Burnett v. Com.

• Decision Date: 22 November 2000
• Docket Number: No. 1999-SC-0384-DG.,1999-SC-0384-DG.
• Citation: 31 S.W.3d 878
• Parties: Chauncey L. BURNETT, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 878

31 S.W.3d 878

Chauncey L. BURNETT, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 1999-SC-0384-DG.

Supreme Court of Kentucky.

November 22, 2000.

Daniel T. Goyette, Jefferson District Public Defender of Counsel, Bruce P. Hackett, Deputy Appellate Defender, Office of the Jefferson District Public Defender, Louisville, for appellant.

A.B. Chandler, III, Attorney General of Kentucky, Dennis W. Shepherd, Assistant Attorney General, Criminal Appellate Division, Office of the Attorney General, Frankfort, for appellee.

JOHNSTONE, Justice.

Appellant, Chauncey Burnett, was convicted of first-degree trafficking in a controlled substance and first-degree persistent felony offender. He was sentenced to five years' imprisonment which was enhanced to fifteen years on the PFO I charge. His conviction and sentence were affirmed by the Court of Appeals. We granted discretionary review and reverse.

Burnett raises the same issues in this appeal that were addressed by the Court of Appeals: (1) whether the trial court should have granted his motion for a directed verdict; and (2) whether the jury instructions denied him his right to a unanimous verdict.

FACTS

On November 15, 1996, Louisville police, responding to a narcotics complaint in an area of Clarksdale Housing Project known for frequent drug trafficking activity, saw Burnett duck behind and then enter a car. When the vehicle drove away, police followed until the vehicle came to a stop and the police observed Burnett getting out of the back seat on the passenger side of the vehicle. Burnett went to a nearby pay phone, and made a telephone call. The police moved in, suspecting that Burnett was engaged in trafficking activity. After conducting a pat down of Burnett, the police asked for, and obtained permission from the owner of the vehicle, Burnett's sister, to conduct a search of the vehicle. While searching the back seat, a small bag fell out of the vehicle onto the ground. The officer opened the bag, finding individually wrapped pieces of crack cocaine. Officer Scott, who was standing next to Burnett's sister during the search, testified that when the drugs were discovered, she stated, "It [the bag] wasn't hers and it had to be his [Burnett's]."

DIRECTED VERDICT

Burnett first argues that the evidence presented against him was insufficient to support his trafficking conviction. "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, Ky., 816 S.W.2d 186, 187 (1991). Upon review of the evidence presented by the Commonwealth, it was not clearly unreasonable for Burnett's jury to find him guilty.

The crux of Burnett's argument is that there was no proof that he had actual or constructive possession of the drugs. Rather, he argues that the proof showed that Elizabeth, and not he, had constructive possession of the drugs. In support of this argument, he cites to Leaven v. Commonwealth, Ky., 737 S.W.2d 695 (1987), and Paul v. Commonwealth, Ky.App., 765 S.W.2d 24 (1988).

The Leavell Court held, "The person who owns or exercises dominion or control over a motor vehicle in which contraband is concealed, is deemed to possess the contraband." Leavell, 737 S.W.2d at 697, citing United States v. Vergara, 687 F.2d 57 (5th Cir.1982). The main fact supporting the conclusion that the appellant had dominion or control over the vehicle was that the appellant had the ignition key to a vehicle which had some ninety pounds of marijuana in its trunk. Id. While the key did not open the trunk, there was testimony that the owner of the car had relinquished possession of the car to the appellant by giving him the keys to the vehicle. Id. Further, the appellant was prevented from taking actual physical possession of the vehicle only by the intervention of his arrest. Id.

In Paul v. Commonwealth, the appellant was a back seat passenger in a vehicle that was stopped for speeding by a state trooper. Paul, 765 S.W.2d at 25. The trooper smelled marijuana and found small marijuana roaches in the dashboard ashtray. Id. The trooper then ordered the occupants (four in all) out of the vehicle. Id. After advising the four of their Miranda rights, he asked who owned the marijuana. Id. After no one volunteered, the trooper arrested all of them for constructive possession. Id. At the police station, the appellant was discovered to be in possession of small amounts of marijuana and cocaine. Id.

The appellant moved to suppress the drug evidence on grounds that the trooper did not have probable cause to arrest her in the first place because she could not be "constructively presumed to be in possession of everything in that car." Id. at 25-26. The trial court denied the motion and the appellant entered a conditional guilty plea. Id. at 26. The Paul Court reversed the appellant's conviction stating:

It has already been held that the person who owns or exercises dominion or control over a motor vehicle is deemed to be the possessor of any contraband discovered inside it .... The owner of the vehicle in which [the appellant] was riding was seated in the front seat, and another individual was driving. [The appellant] was neither the owner nor the person who had dominion or control of the vehicle. She was a back seat passenger.

While the arrests were being made the driver admitted to the detective that he had been smoking marijuana. The detective smelled marijuana and saw marijuana at the driver's feet. He also observed roaches in the front ashtray. Thus, the detective had probable cause to arrest the driver, but not [the appellant].

Furthermore, a person's mere presence in the same car with a criminal offender does not authorize an inference of participation in a conspiracy. The probable cause requirement is not satisfied by one's mere propinquity to others independently suspected of criminal activity.

As the arrest violated [the appellant's] constitutional rights, the evidence against her that was subsequently discovered should have been suppressed.

Id. (internal citations omitted).

The case at bar is factually distinguishable from Paul in two respects. First, the crack cocaine was found in the back seat next to where Burnett had been sitting as opposed to being found near the driver in the dashboard ashtray as was the case in Paul. In other words, in the case at bar, the cocaine was found in an area in the car within Burnett's immediate control. Whereas, in Paul, the marijuana was found in an area outside of the appellant's immediate control and inside an area within the immediate control of the front seat passengers of the vehicle. Second, in Paul, none of the occupants admitted to possessing the marijuana. In the case at bar, Elizabeth disavowed possession and claimed that the crack cocaine must have belonged to Burnett.

We agree that Leavell, supra, establishes the principle that proof that a defendant has possession and control of a vehicle is evidence to support a conviction for constructive possession of contraband found within the vehicle. However, we do not believe that either Leavell or Paul establishes the principle that proof that someone other than a passenger-defendant had possession or control of a vehicle in which contraband is found, precludes a finding that the passenger-defendant was in constructive possession of the contraband. Rather, we believe that ownership and control of the vehicle is only one factor to consider in these types of cases.

To prove constructive possession, the Commonwealth must present evidence which establishes that the contraband was subject to the defendant's dominion and control. Hargrave v. Commonwealth, Ky., 724 S.W.2d 202, 203 (1986), cert. denied 484 U.S. 821, 108 S.Ct. 81, 98 L.Ed.2d 43 (1987). The proof offered by the Commonwealth in this case to show that Burnett was in constructive possession of the cocaine was: (1) that the cocaine was found in an area in the car next to where Burnett had previously been sitting, i.e., in an area within his immediate control; and (2) that the owner of the car disavowed possession of the drugs and claimed that they belonged to Burnett. While not overwhelming, the evidence was sufficient to create an issue of fact for the jury.

UNANIMOUS VERDICT

Burnett next argues that the jury instructions denied him a unanimous verdict. We agree.

The jury instruction for the first-degree trafficking charge provides:

You will find the Defendant, Chauncey L. Burnett, guilty under this Instruction if you believe from the evidence all of the following:

A. That in Jefferson County, Kentucky, on or about the 15th day of November 1996, the Defendant had in his possession a quantity of cocaine;

B. That in so doing, the Defendant knew the substance was Cocaine;

AND

C. That he had the cocaine in his possession with the intent to traffic in it.

If you find the Defendant guilty under this Instruction, you will say so by your verdict and no more.

The above instruction is circular in that it required the jury to find Burnett guilty of trafficking in cocaine if it believed from the evidence that he trafficked in cocaine. In other words, this instruction failed to set forth the statutory elements of the trafficking offense. Those elements were provided in a latter instruction, which defined trafficking as: "Trafficking — means to manufacture, distribute, dispense, sell or transfer a controlled substance." This is the same definition of "traffic" as provided in KRS 218A.010(24).

In objecting to the jury instructions, Burnett argued that the Commonwealth's sole theory of guilt on the trafficking charge was that he possessed the cocaine with the intent to sell it and that the instructions permitted the jury to find guilt on theories that were not supported by the evidence, e.g., that he possessed the cocaine with intent to...