Matheney v. Com.

• Decision Date: 23 March 2006
• Docket Number: No. 2002-SC-0920-MR.,2002-SC-0920-MR.
• Citation: 191 S.W.3d 599
• Parties: Jeffrey MATHENEY, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: Supreme Court of Kentucky

191 S.W.3d 599

Jeffrey MATHENEY, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 2002-SC-0920-MR.

Supreme Court of Kentucky.

March 23, 2006.

As Modified April 4, 2006.

Rehearing Denied June 15, 2006.

COPYRIGHT MATERIAL OMITTED

Euva D. May, Assistant Public Advocate, Frankfort, Counsel for Appellant.

Gregory D. Stumbo, Attorney General, Gregory C. Fuchs, Assistant Attorney General, Elizabeth A. Heilman, Assistant Attorney General, Frankfort, Counsel for Appellee.

Opinion of the Court by Justice ROACH.

Appellant Jeffrey Matheney was convicted by a Hopkins Circuit Court jury of manufacturing methamphetamine and of being a persistent felony offender in the second degree. He was sentenced to twenty years imprisonment and appeals to this Court as a matter of right. Appellant argues that since he did not possess all the chemicals necessary to manufacture methamphetamine, his conviction must be reversed pursuant to Kotila v. Commonwealth, 114 S.W.3d 226 (Ky.2003). We conclude that Kotila was wrongfully decided and affirm Appellant's conviction.

I. Kotila Issue

On March 4, 2001 Appellant, accompanied by his wife and children, traveled to Madisonville, Kentucky. In Madisonville, Mrs. Matheney purchased two boxes of cold medicine at the Dollar Store. Appellant then purchased two boxes of cold medicine at the More for Less Store. The family then traveled to an auto parts store and purchased three cans of Pyro (starting fluid) and then went to a hardware store and purchased a gallon of Liquid Fire. They then traveled to another shopping center and purchased two boxes of Sudafed. After this purchase, the family traveled to yet another shopping center, where Appellant purchased two more boxes of Sudafed from a Rite Aid drug store. The store manager of this Rite Aid recognized Appellant as the same individual who had bought two boxes of Sudafed three weeks earlier and called the police to report the purchases. A police officer confronted Appellant in the parking lot and ultimately the Matheneys consented to a search of their car. The trunk contained 396 cold and allergy pills containing ephedrine or pseudoephedrine, a gallon of Liquid Fire and three cans of Pyro. Appellant and his wife were arrested.

The evidence at trial established that the following chemicals are necessary to manufacture methamphetamine: (i) ephedrine or pseudoephedrine; (ii) potassium, lithium, or some other reactive metal; (iii) anhydrous ammonia; (iv) ether; (v) acid; and (vi) salt or potassium.¹ Appellant possessed only ephedrine (in the Sudafed and cold pills), acid (Liquid Fire can serve as the requisite acid), and ether (starting fluid contains ether). This case was tried before our decision in Kotila, thus the jury was not instructed that Appellant had to possess all of the chemicals necessary for the manufacture of methamphetamine. Counsel for Appellant did not object to the instructions, but Appellant claims that the error constitutes palpable error.

From July 15, 1998, when manufacturing methamphetamine was first made a crime in this Commonwealth, until June 20, 2005, KRS 218A.1432(1) simply provided:

A person is guilty of manufacturing methamphetamine when he knowingly and unlawfully:

(a) Manufactures methamphetamine; or

(b) Possesses the chemicals or equipment for the manufacture of methamphetamine with the intent to manufacture methamphetamine.

The General Assembly has now amended KRS 218A.1432(1)(b) to read that a person is guilty of manufacturing methamphetamine when he knowingly and lawfully "(b) with intent to manufacture methamphetamine possesses two (2) or more chemicals or two (2) or more items of equipment for the manufacture of methamphetamine." 2005 Kentucky Laws ch. 150, § 9 (effective June 20, 2005).

In Kotila v. Commonwealth, 114 S.W.3d 226 (Ky.2003), this Court held that the version of KRS 218A.1432(1)(b) then in effect required possession of all the chemicals or equipment necessary to manufacture methamphetamine. Essentially, this Court found that the statute's use of the word "the" meant that a person could be convicted under subpart (1)(b) of the statute only for possession of all the chemicals or equipment (as opposed to "any" or "some" of the chemicals or equipment) for the manufacture of methamphetamine. The Kotila majority based this conclusion on grammatical construction and subsequent statutory enactments by the General Assembly. While attempting to discern the General Assembly's intent by analyzing subsequent legislation, the majority opinion conceded that the precise intent of the General Assembly was ambiguous.

The majority also rejected the applicability of criminal attempt under KRS 506.010 unless all the chemicals or equipment necessary to manufacture methamphetamine were present. Justice Keller concurred in the Court's opinion relating to KRS 218A.1432(1)(b). However, he believed that KRS 506.010 applied to "defendants who intend to manufacture methamphetamine and who undertake `substantial steps' towards manufacturing methamphetamine by knowingly accumulating materials necessary to do so, but who are apprehended before they can complete the KRS 218A.1432(1)(b) Manufacturing Methamphetamine offense by knowingly possessing all of the chemicals or all of the equipment necessary to manufacture methamphetamine." Kotila, 114 S.W.3d at 251 (Keller, J., concurring in part and dissenting in part).

Chief Justice Lambert authored a dissent, which was joined by Justice Wintersheimer. Chief Justice Lambert argued that if the General Assembly had intended the statute to be construed as the majority did, "it would surely have used the word `all' rather than the more general `the.'" Kotila, 114 S.W.3d at 256 (Lambert, C.J., dissenting). One member of the Kotila majority has subsequently admitted that he "was seduced by a metaphysical infatuation which led to an absurdity" and concluded that Kotila "does violence to the concept of common sense." Fulcher v. Commonwealth, 149 S.W.3d 363, 381 (Ky. 2004) (Graves, J., dissenting).

In Fulcher, despite the fact that the defendant possessed a plethora of equipment and chemicals to make methamphetamine, the Court held that since there was no evidence of sodium metal or lithium, the defendant did not possess all the chemicals necessary to manufacture methamphetamine. In addition, since there were no mixing bowls, stirring devices or pliers, the defendant also failed to possess all the equipment necessary to manufacture methamphetamine.

This Court has struggled with the effects of Kotila from day one. This is clear from the fact that the bright line rule of Kotila survived for only about six months. In Varble v. Commonwealth, 125 S.W.3d 246, 254 (Ky.2004), this Court upheld a conviction under KRS 128A.1432(1)(b) where all the chemicals except anhydrous ammonia and all the equipment except for a filter were present. The Court held that "the odor of anhydrous ammonia" and a "filter of unspecified nature and a dust filter mask" were sufficient evidence to satisfy Kotila. Id. at 254. Chief Justice Lambert remarked that the holding in Varble represented "a significant departure from the bright line rule announced in Kotila." Id. at 256 (Lambert, C.J., concurring).

Additionally, with Justice Graves's express disavowal of Kotila in his dissent in Fulcher, four members of this Court have cast votes that necessarily demonstrate their disagreement with Kotila's holding regarding the application of KRS 506.010 (Criminal Attempt) to methamphetamine manufacturing offenses. See Kotila, 114 S.W.3d at 249 (Keller, J., concurring in part and dissenting in part); id. at 256 (Lambert, C.J., dissenting in part, joined by Wintershiemer, J.); Fulcher v. Commonwealth, 149 S.W.3d 363, 381 (Ky.2004) (Graves, J., dissenting).

Since Kotila was rendered, over two years ago, it has become increasingly clear that Justice Graves was correct in that requiring possession of all the chemicals or equipment to uphold a conviction under KRS 128A.1432(1)(b) defies common sense. And though considerations of stare decisis would normally guide us to adhere to Kotila, we simply cannot overlook the fact that the Court's reasoning in subsequent decisions addressing KRS 218A.1432(1)(b) has already departed significantly from the bright-line rule. Therefore, we go one step further and hold that Kotila's construction of KRS 218A.1432(1)(b) was incorrect.

We do not reverse Kotila lightly. As the dissent observes in its extensive discussion, stare decisis is an important guiding principle in American jurisprudence. On that point, we are in complete agreement. However, as this Court has noted recently,

the doctrine of stare decisis does not commit us to the sanctification of ancient or relatively recent fallacy. While we recognize this Court should decide cases with a respect for precedent, this respect does not require blind imitation of the past or unquestioned acceptance ad infinitum. Rather, in many ways, respect for precedent demands proper reconsideration when we find sound legal reasons to question the correctness of our prior analysis.

Morrow v. Commonwealth, 77 S.W.3d 558, 559 (Ky.2002) (internal brackets, quotation marks, and footnotes omitted), overruling Gray v. Commonwealth, 979 S.W.2d 454 (1998). Morrow, like this case, concerned statutory construction of relatively recent vintage.² And when we found that construction wanting, we ruled, as we do here, that stare decisis must give way.

We construe the language in KRS 218A.1432(1)(b) that states "the chemicals or equipment for the manufacture of methamphetamine" to mean that one must possess two or more chemicals or items of equipment with the intent to manufacture methamphetamine to fall within the statute. This construction is based on a common sense approach that gives proper import to the use of the plural "chemicals." Of course, any conviction must also satisfy the scienter requirement contained in KRS 218A.1432(1)(b). In light of this...