However, when
the troopers arrived, Appellant was the only person in the house . He claimed that he
was in the process of cleaning up a mess left by Smallwood .
The troopers discovered an extensive methamphetamine laboratory throughout
the second floor of the house . They then left the premises because of the presence of
dangerous chemicals and sought the assistance of the Laurel County
methamphetamine task force containment unit. Two police detectives, Roger Cooper
and Tom Underwood, subsequently arrived and searched the house wearing protective
chemical suits .
Cooper and Underwood found and confiscated numerous chemicals and items of
equipment used in the manufacture of methamphetamine, including salt, alcohol, HCL
gas generators, funnels, lithium, and pseudoephedrine . On the stove they found
several containers full of methamphetamine ingredients in the separation phase of
manufacture as well as containers of methamphetamine oil. Additionally, there were
pots on the stove containing red phosphorus, another chemical used in the manufacture
of methamphetamine . Appellant claimed the pots contained only boiling water to be
used for cleaning purposes, as the house had no hot water . Five one-gallon buckets
containing methamphetamine in various stages of manufacture were also discovered .
Other items found during the search included digital scales, coffee filters used to strain
methamphetamine mixtures, Coleman camping fuel, and drain cleaner . Detective
Cooper testified at trial that he had investigated over one hundred methamphetamine
laboratories and that the laboratory found in Appellant's house was one of the largest he
had ever seen . During the search, the detectives also found a loaded revolver inside a
closet . The police gathered samples of various liquids found in the house, later
determined by the KSP laboratory to contain methamphetamine .
I . FIREARM ENHANCEMENT .
Appellant asserts the trial court erred by overruling his motion for a directed
verdict of acquittal with respect to the firearm enhancement. "On appellate review, the
test of a directed verdict is, if under the evidence as a whole, it would be clearly
unreasonable for a jury to find guilt, only then the defendant is entitled to a directed
verdict of acquittal ." Commonwealth v. Benham , 816 S .W.2d 186, 187 (Ky. 1991) ; see
also Beaty v. Commonwealth , 125 S .W.3d 196, 203 (Ky. 2003) ; Commonwealth v.
Sawhill , 660 S .W .2d 3, 5 (Ky. 1983) . On a motion for a directed verdict, a trial court
must draw all fair and reasonable inferences in the Commonwealth's favor. Benham,
816 S .W .2d at 187. However, the Commonwealth must establish each element of the
charged offense . Williams v . Commonwealth , 721 S.W .2d 710, 712 (Ky. 1986) .
At the time of this offense, KRS 218A.992 provided in pertinent part:
(1)
Other provisions of law notwithstanding, any person who is
convicted of any violation of this chapter who was at the time of the
commission of the offense 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; . . .
We have held that this statute applies whether the defendant's possession of the firearm
was actual or constructive . Commonwealth v. Montaque , 23 S.W .3d 629, 632 (Ky.
2000) ; Houston v. Commonwealth , 975 S .W.2d 925, 927 (Ky. 1998) . "Constructive
possession exists when a person does not have actual possession but instead
knowingly has the power and intention at a given time to exercise dominion and control
of an object, either directly or through others ." Johnson v. Commonwealth , 90 S .W.3d
39, 42 (Ky . 2002) (quotation omitted) . "Constructive possession can be established by
a showing that the firearm was seized at the defendant's residence ." Id . at 43 (citation
and quotation omitted) . However, if the defendant was not in actual possession or
immediate control of the firearm, the Commonwealth must show a "nexus" between the
crime committed and the possession of the firearm.
[M]ere contemporaneous possession of a firearm is not sufficient to satisfy
the nexus requirement . . . .
. . . [W]hen it cannot be established that the defendant was in
actual possession of a firearm or that a firearm was within his or her
immediate control upon arrest, the Commonwealth must prove more than
mere possession . It must prove some connection between the firearm
possession and the crime .
Montaque , 23 S .W.3d at 632-33. In so construing KRS 218A .992, (which has since
been amended to codify that construction, 2005 Ky. Acts, ch . 150, § 12), we looked for
guidance to the federal sentencing guidelines, which included a similar enhancement
provision . Id. at 632.
"The enhancement for weapon possession reflects the increased danger
of violence when drug traffickers possess weapons . The adjustment
should be applied if the weapon was present, unless it is clearly
improbable that the weapon was connected with the offense . For
example, the enhancement would not be applied if the defendant, arrested
at his residence, had an unloaded hunting rifle in the closet ." United
States v. Sanchez , 928 F.2d 1450, 1459 (6th Cir. 1991) (quoting
application note 3) .
In Montague , the police arrested the defendant in her apartment for drug
trafficking and seized nine ounces of cocaine . They subsequently found an unloaded
handgun in the trunk of an automobile parked in the apartment's parking lot. The
automobile belonged to the defendant's mother. We held that there was an insufficient
nexus between the gun and the drug trafficking to support a firearm enhancement under
KRS 218A .992, stating that, "in this case, there is nothing to connect the gun or the
Cadillac to the possession or the trafficking of drugs ." Id . at 633. However, the Court
explained that, "if drugs had been found in the Cadillac along with the gun, then a
sufficient connection would have been established to create a question of fact for the
jury ." Id.
In the case sub iudice , the police found a loaded gun in a closet of a house which
also contained a large methamphetamine laboratory . The gun was not in Appellant's
actual possession or in his immediate control upon his arrest, thus triggering
Montague 's nexus requirement . No proof was adduced as to the location of the closet
in the house' or to the ownership of the gun . Appellant argues that because of the
absence of such proof, the Commonwealth failed to show a sufficient nexus between
' The Commonwealth asserts in its brief that "[w]hile observing the meth lab upstairs, a
weapon was found in a hall closet." Brief for Commonwealth, at 3. The brief does not
cite to where this evidence can be found on the videotape of the trial. A review of the
entire videotape reveals that this statement is without evidentiary foundation .
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the gun and the manufacturing of methamphetamine to warrant the enhancement .
However, unlike in Montaque, the gun was neither unloaded nor found outside the
residence where the controlled substance offense was committed. If, as Appellant
claimed, no one lived in the house, then its only function at the time of the search was
that of a laboratory for the manufacture of methamphetamine . As argued by the
prosecutor at trial, "the whole house was a [methamphetamine] lab ." That being the
case, especially in view of the fact that the gun was loaded, it was not "clearly
improbable that the weapon was connected with the offense ." Montaque, 23 S.W .3d at
632 . There was a sufficient nexus between the gun found in the house and the
controlled substance offense to submit the enhancement issue to the jury.
11 . HANDCUFFS.
Appellant asserts that he was substantially prejudiced by the fact that members
of the jury saw him in handcuffs . Upon reviewing the record, we find that this assertion
substantially overstates the facts. Only one juror, Juror No. 50, saw Appellant in the
lobby of the courthouse while he was in handcuffs, and Appellant's only requested
remedy was to excuse that juror for cause . When questioned by the trial court, the juror
stated that he saw nothing that would prejudice him against Appellant, and the trial court
denied Appellant's motion to excuse him for cause. The trial judge then asked the
entire venire panel if any of them had seen Appellant outside the courtroom. Only Juror
No . 50 responded . Appellant requested no further relief, much less a mistrial, and did
not ask any further pertinent questions during voir dire. Therefore, "as Appellant failed
to request any further relief, error was not preserved for appeal ." Derossett v.
Commonwealth , 867 S .W .2d 195,198 (Ky. 1993) ; see also West v. Commonwealth ,
780 S.W.2d 600, 602 (Ky. 1989) .
Even if preserved, Appellant's claim would fail . First, this Court has "repeatedly
held that the inadvertent viewing of the defendant in either handcuffs or another
restraint for the sole purpose of being taken to or from the courtroom is not
automatically reversible error." Moss v. Commonwealth , 949 S.W.2d 579, 582-83 (Ky.
1997) ; see also Shegog v. Commonwealth , 142 S .W.3d 101, 109 (Ky. 2004) ; Williams
v. Commonwealth, 474 S .W.2d 381, 383 (Ky. 1971) . Second, whether a juror should be
excused for cause is a matter within the discretion of the trial court and will be disturbed
only upon a showing of an abuse of that discretion . Maxie v . Commonwealth , 82
S .W .3d 860, 863 (Ky. 2002); Caldwell v. Commonwealth , 634 S.W .2d 405, 407 (Ky.
1982). Prospective jurors are qualified to sit on a case provided reasonable grounds
exist to believe they can render a fair and impartial verdict based solely on the evidence
presented at trial. Maxie , 82 S .W.3d at 863 ; Sanders v . Commonwealth , 801 S.W.2d
665, 670 (Ky . 1990) . Juror No. 50 assured the trial court that he saw nothing that would
prejudice him against the Appellant. The trial court had no reason to believe otherwise
and, therefore, did not abuse its discretion in failing to excuse Juror No. 50 for cause .
We note in passing that Juror No. 50 was not one of the twelve jurors who rendered the
verdicts in this case .
III. CHAIN OF CUSTODY .
Appellant asserts that the trial court erred in admitting the laboratory testing
results of the samples of chemicals found at his house because of the Commonwealth's
failure to prove a proper chain of custody . We note at the outset that the decision with
respect to the adequacy of proof of the chain of custody is within the discretion of the
trial court. Thomas v. Commonwealth , 153 S .W.3d 772, 781 (Ky. 2004) ; Grundy v.
Commonwealth , 25 S.W.3d 76, 79-80 (Ky. 2000).
Detective Cooper, who collected the evidence, testified that he gave the samples
to Trooper Bowling, who delivered them to the KSP post in London, Kentucky. Trooper
Bowling testified and confirmed this account. He also testified that Administrative
Sergeant Cambron transported the evidence to the KSP crime laboratory . Mary
Malone, the chemist who testified at trial to the laboratory test results, stated that she
received the samples and placed them in the evidence locker at the laboratory ; and that
they were still sealed when she took them from the evidence locker for testing .
"All possibility of tampering does not have to be negated . It is sufficient in these
cases that the actions taken to preserve the integrity of the evidence are reasonable
under the circumstances ." Pendland v. Commonwealth , 463 S.W.2d 130, 133 (Ky.
1971); see also Rabovsky v. Commonwealth , 973 S.W .2d 6, 8 (Ky. 1998) . "Any gaps
[in the chain of custody] go to the weight, rather than the admissibility of the evidence,
and the proponent need only demonstrate a reasonable probability that it has not been
altered in any material respect ." Thomas, 153 S.W .3d at 781 ; Rabovsky, 973 S .W .2d at
8 . The testimony of Malone, Cooper, and Bowling was sufficient to demonstrate a
reasonable probability that the samples were not altered in any material respect prior to
testing . Therefore, the trial court did not abuse its discretion in admitting the results of
the laboratory tests of the samples found in Appellant's house .
Appellant points out that a second laboratory report with differing results2 was
provided to him in response to the trial court's discovery order . However, this report
was not introduced at trial, thus will not be considered on appeal. West, 780 S .W.2d at
602 ; Caslin v. Gen . Elec . Co. , 608 S .W.2d 69, 70 (Ky. App . 1980) ("It is elementary that
Both tests of the samples found in Appellant's house revealed methamphetamine .
However, Malone found methamphetamine, phosphorus, and isopropyl alcohol, while
the other laboratory report prepared by a different chemist found only
methamphetamine and isopropyl alcohol .
_8_
a reviewing court will not consider for the first time an issue not raised in the trial
court.") .
IV. EXPERT WITNESS .
Appellant asserts that the trial court erred in allowing Detective Cooper to testify
as both a fact witness and an expert witness without alerting the jury to his dual roles,
thus invading the province of the jury. See United States v. Thomas, 74 F.3d 676, 68183 (6th Cir. 1996), abrogated on other grounds by Morales v. Am . Honda Motor Co. ,
151 F .3d 500, 515 n.4 (6th Cir . 1998) . Detective Cooper testified at trial generally about
how to manufacture methamphetamine, then displayed some photographs taken during
the search of Appellant's house, telling the jury at one point that he saw "a cooker on
the stove that was . . . drying or cooking off some of the red phosphorous ." Appellant
initially objected to this general area of testimony on grounds that Cooper had not been
properly qualified as an expert on the subject of how to manufacture methamphetamine .
In response to Appellant's objection, the prosecutor elicited from Cooper that he had
been certified as a hazardous waste technician and a site safety officer, and that he had
been trained in how to recognize and clean up a methamphetamine laboratory . The
trial court never ruled on Appellant's objection and the objection was not renewed . As a
result, this claim is not preserved for appeal. Hayes v. Commonwealth , 175 S.W.3d
574, 596 (Ky. 2005) ("[I]f an objection is made, the party making the objection must
insist that the trial court rule on the objection, or else it is waived .") (quoting Bell v.
Commonwealth, 473 S .W.2d 820, 821 (Ky . 1971)) .
Even if preserved, the claim of error would fail. "The decision as to the
qualifications of an expert rests in the sound discretion of the trial court . . . ." Fugate v.
Commonwealth , 993 S.W.2d 931, 935 (Ky. 1999) ; Edwards v. Commonwealth , 554
-9-
S .W.2d 380, 385 (Ky. 1977) . The evidence presented provided a sufficient basis for the
trial court to have found that Detective Cooper had sufficient expertise to describe the
process by which methamphetamine is manufactured and that such information would
assist the jury in determining a fact in issue, i .e . , whether methamphetamine was being
manufactured in Appellant's house . Like the Sixth Circuit in Thomas, we decline to
establish a per se rule that a fact witness cannot also render an expert opinion if
qualified to do so .
Accordingly, the judgments of conviction and the sentences imposed by the
Whitley Circuit Court are affirmed .
All concur.
COUNSEL FOR APPELLANT :
Paul Baker
P .O. Box 912
Barbourville, KY 40906
COUNSEL FOR APPELLEE:
Gregory D. Stumbo
Attorney General
State Capitol
Frankfort, KY 40601
Kenneth Wayne Riggs
Assistant Attorney General
Office of the Attorney General
1024 Capital Center Drive
Frankfort, KY 40601
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