Thompkins v. Com.

• Decision Date: 14 June 2001
• Docket Number: No. 1998-SC-0961-TG.,1998-SC-0961-TG.
• Citation: 54 S.W.3d 147
• Parties: Charles Williams THOMPKINS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

54 S.W.3d 147

Charles Williams THOMPKINS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 1998-SC-0961-TG.

Supreme Court of Kentucky.

June 14, 2001.

Case Ordered Published by Supreme Court August 23, 2001.

Daniel T. Goyette, J. David Niehaus, Louisville, Counsel for Appellant.

A.B. Chandler, III, Attorney General, State Capitol, Matthew D. Nelson, Assistant

Attorney General, Office of Attorney General, Criminal Appellate Division, Frankfort, Counsel for Appellee.

COOPER, Justice.

Appellant Charles Williams Thompkins was convicted by a Jefferson Circuit Court jury of trafficking in a controlled substance in the first degree. He then pled guilty to being a persistent felony offender in the second degree in exchange for a sentence of twelve years in prison. On appeal of his trafficking conviction, he asserts four claims of error: (1) failure to instruct the jury on criminal facilitation of trafficking in a controlled substance in the first degree; (2) deletion of addresses from juror qualification forms; (3) limitation of cross-examination during a suppression hearing; and (4) admission of the testimony of a co-conspirator, Michael Franklin, who had received a plea agreement in exchange for his testimony. Finding no error, we affirm.

On September 8, 1994, Sergeant David Hogue of the Jeffersontown Police Narcotics Unit received a "tip" from a confidential informant that a black male suspect known as "Mario" was attempting to sell two kilograms of cocaine. The informant gave Hogue Mario's telephone number and advised him that Mario lived "somewhere off Dixie Highway between the Watterson Expressway and Louisville." Hogue determined that the telephone number was assigned to Willie J. Morrow, 2711 Allston Avenue, Louisville, Kentucky. Proceeding to that address, Hogue discovered a red Ford Mustang automobile with a Kentucky license plate, parked in front of the residence. The vehicle was registered to James L. Morrow. A criminal records check revealed that James L. Morrow had a history of prior arrests for trafficking in controlled substances. Hogue obtained photograph of Morrow and showed it to the informant who identified Morrow as being "Mario."

Hogue and Detective Greg Treadway began a surveillance of Morrow. The record is unclear whether this occurred at the 2711 Allston Avenue residence of "Willie J. Morrow," or at another residence in the 1700 block of Dixdale, or both. According to Michael Franklin, he, Morrow and Appellant spent the night of September 8-9 at the Allston Avenue residence, then left the next morning and proceeded to the Dixdale residence. Regardless, Hogue testified that three vehicles were parked in front of the surveilled residence, Morrow's red Mustang, a Jeep Wagoneer with Ohio license plates, later determined to belong to Appellant, and a Chevrolet Blazer, later determined to belong to Jimi Che Carr. Morrow left the surveilled residence on several occasions to use a pay telephone at. a nearby Dairy Mart. On one such occasion, Hogue approached the pay phone and overheard Morrow say, "Are you going to get the sh__ or not? These guys are ready to leave." Morrow then returned to the residence.

Approximately forty minutes later, Morrow and five other black males exited the house carrying luggage and bags. Appellant, Michael Franklin, and Nathaniel Dancy all entered the Jeep Wagoneer, Appellant in the driver's seat, Dancy in the front passenger seat, and Franklin in the back seat. Morrow entered his red Ford Mustang. Carr and Anthony Anderson entered the Chevrolet Blazer. All three vehicles then proceeded "convoy-style" to the intersection of Dixie Highway and Algonquin Parkway where they were stopped by Hogue, Treadway, and other officers of the Metro Narcotics Unit. As Treadway approached the passenger side of Appellant's vehicle, he noticed two kilograms of cocaine in an open brown grocery bag in plain view on the floorboard.

Michael Franklin and Nathaniel Dancy were residents of Los Angeles, California. Pursuant to a plea agreement, Franklin became a witness for the Commonwealth. He testified that Dancy and a man named Charles Thompson had arranged to deliver two kilograms of cocaine to Morrow who planned to sell it to an unidentified third party. Franklin's job was to transport the cocaine from Los Angeles by commercial airline and deliver it to Dancy, who was already in Louisville, then to return to California with Thompson's share of the money from the sale. On September 8, 1994, Franklin arrived in Louisville with a suitcase containing two kilograms of cocaine and checked into a local Holiday Inn. Dancy and Appellant subsequently arrived at the hotel in Appellant's Jeep Wagoneer. Franklin put the suitcase containing the cocaine in the Jeep and the three then proceeded to Morrow's residence. Once inside, Dancy opened the suitcase, whereupon Dancy, Morrow and Appellant all examined the cocaine. On the following morning, Franklin, Dancy, Morrow and Appellant proceeded to a McDonald's restaurant for breakfast, then to the house on Dixdale where they were joined by Carr and Anderson. According to Franklin, there seemed to be a problem with the purchase money and Morrow left the house several times to make telephone inquiries about the problem.

Finally, the six men departed the Dixdale residence in three different vehicles. Appellant, Franklin and Dancy left in Appellant's Jeep. Franklin testified that he did not realize the cocaine was no longer in the suitcase until he saw it on the floorboard of Appellant's vehicle shortly before they were stopped by the police.

I. FAILURE TO INSTRUCT ON CRIMINAL FACILITATION.

The trial judge instructed the jury that Appellant could be found guilty as either principal or accomplice to trafficking in a controlled substance in the first degree. Appellant claims it was error for the trial judge not to instruct the jury on criminal facilitation of trafficking as a lesser included offense of complicity.

KRS 502.020(1) (complicity) provides in pertinent part:

A person is guilty of an offense committed by another person when, with the intention of promoting or facilitating the commission of the offense, he:

(a) Solicits, commands, or engages in a conspiracy with such other person to commit the offense; or

(b) Aids, counsels, or attempts to aid such person in planning or committing the offense. (Emphasis added.)

KRS 506.080(1) (facilitation) provides:

A person is guilty of criminal facilitation when, acting with knowledge that another person is committing or intends to commit a crime, he engages in conduct which knowingly provides such person with means or opportunity for the commission of the crime and which in fact aids such person to commit the crime. (Emphasis added.)

Under either statute, the defendant acts with knowledge that the principal actor is committing or intends to commit a crime. Under the complicity statute, the defendant must intend that the crime be committed; under the facilitation statute, the defendant acts without such intent. Facilitation only requires provision of the means or opportunity to commit a crime, while complicity requires solicitation, conspiracy, or some form of assistance. Skinner v. Commonwealth, Ky., 864 S.W.2d 290, 298 (1993). "Facilitation reflects the mental state of one who is `wholly indifferent' to the actual completion of the crime." Perdue v. Commonwealth Ky., 916 S.W.2d 148, 160 (1995), cert. denied, 519 U.S. 855, 117 S.Ct. 151, 136 L.Ed.2d 96 (1996).

"An instruction on a lesser-included offense is appropriate if and only if on the given evidence a reasonable juror could entertain reasonable doubt of the defendant's guilt of the greater charge, but believe beyond a reasonable doubt that, the defendant is guilty of the lesser offense." Skinner v. Commonwealth, supra, at 298. In Webb v. Commonwealth, Ky., 904 S.W.2d 226 (1995), we held it was error not to instruct on facilitation where the defendant testified that he gave his girlfriend a ride in his car knowing that she was in the process of a drug transaction, but that he did not intend that she commit the crime. Id. at 229. Appellant claims the same reasoning applies in this case. Here, however, Appellant did not testify; and the only evidence the jury heard was that Appellant and Dancy met Franklin at the Holiday Inn; that Dancy loaded the suitcase containing the cocaine into Appellant's vehicle; that Appellant drove Dancy and Franklin to Morrow's residence where Dancy, Morrow and Appellant all inspected the cocaine; that the cocaine was apparently removed from the suitcase and placed in a grocery bag on the floorboard of Appellant's vehicle; and that Appellant, the two Californians, and the cocaine were all in Appellant's vehicle when it was stopped.

Appellant's tendered facilitation instruction embodied a theory that Appellant knew Franklin and Dancy were engaged in a drug transaction, but that he was transporting these two strangers from California to the location of their intended drug deal out of the goodness of his heart, wholly indifferent to the actual completion of the crime, i.e., without the intent t the crime be committed. Nothing in the evidence supports such a theory. If Appellant was not involved in the drug transaction or did not intend for Franklin and Dancy to consummate it, why were they and the cocaine in his vehicle instead of in Morrow's vehicle? The duty to instruct on any lesser included offenses supported by the evidence does not require an instruction on a theory with no evidentiary foundation. Houston v. Commonwealth. Ky., 975 S.W.2d 925, 929 (1998). The jury is required to decide a criminal case on the evidence as presented or reasonably deducible therefrom, not on imaginary scenarios. Appellant was not entitled to a facilitation instruction in this case.

II. DELETION OF JURORS' ADDRESSES.

Appellant asserts it was error for the trial judge to protect the jurors from potential retaliation by deleting...