Sussman v. Com.

• Decision Date: 16 December 1980
• Docket Number: No. 80-SC-5-MR,80-SC-5-MR
• Citation: 610 S.W.2d 608
• Parties: Harry Lloyd SUSSMAN, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 608

610 S.W.2d 608

Harry Lloyd SUSSMAN, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 80-SC-5-MR

Supreme Court of Kentucky.

Dec. 16, 1980.

Rehearing Denied Feb. 17, 1981.

Dale B. Mitchell, Mitchell & Gillum, Somerset, for appellant.

Steven Beshear, Atty. Gen., C. David Clauss, Asst. Atty. Gen., Frankfort, for appellee.

STERNBERG, Justice.

The Grand Jury of Pulaski County, Kentucky, returned an indictment on February 1, 1978, charging appellant with four counts of trafficking in controlled substances. On a jury trial the appellant was found guilty on all counts and his punishment fixed at ten years' imprisonment under Count I, trafficking in morphine; ten years under Count II, trafficking in cocaine; five years under Count III, trafficking in biphetamine 20's; and five years under Count IV, trafficking in quaaludes 300 mg., for a total of 30 years, the maximum punishment allowed by law for these offenses.

Trial testimony established, and the jury was entitled to believe, the following facts:

Tony Edger was a registered pharmacist employed at the Sav-Rite Pharmacy located in Somerset Plaza, Somerset, Kentucky. He was married and his wife was a regular customer at a pet shop called Fish Bowl II, owned and operated by the appellant and located on Highway 27 South, in Pulaski County.

During the first week in July, 1977, Edger was introduced by his wife to appellant and his friend Delbert Ray Hall. The group planned a picnic for the 4th of July to be held at the Pulaski County Park. The men and their wives attended. Edger got drunk. While the three men were together, the appellant, who knew that Edger had access to drugs as a pharmacist, asked him if he could get him anything in the drug line. Edger resisted, but then agreed to satisfy the appellant's request for biphetamine 20's or "blacks" when appellant gave him a $100 bill. Within 48 hours Edger took 100 such pills from Sav-Rite's stock and delivered them to appellant. Edger then began to order 100 or 200 pills from the manufacturer every four or five days for delivery to appellant. A total of between 1000 and 1200 "blacks" were transferred at $1.00 each on or before September 30, 1977.

Sometime during the third week of July, 1977, appellant persuaded Edger to sell him some quaaludes, a drug in pill form. These sales soon matched the sale of biphetamines in frequency and amounts. Appellant bought approximately 1800 pills of quaalude at a cost of between $1000 and $1500 on or before September 30, 1977. With the exception of the first $100 given Edger in advance, the appellant always paid him for the biphetamines and quaaludes one or two days after receiving them. At about the same time the appellant persuaded Edger to sell him the quaalude, he also persuaded Edger to sell him some cocaine. Edger transferred one ounce of cocaine to appellant for the sum of $1500. Its street value was $42,000. Near the end of July or the first of August, 1977, appellant induced Edger to sell him 20 cc's of morphine, an injectionable drug.

Edger attempted to camouflage his drug dealings at the pharmacy by forging prescriptions kept there which had been previously signed by a medical doctor but otherwise blank. These blank prescriptions existed as a convenience to the doctor, the drug store, and the patients who were receiving maintenance drugs. Edger also altered the quantities specified on some legitimate prescriptions so as to increase the store's inventory of Schedule II drugs he was stealing for sale to illicit purchasers. He knew that the store was required by law to maintain a record of all purchases of narcotics bought from drug representatives and sold to customers through prescriptions it filled. He also knew that the stock of Schedule II drugs was subject to investigative audit at all times by the enforcement arm of the Kentucky Board of Pharmacy.

It was just such an audit conducted by agent Michael Lewis which led to Edger's arrest and the appellant's indictment. Agent Lewis' suspicions were aroused when he discovered the forged and altered prescription forms, some of which were for drug dosages that if consumed would have been fatal to the "patient." Feeling pressure from Mr. Lewis' investigation, Edger asked appellant to return such of the cocaine and morphine in his possession so that these items could be returned to the drug store's inventory. After some delay, the plan was accomplished as to the cocaine held by appellant. As to the morphine, appellant told Edger that he had taken it and everything else to his girlfriend's apartment. His girlfriend was Mary Singer, and her apartment was located at 808 Somerset Village, Somerset, Kentucky.

On one occasion when Edger met appellant and sold and delivered biphetamine 20's to him, appellant invited Edger to accompany him, which Edger did. The two men traveled to Lake View Motel on Highway 27 South, where appellant went in with the drugs while Edger stayed in the car. After a short period of time appellant returned to the car and gave Edger the money owed to him.

Delbert Ray Hall, appellant's friend, observed appellant selling drugs on at least three or more occasions. The first sale that Hall witnessed was to a man named Roy while the men were at Hall's living quarters located in the Cumberland Motel. The sale was for biphetamine 20's for $150. Within the next few weeks Hall saw appellant at his home sell Roy some more narcotics. The third sale was of quaaludes and biphetamines. In August, 1977, the appellant approached Hall and showed him a bottle of liquid labeled cocaine "hydro something" that was hidden in appellant's automobile. Appellant had gotten the cocaine from Edger and was trying to find a buyer. Two possible buyers, Roy and a Louisville resident, were suggested, without a sale having been made however. Whereupon, the cocaine was returned to Edger.

Mary Singer, appellant's girlfriend, had given appellant a key to her apartment for use only when she was present inside the apartment. She had no knowledge of any drugs being in her apartment until the police, executing a search, found cocaine in her bedroom. Appellant, in the presence of Mr. Neikirk, the county attorney, Sheriff John Adams, a police officer, and Mr. Michael Lewis, stated that he knew what had been found and where it had been found and he also said that Singer knew nothing about the narcotics being stored in her apartment.

Shortly after Edger's arrest on October 3, 1977, he advised the county attorney and the police of his illegal activities and supplied details of the roles of other persons, including the appellant. Searches for illicit drugs were conducted at Fish Bowl II, appellant's home, and Ms. Singer's apartment. Appellant was taken by Sheriff Adams to Singer's apartment where the search by other officers was in progress. Appellant had been advised of his constitutional rights while sitting in the car in the parking lot of Singer's apartment, and upon reaching the apartment his rights were read to him. Appellant's concern was not with having his rights explained to him; his concern was that Ms. Singer was innocent and that the drugs found in her apartment were there without her knowledge. He begged the police to charge him and not her since she was innocent of any wrongdoing.

This is a direct appeal from the Pulaski Circuit Court and appellant urges five errors, any one of which is alleged to be sufficient to justify a reversal of the judgment of the trial court. First of all, the appellant charges:

I. The Court improperly denied standing to object to the search of the apartment of Mary Singer, thereby allowing the introduction of evidence obtained under an inadequate search warrant and affidavit.

Mary Singer and her three minor children lived in Apartment 808 at the Somerset Village Apartments, Somerset, Kentucky. She and appellant were courting and he would visit with her several times each week, but never to stay overnight. Singer furnished appellant a key to her apartment; however, he was never to use the key at any time when Singer was not at home. In other words, the appellant was authorized to use the key only when Singer was at home and on no other occasion. Appellant did not maintain any property in the apartment, except possibly a bottle of after-shave lotion or a coat.

On October 3, 1977, pursuant to a search warrant, the Singer apartment was searched and a vial of morphine was found in the bedroom. While the apartment was being searched, appellant was being held in the custody of Sheriff Adams in the parking lot of the apartment building. When appellant learned that the search was going on, he stated that the morphine was his not Singer's; that she knew nothing about the morphine being hid in the apartment; and that he could tell the people where it was and what it was. Further, while sitting in the car, appellant was advised of his constitutional rights, and when taken to the apartment he was again so advised. Appellant vehemently and courageously claimed ownership of the morphine, and again stated that Singer had nothing to do with it and, as a matter of fact, did not know that it was in her apartment.

Appellant objected to the use of the fruits of the search against him on his trial. The trial court found that appellant had no standing to attack the search and seizure. We concur.

KRS 218A.140(1) provides that, "No person shall traffic in any controlled substance except as authorized in this chapter." Possession is included in the definition of trafficking. KRS 218A.010(19) states, " 'Traffic' means to...