Webb v. Sharp, 2005-SC-000271-DG.

• Decision Date: 24 May 2007
• Docket Number: No. 2005-SC-000271-DG.,2005-SC-000271-DG.
• Citation: 223 S.W.3d 113
• Parties: Patti WEBB, et al, Appellants v. Brian SHARP, et al, Appellees.
• Court: United States State Supreme Court — District of Kentucky

223 S.W.3d 113

Patti WEBB, et al, Appellants v. Brian SHARP, et al, Appellees.

No. 2005-SC-000271-DG.

Supreme Court of Kentucky.

May 24, 2007.

Rebecca Baylous, Emily Dennis, Justice and Public Safety Cabinet, Office of Legal Services, Frankfort, Counsel for Appellants Patti Webb, Liggett Morris, Rick Williams, and Brian Lile.

Brian Thomas Ruff, Assistant Public Advocate, Department of Public Advocacy, Post-Conviction Branch, LaGrange, Counsel for Appellees Brian Sharp and Dontrae Thomas.

Opinion of the Court by Justice CUNNINGHAM.

I. INTRODUCTION

This case presents the issue of sufficient evidence in a prison disciplinary hearing before the Department of Corrections (hereinafter the Department). In particular, the parties have raised a question as to the evidentiary value of two field tests: the Duquenois-Levine Reagent test, used to detect the presence of components of marijuana; and the Marquis Reagent test, used to screen for numerous substances, including amphetamines, heroin, and opium alkaloids. The Appellees, on two separate occasions each, were involved in incidents at Green River Correctional Complex (GRCC) that led to disciplinary actions. In addition to other counts, each inmate was charged with two counts of possession of dangerous contraband. At the conclusion of evidentiary hearings, which included submission of the results of the field tests in question, both inmates were found guilty and were penalized with the loss of good time credit, placed in disciplinary segregation, and suffered the loss of privileges.

Sharp and Thomas challenged the findings by filing separate declaratory judgment actions in the Muhlenberg Circuit Court. In Sharp's case, the circuit court noted the inmate had not challenged the findings as they related to one count of tampering with physical evidence. The court then rejected Sharp's claims as they related to one count of physical action against an employee of the institution. On the two counts dealing with possession of dangerous contraband, the court found the Appellants had failed to establish the reliability of either of the field tests. Thus, the court concluded the Appellants had not met the "some evidence" standard required in disciplinary proceedings. The Appellants in Sharp's action filed a timely appeal challenging the court's conclusions as they related to the two counts of possession of dangerous contraband. Sharp filed a timely cross appeal challenging, among other things, the court's decision as to one count of physical action against an employee of the institution.

As with Sharp, the court granted Thomas a declaratory judgment on the two counts of possession of dangerous contraband. Likewise, the court denied Thomas's challenge to the one count of physical action against an employee of the institution. Again the court's reasoning rested on the fact that the Appellants had failed to present any evidence that the Duquenois-Levine Reagent test was reliable. The court concluded that even with the additional facts surrounding the incidents involving Thomas, the Appellants failed to demonstrate by "some evidence" that Thomas had possessed dangerous contraband. The Appellants in Thomas's action filed a timely appeal.

The Court of Appeals, hearing the cases together, returned a two-to-one decision affirming the trial court. The majority rejected the arguments raised by Sharp in his cross appeal, and that portion of the decision has not been appealed. The majority then agreed with the circuit court's conclusion that the "some evidence" standard was not met as to the possession of dangerous contraband counts. In particular, the majority emphasized that it was the officers' burden to present evidence as to the reliability of the field tests. Having failed to do so, the majority found the scientific evidence was not reliable.

In his opinion concurring in part and dissenting in part, Judge Knopf disagreed with the majority on the possession counts. Judge Knopf noted that other evidence had been presented to the hearing officer concerning the nature of the substance and the facts surrounding its discovery. Further, he noted that other jurisdictions have accepted the field tests, in particular under the reduced burden of the "some evidence" standard. Finally, Judge Knopf noted that the inmates had failed to raise the reliability of the field tests before the adjustment committee or the warden and thus were precluded from raising it for the first time in the declaratory judgment action.

This Court accepted discretionary review on the issue of sufficiency of evidence and the value of the field tests in prison disciplinary proceedings. Having concluded the "some evidence" standard was met in three of the four incidents, without consideration of the field tests, we affirm in part and reverse in part.

II. FACTUAL BACKGROUND

Sharp's first incident occurred on May 30, 2003. During a routine search of the cell Sharp shared with inmate Whitlow, Officer Watson conducted a strip search of Sharp. During the strip search Watson observed a white object protruding from Sharp's anus. When Watson radioed for a supervisor, Sharp attempted to reach the toilet. Having refused an order to stop, Officers Watson and Romans attempted to restrain him. While Sharp managed to drop the object in the toilet, the officers were able to prevent him from flushing the packet. Additional officers entered the cell, restrained Sharp, and recovered a clear bag from the toilet. The bag contained a green leafy substance. Lieutenant W. Thomas performed the Duquenois-Levine Reagent test on the substance with the result being positive for marijuana.

Lieutenant L. Morris, acting as hearing officer in this matter, considered among other things the evidence presented by Officer Romans in his report, the follow-up investigation conducted by a supervisor, and the results of the Duquenois-Levine Reagent test performed by Lieutenant W. Thomas. Sharp, in addition to waiving the right to call any witnesses, chose not to testify. Thus, Sharp neither denied ownership nor challenged the nature of the substance. The hearing officer found Sharp guilty of one count of possession of dangerous contraband, and one count of tampering with physical evidence. Sharp appealed the findings to Warden Webb. In his appeal he challenged the chain of custody of the marijuana and aspects of the color changes that occurred in the Duquenois-Levine Reagent test. Warden Webb denied his appeal.

Sharp's second incident occurred on June 8, 2003. During a routine cell search, Officer Hope discovered a white substance wrapped in toilet paper lying on the floor. Sergeant Rich, standing at the door with Sharp, took pictures of the substance and where it was found. Officer Hope secured the substance. Lieutenants J. Elliott and M. Morris brought over a Marquis Reagent test kit. When the substance was tested by Sergeant Rich, the result was positive for amphetamines.

In a follow-up investigation, Lieutenant B. Cooney interviewed the officers involved and confirmed the information in their reports. When Lieutenant Cooney interviewed Sharp, he stated that the officers had kicked the paper, which had been laying outside his cell, into his cell when they came in to search.

Lieutenant L. Morris again served as the hearing officer reviewing Sharp's case. Lieutenant L. Morris considered the report of the officer involved, the results of the investigation conducted by Lieutenant Cooney, the results of the Marquis Reagent test, and the statements by Sharp. Sharp, who had made statements during the investigation, once again chose not to testify nor did he call any witnesses at the hearing. The hearing officer found Sharp guilty of one count of possession of dangerous contraband, and one count of tampering with physical evidence. Once again, Sharp appealed the findings to Warden Webb. In his appeal he challenged the chain of custody for the substance and asserted that the substance was not a drug. Warden Webb denied his appeal.

The first incident involving Thomas occurred July 19, 2003. During visitation, officers observed what appeared to be a transfer of some sort of contraband. Officer Hope escorted Thomas from the visitation room. The officer, observing an object in Thomas' right hand, instructed him to surrender the item. Thomas pulled away from Officer Hope and placed the object, a dark colored substance wrapped in a paper towel, in his mouth. When Officer Hope reached for his right hand, Thomas pushed the officer into a wall causing her to strike her right shoulder and upper arm. In the ensuing struggle, Officer Hope, with the assistance of three additional officers, managed to place Thomas in handcuffs. Thomas was placed in the special management unit. Lieutenants M. Morris and Jenkins, upon observing Thomas chewing the object in his mouth, ordered him to spit it out. Thomas refused. Officers then ordered him to open his mouth. When Thomas complied with the order, Lieutenant Jenkins observed a green leafy substance. The officers stated the substance smelled like marijuana. Thomas, upon receiving another order to spit the substance out, complied. Lieutenant M. Morris performed a Duquenois-Levine Reagent test on the substance with the result positive for marijuana.

Lieutenant L. Morris, acting as hearing officer for this incident, considered the reports submitted by Lieutenant M. Norris, Lieutenant Jenkins, Sergeant Gibson, Officer Hope, and Registered Nurse M. Croley. Lieutenant L. Morris took note of the officers' observations concerning the color, texture, and smell of the substance, as well as the results of the Duquenois-Levine Reagent field test. Thomas, in addition to waiving his right to call witnesses, chose to remain silent. Thus, Thomas neither denied ownership nor challenged the nature of the substance recovered from him during the incident. The hearing officer found Thomas guilty of one count of physical action against an...