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Goben v. Commonwealth

Supreme Court of Kentucky

December 15, 2016




          COUNSEL FOR APPELLANT: V. Gene Lewter

          COUNSEL FOR APPELLEE: Andy Beshear, Todd Dryden Ferguson



         Kenneth Wayne Goben appeals as a matter of right from a Judgment of the Jefferson Circuit Court convicting him of manufacturing methamphetamine (Kentucky Revised Statute (KRS) 218A.1432) and first-degree trafficking in a controlled substance (methamphetamine) (KRS 218A. 1412). Having also found Goben to be a first-degree persistent felony offender (PFO) (KRS 532.080), the jury recommended and the Circuit Court imposed PFO-enhanced sentences of life in prison for the manufacturing offense and twenty years in prison for the trafficking offense.[1] With respect to the manufacturing charge, the Commonwealth alleged that in the course of searching Goben's apartment and his separate storage locker, police officers found 3.6 grams of methamphetamine along with various chemicals and equipment used in the making of that drug. With respect to the trafficking charge, the Commonwealth alleged that other items found in Goben's apartment and locker-small, zip-lock plastic bags; digital scales; drug-ledger notes; five small, zip-locked baggies with methamphetamine ready for individual sale and two rifles-all implied that Goben possessed the drug with the intent to sell it.

         Goben alleges violations of his constitutional rights to a speedy trial and to freedom from unreasonable searches and seizures. He also contends that the guilt phase of his trial was rendered unfair by the admission of so-called investigative hearsay and by the admission of irrelevant and inflammatory firearm evidence. He maintains that the penalty phase of his trial was tainted by the admission of evidence of a prior conviction that was not yet final. Finally, he complains that the trial court's Judgment incorrectly provides that his life and twenty-year sentences are to be served consecutively. Taking these contentions in reverse order, we agree that the Judgment must be amended to clarify that Goben's life sentence is to be served concurrently with his twenty-year sentence. We agree that hearsay, firearm, and prior-conviction evidence was, or at least may have been, improperly admitted, but conclude these actual or potential errors, one of which was not preserved and one essentially waived, did not bear significantly on the outcome of the trial or on its fundamental fairness and so do not entitle Goben to relief. And despite concern that it took five years to bring Goben to trial and that the police officers initially entered Goben's apartment without a warrant, our careful review of the record convinces us that both the delay and the warrantless entry were justified and did not violate Goben's rights. Accordingly, we affirm the Judgment of the Jefferson Circuit Court.


         Because Goben's principal claims concern the time required to bring him to trial and the trial court's pretrial denial of his motion to suppress the evidence seized from his apartment and his storage locker, our initial summary of the case's procedural history and of the evidence adduced at trial will provide a general background for Goben's main claims. We then address facts relevant to each of his claims in more specific detail below.

         According to their testimonies at trial, at about 12:30 a.m. on August 16, 2009, then Louisville-Metro Police Department (LMPD) Officers Joe Heitzman, Tim Stokes, [2] and Greg Satterly, all in separate vehicles, received a radio report of a possible stabbing in the parking lot of an apartment complex in the 3800 block of Freedom Way in the Okolona area of Louisville. All three officers responded to the dispatch with Heitzman the first to arrive at the scene.

         Heitzman testified that his initial impression was that no one was in the apartment complex's poorly lit parking lot, but that soon after he exited his vehicle and began walking through the lot he found a man partly lying on the ground, partly leaning against a pickup truck and covered in blood. Heitzman immediately summoned EMS, and then examined the man to see if he was breathing or in need of immediate first aid. The man appeared to be breathing and conscious, but when Heitzman asked him who he was and what had happened, the man did not respond. Heitzman testified that at that point-he had not been there for more than two minutes-Officer Stokes arrived. Heitzman urged Stokes to try to find out from the injured man what had happened, while he followed a trail of blood spatters, some of which were several inches in circumference, through the parking lot to the base of a stairway leading to the apartment complex's second level. Heitzman identified photographs of what appear to be patches of a dark liquid on pavement amid parked cars as depicting the trail of blood he encountered in the parking lot that morning.

         Heitzman testified that he continued to follow the blood trail up the stairway and that on the stairway he observed what seemed to him a trail of a different sort. This was a stairway of riserless treads, and wedged in between two treads a few stairs up from ground level Heitzman saw an athletic shoe. Lying on a stair a few steps above the shoe was the detached leg of a wooden chair. Above the chair leg dangling from the stair's hand railing, Heitzman saw what he thought was a necklace. Above that, and a few steps above the chair leg, on the landing of the second level, he saw a garment that appeared to be a sweatshirt or a jogging suit. A couple of doors on from the landing and the jogging suit, on the second level walkway, Heitzman saw lying on the ground a beverage cup, apparently from a convenience store. On the ground near the mouth of the cup was a spattering of dark spots-possibly spilled beverage or possibly more blood. Again, Heitzman identified photographs of the items that he characterized as a "debris trail, " which seemed to end, Heitzman testified, at the open door of apartment number 18. A light was on inside the apartment, but there was no response when Heitzman called in asking if anyone was there.

         During cross-examination, Heitzman admitted that the photographs of the stairway and second-level walkway showed nothing like the volume of blood spatters present in the parking lot. He testified, however, that the debris trail suggested the possibility of additional violence and that the open apartment door at that hour was, at that apartment complex (which was within Heitzman's usual beat), highly unusual and suggestive that something was amiss.

         Meanwhile, according to the testimony of Officer Stokes, he too had been unable to elicit any information from the injured person, and so, when Officer Satterly arrived at the scene not far behind Officer Stokes, Stokes asked him to stay with the victim until EMS arrived, while he, Stokes, joined Heitzman following the blood trail through the parking lot and the debris trail up the stairs to apartment 18. There he and Heitzman conferred briefly and decided to enter the apartment to look for additional victims or possibly the perpetrator(s) of the assault on the person in the parking lot. Both officers testified that during their brief sweep of the apartment they did not come upon any additional persons, but they did observe in plain view what they believed to be illegal drugs and drug paraphernalia.[3]

         The detective assigned to lead the investigation of the case, Detective John White, testified that on the basis of those plain-view observations, which Heitzman and Stokes reported to him, he applied for and obtained a warrant to search the apartment. The ensuing search, as noted, uncovered evidence of methamphetamine production. At that point, narcotics Detective Steve Healy, one of LMPD's two certified site safety officers, and Matthew Vanderpool, a member of the Jefferson County Health Department's Hazardous Materials Team, were called in, respectively, to collect the methamphetamine evidence and to determine whether the apartment had been contaminated by methamphetamine.

         Healy testified that in addition to a so-called one-pot methamphetamine "lab"[4] and numerous chemicals and pieces of equipment used in making methamphetamine, his investigation revealed that Goben leased a storage locker. Based on the drug evidence found in the apartment, Healy obtained a warrant later that same day to search the storage locker. There he found an empty box of Sudafed tablets (a source of the methamphetamine precursor pseudoephedrine); a large Pyrex flask with valves; two .22 caliber rifles; and ammunition for the rifles. All of these items, rifles included, were shown to the jury and admitted into evidence.

         Vanderpool testified that he performed a "meth-check, " a sort of methamphetamine residue test, [5] on cabinets above the stove in the apartment's kitchen. The result of the test was positive, indicating the presence there of methamphetamine.

         Not surprisingly, the apartment, with its door left open at that unusual hour, turned out to be occupied by the stabbing victim in the parking lot. That victim, who refused initially to identify himself or explain what had happened turned out to be Kenneth Goben, the defendant.

         Five days later, on August 21, 2009, Detective White filed a criminal complaint against Goben in the Jefferson District Court, charging him with manufacturing methamphetamine; trafficking in a controlled substance, methamphetamine (second offense); and possession of marijuana. The record before us does not make clear the course of district court proceedings, nor does it make clear the course of Goben's treatment for and recovery from his stab wounds, but it does show that the matter was referred to the Jefferson County Grand Jury, which, on December 10, 2009, indicted Goben for those same three offenses.

         Ironically, the night before the issuance of that indictment (09-CR-3648), December 9, 2009, Detective Healy, acting on an anonymous tip, caught Goben yet again manufacturing methamphetamine in a "one pot lab." The upshot of that was another indictment, this one issued by the Jefferson County Grand Jury on January 21, 2010, whereby Goben (along with an accomplice) was again charged with manufacturing and trafficking in methamphetamine. That indictment (10-CR-0178), appears to have issued immediately after the same grand jury issued a second indictment against Goben with respect to the events of August 16 and the search of Goben's storage locker. Indictment 10-CR-0177 charged Goben with two counts of being a convicted felon in possession of a firearm-one count for each of the rifles found in Goben's locker-and with illegal use or possession of drug paraphernalia, the Pyrex flask. The December indictment was assigned to Division 9 of the Jefferson Circuit Court, with Judge McDonald-Burkman presiding, and initially both January indictments were assigned to Judge McDonald-Burkman as well.

         Plea negotiations ensued, with the Commonwealth eventually offering to settle all of the charges in exchange for Goben's guilty plea and acceptance of a twenty-year sentence. Goben's rejection of that offer led to the withdrawal, in May 2010, of his retained counsel. That attorney, Tim Denison, in addition to his motion to withdraw, also filed motions for bond reduction and for a speedy trial. Denison was replaced by an attorney, John Mack, from the Louisville Metro Public Defender's Office. Mack filed a motion in July 2010 to compel discovery in the August 2009 cases (indictments 09-CR-3648 and 10-CR-0177), and moved orally to have the Commonwealth elect which indictment it would try first. The Commonwealth agreed to provide the requested discovery and to make its election by August 27, 2010. The Commonwealth chose to try the December 2009 incident first (indictment 10-CR-0178), and in September 2010 Judge McDonald-Burkman heard and denied Goben's motion to suppress evidence in that case.

         Promptly thereafter, it appears, Goben objected to the fact that both he and his codefendant in the December 2009 case were represented by attorneys from the same Public Defender's office, with the result that Mack was allowed to withdraw from his representation of Goben. Mack was followed by a series of attorneys, "conflict counsel, " from the Assigned Counsel Panel Plan, [6] who entered appearances on behalf of Goben but promptly moved to withdraw.

         At some point during this search for representation, in about mid-2011, the trial of indictment 10-CR-0178, the indictment related to the December 2009 drug charges, was reassigned from division 9 of the Jefferson Circuit Court to division 8. Because the Commonwealth elected to try that indictment first, as long as the "division 8"[7] proceedings remained pending, the proceedings with respect to Goben's two indictments in division 9 were effectively abated.

         As noted in our review of Goben's "division 8" conviction, see Goben v. Commonwealth, 2015 WL 4967251 (Ky. 2015), the Public Defender's office continued to have problems finding representation for Goben until sometime prior to mid-November 2012 (Goben says it was August 2012), when James Douglas Mory entered his appearance on Goben's behalf. With Mory's appearance the parties again sought to negotiate a plea agreement, but ultimately those efforts came to naught. Goben was tried for the December 2009 offenses in October 2013, was found guilty of manufacturing methamphetamine and trafficking in it, and was sentenced as a first-degree persistent felon to a total of thirty years' imprisonment. Goben at 1.

         With the conclusion of the "division 8" proceedings, the proceedings in division 9 resumed. Reminiscent of the matter's beginning in early 2010, they resumed with Goben's rejection of a plea offer (ten-year sentences on each of the two pending indictments at twenty-percent parole eligibility), followed by attorney Mory's December 2013 motion to withdraw. At the same time, Mory also moved to renew attorney Mack's July 2010 discovery motion (a motion the court had granted in December 2010), requesting in particular any 911 recordings relating to the August 16, 2009 incident at Goben's apartment complex; witness statements regarding that incident; and the search warrant materials, particularly the affidavit in support of the warrant request for the search of Goben's apartment. By this point the Commonwealth was on its third attorney in the prosecution of the matter, and while Commonwealth's Attorney John Balenovich thought it likely that the requested items had already been provided, he agreed (as the court insisted) to provide them again. He did so as of February 14, 2014.

         New counsel, Robert Florio, was appointed for Goben in February 2014. He entered his appearance in April, it appears, and at a pretrial status conference on May 12, 2014, he moved to suppress all the evidence seized by the police in the August 16, 2009 search of Goben's apartment and the subsequent search of his storage locker. At that same May 12 pretrial conference, the Commonwealth acknowledged that Goben had moved pro se in February for a speedy trial pursuant to KRS 500.110. That statute permits an incarcerated person subject to a detainer to request a trial of the matter giving rise to the detainer within 180 days of the request. With that request in mind, the court scheduled the suppression hearing for May 29, 2014, and trial for June 3, 2014.

         The suppression hearing took place as scheduled. At the outset, the Commonwealth explained that it understood Goben to be challenging neither the warrant application nor the warrant, but rather the warrantless entry of the apartment by Officers Heitzman and Stokes, whose plain-view observations inside Goben's apartment supplied the main support for the warrant application. Defense counsel agreed that the warrantless entry was the focus of Goben's motion, although he asserted that if that entry were deemed unlawful, then the subsequent searches and seizures based on it would be unlawful as well.[8]

         With that understanding of the issue before the court, Detective White, the lead detective on the case and the officer who had applied for the warrant to search the apartment, testified, with the aid of photographs from the scene, that he arrived at the apartment complex not long after EMS had taken Goben to the hospital. Officers Heitzman and Stokes had described to him Goben's condition and his refusal to tell them anything about what had happened; had shown him where in the parking lot Goben had been found; had shown him the blood and debris trails between there and apartment 18-and he agreed that those were trails; had described apartment 18's lights-on-door-open state; and had explained that in those circumstances the possibility of another victim in the apartment seemed likely enough to them to require that they check. Detective White agreed. Convinced that the officers' brief entry to look for additional victims was legitimate, Detective White also believed their plain view observations were legally sound. Based on those observations, and with Officer Stokes's assistance, Detective White then promptly applied for a warrant.

         On cross-examination, Detective White conceded that there was not much evidence of blood on the stairs or on the second floor walkway, although he would not discount the possibility that droplets by the cup on the walkway just outside apartment 18 were blood. However, he thought the debris trail, in conjunction with the violence that had clearly occurred in the parking lot, was suggestive enough of violence leading to or from the open apartment to make a check of the apartment reasonable.

         Goben argued to the court that his injuries were sustained in the parking lot, that they had no connection to his apartment, and that the purported "debris trail" was non-existent. In his view, random debris is to be expected at a poorly maintained apartment building, and the officers were exploiting a common circumstance as a pretext for their unlawful entry into his apartment.

         Rejecting that argument and denying Goben's motion to suppress, the trial court explained that the totality of circumstances-the violence implicit in the type and seriousness of Goben's injuries and the blood in the parking lot, his refusal to speak to the officers, the possible debris trail linking the parking lot violence to the apartment, and an apartment door inexplicably left open- created both probable cause to believe that there might be other victims inside the apartment and, concomitantly, an exigent need to find out. The court ruled the officers' entry in response to that exigency was reasonable, and so there was no violation of Goben's Fourth Amendment rights.

         As noted, trial was scheduled for June 3, 2014, just a few days after the suppression hearing. When court convened that morning, and while the prospective jurors were still waiting outside the courtroom, Goben moved for a continuance. An understanding of his motion requires a brief look at one aspect of the Commonwealth's case.

         As part of his investigation into Goben's alleged manufacture of methamphetamine, Detective Healy interviewed Goben's girlfriend, Cindy Tilford, and Tilford's friend, Robin Taylor. Each woman admitted to Healy that at Goben's request and in return for his promise to pay $100 per box, she had purchased pseudoephedrine-containing cold medicine (such as Sudafed) and transferred it to Goben. The detective's check of the National Precursor Log Exchange System, see note 5 supra, confirmed that the women had made pseudoephedrine purchases at the pertinent time.

         Tilford had apparently managed to avoid the Commonwealth's subpoena, but as part of the Commonwealth's manufacturing case against Goben, the prosecutor expected Taylor to testify that she had supplied Goben with the methamphetamine precursor. The night before trial, the prosecutor telephoned Taylor to remind her of trial the next day and to confirm the gist of her testimony. She told him then, for the first time, that although Goben had promised to pay her $100 per box of cold medicine, he had failed to pay her and had explained that he could not pay because he had not yet sold the methamphetamine. The prosecutor promptly, by text message, apprised Goben's counsel of this new statement attributed to Goben, a statement the prosecutor deemed inculpatory with respect to the trafficking charge as well as the charge of manufacturing.

         In court the next morning, however, Goben insisted that Taylor's statement had exculpatory potential-evidence of no sale-and he requested a continuance to explore that potential and in general to reassess the defense in light of this new revelation. Objecting, the Commonwealth insisted that the new statement was inculpatory, not exculpatory, but to allow the trial to go forward as scheduled it would instruct Taylor to make no reference to it. The court tended to agree with the Commonwealth that the statement's exculpatory potential was marginal, at best, but wanting to assure Goben received the fairest possible trial, it granted his motion and continued the matter until July 15, 2014, a date still within the ostensible 180-day speedy trial limit.

         On July 15 the court again convened for trial, and this time got as far as assembling the panel of prospective jurors and reading to the panel the indictment wherein Goben was charged with trafficking in a controlled substance-subsequent offense. The subsequent offense portion of the charge was pertinent only to sentencing and thus was to be excluded from the initial guilt phase of trial. Wallace v. Commonwealth, 478 S.W.3d 291, 303 (Ky. 2015) (citing Peyton v. Commonwealth, 931 S.W.2d 451, 455 (Ky. 1996), for the proposition that prior trafficking offenses are not to be introduced during the guilt phase of a current trafficking offense). Unfortunately, when the court read the indictment's trafficking count, it made the easy mistake of continuing to read past the current (August 16, 2009) charge and informed the jury panel that "[f]urther, the defendant has previously been convicted of Trafficking in a Controlled Substance in the First Degree."

         At that point the Commonwealth asked to approach the bench and called the court's attention to the mistake. By then, however, as the court readily and apologetically acknowledged, the cat was out of the bag. The panel had been tainted-"poisoned" as the court put it-and there was no way to ensure that another panel assembled from the same jury pool would not in some way be exposed to the taint. The court explained to the potential jurors what had happened, dismissed them back to the jury pool, and rescheduled Goben's trial for September 16, 2014, when a new jury pool would be in place.

         Prior to that date, on September 4, 2014, Goben, claiming that the 180-day speedy trial deadline expired on August 19, 2014, moved pro se for the dismissal of all pending indictments. The trial court did not rule on the pro se motion, at least not explicitly, and counsel did not raise the issue. Instead, the third attempt to try the August 2009 manufacturing and trafficking charges succeeded.[9] In a trial that lasted three days, from September 16, 2014 to September 18, 2014, Goben was found guilty of those offenses, as noted above, and was sentenced as a first-degree persistent felon to life in prison.[10]

         Having thus sketched in the background of Goben's claims, we turn now to a more particularized consideration of their merits. We begin, as Goben does, with the contention that delays in bringing him to trial, both the nearly five-year delay between indictment and trial, and the more than 180-day delay following his pro se KRS 500.110 speedy-trial motion, violated Goben's constitutional and statutory rights to a prompt disposition of the charges against him.


         I. Goben Was Not Denied His Constitutional Right to a Speedy Trial.

         As Goben correctly notes, both the Sixth Amendment to the United States Constitution and Section 11 of our Kentucky Constitution guarantee him a speedy trial.[11] Discussing the federal right in Barker v. Wingo, 407 U.S. 514 (1972), the Supreme Court noted that criminal trials can be delayed for myriad reasons, both good and bad, at the behest, or by virtue of the actions, of either side. As a result, alleged violations of the speedy-trial right require a "functional analysis of the right in the particular context, " 407 U.S. at 522, a case-by-case "balancing test, in which the conduct of both the prosecution and the defendant are weighed." Id. at 530. The Barker Court set out four factors-"[l]ength of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant"-as particularly pertinent to the balancing test. Id. In a subsequent case, the Supreme Court characterized the relevant enquiries as "whether delay before trial was uncommonly long, whether the government or the criminal defendant is more to blame for that delay, whether, in due course, the defendant asserted his right to a speedy trial, and whether he suffered prejudice as the delay's result." Doggett v. United States, 505 U.S. 647, 651 (1992).

         Our predecessor Court early on adopted the Barker analysis as appropriate for the purposes of Section 11 as well as the Sixth Amendment, Johnson v. Commonwealth, 514 S.W.2d 115 (Ky. 1974), and since then we have continued to analyze a defendant's speedy-trial rights under both constitutions by applying the four-factor Barker analysis as applied by the Supreme Court. Dunaway v. Commonwealth, 60 S.W.3d 563, 569 (Ky. 2001) (noting that "[w]e analyze a defendant's constitutional rights to a speedy trial, under both the Federal and Kentucky constitutional provisions, by applying the four-factor Barker test"); Stacy v. Commonwealth, 396 S.W.3d 787, 795 (Ky. 2013) (same).

         The Barker analysis requires a reviewing court to apply constitutional standards to the facts of the case. As in other contexts involving mixed questions of constitutional law and fact, where the question is properly preserved, i.e., where the trial court is actually asked to rule on the timeliness of the trial, we employ a dual standard of review: de novo for legal questions and clear error for questions of fact. United States v. Young, 657 F.3d 408, 413-14 (6th Cir. 2011) (applying dual standard to speedy-trial claim); cf. Ornelas v. United States, 517 U.S. 690, 699 (1996) (applying de novo review to questions of reasonable suspicion and probable cause in Fourth Amendment context, while noting that findings of historical fact are to be reviewed only for clear error); Fugett v. Commonwealth, 250 S.W.3d 604, 616 (Ky. 2008) (applying dual standard of review to denial of Fifth-Amendment based suppression motion).

         In many speedy-trial cases, this one included, the defendant moves for a speedy trial at the outset of proceedings or at some other point prior to trial, without claiming that the speedy trial clock has expired, but rather that he is entitled to be tried without undue delay. The pro forma speedy-trial motion filed in May 2010, by Goben's then withdrawing counsel did not suggest that the court had erred, was about to err, or that Goben's rights had in any way been violated. It did not seek any remedy or ruling, something an appellate court could review. It merely asserted, with an eye, toward one of the Barker factors, that Goben wished to be tried in a constitutionally timely way. By contrast, Goben's pro se motion in September 2014 did assert an error-the delay of trial beyond the 180-day limit imposed by KRS 500.110-and sought the remedy of dismissal of the case. This type of speedy trial motion, when properly entered, generally results in a trial-court ruling subject to review on appeal.

         Goben maintains that despite the lack of a trial court ruling which this Court could review, his constitutional speedy-trial claim was preserved, not merely that his right was asserted in the May 2010 motion. Typically, we have accepted such assertions of the right as preserving post-trial claims that the right was violated, even though the trial court was never asked to address such a claim. See, e.g., Stacy, 396 S.W.3d at 795; but cf. Gregory P. N. Joseph, Speedy Trial Rights in Application, 48 Fordham L. Rev. 611, 620 (1980) ("A defendant's claim that any of his speedy trial rights has been denied customarily must be brought before the trial court on a motion to dismiss or quash the indictment or information, as appropriate, pursuant to local procedural rules."). In the absence of a trial-court ruling on issues, generally our review is for palpable error. But given our usual ...

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