Miller v. Com.
| Decision Date | 14 June 1974 |
| Citation | 512 S.W.2d 941 |
| Parties | Steve MILLER, Appellant, v. COMMONWEALTH of Kentucky, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
Anthony M. Wilhoit, Public Defender, Anna H. Isaacs, Asst. Public Defender, Frankfort, for appellant.
Ed W. Hancock, Atty. Gen., Robert L. Chenoweth, Asst. Atty. Gen., Frankfort, for appellee.
Steve Miller was convicted in the Shelby Circuit Court on one count of 'Transfer of a controlled substance known as methylene-dioxy-amphetamine, (MDA), to another.' KRS 218A.140. His punishment was fixed at confinement for a period of twelve months in the Shelby County Jail, and a fine of five hundred dollars. Miller appeals, alleging as the sole basis for reversal that the trial court erred in submitting the case to the jury upon a substance identification by a nonexpert observer.
Sharon Cutshaw, a witness called up on behalf of the Commonwealth, testified that on or about August 11, 1973, while in the home of the appellant, Miller, she witnessed the appellant, at approximately 6:00 in the afternoon, take from a foil container a certain 'white powder,' which the witness identified as MDA. The appellant then mixed the powder with water, heated the solution and injected the solution, by means of a hypodermic needle, into the arm of Donna Burgin. Cutshaw further testified that she was familar with the substance MDA and that she had taken MDA before this occasion by 'pouring it into a soft drink' and taking it orally. Cutshaw testified that she had never injected MDA into her system by hypodermic means, but that she was familiar with the reaction MDA caused once it did enter the system. This was the same reaction which followed each of the four injections which appellant administered to Burgin. Cutshaw testified that she left the appellant's house 'about 9:00 or 10:00,' after she had taken a drug commonly known as LSD. It is evident from the record that Cutshaw has been familiar with and used drugs of different types for nearly four years.
The witness did not taste or feel the substance in question, but viewed the 'white powder' from a distance of approximately two feet in the bedroom of appellant's dwelling.
Appellant cites two recent Kentucky cases dealing with testimony of a nonexpert witness concerning a substance identification. Edwards v. Commonwealth, Ky., 489 S.W.2d 23 (1973); White v. Commonwealth, Ky., 499 S.W.2d 285 (1973). In both cases testimony by an addict was allowed concerning the identification of a controlled substance. In both cases however, the witness had either purchased the substance or had used the substance personally. Appellant contends that Cutshaw does not qualify as a competent witness under either of the above-cited cases since she was not proven an addict nor did she...
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