Conner v. Commonwealth
| Decision Date | 22 November 2013 |
| Docket Number | NO. 2011-CA-002313-MR,2011-CA-002313-MR |
| Parties | ROBERT LEE CONNER APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE |
| Court | Kentucky Court of Appeals |
NOT TO BE PUBLISHED
APPEAL FROM MCCRACKEN CIRCUIT COURT
The facts that give rise to this appeal were testified to at a jury trial. On March 2, 2011, Conner went to the police1 and was subsequently placed in jail. While in jail, Conner made two phone calls to his girlfriend, Uvander Hunter. Officer Justin Cromwell of the Paducah Police Department listened to the recorded conversations and grew suspicious about what he heard therein.
The first call was made on March 2 after Conner was booked into custody. During the talk, Hunter asked Conner about the location of a bag of "white clothes." Conner did not initially understand what Hunter meant, but he eventually referred to the "white clothes" as "stuff stuff." Officer Cromwell believed that Conner and Hunter were using code words.
Conner told Hunter the "stuff stuff" was located on the bottom of the brown shelf in Winky's kitchen. He said she would find it inside a black sock. Officer Cromwell did not believe that Conner would keep white clothes inside of a black sock. Conner told Hunter he hoped she could "make a move on the stuff."2 Officer Cromwell thought the statement indicated that Conner wanted to get rid of whatever was in the sock. Conner and Hunter talked about raising cash for bond money.
In the second call, made on March 3, Conner asked Hunter if she had "made a move on those things" the previous night. She responded that someone was watching her and she needed to take a different route home. Conner toldHunter she needed to "make a move on something." He said he would take $1,500 for both of the items in question. Conner again indicated that "those things" were inside the black sock in Winky's kitchen cupboard. Coupled with the talk about bond money, Officer Cromwell thought Conner was suggesting that things needed to be sold and money needed to be made for Conner to get out of jail. Officer Cromwell determined the items inside the black sock were worth a significant sum of money and not something Hunter wanted to be caught possessing or selling.
After listening to the second phone call, Officer Cromwell went to meet with Conner's Aunt Glenda. Glenda informed the officers that "Winky" was Tammy Conner, and told them where she lived. When Winky arrived home, she gave the officers permission to search her house.
Once inside the house, Officer Cromwell followed the directions that Conner had given Hunter over the phone. Inside a black sock on a brown shelf, Officer Cromwell found two bags containing 62 smaller individually wrapped baggies of crack cocaine. The 62 bags weighed approximately 18 grams combined.
Officers escorted Conner from jail to the police department for questioning. Conner told Officer Cromwell the cocaine belonged to a person from Atlanta named Torino. Conner admitted that he asked Hunter "make a move on it."
In the third call, made after Conner met with the police on March 3, Conner talked to both Winky and Hunter. He said that he was holding the cocainefor someone else and that he did not know how much there was. He told Winky he put the sock there before visiting the police on March 2. Conner was charged with and convicted of first-degree trafficking in a controlled substance - cocaine, greater than or equal to four grams - and of second-degree persistent felony offender. He received a sentence of eighteen years. It is from this conviction and sentence that Conner now appeals.
On appeal, Conner presents three arguments, namely: (1) the trial court erred when it did not grant Conner's motion for a directed verdict of acquittal on the charge of trafficking in a controlled substance; (2) the trial court erred when it did not grant Conner's motion for a lesser included instruction for solicitation to trafficking; (3) the trial court erred when it did not grant Conner's motion for a mistrial after the jury heard Conner had a "P.O." on one of the jail call tapes.
The Commonwealth responds: (1) it was not clearly unreasonable for a jury to find Conner guilty and, therefore, the trial court properly refused to grant a directed verdict; (2) Conner was not entitled to an instruction on solicitation; and (3) there was no manifest necessity for a mistrial where a brief reference to a "P.O." in an audiotape went unnoticed and Conner waived his claim of error when he refused the trial court's offer to admonish the jury. After our review of the parties' arguments, we conclude that the dispositive issue on appeal is whether Conner was entitled to a jury instruction for criminal solicitation to trafficking.
At the outset, we note that our review of a trial court's rulings with respect to jury instructions is for abuse of discretion. Cecil v. Commonwealth, 297S.W.3d 12, 18 (Ky. 2009), citing Ratliff v. Commonwealth, 194 S.W.3d 258, 274 (Ky. 2006). The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles. Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999) (citing 5 Am.Jur.2d Appellate Review § 695 (1995)).
As stated in Manning v. Commonwealth, 23 S.W.3d 610, 614 (Ky. 2000):
Manning at 614. However, the trial court's duty to instruct "does not require an instruction on a theory with no evidentiary foundation." Houston v. Commonwealth, 975 S.W.2d 925, 929 (Ky. 1998), citing Barbour v. Commonwealth, 824 S.W.2d 861, 863 (Ky. 1992), overruled on other grounds, McGinnis v. Commonwealth, Ky., 875 S.W.2d 518 (1994J; Neal v. Commonwealth, Ky., 303 S.W.2d 903 (1957). See also Kentucky Rules of Criminal Procedure (RCr) 9.54. Moreover, "An instruction on a lesser-included offense should be given if the evidence is such that a reasonable juror could doubtthat the defendant is guilty of the crime charged, but conclude that he is guilty of the lesser-included offense." Webb v. Commonwealth, 904 S.W.2d 226, 229 (Ky. 1995), citing Luttrell v. Commonwealth, Ky., 554 S.W.2d 75, 78 (1977).
At issue, KRS 218A.010(49) defines trafficking as " 'Traffic,' except as provided in KRS 218A.1431, means to manufacture, distribute, dispense, sell, transfer, or possess with intent to manufacture, distribute, dispense, or sell a controlled substance;..."
KRS 506.030 defines criminal solicitation as:
We disagree with Conner that solicitation to trafficking was a lesser included offense to trafficking. As discussed in Commonwealth v. Day, 983 S.W.2d 505, 509 (Ky. 1999), the Kentucky Supreme Court overruled Farris v. Commonwealth, 836 S.W.2d 451, 454 (Ky. App 1992) to the extent that it held thatcriminal facilitation is a lesser included offense when the defendant is charged with trafficking in a controlled substance. Given that facilitation is an inchoate crime, as is solicitation, we turn to whether Conner could have requested an instruction on a separate, uncharged crime. See Wyatt v. Commonwealth, 219 S.W.3d 751, 759 (Ky. 2007) (). At issue:
An instruction on a separate, uncharged, but [not lesser included] crime—in other words, an alternative theory of the crime—is required only when a guilty verdict as to the alternative crime would amount to a defense to the charged crime, i.e., when being guilty of both crimes is mutually exclusive." Hudson, 202 S.W.3d at 22, Cf. Sanborn v. Commonwealth, 754 S.W.2d 534 (Ky.1988).
Fields v. Commonwealth, 219 S.W.3d 742, 750 (Ky. 2007).3
KRS 506.110 makes solicitation to trafficking mutually exclusive of a trafficking conviction:
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