Varble v. Com.

• Decision Date: 22 January 2004
• Docket Number: No. 2001-SC-0230-MR.,2001-SC-0230-MR.
• Parties: Morris VARBLE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

125 S.W.3d 246

Morris VARBLE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 2001-SC-0230-MR.

Supreme Court of Kentucky.

January 22, 2004.

Emily Holt, Department of Public Advocacy, Frankfort, Counsel for Appellant.

Gregory D. Stumbo, Attorney General, Todd D. Ferguson, Assistant Attorney General, Frankfort, Counsel for Appellee.

Opinion of the Court by Justice COOPER.

Appellant, Morris W. Varble, was convicted in the Henderson Circuit Court of one count each of manufacturing methamphetamine, KRS 218A.1432(1)(b), and possession of a controlled substance in the first degree (methamphetamine), KRS 218A.1415. He was sentenced to consecutive prison terms of fifteen years and five years respectively. He appeals to this Court as a matter of right, Ky. Count. § 110(2)(b), contending that (1) Count I of the indictment charging manufacturing methamphetamine was fatally defective; (2) the Commonwealth was improperly permitted to amend Count I of the indictment on the morning of trial; (3) he was not permitted to voir dire prospective jurors as to whether they could consider the full range of penalties for each charged offense; (4) he was denied his right to present the defense that someone else committed the offense; (5) there was insufficient evidence to convict him of manufacturing methamphetamine; (6) the jury was improperly instructed on the charge of manufacturing methamphetamine; and (7) KRS 218A.1432(1)(b) is unconstitutional. We agree that Appellant's voir dire was improperly limited and that the jury was improperly instructed on the charge of manufacturing methamphetamine, but disagree with Appellant's other contentions. Therefore, we reverse the conviction of manufacturing methamphetamine and the fifteen-year sentence imposed therefor and remand Count I of the indictment for a new trial. We affirm the conviction of possession of a controlled substance in the first degree but vacate the five-year sentence imposed therefor and remand for a new sentencing phase trial.

On November 21, 1999, Appellant voluntarily permitted Detective Brian Babbs of the Kentucky State Police and Detective Jamie Duvall of the Henderson Police Department to enter his residence in Corydon, Kentucky. While in Appellant's kitchen, Duvall noticed a number of empty Sudafed blister packs in plain view in an open trash can. Sudafed is an over-the-counter antihistamine sold in tablet form. Its primary ingredient, pseudoephedrine, is a methamphetamine precursor. KRS 218A.1437(1). Appellant executed a written consent to a search of his residence, yard, and garage. During the search, the detectives discovered the following items identified at trial as chemicals, equipment, or evidence thereof, used in the manufacture, ingestion, or sale of methamphetamine:

Twenty-two empty Sudafed blister packs capable of containing over 500 tablets;

Two bottles of "mini-pseudos" (not further identified);

Three full bottles and one empty bottle of drain cleaner;

Five full cans and two empty cans of starting fluid;

Salt and two empty salt containers;

Six funnels;

Spoons;

One aquarium pump;

One can opener;

Mason jars and other glassware;

Lithium batteries and remains of batteries that had been broken open, including lithium strips;

Plastic baggies and baggie corners;

Two sets of weighing scales;

Two air tanks with hoses and a propane tank;

Four electric fans;

Tupperware or Pyrex dishes;

Aluminum foil;

One filter (not further identified);

One dust filter mask;

One air purifier respirator;

Plastic tubing with brass fittings;

Latex gloves;

One bag of chlorine;

Chlorine test kits;

One Spam can containing brown residue later determined to be methamphetamine;

One razor blade and straw; and

Brass fittings, some of which were discolored.

The search did not yield any coffee filters, which, as indicated at trial, are commonly used in the manufacturing process to separate soluble pseudoephedrine from the insoluble binding agents in Sudafed tablets. Nor did the officers find a discernible quantity of anhydrous ammonia (a methamphetamine precursor). However, Babbs testified that the odor of anhydrous ammonia was emanating from both air tanks. He also testified that exposure to anhydrous ammonia most likely caused the discoloration on the brass fittings.

The officers placed Appellant under arrest and searched him. The search produced a piece of aluminum foil containing a residue later determined to be methamphetamine, a newspaper clipping noting defense witness Ross Ferguson's unrelated arrest for manufacturing methamphetamine, and a sales receipt for the purchase of the plastic tubing found during the search of Appellant's property. Appellant's defense to the manufacturing charge was that the actual perpetrator was Damon McCormick. Appellant claimed in an audiotaped statement to Babbs after his arrest that McCormick owned all of the chemicals and equipment found on his property except the "mini-pseudos" and had forced Appellant to permit him to manufacture methamphetamine on his property by threatening his life and that of his domestic companion, Hope Stevens.

I. INDICTMENT.

Count I of the original indictment charged as follows:

That on or about November 12, 1999, in Henderson County, Kentucky, the Defendant, Morris W. Varble, committed the offense of Manufacturing Methamphetamine [sic] possessing the chemicals or equipment for the manufacturing of methamphetamine.

The indictment also correctly cited KRS 218A.1432 as the statute proscribing the charged offense.

Appellant claims the indictment was defective because it did not recite the statutory culpable mental states of "knowingly" and "with the intent to manufacture methamphetamine." We disagree. At least since the adoption of the present criminal rules, our courts have consistently held that an indictment is sufficient if it fairly informs the accused of the nature of the charged offense and is not misleading. Thomas v. Commonwealth, Ky., 931 S.W.2d 446, 449 (1996); Wylie v. Commonwealth, Ky., 556 S.W.2d 1, 2 (1977) (per curiam). Even under the old Criminal Code, an indictment for murder was not defective because it omitted "intentionally," the culpable mental state. Delk v. Commonwealth, 308 Ky. 579, 215 S.W.2d 109, 110 (1948) ("That would follow as a matter of course, for without intent it would not be murder."). See also Abney v. Commonwealth, Ky.App., 588 S.W.2d 714, 715-16 (1979) (indictment for burglary held not defective because it failed to recite "with intent to commit a crime").

II. AMENDED INDICTMENT.

On the morning of the first day of trial, the Commonwealth was permitted to amend Count I of the indictment to read:

That on or about November 12, 1999, in Henderson County, Kentucky, the Defendant, Morris W. Varble, committed the offense of Manufacturing Methamphetamine by possessing chemicals or equipment for the manufacturing of methamphetamine; or by conspiring with, aiding or attempting to aid Damon McCormick manufacture methamphetamine or possess the chemicals and/or equipment to manufacture methamphetamine.

(Amendatory language emphasized.)

RCr 6.16 provides:

The court may permit an indictment ... to be amended any time before verdict if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced. If justice requires, however, the court shall grant the defendant a continuance when such an amendment is permitted.

This case does not require an inquiry into whether charging Appellant as an accomplice was an "additional offense" to charging him as the principal offender. But see Wolbrecht v. Commonwealth, Ky., 955 S.W.2d 533, 537 (1997) (reversible error to permit Commonwealth to amend indictment on fifth day of trial to charge defendant with acting in complicity with an unknown person). Here, the amendment of Count I did not prejudice Appellant's substantial rights because he was not convicted as an accomplice under the theory of the amended indictment but as the principal offender as charged in the original indictment. Furthermore, when the indictment was amended, defense counsel did not request a continuance and admitted that he had anticipated that the motion would be granted and had prepared his defense accordingly. Remember, it was Appellant who first claimed that the chemicals and equipment found on Appellant's property belonged to McCormick.

III. VOIR DIRE.

Appellant filed a motion in limine, KRE 103(d), to be allowed to voir dire prospective jurors as to whether they could consider the full range of penalties for each charged offense, i.e., ten to twenty years for manufacturing methamphetamine, KRS 218A.1432(2); KRS 532.060(2)(b), and one to five years for possession of a controlled substance in the first degree. KRS 218A.1415(2)(a); KRS 532.060(2)(d). The trial court overruled the motion and limited defense counsel to inquiring whether each juror "could consider the full range of penalties" without specifying the range.

In Shields v. Commonwealth, Ky., 812 S.W.2d 152 (1991), overruled on other grounds by Lawson v. Commonwealth, Ky., 53 S.W.3d 534, 544 (2001), we held that "[i]n order to be qualified to sit as a juror in a criminal case, a member of the venire must be able to consider any permissible punishment." Id. at 153. In Lawson, supra, we held that "[i]n all non-capital criminal cases where a party or the trial court wishes to voir dire the jury panel regarding its ability to consider the full range of penalties for each indicted offense, the questioner should define the penalty range in terms of the possible minimum and maximum sentences for each class of offense ...." Id. at 544.

Denying Appellant the right to inquire whether each juror could consider the full range of penalties for each charged offense erroneously denied him the right to determine whether each prospective juror was qualified to serve on the jury in his case. We cannot conclude that the error was harmless, as the jurors...