Billy Mash v. Commonwealth of Kentucky

RENDERED : MARCH 18, 2010
NOT TO BE PUBLISHED

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2008-SC-000951-MR

BILLY MASH APPELLANT

APPEAL FROM MCCRACKEN CIRCUIT COURT
V. HONORABLE R. JEFFREY HINES, JUDGE
NO. 08-CR-00179-004

COMMONWEALTH OF KENTUCKY APPELLEE

MEMORANDUM OPINION OF THE COURT

AFFIRMING

Appellant Billy Mash appeals his convictions in the McCracken Circuit

Court for trafficking in cocaine and possession of drug paraphernalia. He

challenges three decisions by the trial court admitting evidence and testimony

against him . Finding no reversible error, we affirm .

I. Background

Appellant's arrest and subsequent convictions were instigated by the tips

of two incarcerated informants. The first informant, Brenda Taylor, was a drug

dealer herself and had already provided police with information leading to

another arrest. She informed police that Appellant had sold her cocaine on

approximately fifty occasions in the past year, most recently, the previous

week. The day after receiving Taylor's tip, a second informant, Olivia Dike,

independently came forward with a corresponding tip. She told police that a
 black male named "Billy" had sold her drugs approximately one hundred times.

Although Dike knew Appellant only by his first name, she positively identified a

photograph of him as the man who had sold her drugs . While the two

corresponding tips were both offered by incarcerated women within a narrow

timeframe, testimony at trial established that they were held in separate jail

cells and did not know each other.

As part of a sting operation, the police asked Dike to call Appellant and

place an order for cocaine to simulate an illegal drug transaction . Deputies

from the police department taped the phone conversation in which the order

was placed, and the prosecution played it for the jury at trial. The recording

begins with Dike greeting "Billy" and asking him to bring her an "eight ball ."

During the phone conversation, Dike did not explain what she meant by an

"eight ball," nor did Appellant ask what it was. Testimony at trial, however,

revealed that an "eight ball" is slang for a 3.5 gram portion of cocaine .

Appellant asked the caller who she was and Dike responded that she was

"Olivia." He then asked where she was located and Dike simply responded that

she was at her home . Appellant said he could be there in 30 to 40 minutes .

Two police detectives were charged with tracking the delivery. Detective

David Knight immediately went to Appellant's home, where he reported a white

Ford Ranger parked outside and identified Mash from a photograph he had

been shown. Meanwhile, Detective Jesse Riddle headed to Dike's residence,

where the transaction was agreed to take place . By the time Detective Riddle

arrived at Dike's trailer park residence, there was already a white Ford Ranger

moving toward Dike's trailer. Detective Riddle recognized the truck as
2
 resembling the one Detective Knight reported outside Appellant's home and

confirmed that the license plate matched as well . Detective Riddle was also able

to identify Appellant from photographs he had seen.

When Appellant exited his truck and walked toward the trailer, Detective

Riddle, without activating his blue lights, got out of his vehicle and identified

himself. Appellant appeared nervous and stated he was there to see Dike .

Detective Riddle asked Appellant if he had any weapons on him and Appellant

responded that he did not. Detective Riddle did not have his handcuffs with

him, but told Appellant to place his hands behind his back so Riddle could pat

him down . During the pat down, Appellant tried to pull away, so Detective

Riddle had to hold onto him to keep him still. In patting Appellant down, Riddle

felt a large plastic baggie, along with an object that he perceived to be a wad of

currency. He could not feel for certain what was in the plastic baggie, but later

testified there was "a ninety-nine percent that it was going to contain cocaine

based on the totality of the circumstances." Upon emptying Appellant's

pockets, Riddle turned out to be correct . The baggie contained 2 .9 grams of

cocaine and in the same pocket was $2,250 in cash . There was an additional

$380 in another pocket. Detective Riddle then arrested Appellant, read him his

Miranda rights, and took him to jail.

A third officer, Detective Sergeant Matt Carter, interviewed Appellant in

jail and then "Mirandized" him again before transporting him for further

interviewing at the sheriff's office . Detective Carter testified that Appellant

admitted to bringing the cocaine to Dike in exchange for sex. Police

subsequently obtained a search warrant for Appellant's home and, based on
3
 further information, got a second warrant to search Appellant's brother's

residence . There, police found a safe containing over 57 grams of cocaine .

Appellant admits this cocaine belonged to him but claimed it, along with the

cocaine found earlier in his pocket, was for personal use. At trial, the

Commonwealth introduced as evidence the large amount of cocaine found in

the safe to prove that Appellant's intent was not personal use.

Appellant was convicted of trafficking in cocaine, subsequent offense,

and possession of drug paraphernalia and sentenced to 20 years in prison. He

now appeals to this Court as a matter of right. Ky. Const . § 110(2) (b) .

II. Analysis

Appellant claims as error three decisions by the trial court to admit

evidence and testimony against him. First, he argues that the cocaine and cash

found in his pocket, along with all other fruits of that initial discovery, should

have been suppressed under the exclusionary rule . Second, he contends that

evidence of the cocaine from his brother's safe should not have been admitted,

as it was proof of other bad acts. Third, he claims that allowing testimony on

the legal definition of drug trafficking was reversible error.

A. Items Found on Appellant

Prior to trial, Appellant moved to suppress the evidence obtained by

Detective Riddle following his pat down, as well as all other fruits of that

search . The trial court denied the motion and the evidence was admitted at

trial.

Appellant claims the evidence should have been suppressed under the

exclusionary rule . Of course, the exclusionary rule only applies if the initial
4
 search was unconstitutional under the Fourth Amendment, as incorporated by

the Fourteenth Amendment. Mapp v. Ohio, 367 U.S. 643 (1961) . This Court's

inquiry, therefore, must focus on whether Detective Riddle's warrantless pat

down of Appellant, and his emptying Appellant's pockets, complied with the

Fourth Amendment to the U.S. Constitution . The Commonwealth contends

that it was a legitimate search incident to a lawful arrest, with which this Court

agrees .

While "[g]enerally, the police may not search an individual without a

warrant, . . . one of the recognized exceptions to the rule . . . [is] a search

incident to an arrest." Stewart v. Commonwealth, 44 S.W .3d 736, 379 (Ky.

2000) . The question, therefore, becomes whether Appellant was lawfully

arrested.

Appellant's arrest was authorized by Kentucky law. Kentucky has long

followed the rule that a warrantless arrest for a felony is authorized if there are

"reasonable grounds for making the arrest." Williams v. Commonwealth, 147

S . W.3d 1, 6 (Ky. 2004) . This rule is codified in KRS 431
:"A peace
.005(1)(c)

officer may make an arrest . . . without a warrant when he has probable cause

to believe that the person being arrested has committed a felony."

Kentucky's probable cause standard is entirely consistent with

constitutional strictures. "A warrantless arrest of an individual in a public

place for a felony . . . is consistent with the Fourth Amendment if the arrest is

supported by probable cause ." Maryland v. Pringle, 540 U .S . 366, 370 (2003) .

In evaluating probable cause, a court must look at "the totality of the

circumstances ." Id.
 The circumstances in this case included the corresponding tips from two

informants, the revealing phone conversation, and Appellant's behavior in

conformity with that conversation . In determining whether informants' tips

equate to probable cause, the key inquiry is into the "relative indicia of

reliability accompanying [them] ." Lovett v. Commonwealth, 103 S .W.3d 72, 78

(Ky. 2003) . As we stated in Williams, "[A]n informant's tip predicting future

behavior, which is then corroborated by observations of the investigating

officers, can result in a finding of probable cause ." 147 S .W .3d at 8 (citing

Illinois v. Gates, 462 U .S. 213, 243-46 (1983)) . In Williams, the informant's

correct descriptions of the suspect and predictions of his future actions

provided "sufficient objective indicia of reliability." 147 S .W.3d at 6. Moreover,

tips from known informants are entitled to more weight than those from

anonymous sources. Lovett, 103 S.W .3d at 78.

In this case, the tips, coming as they did from known informants,

contained "sufficient objective indicia of reliability." The corresponding nature

of the tips from two separate informants, that Appellant had engaged in many

cocaine transactions with each of them, served to verify one another's tip .

Furthermore, Taylor had already demonstrated her reliability by contributing

information to a previous arrest. Most importantly, Dike's claim to have

regularly bought cocaine from Appellant was strongly corroborated by their

revealing telephone conversation. Through that conversation, Appellant

confirmed, albeit tacitly, that he (1) was familiar with the informant on a first-

name basis, (2) knew where the informant lived, (3) knew what an "eight ball"

was, and (4) was readily able and willing to deliver an "eight ball" to her. Dike's
6
account of frequent transactions with Appellant was further endorsed by

Appellant's quick arrival at her trailer and his admission to Detective Riddle

that he was there to see "Olivia." The police had sufficient confirmation to rely

on the two informants.

Based on the corresponding tips from two independent informants

accompanied by the inferences reasonably drawn from Appellant's phone

conversation and subsequent appearance at Dike's trailer, Detective Riddle had

probable cause to believe Appellant had committed a felony. Specifically, the

evidence all pointed the police department and Detective Riddle to the

conclusion that Appellant had committed (or was in the process of committing)

drug trafficking. Thus, there was probable cause to arrest Appellant .

As Detective Riddle had the legal and constitutional authority to arrest

Appellant, it follows that his search of Appellant's pockets was a legitimate

search incident to arrest . While Appellant insists that a search incident to a

lawful arrest must logically occur after the arrest, he admits his position is

contrary to the rulings of both this Court and the United States Supreme

Court . See Rawlings v. Kentucky, 448 U .S . 98, 111 (1980) ; Williams, 147

S .W .3d 1, 9 . It is immaterial whether police choose to search immediately after

or prior to arresting a suspect. See Rawlings, 448 U .S . at 111 ; Williams, 147

S.W.3d at 9 . "A warrantless search preceding arrest is reasonable under the

Fourth Amendment so long as probable cause to arrest existed before the

search, and the arrest and the search were substantially contemporaneous ."

Williams, 147 S .W .3d at 8 .
 The case at hand satisfies both requirements . As discussed above,

Detective Riddle had probable cause to arrest Appellant before the search . Also,

the search and arrest were virtually contemporaneous-as soon as Detective

Riddle discovered the money and cocaine and completed his search, he

arrested Appellant, read him his Miranda rights, and took him to jail . As

Detective Riddle performed a search incident to a lawful arrest, the

exclusionary rule is not triggered and thus, the trial court properly denied

Appellant's motion to suppress .

B. Evidence of Additional Cocaine

Appellant next contends that the 57 grams of cocaine found in his

brother's safe, which Appellant admits belonged to him, was improperly

admitted at trial. He moved prior to trial to exclude the evidence, but the trial

court denied his motion .

Evidentiary rulings at trial are reviewed for abuse of discretion . See, e.g.,

Barnett v. Commonwealth, 979 S.W .2d 98, 103 (Ky. 1998) . This Court's inquiry

is, therefore, limited to whether the trial court abused its discretion in allowing

evidence of the cocaine from the safe. "Evidence of other crimes, wrongs, or

acts is not admissible to prove the character of a person in order to show

action in conformity therewith ." KRE 404(b) . However, the same evidence may

be admissible if offered for another, legitimate purpose. KRE 404(b)(1) . It is

uncontested that the cocaine found in the safe was relevant for another such

purpose-namely, intent.

The main issue at trial was whether Appellant possessed the cocaine for

personal use (as he maintained) or, instead, to sell or distribute, within the
8
scope of drug trafficking set forth in KRS 218A. 0 10(40) (as the Commonwealth

argued) . Thus, his intent as to the cocaine was at issue. The Commonwealth

introduced the high volume of additional cocaine belonging to Appellant to infer

that his intent was not to use the cocaine for personal use, but rather for

trafficking. ) Such an inference is legitimate when the amount of cocaine is

large . Parker v. Commonwealth, 291 S.W .3d 647, 674 (Ky. 2009) ; see also

United States v. Faymore, 736 F .2d 328, 333 (6th Cir . 1984) ("intent to

distribute can be inferred by the jury from circumstantial evidence of

possession of large quantities") . Thus, Appellant's 57 grams of cocaine in his

brother's safe, being a large quantity, was relevant to the Commonwealth's

charge of drug trafficking. The additional cocaine met the KRE(404) (b) (1)

"intent" exception.

Nonetheless, Appellant complains that the evidence should have been

excluded due to its high degree of potential prejudice. Appellant is correct that

evidence is not automatically admissible simply because it falls into one of the

exceptions listed in KRE 404(b)(1) . In addition to satisfying a KRE 404(b)

exception, "evidence of criminal conduct other than that being tried is

admissible . . . only if its probative value on that issue outweighs the unfair

prejudice with respect to character." Billings v. Commonwealth, 843 S .W .2d

890, 892 (Ky. 1992) ; see also KRE 403 . In this instance, the resulting undue

prejudice is minimal.

1 The indictment in this case charged Appellant only with trafficking the 2.9 grams of
cocaine Detective Riddle found in his pocket. The record does not indicate whether
Appellant was separately charged and indicted for a crime related to the 57 grams of
cocaine found in the safe.
 While Appellant cites Billings v. Commonwealth, 843 S .W.2d 890 (Ky.

1992), and Bell v. Commonwealth, 875 S .W .2d 882, 890 (Ky. 1994), for the

proposition that evidence of other crimes is always highly prejudicial to a

defendant, such a reading is overbroad . Both cases note the higher danger of

prejudice from such evidence, but the particular form of prejudice at issue in

those two cases is wholly absent here. In both of the cases relied on by

Appellant, the Court feared the introduction of other criminal acts would

unfairly imply that the defendants had acted in conformity with those acts . See

-Billings, 843 S .W .2d at 894 ; Bell, 875 S.W .2d at 890. Billings and Bell were

both sodomy trials, where the trial courts admitted evidence of remote criminal

sexual acts by the defendants . See Billings, 843 S .W.2d at 892 ; Bell, 875

S.W .2d at 888 . In both cases it was unduly prejudicial to imply that, because

the defendant had committed other criminal acts, he must have committed the

similar acts in question .

Distinct from Billings and Bell, Appellant's possession of cocaine in his

brother's safe was not used to imply he engaged in any other acts . In fact, how

Appellant acted was uncontested at trial. He conceded that he possessed the

cocaine on his body. The factual issue at trial was one of intent, not behavior:

Why did he possess the cocaine? Was it for personal use or was it for

trafficking? Thus, the cocaine found in the safe did not unduly imply

conforming behavior.

Additionally, the "other act" in this case was contemporaneous with the

charged crime, whereas the "other crimes" in Billings and Bell were removed in
time . Their remoteness lent more credence to the idea that they were offered

merely to suggest the defendants' criminal dispositions .

Ultimately, any unfair prejudice that might have resulted in this case

was outweighed by the probative value of the evidence . Appellant complains

that the evidence of 57 grams of cocaine might have led to a harsher sentence

than if the jury had only been aware of the 2 .9 grams found in his pocket. He

analogizes this impact to the effect of describing multiple dead bodies in a

single murder trial . It is hard to imagine, however, that additional grams of

cocaine would play on a jury's emotions in the same way as additional deaths

(or additional prior sex crimes, as in Billings and Bell) . In any event, the

probative value of the 57 grams of cocaine is far too great to be outweighed by

other factors. It was critical to the central issue at trial: whether or not the

cocaine was intended for personal use .

C. Testimony on Definition of Trafficking

Appellant's final argument is that permitting Detective Sergeant Carter to

testify to the legal definition of trafficking constituted reversible error . On direct

examination, the prosecution asked Detective Carter what constituted

"trafficking." Appellant objected, noting that it was the trial court's duty to

instruct the jury on the law. Apparently misinterpreting the objection, the court

told the prosecutor to lay a sufficient foundation for the testimony. The

prosecutor went on to ask Detective Carter if he was familiar with the

trafficking statute, and the detective responded that he was . The prosecutor

then asked what two ways one can be guilty of drug trafficking. Detective

Carter replied, "When you actually sell or transfer [a narcotic], or [possess] with
11
 the intent to sell or transfer a narcotic to someone, that constitutes the

elements of trafficking."

Contrary to Detective Carter's testimony, possession with the intent to

transfer does not fall within the definition of trafficking pronounced in KRS

218A.010(40) . "Traffic" is defined as "to manufacture, distribute, dispense, sell,

transfer, or possess with intent to manufacture, distribute, dispense, or sell a

controlled substance ." "Noticeably absent from this statutory definition" is

"[possess] with the intent to . . . transfer," the language used by Detective

Carter. Commonwealth v. Rodefer, 189 S.W .3d 550, 552 (Ky. 2006) . Detective

Carter announced an additional form of liability-possession with intent to

transfer-on which the jury was not permitted to convict.

Detective Carter's testimony was inadmissible . While KRE 702 permits

expert testimony that "will assist the trier of fact to understand the evidence or

to determine a fact in issue," it does not permit a witness to aid in the

determination of a legal issue. See Gibson v. Crawford, 259 Ky. 708, 83 S . W.2d

1, 7 (1935) ("The courts never allow a witness to give his conclusion on

questions of law. . . .") ; Foster v. Commonwealth, 827 S .W .2d 670, 678 (Ky.

1991) (upholding trial court's "refus[al] to reopen the case so that Foster's

expert could testify on the definition of extreme emotional disturbance") . Since

it is not the jury's role to determine what the law is, such aid would be

unhelpful . It is well-recognized that the judge is charged with determining the

law and, in turn, instructing the jury on its application to the case . See United

States v. Zipkin, 729 F.2d 384, 387 (6th Cir. 1984) ("Expert testimony on the

law is excluded because the trial judge does not need the judgment of
12
 witnesses . . . . The special legal knowledge of the judge makes the witnesses'

testimony superfluous . It is the function of the trial judge to determine the law

of the case . It. is impermissible to delegate that function to a jury through the

admission of testimony on controlling legal principles .") . Simply put, it is error

to allow a witness, expert or otherwise, to testify as to the content of the law . In

this case, the error was compounded by Detective Carter making not merely an

improper statement of law, but an improper misstatement of law.

The Commonwealth seeks to avoid any finding of error by arguing that

Appellant did not properly preserve this matter for appellate review . The

Commonwealth attacks the adequacy of Appellant's objection at trial, stating,

"Appellant did not object on the basis the detective was not an expert or had

specialized knowledge . He objected on the basis that only the trial court could

talk about what trafficking meant ." (Emphasis in original .) In fact, it is the

Commonwealth that has confused the issue : as discussed above, the problem

with Detective Carter's testimony was not his lack of expertise, but the

inappropriate subject matter of his testimony. As the Commonwealth admits,

Appellant's objection was that only the trial court could instruct the jury as to

the law of trafficking. That the trial court's reaction to the objection was non-

responsive (and that the defense did not further object) does not make the

initial objection ineffective for purposes of preservation .

Having found the trial court to be in error, and the error to be preserved,

the question before this Court is whether that error was harmless . See RCr

9 .24 . "A non-constitutional evidentiary error may be deemed harmless . . . if

the reviewing court can say with fair assurance that the judgment was not
13
 substantially swayed by the error." Winstead v. Commonwealth, 283 S .W.3d

678, 688-89 (Ky. 2009) (citing Kotteakos v. United States, 328 U .S . 750, 765

(1946)) . "But `[t]he inquiry cannot be merely whether there was enough to

support the result, apart from the phase affected by the error. It is rather, even

so, whether the error itself had substantial influence. If so, or one is left in

grave doubt, the conviction cannot stand ."' Crossland, 291 S .W.3d 223, 233

(Ky. 2009) (quoting Kotteakos, 328 U .S . at 765) (alteration in original) . Only if

Appellant's conviction was substantially swayed by the detective's

"misstatement of law," should -his conviction be reversed.

In ascertaining the influence of Detective Carter's testimony on

Appellant's conviction, this Court must attempt to uncover the reasoning

behind the verdict . The factual inquiry posed to the jury in the present case

was a relatively narrow one : Why did Appellant bring 2 .9 grams of cocaine to

Olivia Dike's trailer? There were two competing explanations presented at trial.

The Commonwealth relied on Detective Carter's testimony that Appellant had

admitted he planned on exchanging the cocaine for sex . On the other hand,

Appellant testified, and the defense maintained, that he had no intention of

giving the cocaine to Dike at all ; he was merely carrying it for his own, personal

use . The jury was asked to pick one of the two .

Regardless of Detective Carter's unfortunate, supplemental legal opinion,

it seems clear that the jury chose the Commonwealth's version . If the jury had

believed Appellant's trial testimony, that the cocaine was for personal use, it

would not have convicted Appellant, even under Detective Carter's erroneous,

somewhat broader definition of trafficking. Following Appellant's story, the jury
14
 could not have concluded he had the intent to sell, distribute, or even transfer

the cocaine . 2 The jury could not consistently believe that Appellant planned to

keep the cocaine for himself, while having the intent to transfer it to someone

else. Thus, even in the event that the jury utilized Detective Carter's definition,3

if it believed Appellant, it would have acquitted him of trafficking. Since the

jury did not acquit, it could not logically have believed Appellant's story.

By process of elimination then, this Court deduces that the jury agreed

with the Commonwealth that Appellant intended to trade cocaine for sex. Such

an exchange clearly falls within the meaning of "sell" as defined in the jury

instructions: "to dispose of a controlled substance to another person for

payment or other consideration." (Emphasis added) .4 It also fits the

substantially similar statutory language : "to dispose of a controlled substance

to another person for consideration . . . ." KRS 218A .010(36) . The jury likely

found that Appellant intended to dispose of the cocaine to Olivia Dike in

exchange for "other consideration ." The improper admission of Detective

2 The court only instructed the jury on liability through possession with the intent of
selling or distributing. While liability can also arise through the intent to
manufacture or dispense, no testimony or instruction was given regarding these
forms of liability, so there is no reason they would have formed the basis of the
verdict.
3 It is unlikely that the jury followed Detective Carter's definition anyway. The judge's
instructions correctly left out "intent to transfer" as a form of liability. "[A] jury is
presumed to follow a trial court's instructions . . . . .. Dixon v. Commonwealth, 263
S .W.3d 583, 593 (Ky. 2008) (citing Matheny v. Commonwealth, 191 S.W.3d 599, 606
(Ky. 2006)) .
4 Mash's intention may also qualify as "to distribute ." KRS 218A.010(10) broadly
defines distribute as "to deliver other than by administering or dispensing a
controlled substance." However, the precise meaning of "distribute" is partially
clouded after our ruling in Rodefer, 189 S.W.3d at 553.
15
Carter's legal opinion did not sway the verdict and was, therefore, harmless

error.

IV. Conclusion

For the foregoing reasons, the judgment of the McCracken Circuit Court

is affirmed .

All sitting. All concur.

COUNSEL FOR APPELLANT :

V. Gene Lewter
Department of Public Advocacy
100 Fair Oaks Lane
Suite 302
Frankfort, Kentucky 40601

COUNSEL FOR APPELLEE :

Jack Conway
Attorney General

James Coleman Shackelford
Assistant Attorney General
Office of Criminal Appeals
1024 Capital Center Drive
Suite 200
Frankfort, Kentucky 40601-8204