Odell K. MARTIN, Appellant
COMMONWEALTH of Kentucky, Appellee.
[Copyrighted Material Omitted]
Brandon Neil Jewell, Assistant Public Advocate, Counsel for Appellant.
Jack Conway Attorney General, Matthew Robert Krygiel, Assistant Attorney General, Counsel for Appellee.
Appellant, Odell K. Martin, appeals as a matter of right pursuant to § 110 of the Kentucky Constitution fro a judgment of the Hopkins Circuit Court convicting him of first-degree trafficking in a controlled substance and of being a first-degree persistent felony offender (PFO), and sentencing him to twenty years' imprisonment.
On appeal, Appellant raises two allegations of error in the jury instructions which were not preserved for appellate review by appropriate and timely action in the trial court. Appellant requests that we review those unpreserved issues for palpable error under RCr 10.26. However, RCr 9.54(2) seemingly bars appellate review of unpreserved instructional error, and so we take this opportunity to acknowledge our inconsistent record of reviewing unpreserved instructional error, and we provide a rule to reconcile review under RCr 10.26 with RCr 9.54(2).
Appellant also raises two other allegations of unpreserved error: 1) the evidence of Appellant's criminal history presented during the penalty phase of the trial included charges that had been dismissed or amended to lesser offenses; and 2) the prosecutor made an improper argument in his closing statement to the jury. For the reasons set forth herein, we affirm the judgment of the Hopkins Circuit Court.
I. FACTS AND PROCEDURAL BACKGROUND
Appellant's brother rented a hotel suite for the purpose of throwing a bachelor party in Appellant's honor. Appellant and other witnesses testified that while cleaning
up the suite after the party, they found several rocks of crack cocaine in the suite's bathroom. Fearing that the hotel staff may find the drugs and report his brother to the police, Appellant decided to take away the illegal substances and dispose of them himself.
Appellant left the hotel with two friends and patronized the drive-through window of a McDonald's restaurant. A McDonald's employee observed Appellant and, thinking that he may be driving while intoxicated, called the police. Officer Haynie responded to the call and watched as Appellant drove out of the McDonald's parking lot to a nearby convenience store. Haynie parked behind Appellant's car. When he walked up to the vehicle in which Appellant was seated he detected the odor of alcohol. Haynie, who was acquainted with Appellant because they had once worked together as coal miners, asked Appellant to exit the vehicle and submit to a field sobriety test. As Appellant got out of the car, he removed several items from his pockets and handed them to a passenger. In the meantime, Officer Carlisle had arrived on the scene.
Satisfied by the field sobriety test that Appellant was not under the influence, Haynie decided not to arrest him. Carlisle, however, saw what he regarded as suspicious behavior of the passengers inside the vehicle and he suggested that Haynie ask for Appellant's consent to search the vehicle. Appellant consented.
The search produced a pill bottle with Appellant's name on the label. The bottle contained twenty-one individually wrapped plastic baggies of what was later confirmed to be crack cocaine. When Carlisle held up the bottle and inquired about it, Appellant winced and uttered an expletive.
After the passengers declined to answer Carlisle's inquiry regarding ownership of the bottle and its contents, Carlisle told them that if no one claimed responsibility they would all be charged. Appellant then told Haynie that the bottle contained crack cocaine belonging to him. Haynie shared this information with Carlisle, who again asked Appellant if the contents of the bottle were his. Appellant again admitted ownership of the drugs. Appellant was then arrested and the search of the vehicle continued. Carlisle testified that while he was being taken to the jail, Appellant expressed remorse about the cocaine, and said that he was not addicted to smoking crack cocaine but that he was addicted to selling it.
The jury found Appellant guilty of first-degree trafficking in a controlled substance, KRS 218A.1412, and of being a first-degree persistent felony offender, KRS 532.080. The trial court followed the jury's recommendation and sentenced Appellant to twenty years' imprisonment, the maximum sentence possible under these circumstances.
II. UNPRESERVED ASSIGNMENTS OF INSTRUCTIONAL ERROR
Appellant argues that reversal of his conviction is required because of erroneous jury instructions. His allegation of error breaks down into two distinct components that we analyze separately. First, Appellant argues that he was entitled to an affirmative instruction on the concept of " innocent possession" like the one we approved in Commonwealth v. Adkins, 331 S.W.3d 260, 266 (Ky.2011). Second, he complains that the instruction setting forth the elements of first-degree trafficking in a controlled substance under KRS 218A.1412 did not adequately incorporate the statutory element that, to be guilty, Appellant's trafficking in a controlled substance had to be done " knowingly and unlawfully."
Neither of these arguments was preserved for appellate review, so Appellant now requests that we examine them for palpable error ...