Rawls v. Commonwealth

• Decision Date: 19 June 2014
• Docket Number: No. 2013–SC–000129–MR.,2013–SC–000129–MR.
• Parties: Clifford D. RAWLS, Appellant v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

434 S.W.3d 48

Clifford D. RAWLS, Appellant

v.COMMONWEALTH of Kentucky, Appellee.

No. 2013–SC–000129–MR.

Supreme Court of Kentucky.

June 19, 2014.

Daniel T. Goyette, Cicely Jaracz Lambert, Office of the Louisville Metro Public Defender, Louisville, KY, for appellant.

Jack Conway, Attorney General, William Bryan Jones, Assistant Attorney General, Office of the Attorney General, Frankfort, KY, for appellee.

Opinion of the Court by Justice NOBLE.

Appellant, Clifford D. Rawls, was convicted of manufacturing methamphetamine while in possession of a handgun, possession of marijuana, and possession of a handgun by a convicted felon. He was also found to be a first-degree persistent felony offender. Rawls was sentenced to thirty-four years' imprisonment, and now appeals his conviction as a matter of right pursuant to Section 110(2)(b) of the Kentucky Constitution. For the reasons stated herein, the Court affirms his convictions and sentence.

I. Background

On March 23, 2011, Louisville Metro Police Detective Kevin McKinney received information that Rawls was manufacturing methamphetamine at a home located at 6307 Greenwood Road. Before visiting the address, McKinney conducted surveillance of the house. He saw a man visit and then quickly leave the home. As the man drove away, McKinney conducted a traffic stop of the man's car. The man told McKinney that he had sold pseudoephedrine to someone at the residence, and a search of the National Precursor Log Exchange (NPLEx) confirmed the man had purchased pseudoephedrine numerous times in previous days. Based on this information, McKinney and another officer proceeded to visit the home.

At the residence, the officers were met by Rawls and Tammy Linnig, Rawls's one-time girlfriend. At trial, McKinney testified that he told both Rawls and Linnig he was there to investigate claims of a methamphetamine lab, and that despite that information, both parties were very cooperative. Rawls allowed officers into the home and voluntarily surrendered a pocket knife and, later, a small bag of marijuana and rolling papers. Similarly Linnig allowed officers to search her purse and two hydrocodone pills were found.

Rawls was congenial and allowed the officers to look around the main floor of the home, except for his brother's locked bedroom. At that point, he asked McKinney to get a warrant if he wished to continue the search. Complying with Rawls's request, McKinney filled out an affidavit in support of a search warrant at the kitchen table of the residence and then left to obtain a search warrant.

In McKinney's absence, additional officers arrived to help secure the scene. Initially, the mood at the home remained calm. But that changed as an officer arrived at the home to deliver food to a colleague. As one of the attending officers answered the front door, he overheard Rawls tell Linnig he loved her followed by the sound of quick, running footsteps. Officers at the scene were unable to determine whether Rawls had left the residence or had hidden himself inside the home, and a search was undertaken. Rawls was eventually found barricaded in the basement of the residence with a weapon.

In the midst of this chaos, Detective McKinney arrived back at the scene with the search warrant. Realizing that the scene had devolved into a standoff, McKinney took steps to make phone contact with Rawls. At trial, McKinney testified that when he eventually spoke to Rawls via cell phone, his behavior had been erratic and his speech was slurred and incoherent. McKinney testified that Rawls told him that he should pick him up and take him to California to look for gold, that there was a methamphetamine lab in his basement and McKinney was going to have to clean up, and that McKinney should move behind a truck because Rawls had him in his sights, among other statements.

In the course of the night, Rawls also spoke to Detective Gary Bayline, a hostage negotiator. Bayline and Rawls spoke for approximately five hours on a recorded line. During this conversation, Rawls's mood remained erratic and his speech becameincreasingly slurred. He admitted drinking and taking prescription pills, and made various threatening statements to Bayline and others Rawls could see from a window. Among other things, Rawls told Bayline that he was going to make a stand, and stated that he was a good marksman and would not miss. He also made statements that Bayline interpreted as relating to drug activity—specifically, he stated that “My shit was the best” and that he only had a gram or half a gram.

As McKinney and Bayline talked to Rawls, SWAT team members positioned themselves around the home. Two members of the team were positioned behind a tree in the backyard of the residence. As Bayline was on the phone with Rawls, he heard what sounded like the racking of a shotgun, and heard Rawls shoot a few rounds. The officers in the backyard confirmed that shots were fired from a basement window and at least two shots hit the tree they were positioned behind, but no one was injured.

In the course of the stand-off, SWAT utilized several tactics to force Rawls out of the home. First, the team cut off the electricity and lit the house with bright spotlights. As another strategy, the team deployed between twenty to forty canisters of tear gas into the house. Remarkably, this was not effective as evidenced by the fact that he did not leave the basement and that the sound of Rawls snoring could be heard on the recorded line.

A robot was also sent into the home to make contact with Rawls after he fell asleep. As a last resort, the team filled the basement with water in an attempt to flood Rawls out. This tactic was successful, and officers were able to apprehend Rawls on the main level of the home.

After Rawls was apprehended, a search of the home was conducted. At trial, there was testimony that a strong chemical smell, separate from the SWAT's gas munitions, was apparent in the home. Detective McKinney testified that amid the water in the basement he found reactionary vessels, smoker bottles, drain cleaner, Coleman fuel, salt, “liquid fire,” lye, and receipts for lithium batteries. An Aquafina bottle, ammonium nitrate packages, and Pyrex measuring cups—one containing a blue powder and one containing a white powder—were also recovered from the basement. A microwave and electronic scale were also found, as were a number of firearms and ammunitions. Paint thinner was recovered from an upstairs room.

At trial, Rawls was convicted of manufacturing methamphetamine while in possession of a firearm, of being a convicted felon in possession of a hand gun, and possession of marijuana. He was found not guilty of two counts of attempted murder and trafficking in methamphetamine. During the penalty phase, Rawls was found to be a first-degree persistent felony offender. The jury recommended and the trial court sentenced Rawls to thirty-four years' imprisonment. This appeal followed.

II. Analysis

On appeal, Rawls raises two allegations of error. First, he asserts the trial court erred by failing to instruct the jury on unlawful possession of a methamphetamine precursor as a lesser-included offense of manufacturing methamphetamine. And, second, he claims the trial court erred when it denied his motion for a suppression hearing and failed to suppress items seized pursuant to the search warrant. As part of his second argument, Rawls alleges that the affidavit supporting the warrant was facially deficient because it failed to establish probable cause, and that the search warrant failed to name the items to be seized with particularity. Each of Rawls's arguments will be addressed herein.

A. Lesser–Included Offense Instruction

Rawls argues he was entitled to an instruction on unlawful possession of a methamphetamine precursor (possession of a precursor) as a lesser-included offense of manufacturing methamphetamine (manufacturing) because there was sufficient evidence that the jury could have found that he possessed pseudoephedrine with the intent to manufacture, which would constitute possession of a precursor, but was not guilty of manufacturing. Rawls preserved this issue for appeal by tendering instructions to the trial court.

Rawls's claim is primarily based on the testimony of his ex-girlfriend, Tammy Linnig. In relevant part, Linnig testified that she witnessed Rawls obtain pseudoephedrine from another individual on the day of his arrest and on other previous occasions, but claimed to have never witnessed him make methamphetamine. Rawls claims this testimony, in addition to Detective McKinney's trial identification of the powders in the recovered Pyrex dishes as pseudoephedrine and the fact that no methamphetamine was recovered from the home, entitles him to an instruction on unlawful possession of a precursor. This Court disagrees.

This Court has previously held that “[i]n a criminal case, it is the duty of the trial judge to prepare and give instructions on the whole law of the case, and this rule requires instructions applicable to every state of the case deducible or supported to any extent by the testimony.” Swan v. Commonwealth, 384 S.W.3d 77, 99 (Ky.2012) (citing Taylor v. Commonwealth, 995 S.W.2d 355, 360 (Ky.1999)); see alsoRCr 9.54(1). This mandate has been held to apply to lesser included offenses. Swan, 384 S.W.3d at 99.

But this Court has held “although a trial judge has a duty to prepare and give instructions on the whole law of the case, including any lesser included offenses which are supported by the evidence, that duty does not require an instruction on a theory with no evidentiary foundation.” Houston v. Commonwealth, 975 S.W.2d 925, 929 (Ky.1998) (citations omitted). Rather, “an instruction on a lesser included offense is required only if, considering the totality of the evidence, the jury might have a reasonable doubt as to the defendant's guilt of the greater offense, and yet believe beyond a reasonable doubt that he is...