Blane v. Commonwealth, No. 2010–SC–000713–MR.

• Decision Date: 26 April 2012
• Docket Number: No. 2010–SC–000713–MR.
• Citation: 364 S.W.3d 140
• Parties: Derryl D. BLANE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

364 S.W.3d 140

Derryl D. BLANE, Appellant,

v.COMMONWEALTH of Kentucky, Appellee.

No. 2010–SC–000713–MR.

Supreme Court of Kentucky.

April 26, 2012.

Emily Holt Rhorer, Molly Mattingly, Assistant Public Advocate, Department of Public Advocacy, Frankfort, KY, Counsel for Appellant.

Jack Conway, Attorney General of Kentucky, Perry Thomas Ryan, Assistant Attorney General, Office of Attorney General, Criminal Appellate Division, Frankfort, KY, Counsel for Appellee.

Opinion of the Court by Justice SCOTT.

A Christian Circuit Court jury found Appellant, Derryl Dewayne Blane, guilty of two counts of first-degree trafficking in a controlled substance (cocaine); one count of trafficking in marijuana, eight ounces or more; one count of possession of drug paraphernalia, second or subsequent offense; and of being a first-degree Persistent Felony Offender (PFO). For these crimes, Appellant received a thirty-year prison sentence.

He now appeals as a matter of right, Ky. Const. § 110(2)(b), alleging that the trial court (1) erroneously denied his motion to suppress, (2) erroneously denied his Batson motion, (3) erroneously permitted the Commonwealth to amend the indictment after granting a directed verdict of acquittal on the marijuana charge, (4) erroneously admitted testimony during the penalty phase concerning prior charges of which he had not been convicted, (5) erroneously imposed a thirty-year sentence, (6) that his conviction as a first-degree PFO is invalid as to Count 1 of the indictment, and (7) that he should be permitted to request retroactive application of the amended penalty for possession of drug paraphernalia.

I. BACKGROUND

On June 27, 2006, the Hopkinsville Police Department's (HPD) Special Investigations Unit set up a controlled narcotics purchase from Appellant at his home. HPD sent a confidential informant, Jason Alexander, equipped with a camera, audio monitoring device, and documented money, to purchase crack cocaine from Appellant. Jason went to Appellant's home and purchased two rocks of crack cocaine from him for twenty dollars.

On May 17, 2007, HPD sent another confidential informant—this time Jason's wife, Connie Alexander—to purchase drugs from Appellant.¹ HPD equipped Connie with an audio recorder, transmitter, and forty dollars in documented money. Connie went to Appellant's home where she bought two rocks of crack cocaine for forty dollars. This is the only time Connie ever served as a confidential informant on a controlled purchase for HPD.

Connie's purchase served as the probable cause basis for a search warrant issued later that day, and executed the next morning at Appellant's home. The search yielded $11,452.74 in cash, approximately fifteen and one-half grams of crack cocaine, and approximately two pounds and thirteen ounces of marijuana.

Appellant was charged by information in Christian Circuit Court with two counts of first-degree trafficking in a controlled substance(cocaine), trafficking in marijuana within 1,000 yards of a school, and possession of drug paraphernalia, second or subsequent offense. He was later indicted by a grand jury for first-degree PFO.

At the close of the Commonwealth's case-in-chief, Appellant moved for a directed verdict on the charge of trafficking in marijuana within 1,000 yards of a school. Because the Commonwealth had introduced no evidence with respect to Appellant's home being within 1,000 yards of a school, the trial court indicated that it was going to “in essence” grant Appellant's motion for a directed verdict on this count. However, the court then granted the Commonwealth's motion to amend Count 3 of the indictment from trafficking in marijuana within 1,000 yards of a school to trafficking in marijuana, eight ounces or more.

The jury found Appellant guilty of the three underlying charges, and recommended the maximum sentences for each conviction. The Commonwealth then called a deputy circuit clerk to testify as to Appellant's prior convictions to establish his PFO status. Specifically, the Commonwealth elicited testimony from the clerk regarding two separate prior incidents involving Appellant. With respect to both incidents, the clerk testified as to the original charges and the charges as amended.² Ultimately, the jury convicted Appellant of being a first-degree PFO. Accordingly, the jury recommended enhanced sentences of fifteen years on both cocaine trafficking counts, an enhanced sentence of fifteen years on the marijuana trafficking count, and a five-year sentence on the possession of drug paraphernalia count. The jury further recommended that the sentences for the two trafficking in cocaine counts be served consecutively, and the sentences for the trafficking in marijuana count and the possession of drug paraphernalia count to be served concurrently, for a total sentence of thirty years' imprisonment. Additional facts will be provided where necessary.

II. ANALYSIS

Appellant sets forth seven separate arguments: one alleging error in the investigation, one alleging error in voir dire, one alleging mid-trial error, and four concerning the penalty phase of his trial. We will discuss them in that order.

A. Suppression of Evidence

Appellant argues that the trial court erroneously denied his motion to suppress the evidence collected at his home during the execution of the search warrant. He alleges that the affidavit in support of the search warrant contained false and misleading information, and therefore was issued in violation of his rights under the United States and Kentucky Constitutions. Specifically, he contends that the HPD officer's description of the confidential informant for the May 17, 2007 controlled buy as “reliable” was false and misleading.

The Fourth Amendment to the United States Constitution states, in relevant part, that “... no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” ³See alsoKy. Const. § 10 (stating, in relevant part, that “no warrant shall issue to search any place, or seize any person or thing, without describing them as nearly as may be, nor without probable cause supported by oath or affirmation”). In Franks v. Delaware, the United States Supreme Court noted:

“[W]hen the Fourth Amendment demands a factual showing sufficient to comprise ‘probable cause,’ the obvious assumption is that there will be a truthful showing.” This does not mean ‘truthful’ in the sense that every fact recited in the warrant affidavit is necessarily correct, for probable cause may be founded upon hearsay and upon information received from informants, as well as upon information within the affiant's own knowledge that sometimes must be garnered hastily. But surely it is to be “truthful” in the sense that the information put forth is believed or appropriately accepted by the affiant as true.

438 U.S. 154, 164–65, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978) (quoting United States v. Halsey, 257 F.Supp. 1002, 1005 (S.D.N.Y.1966)). Moreover, “[i]f an informant's tip is the source of information, the affidavit must recite ‘some of the underlying circumstances from which the informant concluded’ that relevant evidence might be discovered, and ‘some of the underlying circumstances from which the officer concluded that the informant ... was “credible” or his information “reliable.” ’ ” Id. at 165, 98 S.Ct. 2674 (quoting Aguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964)).

When an affidavit supporting a search warrant is challenged, it is presumptively valid. Id. at 171, 98 S.Ct. 2674. The challenger must allege deliberate falsehood or reckless disregard for the truth, “and those allegations must be accompanied by an offer of proof.” Id. If the challenger establishes this by a preponderance of the evidence, “and, with the affidavit's false material set to one side, the affidavit's remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit.” Id. at 156, 98 S.Ct. 2674.

On appeal, we engage in a two-step analytical review. “First, [we] review the factual findings of the circuit judge to see if they are supported by substantial evidence, RCr 9.78, and then review the ruling on the motion to suppress de novo to see whether the decision was correct as a matter of law.” Commonwealth v. Pride, 302 S.W.3d 43, 49 (Ky.2010) (citing Ornelas v. United States, 517 U.S. 690, 698–99, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996)). However, “[i]n doing so, all reviewing courts must give great deference to the warrant-issuing judge's decision.” Id. (citing Illinois v. Gates, 462 U.S. 213, 236, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)).

1. The trial court's factual findings are supported by substantial evidence.

With respect to the first step, the trial judge ruled from the bench that the affidavit's description of the informant as “reliable” did not rise to the level of a Franks issue and therefore denied Appellant's motion. This appears to be the extent of his “factual findings” on the record. Implicitly, though, this. means that the trial judge found that the affiant's assertion that the confidential informant was “reliable” was not a deliberate falsehood, or made with reckless disregard for the truth.

The affidavit states, in relevant part, that “Affiant received information from/observed a reliable confidential informant that she had made a successful controlled purchase of crack cocaine at [Appellant's address].” The officer corroborated this evidence by “[l]isten[ing] to the audio of the buy and confirm[ing] that a controlled purchase had occurred, field test[ing] the drugs and confirm[ing] the location of the buy as described by the C.I.”

Appellant contends that the “reliable” status assigned to the confidential informant was deliberately or recklessly false or...