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Hawkins v. Commonwealth

Supreme Court of Kentucky

December 14, 2017

JEROME HAWKINS APPELLANT
v.
COMMONWEALTH OF KENTUCKY APPELLEE

         ON REVIEW FROM COURT OF APPEALS CASE NO. 2014-CA-000594-DG HENDERSON CIRCUIT COURT NO. 13-CR-00251.

          FOR APPELLANT: Robert Chung-Hua Yang Assistant Public Advocate

          FOR APPELLEE: Andy Beshear Attorney General of Kentucky Bryan Darwin Morrow Assistant Attorney General

          OPINION

          WRIGHT JUSTICE

         A circuit court jury convicted Jerome Hawkins of trafficking in four or more grams of cocaine and other charges. The Commonwealth's evidence showed that police seized from Hawkins more than eighteen grams of a white substance appearing to be crack cocaine. Later laboratory testing confirmed the seized substance actually contained some amount of cocaine. But Hawkins argues that he was improperly convicted of this particular crime because the Commonwealth's evidence failed to show that the substance seized contained four or more grams of pure cocaine. On discretionary review, we affirm the judgment of the Court of Appeals.

         I. FACTUAL AND PROCEDURAL BACKGROUND.

         Based on information provided by a confidential informant (CI), Detective Brad Newman obtained a search warrant for Hawkins's home and one of his vehicles. The resulting search disclosed more than eighteen grams of a white substance appearing to be crack cocaine, nearly one pound of marijuana, digital scales, and more than $4, 000 in cash. Inside Hawkins's vehicle police recovered what appeared to be more cocaine, pills, and cash. The grand jury indicted Hawkins on charges of first-degree trafficking in a controlled substance (cocaine, four grams or more), [1] trafficking in marijuana (over eight ounces), [2] and of being a first-degree PFO.[3]

         In a pretrial motion, Hawkins moved the trial court to compel the Commonwealth to reveal the identity of the CI, arguing that it was relevant and essential to the defense of his case. The trial court conducted an evidentiary hearing on the motion and questioned Detective Newman in camera. The trial court ruled that the Commonwealth was not required to reveal the identity of the CI, sustaining the Commonwealth's assertion of a privilege under Kentucky Rule of Evidence (KRE) 508(a). The trial court found that Detective Newman had no reason to doubt the informant's reliability, that the CI was still performing confidential work for the police, and that revealing the CI's identity would compromise ongoing investigations, possibly putting the CI's life in danger.

         * Hawkins then filed a pretrial motion to suppress evidence seized from his home and truck. The trial court held a hearing on the suppression motion at which Detective Newman was the only witness called by the Commonwealth. He testified that most of the information used to obtain the search warrants for Hawkins's property had come from the CI. On cross-examination, Detective Newman mentioned the CI's real name. The trial court found that Detective Newman's disclosure was accidental, ordered the clerk to seal the portion of the hearing that contained this disclosure, and admonished those present in the courtroom to not discuss outside the courtroom what they had heard. At the end of the suppression hearing, the trial court reaffirmed its prior ruling that the CI's identity was subject to the Commonwealth's privilege and the defense would not be permitted to call the CI as a witness at the suppression hearing or at trial.

         During cross-examination at trial, Hawkins elicited testimony from David Hack, director of the laboratory that performed the drug testing in this case, who testified that the lab did not conduct an analysis of the purity of the cocaine in the substance seized from Hawkins and that it was rare to do so.

         At the close of the evidence at trial, Hawkins moved for a directed verdict on the trafficking charge. He argued that the Commonwealth failed to introduce evidence Hawkins had trafficked in four grams or more of cocaine because there was no purity test conducted for purposes of measuring the weight of the cocaine. The trial court denied the directed-verdict motion, and the jury convicted Hawkins of first-degree trafficking in a controlled substance (cocaine, four grams or more), trafficking in marijuana (over eight ounces), and of being a first-degree PFO. Accepting the jury's recommendation, the trial court sentenced him to an enhanced sentence of seventeen years' imprisonment for the trafficking in cocaine as a first-degree PFO and an enhanced sentence of ten years' imprisonment for trafficking in marijuana as a first-degree PFO and ordered the two sentences to run concurrently. Final judgment was entered accordingly.

         Hawkins appealed the judgment to the Court of Appeals. He argued to that court and now to this Court that the trial court committed two errors: (1) the failure to compel disclosure of the CI's identity and (2) failure to direct a verdict of acquittal of the first-degree trafficking in cocaine (four grams or more) charge, due to the Commonwealth's failure to offer any proof of the presence of four or more grams of pure cocaine.

         A divided panel of the Court of Appeals affirmed the judgment. It upheld the trial court's ruling that the Commonwealth should not be compelled to disclose the identity of the CI and that Hawkins was not entitled to a directed verdict on his trafficking charge because the law does not require proof of the actual weight of pure cocaine to secure a conviction under the first-degree trafficking statute.

         II. ANALYSIS.

         A. Standard of Review

         The standard of review is different for each of the alleged errors in this appeal. The trial court's ruling denying Hawkins the ability to reveal the identity of the CI we analyze under, an abuse-of-discretion standard.[4]Hawkins's claim that he was entitled to a directed verdict on the cocaine trafficking charge requires us to conduct a statutory analysis, which we perform de novo.[5]

         B. Cocaine Purity

         The Commonwealth argues that the issue involving the purity of the cocaine is not preserved for our review, as Hawkins was not entitled to a directed verdict of acquittal of all lesser-included charges related to the cocaine trafficking under the evidence adduced at trial. And when Hawkins failed to object to the trial court's jury instruction on first-degree trafficking, four grams or more, the Commonwealth asserts he failed to preserve the issue for appeal.[6] We agree with the Commonwealth that Hawkins did not properly preserve this issue. Having lost the directed-verdict motion, Hawkins should have objected to the giving of a jury instruction for trafficking in four grams or more of cocaine.[7] But Hawkins asks alternatively for palpable error review, which we apply today.

         We review unpreserved errors under RCr 10.26, [8] under which we may grant relief upon a showing of "palpable error. "[9] A finding of palpable error requires a showing that the alleged error affected the "substantial rights" of a defendant, for whom relief may be granted "upon a determination that manifest injustice has resulted from the error."[10]

         When weighing the Court of Appeals' holding involving statutory construction, we apply a de novo standard.[11] Hawkins asserts that a conviction of trafficking in four grams or more of cocaine requires the Commonwealth to prove he was in possession of four grams or more of pure cocaine, and because the Commonwealth did not produce any evidence as to the purity of the cocaine weighed, that he should have been entitled to a directed verdict. In a split opinion, the Court of Appeals majority held that the plain language of KRS 218A.1412, paired with the definition of cocaine in KRS 218A.010(5), creates a statutory scheme whereby the Commonwealth is not required to prove that pure cocaine accounted for the weight of four grams or more. We agree with the majority of that court.

         Hawkins was convicted under KRS 218A, 1412(1)(a), trafficking in cocaine four grams or more. The pertinent part of the statute reads as follows:

(1) A person is guilty of trafficking in a controlled substance in the first degree when he or she knowingly and unlawfully traffics in:
(a) Four (4) grams or more of cocaine;
(b) ...;

(e) Any quantity of a controlled substance specified in paragraph (a), (b), -or (c) of this subsection in an amount less than the amounts specified in those paragraphs.

(2)...;
(3) (a) Any person who violates the provisions of subsection (1)(a) ... of this section shall be guilty of a Class C felony for the first offense and a Class B felony for a second or subsequent offence.
(c) Any person who violates the provisions of subsection 1(e) of this section:
(1) Shall be guilty of a Class D felony for the first offense and a Class C felony for a second ...

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