dissenting.
I respectfully dissent from the majority opinion because none of the views expressed therein require reversal. The use of the prior conviction for possession of a marijuana cigarette to enhance the sentence of Wood was appropriate.
The trial judge did not commit reversible error when he did not direct a verdict of acquittal. The prosecution’s evidence that Woods was previously convicted of marijuana was sufficient proof of a prior conviction pursuant to K.R.S. 218A.990. The statute clearly provides for penalty enhancement. K.R.S. 218A.990(8)(i) indicates that for purposes of this section, an offense is considered a second or subsequent offense if, prior to his conviction of the offense, the offender has at any time been convicted under this chapter or under any statute of the Federal government or of any state relating to the substances classified as controlled substances. Woods’ pri- or conviction of a misdemeanor, pursuant to K.R.S. 218A.990(4), trafficking in marijuana of less than 8 ounces, was properly admissible.
RCr 8.28(4) does not require the presence of the defendant in order to accept a misdemeanor plea. In this case Woods cannot challenge the misdemeanor conviction because he did not move to suppress it before trial. Cf. Alvey v. Commonwealth, Ky., 648 S.W.2d 858 (1983). Tipton v. Commonwealth, Ky.App., 770 S.W.2d 239 (1989) is not applicable because the statements of the Court of Appeals panel relied on by Woods are dicta. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) is not applicable.
The trial judge was not disqualified to preside over the trial. Woods’ complaint that the trial judge was the district court judge who accepted the guilty plea on the defendant’s prior drug conviction is not convincing. Marlowe v. Commonwealth, Ky., 709 S.W.2d 424 (1986) held that K.R.S. 26A.015 does not require disqualification of a judge unless the judge’s knowledge regarding the case was obtained from an extrajudicial source. That is not the case here.
The trial judge did not abuse his discretion in permitting the prosecution to produce an electronically cleaned audio tape recording of the drug purchase. The police witness played the original unenhanced tape, identified it and then played the filtered or enhanced tape. The tape was electronically filtered to enhance the voices so that the conversation could be heard more clearly. On deposition, the technician testified that he did not add to or alter the words of the conversation on the tape. The technician’s testimony established that he had the necessary expertise. Greer v. Commonwealth, Ky.App., 748 S.W.2d 674 (1988) correctly provides that the seven ground rules of Solomon v. Edgar, 92 Ga.App. 207, 88 S.E.2d 167 (1955) listed in Commonwealth v. Brinkley, Ky., 362 S.W.2d 494 (1962) are not requirements but only a general guideline and that the only prerequisite to admitting a tape recording is to convince the trial court of the tape’s authenticity and foundation.
I would affirm the conviction in all respects.