Weatherly v. Commonwealth

• Court: Supreme Court of Kentucky
• Decision Date: 27 September 2018
• Docket Number: 2017-SC-000522-MR
• Citation: Weatherly v. Commonwealth, 2017-SC-000522-MR (Ky. Sep 27, 2018)
• Parties: RAYMOND KYLE WEATHERLY APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE

RAYMOND KYLE WEATHERLY APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE

2017-SC-000522-MR

Supreme Court of Kentucky

SEPTEMBER 27, 2018

IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION.

NOT TO BE PUBLISHED

ON APPEAL FROM FULTON CIRCUIT COURT

HONORABLE TIMOTHY A. LANGFORD, JUDGE

NO. 17-CR-00037

MEMORANDUM OPINION OF THE COURT

AFFIRMING IN PART AND VACATING IN PART

Raymond Kyle Weatherly (Weatherly) was sentenced to 20 years in prison for various drug related offenses. He appeals as a matter of right pursuant to Section 110(2)(b) of the Kentucky Constitution. After a careful review, we affirm Weatherly's convictions but vacate a portion of his sentence.

I. BACKGROUND.

On February 21, 2017, Weatherly and Eva Brady (Brady) stopped at a gas station in Fulton County. Weatherly had previously consumed alcohol and marijuana and Brady had consumed methamphetamine. Brady entered the store while Weatherly remained in his truck. A Kentucky State Police Trooper, Paul Hale (Hale), stopped at the gas station to air up one of the tires on his cruiser. Trooper Hale indicated that, while airing up his tire, he could smell marijuana and the odor intensified when Weatherly got out of his truck and went inside the store.

Weatherly entered the store with a pill bottle and asked Brady to put the pill bottle in her vagina. Weatherly believed the police would not search Brady and Weatherly indicated that he did not have any other drugs in the truck. Upon exiting the store, Trooper Hale stopped Brady and administered a sobriety test. Brady admitted to being high on methamphetamine after being charged with driving under the influence.

When Trooper Hale was arresting Brady, she was unable to sit down in the cruiser because of the pill bottle in her vagina. Brady removed the bottle, which contained a blunt¹, cocaine, methamphetamine, and 29 oxycodone pills. Brady told Trooper Hale that the bottle belonged to Weatherly. Later, Brady eventually reached an agreement with the Commonwealth to receive unsupervised pretrial diversion in exchange for her testimony against Weatherly.

Weatherly admitted to smoking marijuana and consented to Trooper Hale searching his truck. The search revealed a 9mm pistol in the floorboard console and a shotgun in the backseat. Trooper Hale indicated that he still smelled unsmoked marijuana and eventually discovered a package containing marijuana under the passenger side of the truck. Weatherly denied the package was his but then admitted to tossing it under the truck.

Weatherly was indicted and ultimately convicted by a jury of first-degree possession of a controlled substance (for each separate drug: methamphetamine, cocaine, and opiates), enhanced by possession of a firearm; possession of marijuana, enhanced by possession of a firearm; two counts of tampering with physical evidence, one for the pill bottle and one for the package of marijuana underneath the truck; and trafficking in a controlled substance, firearm enhanced, for the opiates in the pill bottle. The jury recommended concurrent sentences except that the firearm enhanced trafficking charge was to run consecutively for a total of 25 years in prison.

Upon post-verdict, pre-sentencing motion, the trial court vacated the trafficking conviction due to an improper jury instruction. Instead of setting the remaining charges to run concurrently, the trial court imposed consecutive sentences (10 years each) for the possession of methamphetamine, gun enhanced and possession of cocaine, gun enhanced offenses. With the remaining sentences to run concurrently, Weatherly's total term of imprisonment was set at 20 years. He now appeals, arguing several points of error. We address each one in turn and add additional background as necessary.

II. ANALYSIS.

A. Weatherly was not entitled to a directed verdict on the tampering with physical evidence charge relating to the marijuana.

Weatherly's first claim of error is that he was entitled to a directed verdict for tampering with physical evidence, specifically for placing the package of marijuana underneath the passenger side of his truck. This issue is unpreserved so we analyze Weatherly's claim under the palpable error standard. Kentucky Rule of Criminal Procedure (RCr) 10.26. An error is palpable if it is "easily perceptible, plain, obvious and readily noticeable." Brewer v. Commonwealth, 206 S.W.3d 343, 349 (Ky. 2006). "A palpable error must be so grave in nature that if it were uncorrected, it would seriously affect the fairness of the proceeding." Id.

On appellate review, the Court must determine if, given the totality of the evidence, "it would be clearly unreasonable for a jury to find guilt." Commonwealth v. Benham, 816 S.W.2d 189, 187 (Ky. 1991). If so, the defendant is entitled to a directed verdict, but it must be remembered that the Commonwealth must only produce more than a "mere scintilla" of evidence to defeat the defendant's motion for a directed verdict. Commonwealth v. Sawhill, 660 S.W.2d 3, 5 (Ky. 1993).

On motion for directed verdict, the trial court must draw all fair and reasonable inferences from the evidence in favor of the Commonwealth. If the evidence is sufficient to induce a reasonable juror to believe beyond a reasonable doubt that the defendant is guilty, a directed verdict should not be given. For the purpose of ruling on the motion, the trial court must assume that the evidence for the Commonwealth is true, but reserving to the jury questions as to the credibility and weight to be given to such testimony.

Benham, 816 S.W.2d at 187. "A court reviewing for palpable error must do so in light of the entire record; the inquiry is heavily dependent upon the facts of each case." Quisenberry v. Commonwealth, 336 S.W.3d 19, 29 (Ky. 2011) (citing United States v. Young, 470 U.S. 1, 16, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985)).

Kentucky Revised Statute (KRS) 524.100 addresses the charge of tampering with physical evidence, and, in pertinent part, states as follows:

(1)A person is guilty of tampering with physical evidence when, believing that an official proceeding is pending or may be instituted, he:

(a) Destroys, mutilates, conceals, removes or alters physical evidence which he believes is about to be produced or used in the official proceeding with intent to impair its verity or availability in the official proceeding.

It appears that Weatherly makes two arguments for why he should have been granted a directed verdict: (1) case law does not support a conviction for tampering when the defendant merely separates himself from physical evidence of a crime and (2) policy dictates Weatherly's entitlement to a directed verdict because Weatherly faced a maximum one year prison sentence for possession of marijuana, but was sentenced to five years for tampering when he tossed the marijuana package under his truck. Weatherly directs this Court to case law in other jurisdictions that hold a defendant does not violate the respective "tampering" statutes when the defendant merely abandons, drops, or throws down physical evidence of a crime.² While we often look to our sister states for guidance on novel issues, we need look no further than our own precedent to resolve Weatherly's claim of error.

This Court has previously clarified the sufficiency of evidence required for a tampering conviction in Mullins v. Commonwealth, 350 S.W.3d 434 (Ky. 2011). In Mullins, the Commonwealth presented evidence that Mullins was the shooter, that Mullins got into a car holding a shiny object, that the bullets were possibly fired by a revolver, that Mullins was seen with a revolver days before the murder, and that no gun or shell casings were found at the scene. Mullins, 350 S.W.3d at 442. Mullins's counsel maintained that the fact that the gun was never found was not enough to support the tampering charge. Id. This Court held, "The evidence presented indicates that the gun was on Appellant's person from the time Faulkner was shot until he entered Porter's car and told him to drive away, and nothing more. Appellant's walking away from the scene with the gun is not enough to support a tampering charge without evidence of some additional act demonstrating an intent to conceal." Id. (C.f. Commonwealth v. Henderson, 85 S.W.3d 618 (Ky. 2002)).

Mullins went on to distinguish its holding from Commonwealth v. Henderson, 85 S.W.3d 618 (Ky. 2002). Henderson involved a defendant who had stolen a purse and, during a police chase, removed the money from the purse and placed it in the insole of his shoe. Mullins, 350 S.W.3d at 442-43 (citing Henderson, 85 S.W.3d at 619). Henderson held that where the evidence is ultimately located matters, and whether that location is a conventional rather than unconventional location. Mullins, 350 S.W.3d at 443 (citing Henderson, 85 S.W.3d at 620).

"The fact [Mullins] carried the gun away from the scene with him was merely tangential to the continuation of that crime." Mullins, 350 S.W.3d at 443. "The Commonwealth cannot bootstrap a tampering charge onto another charge." Id. There must be some evidence of an intentional act of concealment. Id. at 444.

[O]ne who conceals or removes evidence of criminal activity contemporaneously with the commission of his crime commits the offense of tampering with physical evidence.

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