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NOT TO BE PUBLISHED OPINION
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RENDERED: DECEMBER 18, 2014
NOT TO BE PUBLISHED
,inprrtur Gurt
2013-SC-000678-MR
CHARLES STANFILL
DATE APPS T'
ON APPEAL FROM CALLOWAY CIRCUIT COURT
V. HONORABLE TIMOTHY C. STARK, SPECIAL JUDGE
NO. 10-CR-00212
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
A Calloway Circuit Court jury found Charles Stanfill, Appellant, guilty of
manufacturing methamphetamine, second or greater offense. Appellant was
sentenced to twenty years' imprisonment, and now appeals as a matter of right,
Ky. Const. § 110(2)(b). He raises the following issues on appeal: (1) the jury
improperly heard about his earlier vacated conviction for possession of
methamphetamine and (2) the trial court erred in denying his motion to
suppress the evidence seized from his home.
I. BACKGROUND
In December 2010, Appellant was arrested while on parole from a fifteen-
year sentence for the manufacture of methamphetamine, possession of
anhydrous ammonia in an unapproved container with intent to manufacture
methamphetamine, and use of drug paraphernalia. Appellant's friend, Billy
Reed, was present on the morning of Appellant's arrest and testified at trial to
the following facts. Reed stated he stopped by Appellant's house to pick up a
torque wrench, and to ask Appellant for another payment on the car he was
selling to him. Reed and Appellant were in Appellant's storage outbuilding
getting the torque wrench when they saw police pull up. Reed has a previous
conviction for manufacturing methamphetamine, and had been on parole
before. Therefore, he was aware that his friend could be violating parole for
associating with him, so he hid in a closet. He did not remember seeing any
jars or tubes in the outbuilding, but did smell ammonia in the closet, which he
associated with methamphetamine.
Parole Officer Chris Hendricks and Deputy Richard Steen also testified at
trial. Officer Hendricks, Deputy Steen, and Parole Officer Brett Sorrells went to
Appellant's residence that morning to arrest him for multiple parole violations,
including testing positive for methamphetamine. As they walked around the
property, Deputy Steen noticed a chemical smell coming from an outbuilding.
He also heard what sounded like two male voices talking inside. He called for
whoever was inside to come out. When Appellant walked out of the
outbuilding, Officer Hendricks arrested him and patted him down. He found a
lighter, wallet, empty pseudoephedrine blister packs, and a plastic baggie of
white pellets, which Appellant claimed were fertilizer for his grandmother's
flowers. Having heard a second voice coming from the outbuilding, Deputy
Steen did a protective sweep of the building and found Reed hiding in the
closet.
2
Deputy Steen called Detective Chris Garland of the Pennyrile Narcotics
Taskforce. Detective Garland drove to Appellant's house and spoke with both
Appellant and Reed, and was shown the white pellets found on Appellant
(suspected to be ammonium nitrate pellets). Detective Garland applied for a
search warrant, citing Deputy Steen's statements about the chemical smell
coming from the outbuilding, the empty pseudoephedrine blister packs and
suspected ammonium nitrate pellets found in Appellant's pockets.
Detective Garland testified that after obtaining the search warrant for the
outbuilding, he and the Kentucky State Police Clandestine Lab Team found
items he believed to be indicative of a meth lab inside. These items included
empty packages of pseudoephedrine, some acids, lithium batteries that had
been opened up, smoke generator hoses, coffee filters, various jars and bottles,
and black items suspected to be lithium. A suspected one-step lab was located
in the outbuilding on a shelf on top of the closet. Detective Garland took
samples from the bottle to be sent for testing. Detective Garland next obtained
a second warrant to search Appellant's residence and seized several items from
the residence, including digital scales and a receipt from Walgreens for
pseudoephedrine. Appellant was eventually found guilty of manufacturing
methamphetamine and sentenced as noted above. This appeal followed.
II. ANALYSIS
A. Introduction of Previous Conviction at Trial
Movant's first argument on appeal is that he was prejudiced by the
3
Commonwealth's introduction at trial of his previous conviction for pos -session
of methamphetamine. In 2008, Appellant was convicted of multiple crimes,
including manufacturing methamphetamine, first offense, for which he was
sentenced to fifteen years' imprisonment. As previously noted, he was on
parole from this sentence when he was charged with the current offense.
At trial in the present case, Parole Officer Chris Hendricks testified on
behalf of the Commonwealth that Appellant was previously of convicted of
manufacturing methamphetamine and possession of methamphetamine. 1
Howev r,thepos e sionconvictonhad ctualybe nsubsequentlyvac tedby
the Court of Appeals because Appellant's convictions at the time for both
manufacture and possession of methamphetamine violated double jeopardy
law. 2 Appellant contends that the introduction of this voided conviction as
evidence against him was material to the result of this case as there was a
"reasonable likelihood that the false testimony could have affected the
judgment of the jury." Robinson v. Commonwealth, 181 S.W.3d 30, 38 (Ky.
2005) (citing United States v. Agars, 427 U.S. 97, 103) (1976)). Specifically,
Appellant argues that there is a reasonable likelihood that hearing about
Appellant's prior conviction for manufacture of methamphetamine was
relevant evidence in the guilt phase of trial because he was charged with manufacture
of methamphetamine, second or greater offense.
2 This Court has held that possession of methamphetamine, KRS 218A.1415 is
a lesser-included offense of manufacturing methamphetamine, KRS 218A.1432 for the
purposes of double jeopardy. Beaty v. Commonwealth, 125 S.W.3d 196 (Ky. 2003).
Convictions for both possession and manufacturing of methamphetamine would only
be permissible if the methamphetamine that the defendant was convicted of
possessing was not the same methamphetamine that he was convicted of
manufacturing. Id.
4
another conviction against Appellant tipped the balance for the jury to find him
guilty. Additionally, he asserts that learning about a conviction for possession
likely also pushed the.jury away from his innocent possession defense. 3
Appellant admits this issue is unpreserved, but requests palpable error
review pursuant to RCr 10.26. "Palpable error affects the substantial rights of
the party and results in manifest injustice. Furthermore, an appellant
claiming palpable error must show that the error was more likely than ordinary
error to have affected the jury." Boyd v. Commonwealth, 439 S.W.3d 126, 129-
30 (Ky. 2014). "In determining whether an error is palpable, 'an appellate court
must consider whether on the whole case there is a substantial possibility that
the result would have beer; any different."' Commonwealth v. Pace, 82 S.W.3d
894, 895 (Ky. 2002) (citing Commonwealth v. McIntosh, 646 S.W.2d 43. 45 (Ky.
1983)).
The jury correctly heard from Officer Hendricks that Appellant had been
previously convicted of manufacturing methamphetamine, and found him
guilty of manufacturing methamphetamine, second or greater offense. Officer
Hendricks's testimony regarding Appellant's vacated conviction for possessing
methamphetamine is unlikely to have affected the jury's decision, given that
the manufacture of methamphetamine already necessarily indicates
possession. Thus, we do not hold that there is a substantial possibility that
3 At trial, Appellant denied possession of the items in the outbuilding with the
intention to make methamphetamine. He told the jury that Tim Smith, who served as
a witness against him in his previous methamphetamine case, was afraid of him and
would like nothing more than to see him go back to prison, indicating that Smith had
planted the items on his property.
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the result of Appellant's trial would have been any different due to introduction
of his vacated conviction, and Officer Hendricks's testimony does not rise to the
level of palpable error.
B. Motion to Suppress
Appellant's second argument on appeal is that the trial court erred in
denying his motion to suppress the evidence seized from his property.
Specifically, he argues that Deputy Steen's search of his outbuilding was
unreasonable, and therefore tainted the subsequent search warrant obtained
by Detective Garland.
" The trial court set out the following findings of fact and conclusions of
law in its order denying Appellant's motion to suppress:
An Officer from Probation and Parole went to the Defendant's
dwelling to execute a detainer for apparent parole violations. From
the evidence, it appears that the Defendant had multiple positive
drug tests; he had a prior history of involvement with
methamphetamine; when he was searched [incident to arrest] he
was found to have a baggie with a white granular substances in it
(which he said was fertilizer for his grandmother's plants, the
fertilizer being ammonium nitrate); he also had empty
pseudoephedrine blister packs in his pocket; and the Officer who
had previously' completed training in methamphetamine lab
cleanup smelled ether coming from the structure.
b
The Court finds that the search would be supported by reasonable
suspicion that the probationer was engaged in criminal activity.
Apart from the facts included in the trial court's findings of fact, the
following additional facts from testimony at trial are also relevant. When the
officers went to Appellant's home to arrest him for parole
violations, they first knocked on the door of his residence. When Appellant did
not answer the door, they began to look around the property for him. Deputy
6
Steen approached an outbuilding that was located thirty to forty yards from
Appellant's residence. He smelled ether coming from the building, and heard
voices coming from inside that sounded like two males talking. Deputy Steen
called for whoever was in the building to come out. Appellant came outside,
but appeared to be talking to someone still inside the outbuilding. After
Appellant was arrested, Deputy Steen testified that he asked whoever else was
in the outbuilding to come out. When no one answered, he conducted a
protective sweep of the building for officer safety, and found Reed. He testified
that he was inside the building for less than five minutes, long enough to find
Reed and bring him back outside. He did not seize any items while in the
outbuilding or make note of what was in there.
Appellant argues that Deputy Steen's sweep of the outbuilding was
unreasonable, and that this misconduct tainted the subsequent search
warrant that was obtained by Detective Garland. Therefore, he asserts that
any evidence seized as part of the search warrant is fruit of the poisonous tree.
A protective sweep for officer safety is an exception to the normal warrant
requirement for search. Guzman v. Commonwealth, 375 S.W.3d 805, 807 (Ky.
2012). Objects found and seized during a protective sweep are admissible at
trial. Id. Police may conduct a "protective sweep of areas not adjoining the
place of arrest if supported by articulable facts which, taken together with the
rational inferences from those facts, would warrant a reasonably prudent
officer in believing that the area to be swept harbors an individual posing a
7
danger to those on the arrest scene." Kerr v. Commonwealth, 400 S.W.3d 250,
267 (Ky. 2013).
If evidence is obtained through an illegal search, it is not admissible
against an accused. Wilson v. Commonwealth, 37 S.W.3d 745, 748 (Ky. 2001).
This rule "extends to the direct as well as to the indirect products of official
misconduct. Thus, evidence cannot be admitted against an accused if the
evidence is derivative of the original illegality, i.e., is 'tainted' or is the
proverbial 'fruit of the poisonous tree."' Id.
However, "a major exception to the exclusionary rule exists for
information obtained from independent or causally remote sources." Id. In
other words, "[e]vidence need not be excluded if the connection between the
illegal conduct and the discovery and seizure of the evidence is highly
attenuated, or when evidence has been obtained by means 'sufficiently
distinguishable' from the initial illegality so that the evidence is 'purged of the
primary taint."' Id.
Although Appellant argues that Deputy Steen's protective search was
unreasonable, and that consequently Detective Garland's search warrant
leading to the seized evidence was tainted, we note that Detective Garland's
search warrant was not based on anything Deputy Steen saw or seized while
conducting his protective sweep. In fact, Deputy Steen testified that he did not
note any of the items that were in the outbuilding Or report any suspicious
items to Detective Garland. In the affidavit supporting his request for a search
warrant, Detective Garland relied on Deputy Steen's smelling ether from
8
outside the outbuilding, the items seized from Appellant during a search
incident to his arrest, and Appellant's history of manufacturing
methamphetamine along with the fact that Appellant had tested positive for
methamphetamine while on parole. Thus, we need not reach the question of
whether Detective Steen's protective sweep was unreasonable because the
subsequent search of Appellant's property was based on independent evidence
unrelated to the sweep. See Wilson, supra.
"When reviewing a trial court's denial of a motion to suppress, we utilize
a clear error standard of review for factual findings and a de novo standard of
review for conclusions of law." Jackson v. Commonwealth, 187 S.W.3d 300,
305 (Ky. 2006). Whether "one enjoys a reasonable expectation of privacy is a
question of law." Burd v. Commonwealth, 2011-SC-000531-MR, 2012 WL
5289418 at *2 (Ky. Oct. 25, 2012). Therefore, we review Appellant's allegation
of error with respect to his motion to suppress de novo.
In this case, the trial court found that Appellant had multiple positive
drug tests, a prior history of involvement with methamphetamine, a baggie with
white granular substances and empty pseudoephedrine blister packs in his
pocket, and that Deputy Steen, who had previously completed training in
methamphetamine lab cleanup, had smelled ether coming from the structure.
We agree with the trial court that from these facts (independent from Deputy
Steen's sweep), Detective Garland's search was supported by reasonable ,
suspicion that Appellant was engaged in criminal activity. Furthermore, the
information supporting Detective Garland's search warrant is independent of
Deputy Steen's sweep. Thus, the trial court did not err in denying Appellant's
motion to suppress.
III. CONCLUSION
Appellant was not prejudiced by the introduction of his previous
Conviction (which had been vacated), and the trial court did not err in its
denial of Appellant's motion to suppress. For the aforementioned reasons, we
affirm Appellant's conviction and sentencing.
All sitting. All concur.
COUNSEL FOR APPELLANT:
Molly Mattingly, Assistant Public Advocate
COUNSEL FOR APPELLEE:
Jack Conway, Attorney General of Kentucky
David Wayne Barr, Assistant Attorney General
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Charles Stanfill v. Commonwealth of Kentucky
Combined Opinion