ROBERT B. TAYLOR, SR. V. COMMONWEALTH OF KENTUCKY
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RENDERED : JUNE 17, 2010
TO BE PUBLISHED
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2009-SC-000180-DG
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ROBERT B. TAYLOR, SR.
07aSaoio
APPELLANT
ON REVIEW FROM COURT OF APPEALS
CASE NO. 2007-CA-002351-MR
MONTGOMERY CIRCUIT COURT NO . 06-CR-00236
V.
COMMONWEALTH OF KEN'T'UCKY
APPELLEE
OPINION OF THE COURT BY JUSTICE SCHRODER
AFFIRMING
This appeal involves a case of first impression in Kentucky . The issue is
whether an individual who knowingly takes contraband into a detention
facility, in violation of KRS 520.050(1)(a), has performed a voluntary act despite
entering the facility involuntarily.) We agree with the Court of Appeals that a
person who knowingly takes contraband into a detention facility does so
voluntarily, even when entering the facility involuntarily, and that there is no
violation of the Fifth Amendment right against self-incrimination. Hence, we
affum.
1 For all crimes other than absolute liability offenses, KRS 501 .030 requires both a
culpable mental state and a voluntary act.
KRS 520 .050 (promoting contraband in the first degree) creates a Class
D felony when a person "knowingly introduces dangerous contraband into a
detention facility or a penitentiary . . . ."2 Taylor was arrested for public
intoxication.3 After the arrest, and before entering the Montgomery County
Regional Detention Center, the officer asked Taylor twice if he had any
marijuana on his person. The officer also warned Taylor that taking marijuana
into a detention facility could result in felony charges . Both times Taylor
denied he had marijuana, and a pat down did not reveal any contraband .
Taylor was taken inside and turned over to the jailer, who strip searched him.
A small packet of marijuana was found tucked in Taylor's buttocks.
Taylor was tried for promoting contraband in the first degree.4 He moved
to suppress the marijuana, and also moved for a directed verdict at the close of
the Commonwealth's and the defense's case-in-chief. The trial court denied the
motions .
Taylor was convicted of promoting contraband in the first degree and
received a one-year sentence . The Court of Appeals, although finding the issue
of whether Taylor performed a voluntary act to be unpreserved, nevertheless
discussed the issues and affirmed . This Court granted discretionary review .
Taylor requests that, if this Court opines the issue of whether the act was
voluntary was not fully preserved, it conduct a palpable error review under RCr
10 .26.
2 KRS 520.050(1)(a) . KRS 520 .010(3) includes marijuana as dangerous contraband .
3 There is some dispute as to whether police read Taylor his Miranda rights .
4 Other charges in this case are not at issue in this appeal.
Taylor's argument on appeal is that a person does not knowingly and
voluntarily take contraband into a detention facility when he is taken
involuntarily into the facility. We disagree. A person who is aware of the
contraband on his or her person, who is taken involuntarily into a detention
facility, satisfies the "knowingly" element of KRS 520 As for Taylor's
.5
.050(1)(a)
argument that his act was involuntary, an act is deemed voluntary when
"performed consciously as a result of effort or determination and includes the
possession of property if the actor was aware of his physical possession or
control thereof for a sufficient period to have been able to terminate it."6 Taylor
voluntarily took possession of and hid the contraband, and he could have
disposed of it before entering the facility.
What happened after Taylor's arrest for public intoxication (his
possession of the marijuana) was not the result of improper state action, but
the consequence of his simultaneous illegal actions . Granted, Taylor was in a
"Catch-22 ." If he disclosed the contraband before he entered the facility, he
faced a possession charge. If he did not disclose the contraband and it was
discovered in the facility, he faced a charge for knowingly taking it in the
facility. 7 But this does not make Taylor's action involuntary .
This is a case of first impression in Kentucky. Taylor cites an Ohio Court
of Appeals case, State u. Sowry, as supportive of his argument . In Sowry, the
5 See KRS 501 .020(2) ("A person acts knowingly . . . when he is aware that his conduct
is of that nature or that the circumstance exists.")
6 KRS 501 .0100) .
7 In this case it was the difference between a misdemeanor and a felony, but
depending on the contraband, it could be the difference between felonies.
Court of Appeals opined that a person who was involuntarily brought into a
detention facility could not be deemed to have voluntarily brought in
contraband hidden on his person.$ However, a recent Ohio Supreme Court
decision rejected this reasoning and opined that a person involuntarily taken
into a detention facility, knowing he has contraband on his person, has
committed a voluntary act in carrying in the contraband . 9 Likewise, appellate
courts in other jurisdictions have opined that a person who knowingly takes
contraband into a detention facility does so voluntarily, even when the person
is taken in involuntarily. 10 We believe that this outside authority is persuasive.
We opine the trial court did not err in denying a directed verdict on this issue,
thus we need not review for a palpable error under RCr 10.26 .
Taylor also asserts that he was not free to, nor could he have, disposed of
the contraband before he entered the facility because to do so would have
incriminated him in violation of his Fifth Amendment rights . Taylor had a
choice because of his knowing and voluntary possession of marijuana: he
could waive his Fifth Amendment right and not face the promoting contraband
charge, or he could not waive his Fifth Amendment right and face a separate
(and in this case, a more serious) charge if caught. His conscious choice was a
gamble, and he lost. The Fifth Amendment does not entitle Taylor to a pass, or
convert his voluntary illegal action of possession to an involuntary action when
8 803 N.E.2d 867 (Ohio Ct. App. 2004) .
9 State u. Cargile, 916 N.E.2d 775 (Ohio 2009) .
to See State u. Alvarado, 200 P.3d 1037 (Ariz. Ct. App. 2008); State u. Winsor, 110
S.W.3d 882 (Mo. Ct . App. 2003); Brown u. State, 89 S.W.3d 630 (Tex. Crim. App.
2002) .
he is involuntarily taken into the facility. Asserting his right to not incriminate
himself does not prevent the further investigation, nor the use of the fruits of
that investigation. Likewise, a number of courts have rejected the notion that
there is a right to be protected from having to make difficult choices regarding
whether to invoke the Fifth Amendment right against self-incrimination ."
For the foregoing reasons, the opinion of the Court of Appeals is affirmed .
All sitting. All concur.
COUNSEL FOR APPELLANT:
Linda Roberts Horsman
Department Of Public Advocacy
100 Fair Oaks Lane, Suite 302
Frankfort, KY 40601
COUNSEL FOR APPELLEE:
Jack Conway
Attorney General
David Bryan Abner
Assistant Attorney General
Office of Criminal Appeals
Office of the Attorney General
1024 Capital Center Drive
Frankfort, KY 40601
See Cargile, 916 N.E.2d at 777-78 ("The constitutional right to remain silent does
not confer upon a defendant the privilege to lie, or the right to be protected from
having to make difficult choices regarding whether to invoke the right to remain
silent.") (internal citations omitted) ; People v. Ross, 162 Cal. App . 4th 1184, 1191
(2008) (disclosure of weapon possession upon booking into detention facility); State
v. Canas, 597 N.W. 2d 488, 496 (Iowa 1999), overruled on other grounds by State v.
Turner, 630 N.W.2d 601 (Iowa 2001) (controlled substance in a detention facility) .
But see State v. Thaxton, 79 P.3d 897 (Or. Ct. App. 2003) ; State v. Tippetts, 43 P.3d
455 (Or. Ct. App. 2002) .
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