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NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED ."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),
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RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR
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BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED
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RENDERED : MARCH 22, 2007
ROT~T, .~ BE~PUBLIS~D
' Ouprkme Courf of ~i
2005-SC-000767-MR
ROBERT J. HILL APPELLANT
APPEAL FROM GRAYSON CIRCUIT COURT
V HONORABLE ROBERT A. MILLER, JUDGE
NO. 04-CR-00064
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Appellant, Robert J . Hill, was convicted by a Grayson Circuit Court jury in
September 2005, of: (1) trafficking in a controlled substance, first degree, (2)
possession of drug paraphernalia, subsequent offender, and (3) being a
persistent felony offender, second degree. For these crimes, Hill was sentenced
to twenty-five years in prison . Hill now appeals to this Court as a matter of right.
Ky. Const. §110(2)(b). He asserts five arguments in his appeal : (1) that there was
insufficient evidence for a jury to convict him of trafficking in a controlled
substance, first degree, (2) that the trial court erred in admitting testimony about
Hill's name on court papers without producing the papers according to the best
evidence rule, (3) that he was denied due process by the Commonwealth's
failure to collect the court papers and bag in which drug paraphernalia was
found, (4) that the trial court provided faulty instructions on possession of drug
paraphernalia, and (5) that he was denied his right to a fair trial when the
Commonwealth's attorney was permitted to make arguments in violation of the
"Golden Rule ." For the reasons set forth herein, we affirm Hill's convictions.
On or about May 5, 2004, officers of the Leitchfield Police Department
came to the home of Sallie Whitehead. Hill was the only person in the house
when the police arrived. Upon noticing visible drug paraphernalia, the police
obtained a search warrant and searched the house. The search turned up
multiple items that could be used in the trafficking and usage of
methamphetamines including -- plastic baggies, straws, surveillance equipment
found in Whitehead's bedroom, and a glass pipe and scale found in the living
room . The scale in the living room was in a bag that contained men's clothing
and court papers that the police testified had Hill's name on them . The police did
not confiscate the bag or court papers . Several items taken from the house
tested positive for traces of methamphetamine including the scale from the bag.
Prior to trial, Hill's counsel filed a motion in limine to prohibit any testimony
about the court papers found in the bag with the scale . According to Hill, the best
evidence rule required the Commonwealth to first produce the papers prior to
introducing any testimony regarding the papers. The trial court overruled this
motion and admitted testimony that the court papers contained Hill's name .
At trial, Whitehead testified that the bag and its contents belonged to Hill
and that Hill had previously sold her methamphetamine and used it with her. The
jury found Hill guilty on all counts and sentenced Hill to twenty-five years .
Additional facts will be set forth as necessary in the opinion .
1. There was sufficient evidence to support a jury verdict that Hill was
guilty of trafficking a controlled substance
Hill's first allegation is that he should have been granted a directed verdict
on trafficking in a controlled substance because there was insufficient evidence
to support a jury verdict on this charge . He argues that since no amount of
methamphetamine suitable for sale was found in the house, he cannot be guilty
of possession with intent to sell .
In reviewing a trial court's disposition on a directed verdict motion, the
proper standard is whether there is evidence sufficient to induce a reasonable
juror to believe that the defendant is guilty . Commonwealth v. Benham, 816
S.W.2d 186, 187 (Ky. 1991) . The trial court in making its decision must "draw all
fair and reasonable inferences from the evidence in favor of the Commonwealth ."
Id.
In this case, we find that the trial court was correct in rejecting the motion
for a directed verdict, and that the verdict reached by the jury is supported by
sufficient evidence . "It is unnecessary for a conviction of trafficking in a
controlled substance that the controlled substance be seized by the police or that
it be introduced at trial." Graves v. Commonwealth, 17 S .W.3d 858, 862 (Ky.
2000). "Conviction can be premised on circumstantial evidence of such nature
that, based on the whole case, it would not be clearly unreasonable for a jury to
find guilt beyond a reasonable doubt." Id. KRS 218A .1412 also states that "[a]
person is guilty of trafficking in a controlled substance in the first degree when he
knowingly and unlawfully traffics in . . . a controlled substance that contains any
quantity of methamphetamine . Id. (emphasis added).
While the police may not have found an amount of methamphetamine
suitable for sale at the time of the police search, there was adequate
circumstantial evidence to prove that Hill had recently possessed such an
amount with the intent to sell. The jury heard testimony that Hill had sold
methamphetamines to Whitehead . In addition, there were trace amounts of
methamphetamine in the house where Hill resided . Sufficient evidence
supported the jury's verdict on this charge .
II. The best evidence rule was not violated by testimony regarding the
ownership of court papers in the bag
Hill next alleges that the trial court erred by admitting testimony about
ownership of court papers found in a nylon bag containing scales. Hill argues
that according to the best evidence rules, KRE 1001-1008, a witness cannot
testify regarding the content of certain papers unless the party moving to admit
the testimony admits the actual papers into evidence .
However, the best evidence rule applies only when a party is trying to
prove the content of a writing . Robert G. Lawson, The Kentucky Evidence Law
Handbook §7.20(4) (4th ed . 2003) . The mere existence of a writing that could
prove a material fact does not automatically trigger application of the rule. Id. In
the case at bar, the Commonwealth was not eliciting testimony to prove the
contents of the papers but to provide evidence that the bag containing scales
belonged to Hill.' Since the content of the papers were not in question, the best
evidence rule does not compel the production of the papers, and oral testimony
can be elicited. See Bower v. Commonwealth , 357 S .W .2d 333, 335 (Ky. 1962)
(a pre-rules case holding that it was not necessary to produce a document with a
vehicle identification number on it since the document itself was not in question
and oral testimony about the vehicle identification number would be adequate) .
See also State v. Williams , 710 N.W.2d 427, 431 (N .D. 2006) (holding that
testimony about a deed proving that the defendant did not own certain property
did not compel the production of the deed because the issue was not proving the
contents of the deed), Lilly v. State, 649 A .2d 1055 (Del . 1994) (ruling that a
witness could testify that the defendant's name was in a tavern sign-in book
without production of the document) . Thus, there was no error in the trial court's
admission of testimony regarding the presence of Hill's name on papers found in
a nylon bag along with drug paraphernalia without production of the papers.
111. Hill was not denied due process when the Commonwealth failed to
collect the papers found in the bag and when the trial court denied Hill's
request for a missing evidence instruction .
Hill's third allegation is that he was denied due process by the
Commonwealth's failure to collect the court papers found in the bag with the
scale. Hill believes that the police's failure to collect the papers shows bad faith.
He implies that the court papers would have been collected if they did not contain
' In addition to the testimony about Hill's name being on the court papers, there
was testimony from Whitehead that the bag belonged to Hill and several
witnesses who testified that men's clothing was located in the bag.
exculpatory evidence. Thus, Hill argues that the trial court should have provided
a missing evidence instruction .
A failure to preserve potentially useful evidence does not rise to a violation
of due process without a showing that the police acted in bad faith . Collins v.
Commonwealth , 951 S.W.2d 569, 572 (Ky. 1997) (citin Arizona v_. Youngblood ,
488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988)) . In this matter, Hill fails to
show that the police acted in bad faith. Other than conjecture, Hill provides
nothing to suggest that the papers contained exculpatory evidence or that the
police acted in bad faith by not collecting them .
The lack of a missing evidence instruction also does not show a lack of
due process in this case because our decision in Collins does not compel an
instruction in a situation like this . See Collins , 951 S.W.2d at 573 (holding that
providing a missing evidence instruction in a situation where the police failed to
collect potentially exculpatory evidence provided "more process than was due") .
In fact a missing evidence instruction would have been improper . See Este v.
Commonwealth , 64 S .W .3d 805, 810 (Ky.2002) (stating that absent some degree
of bad faith a defendant is not entitled to an instruction that the jury may draw an
adverse inference from the failure to preserve or collect any evidence) . Thus, no
error occurred.
IV. The jury instructions on possession of drug paraphernalia were proper
The next allegation of error is that the jury instructions given on the charge
of possession of drug paraphernalia did not satisfy the requirement of unanimity .
See Hayes v. Commonwealth , 625 S.W.2d 583 (Ky. 1981), Boulder v.
Commonwealth , 610 S .W .2d 615 (Ky. 1980), Davis v. Commonwealth , 967
S .W .2d 574, 582 (Ky. 1998), Burchett v. Commonwealth, 98 S.W.3d 492 (Ky.
2003). Since this issue was not preserved for review, it must be reviewed under
a palpable error standard . RCr 10.26. The jury instructions provided by the trial
court were as follows :
You will find the Defendant guilty of Possession of Drug Paraphernalia
under this instruction if and only if you believe from the evidence beyond a
reasonable doubt, all of the following:
A. That in this county on or about May 5, 2004, and before the finding of
the indictment herein, he, acting alone or in complicity with others, had in
his possession a pipe and/or straws and/or scales and/or a cutting agent,
and/or rolling papers and/or plastic baggies ; AND
B . That he, acting alone or in complicity with others, did so with the intent
to use said items to inhale or ingest or otherwise introduce into the human
body a controlled substance and/or to package a controlled substance
and/or to store a controlled substance and/or to conceal a controlled
substance and/or to contain a controlled substance .
Hill argues that the jury instructions gave alternative theories of the crime that
were not supported by evidence presented by the Commonwealth . In particular
he believes that the instruction regarding the straws, cutting agent, rolling papers,
and plastic baggies are unsupported by the evidence. Since those items were
found in Whitehead's master bedroom, Hill argues he did not have possession of
the items or knowledge of their existence .
Hill's argument is not persuasive . The evidence presented at trial could
reasonably convince a juror that Hill had constructive possession of the items or,
at least, he was complicit in Whitehead's possession of the items with intent to
use them for illicit purposes. It was presented at trial that Hill stayed in
Whitehead's house for up to two weeks before the police search of the house.
There was also evidence that Whitehead's house was used for drug trafficking .
Whitehead further testified that Hill had sold her methamphetamine before and
had used it with her . A reasonable juror could analyze these facts and conclude
that Hill not only knew Whitehead was a methamphetamine user and dealer but
actively helped her perform these tasks. It is also completely reasonable to
assume that Hill was present when Whitehead used the paraphernalia found in
the bedroom and may have used it himself . See Clay v. Commonwealth , 867
S.W .2d 200, 202-03 (Ky. 1993) (holding that it was not unreasonable for a jury to
assume defendant had constructive possession of cocaine when it was found in
her house in areas she had likely been). We find no palpable error.
V . The prosecutor did not violate the "Golden Rule" in making her closing
arguments at trial .
Hill's final allegation of error is that the prosecutor violated the "Golden
Rule" by trying to make the jury feel victimized by the actions of Hill . This issue
was not preserved for review at the trial court and it must be reviewed under a
palpable error standard . RCr 10.26. The Golden Rule argument involves the
prosecutor asking jurors to place themselves in the victim's position and rule
accordingly . Lvcans v. Commonwealth , 562 S.W.2d 303, 305 (Ky. 1978) . Hill
believes that this rule was violated by the following statements from the
Commonwealth's attorney :
Communities speak through their juries . Meth and its distribution in our
community is a scourge. . . twenty-five years in the penitentiary is not really
twenty-five years in the penitentiary . . . He's not a user, he's a dealer. And
he is peddling this crap in our community. . .Mercy to the guilty is cruelty to
the innocent .
Hill also alleges that the statement "This is not the defendant's first rodeo . And
he apparently did not learn anything the first time around," led the jury to
presume guilt and skip to the sentencing phase improperly .
Yet, this Court has always given broad latitude in allowing counsel to
present a case to the jury. Morgan v. Commonwealth , 189 S .W .3d 99, 114 (Ky.
2006). A trial will not be reversed based upon the closing arguments unless the
statements made render the entire trial fundamentally unfair. Stopher v.
Commonwealth , 57 S.W.3d 787, 805 (Ky. 2001). While the statements made by
the Commonwealth's attorney are impassioned, they do not render the entire trial
"fundamentally unfair." See Mor an, 189 S.W.3d at 114 . (holding that closing
statements including the words "give him a clear, strong message . . . that this
won't be tolerated in Ballard County. That we are going to be safe . [The victim]
can be safe, as long as he is locked away" were within the broad latitude
afforded counsel) . In addition, the statement "This is not the defendant's first
rodeo," does not appear to be concluding that Hill is guilty, but is a permissible
comment on Hill's prior drug related offenses . Thus, the prosecutor's closing
statements do not constitute palpable error.
For the reasons set forth herein, the judgment and sentence of the
Grayson Circuit Court is affirmed .
All concur.
ATTORNEY FOR THE APPELLANT
Rebecca Lynn Hobbs
Assistant Public Advocate
Department of Public Advocacy
100 Fair Oaks Lane, Suite 302
Frankfort, KY 40601
ATTORNEY FOR THE APPELLEE
Gregory Stumbo
Attorney General of Kentucky
Clint Evans Watson
Assistant Attorney General
Office of Criminal Appeals
Office of the Attorney General
1024 Capital Center Drive
Frankfort, KY 40601
Robert J. Hill v. Commonwealth of Kentucky
Combined Opinion