McRay v. Com.
| Decision Date | 17 February 1984 |
| Docket Number | No. 83-CA-1297-MR,83-CA-1297-MR |
| Citation | 675 S.W.2d 397 |
| Parties | Dewayne McRAY, Appellant, v. COMMONWEALTH of Kentucky, Appellee. |
| Court | Kentucky Court of Appeals |
Elmer J. George, Philip S. George, Jr., Lebanon, for appellant.
David L. Armstrong, Atty. Gen., Robert W. Hensley, Asst. Atty. Gen., Frankfort, for appellee.
Before HAYES, Chief Judge, and GUDGEL and HOWERTON, Judges.
McRay appeals from a judgment and conviction in the Washington Circuit Court finding him guilty of cultivation of marijuana in violation of KRS 218A.140 and 218A.990(6). He was fined $3,500.00.
McRay owns a farm in Washington County consisting of approximately 100 acres. In the summer of 1982, a patch of marijuana was discovered in a wooded area on the farm. It contained over 2,000 marijuana plants, and the ground had been cultivated and fertilized.
The case was investigated by Detective Ben Hadley of the Kentucky State Police, who responded to information from the Washington County Sheriff's Department. In July 1982, Detective Hadley and Detective Antle entered the farm without a search warrant and discovered the marijuana patch; and, on August 2, 1982, they flew over the area and observed that the patch was still growing. They obtained a search warrant from the Washington County Trial Commissioner and searched the premises on August 4. Samples of the marijuana were taken for examination, and the remainder of the crop was destroyed by the officers in the sheriff's department.
McRay presents five grounds for reversal. He first argues that the trial court erred by overruling his motion for a directed verdict. He contends that the evidence was insufficient to uphold a conviction. There were no eyewitnesses to prove that McRay was ever observed in the vicinity of the marijuana patch, nor was he ever seen cultivating that area. McRay argues that the Commonwealth failed to prove that he had any knowledge of the marijuana patch. KRS 218A.990(6)(c) reads:
No owner, occupant, or person having control or management of land on which marijuana has been planted, cultivated or harvested shall be found guilty of violating the provisions of this subsection, unless the Commonwealth proves that he knew of the planting, cultivating or harvesting of the marijuana.
We have carefully reviewed the transcript of the evidence, and we cannot say that it was clearly unreasonable for the jury to find McRay guilty. Trowel v. Commonwealth, Ky., 550 S.W.2d 530 (1977). Guilt and knowledge can be established by circumstantial evidence. We conclude that there was sufficient evidence to allow the case to be submitted to the jury. Although we might have reached a different result, we cannot find clear error in the jury's finding of guilt.
McRay next argues that the trial court erred by overruling his RCr 7.26 motion to examine and review the official report of Detective Ben Hadley. RCr 7.26 reads as follows:
(1) Before a witness called by the Commonwealth testifies on direct examination the attorney for the Commonwealth shall produce any statement of the witness in the form of a document or recording in its possession which relates to the subject matter of the witness's testimony and which (a) has been signed or initialed by him or (b) is or purports to be a substantially verbatim statement made by him. Such statements shall be made available for examination and used by the defendant.
(2) If the Commonwealth claims that a statement to be produced under this Rule 7.26 does not relate to the subject-matter of the witness's testimony, the court shall examine the statement privately and, before making it available for examination and use by the defendant, excise the portions that do not so relate. The entire text of the statement shall be sealed and preserved in the records of the court to be made available to the appellate court in the event of an appeal by the defendant.
Although we fail to understand why the trial court denied McRay's motion to review the report, we nevertheless find no reversible error. The report is in the Record on Appeal. We have reviewed the report and find nothing in it which the defendant did not already have or know. The report contains a Uniform Offense Report document which indicates the type of investigation made, the location of the area investigated, the date of the report, and the amount of time spent in the investigation. The report lists the names of five witnesses, which are the same names provided to the defendant during the discovery proceedings. The same witnesses were subpoenaed for trial, although only three of them testified. The report indicates that four samples of the marijuana were marked and shipped to the Kentucky Crime Laboratory for analysis, that photographs were taken, and that the sheriff's office destroyed the remainder of the marijuana found in the field. The report also indicates that on August 2, Officers Hadley and Antle flew over the suspected area, and that on August 4, they obtained a search warrant, whereupon they entered the property and located the field. The report briefly describes the fields on the farm, the fence locations, and states that cows were found in the pasture. Finally, the report indicates that the marijuana field had been plowed, cultivated, and fertilized. The report contains copies of two other documents, a Recovered Property Report describing 4 marijuana samples taken from the field and a Request for Examination which was sent to the crime laboratory with the samples.
In Roach v. Commonwealth, Ky., 507 S.W.2d 154 (1974), the case was remanded for further proceedings where the trial court had failed to provide information requested pursuant to RCr 7.26. If the court found prejudice, a new trial was to be granted. If no prejudice was determined, the judgment of conviction was to be reinstated, subject to Roach's right for a new appellate review. It is apparent that failure to comply with RCr 7.26 does not require automatic and absolute reversal. Some prejudice must be found; otherwise, the error, if any, is harmless. RCr 9.24. Judge Spragens made no finding concerning the relevance of the report prior to sealing it, but our review of the document causes us to conclude that no prejudice resulted from the court's failure to provide the report to McRay.
McRay next asserts that the trial court erred by giving improper instructions and by refusing his request to instruct the...
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