Penman v. Com., No. 2004-SC-000726-MR.

• Decision Date: 18 May 2006
• Docket Number: No. 2004-SC-000726-MR.
• Citation: 194 S.W.3d 237
• Parties: Michael PENMAN, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 237

194 S.W.3d 237

Michael PENMAN, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 2004-SC-000726-MR.

Supreme Court of Kentucky.

May 18, 2006.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Shelly R. Fears, Emily Holt Rhorer, Department of Public Advocacy, Frankfort, for Appellant.

Gregory D. Stumbo, Attorney General of Kentucky, George G. Seelig, Assistant Attorney General, Office of Criminal Appeals, Frankfort, for Appellee.

Opinion of the court by Justice SCOTT.

The Appellant was charged and convicted in the Jessamine Circuit Court on four counts of trafficking in controlled substances, first-degree (second or subsequent offense) and one count of possession of controlled substances, first-degree (second or subsequent offense) and sentenced to a total of forty-five years.

He now appeals as a matter of right, Ky. Const. § 110(2)(b), alleging the trial court erred (1) when it refused to suppress the cocaine and resulting lab reports, (2) in admitting the drug analysis at trial, (3) in failing to grant a directed verdict of acquittal on all counts for reasons the Commonwealth failed to prove the chain of custody of the cocaine beyond a reasonable doubt, (4) in allowing introduction of documents not provided to the defense pursuant to RCr 7.24, (5) in denying Appellant's motion to suppress the cocaine seized from his vehicle, (6) in denying Appellant's challenge for cause to juror 448, forcing him to use a peremptory challenge and (7) by joining indictments 03-CR-00093, 03-CR-00135 and 04-CR-00155 for trial.

After reviewing the record, we affirm Appellant's convictions and sentence.

FACTS

K.A. was caught by the Nicholasville Police Department (NPD) with a half ounce of cocaine and agreed to "work off" his charges by acting as a confidential informant — making buys from other dealers. As such, he made three "controlled buys" from the Appellant, one each on March 28, 2003, April 15, 2003, and May 7, 2003. Each buy was made under "controlled buy" protocols, supervised by the officers. Either audio, or video tapes, were made of the transactions.

After the last buy on May 7, 2003, the decision was made by NPD to arrest Appellant later that day. He was thereafter located and followed while driving the black Ford Expedition, which he had used in some of the other drug transactions, then stopped and ordered to get on the ground. As he exited the Expedition, however, he fled, but was caught and arrested almost immediately, approximately a block away. The Expedition was then searched, revealing approximately 200 grams of cocaine in the center console. A search of his wallet at the time uncovered currency, the serial numbers of which were identical to the serial numbers used in the earlier "controlled buy."

He was released later on bond, but rearrested on May 31, 2003, once the arrest warrant for his indictment was issued. During this attempted stop and arrest, he drove off until turning into a dead end street, whereupon he stopped. At the time he had a passenger in the front seat. After the stop, a packet of cocaine was found in the passenger area of the vehicle. However, Appellant, after having been "Mirandized," agreed the cocaine was his.

As indicated, he was indicted by the Jessamine Circuit Court on May 30, 2003, on four counts of trafficking in a controlled substances, first-degree (second or subsequent offense) for the March 28 and April 15 buys and the two instances on May 7, 2003, pursuant to indictment number 03-CR-00093.¹ On August 1, 2003, the Appellant was indicted for trafficking in a controlled substance first-degree (second or subsequent offense) for the May 31, 2003, traffic stop.² One week before trial, the Appellant was indicted on another count of first-degree trafficking in a controlled substance, cocaine, pursuant to indictment number 04-CR-155. This count was based on an alleged exchange of a handgun for cocaine between the Appellant and an unknown white male, which occurred (and had been audio taped) during K.A.'s "controlled buy" of April 15, 2003.

On May 7, 2004, the trial court sustained the prosecution's motion to consolidate indictment numbers 03-CR-00093 and 03-CR-00135. On July 29, 2004, indictment number 04-CR-00155 was also consolidated with the previous indictments. However, Appellant was acquitted on this last indictment.

Appellant was tried before the Jessamine Circuit Court on August 5-9, 2004. At trial, the main point of contention was the "chain of custody" for the drugs taken from the Appellant or his vehicle, which were presented in five separate packages, originally marked by the Nicholasville police as DU03027 (March 28, 2003 buy), DU03039 (April 15, 2003 buy), DU03043 (May 7, 2003 buy), DUO03044 (May 7, 2003 search of Penman vehicle) and DU03048 (May 31, 2003 search of Penman vehicle).

In fact, out of seven Commonwealth witnesses³ used at trial, four witnesses' testimony — Jennifer Wininger, Heather Harris, Kathy Humphrey, and police officer Scott Harvey — were devoted solely to questions involving the chain of custody of the drug packages. Two others, Detective Kevin Grimes and Officer Brian Travis, also touched upon the chain of custody, but only to, and from, the NPD to the Kentucky State Police (KSP) crime lab.

In regard to the chain of custody, officers from the NPD established the chain of custody for the drug exhibits from either K.A.'s buys or the vehicles from which the two other amounts were taken — up through, to, and back — from the KSP crime lab. The weights of the separate packages of substances transferred to the KSP crime lab were established by the testimony of the officers as to four of the transfers and by the KSP request for examination form as to a fifth.

At the time of the transfer of the substances for testing, the KSP labs were overwhelmed. To "catch up," and avoid further delays, a plan was formulated by the lab to "outsource" the testing to other private testing firms. As the exhibits to be tested in this and other cases were numerous, it was determined by KSP that the transfer cost by registered mail would be prohibitive. It was then decided that transfer by Federal Express (FedEx) offered similar security with the tracking numbers so the package could be followed at any time to find out where it was.

National Medical Services Laboratories (NMS) of Pennsylvania was selected to test the substances in this case. At trial, KSP Forensic Drug Chemist, Jennifer Wininger, testified as to the transfer to and from NMS. She testified that she received the five packages of cocaine from the Nicholasville police officers on two dates, April 17, 2003 and June 25, 2003. She then marked each of the evidence items and assigned them a KSP control number. On October 27, 2003, she shipped all five packages to NMS via FedEx to be delivered on or before October 28, 2003. According to her, all five packages were shipped in a single box with a FedEx tracking number.

Heather Harris, the forensic chemist with NMS, testified she examined the drugs in this case and found that all tested positive as cocaine. She explained that when evidence comes in to NMS an evidence technician logs the evidence in and then assigns it an additional NMS number. The technician then stores it in a secure evidence vault until it is retrieved and tested by the forensic chemist, which in this case was Ms. Harris. Lab reports are then prepared on each of the samples reflecting the testing and, here, were testified to and filed in evidence by Ms. Harris. Once she finishes her analysis, she places them back into the secure storage in the evidence room. Then, at a later time, other technicians remove the evidence and return them to the referring agencies, in this case, KSP also by secured transfer through FedEx with an assigned tracking number.

NMS retains business files on all packages received and tested and these, forms were filed by the Appellant (Defendant's exhibits 1 & 2) in the trial record through Ms. Harris. These forms show the flow of the package/sample from receipt through testing, to reshipment, back to the original source. Although it was documented that all five packages were sent to NMS and the actual test reports indicate that all five were tested at NMS — the police drug internal chain of custody forms prepared by NMS only disclose receipt of four of the five packages/samples. Ms. Harris testified, however, that all five were received, tested and sent back.

At trial, she specifically reviewed each of the five packages and noted their identification numbers, as well as her initials on the inside and outside of the package. No one else from NMS testified as to the handling of the packages/samples with NMS. The packages were then received back by KSP and later transferred to the NPD and exhibited during the trial.

At trial, Ms. Wininger (from KSP labs), also reviewed the separate packages/samples and noted her initials from her original receipt prior to transfer to NMS, noted the various numbers assigned by KSP and NMS on the packages and noted they were still sealed and testified that there was no evidence that they had been tampered with.

In her testimony as to the handling of the separate packages/samples at the NMS labs, Ms. Harris noted that the five packages/samples had come in on two shipments on October 21, 2003 and October 28, 2003. This was contradictory to the testimony of Ms. Wininger, that they were all shipped in one box on October 27, 2003, to be delivered by October 28, 2003. However, upon further questioning, Ms. Harris did acknowledge that all the files contained only one FedEx document indicating one shipment date of October 28, 2003. Also, all the NMS tracking labels on the samples were dated 10/28/03.

During additional questioning, Ms. Harris testified that it was possible that all the packages/samples came in as one unit and when asked whether the dispute as to the time received could jeopardize the integrity of the...