Dixon v. Com., No. 2003-SC-0876-MR.
| Decision Date | 18 November 2004 |
| Docket Number | No. 2003-SC-0876-MR. |
| Parties | Roy E. DIXON, Appellant, v. COMMONWEALTH of Kentucky, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
Appellant, Roy E. Dixon, was convicted by a Henderson Circuit Court jury of trafficking in a controlled substance in the first degree and sentenced to ten years in prison. Upon finding Appellant to be a persistent felony offender in the second degree, the jury enhanced the sentence to twenty years. Appellant appeals to this court as a matter of right, Ky. Const. § 110(2)(b), asserting two claims of reversible error, viz: (1) the trial court permitted a police officer to express an opinion as to the meaning of markings on a small piece of paper found in the glove compartment of his automobile; and (2) the trial court admitted into evidence Appellant's admission that he was unemployed after he had invoked his right to counsel. Finding no error, we affirm.
* * * * * *
On October 17, 2001, Detective Jamie Duvall and Officer Todd Seibert of the Henderson Police Department were conversing while sitting in their separate police vehicles on a public street when they observed Appellant operating a motor vehicle. Because Duvall knew that Appellant's operator's license had been suspended, he and Seibert proceeded in separate directions with the intention of stopping and detaining Appellant for an apparent violation of KRS 186.620(2). Seibert sighted Appellant's vehicle and pulled his marked police cruiser in behind Appellant's vehicle in the parking lot of an apartment complex. As Appellant exited his vehicle, Seibert saw him throw a plastic sandwich baggie to the ground. Detective Duvall then arrived, handcuffed Appellant, and placed him in the rear of Seibert's cruiser. The two officers retrieved the plastic baggie and observed that it contained several off-white colored rocks later determined to be crack cocaine. Duvall searched Appellant's automobile and found a small piece of paper in the glove compartment containing the following markings:
V - 300
A - 125
B - 100
G - 200
G - 100
M - 50
D-S 25
_______
900
Because Duvall believed that the paper reflected "transactions" and "money amounts" the officers took the piece of paper into custody. Cocaine is a Schedule II controlled substance. KRS 218A.070. Mere possession of cocaine is a Class D felony, KRS 218A.1415(2), but possession of cocaine for the purpose of sale is a Class C felony. KRS 218A.1412(1); KRS 218A.010(28) ("traffic" includes possession with intent to sell a controlled substance). The piece of paper was introduced at trial as evidence that Appellant possessed the cocaine for the purpose of sale.
Appellant invoked his right to counsel immediately upon his arrest. Subsequently, he was taken to the police station where Duvall asked him the routine questions necessary to complete the Uniform Citation form that is completed after every citation or arrest. The form contains blocks to be filled in with information pertaining to, inter alia, the arrestee's name, address, social security number, marital status, date of birth, sex, race, ethnicity, height, weight, color of hair and eyes, and place of employment. When asked for his place of employment, Appellant responded that he had been unemployed since 1999 and that he had just been released from jail. A search of Appellant's person revealed that he was in possession of $193.00 in cash. At trial, the Commonwealth introduced Appellant's statement that he was unemployed but the trial court suppressed his statements that he had been unemployed since 1999 and that he had just been released from jail. The Commonwealth relied on evidence that Appellant was unemployed but in possession $193.00 in cash as additional circumstantial evidence that he was a drug trafficker.
Appellant first contends that the slip of paper described supra was not sufficiently identified as belonging to him. Physical evidence is admissible if a reasonable juror could find that the matter is what its proponent claims it to be. KRE 901(a); Robert G. Lawson, The Kentucky Evidence Law Handbook § 7.00[3], at 495 (4th ed. LexisNexis 2003) (citing 5 McLaughlin, Weinstein's Federal Evidence § 901.02[3] (2d ed.2002)). The Commonwealth connected the piece of paper to Appellant by showing that the paper was found in a vehicle owned and operated by Appellant and in which he was the sole occupant both at the time Duvall observed him driving it and at the time Seibert stopped it. Circumstantial evidence may be used to connect a writing to its alleged author. KRE 901(b)(4); Lawson, supra, § 7.05, at 501. See United States v. McGlory, 968 F.2d 309, 329-331 (3d. Cir.1992) ().
We have held proof that a defendant was in possession and control of a vehicle sufficient to support a conviction for constructive possession of contraband found within a vehicle. Burnett v. Commonwealth, Ky., 31 S.W.3d 878, 881 (2000). That holding is in accord with the general rule:
The contents of an automobile are presumed to be those of one who operates it and is in charge of it, and this applies particularly where the operator is also the owner, as here. Where immediate and exclusive possession of an automobile... is shown, the inference is authorized that the owner of such property is the owner of what is contained therein and this inference has been referred to as a rebuttable presumption.
Chambers v. State, 162 Ga.App. 722, 293 S.E.2d 20, 21 (1982) (internal quotations and citations omitted).
We reject Appellant's contention that the concept of constructive possession applies only to "contraband," which he defines as items clearly illegal on their face. While the issue often arises in that context, the concept of constructive possession is not so limited. For example, in Yates v. Fletcher, Ky.App., 120 S.W.3d 728 (2003), a prisoner was held to have been in constructive possession of a stolen four-pound can of tuna found in his laundry bag under his bed. Id. at 730. Evidence that Appellant owned the vehicle, was operating the vehicle, and was the sole occupant of the vehicle in which the piece of paper was found was sufficient circumstantial evidence to permit an inference that Appellant was the owner of the piece of paper.
Appellant next argues that even if the piece of paper were his, the Commonwealth did not sufficiently connect it to the trafficking charge, thus it was irrelevant and inadmissible. KRE 402. This assertion is intertwined with Appellant's claim that Detective Duvall should not have been permitted to render an opinion that the notations on the paper referred to "transactions" and "money amounts." If that was, indeed, what the notations signified, the paper was most assuredly relevant as one could reasonably conclude that it was connected to drug trafficking. Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." KRE 401.
Appellant properly characterizes Duvall's opinion as expert testimony, for he had no personal knowledge as to the meaning of the notations and the average juror would not be expected to have acquired such knowledge. KRE 702 (). Appellant asserts that the trial court erred in not holding a "Daubert hearing" to determine the reliability of Duvall's opinion. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993); Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999); See also Commonwealth v. Christie, Ky., 98 S.W.3d 485, 488 (2002). ("[T]he trial court [must] assess whether the proffered testimony is both relevant and reliable.").
The trial court's "gatekeeping" function as described in Daubert, 509 U.S. at 595, 113 S.Ct. at 2798, applies as well to "specialized knowledge" as it does to scientific knowledge. Kumho Tire Co., 526 U.S. at 149, 119 S.Ct. at 1175. However, a trial court has wide latitude in deciding how to test an expert's reliability and in deciding whether or when special briefing or other proceedings, i.e., at a Daubert hearing, is needed to investigate reliability. 526 U.S. at 152, 119 S.Ct. at 1176. Thus, formal Daubert hearings are not always required. Hyatt v. Commonwealth, Ky., 72 S.W.3d 566, 575 (2002) (citing Nelson v. Tenn. Gas Pipeline Co., 243 F.3d 244, 249 (6th Cir.2001)). We have cautioned, though, that a trial court should hold a hearing unless "the record [before it] is complete enough to measure the proffered testimony against the proper standards of reliability and relevance." Christie, 98 S.W.3d at 488. In Christie, we noted that the record upon which a trial court can make an admissibility decision without a hearing usually will consist of "the proposed expert's reports, affidavits, deposition testimony, and existing precedent." Id. at 488-89. In Allgeier v. Commonwealth, Ky., 915 S.W.2d 745 (1996), we noted that a police officer's opinion based on training and experience as to whether, e.g., there was or was not evidence of a forced entry, ...
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