Harvey Middleton v. Commonwealth of Kentucky ( 2020 )

RENDERED: OCTOBER 2, 2020; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-1289-MR
HARVEY MIDDLETON APPELLANT
APPEAL FROM HARLAN CIRCUIT COURT
v. HONORABLE KENT HENDRICKSON, JUDGE
ACTION NO. 18-CR-00067
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CLAYTON, CHIEF JUDGE; KRAMER AND MCNEILL, JUDGES.
KRAMER, JUDGE: On July 18, 2019, Harvey Middleton was convicted in Harlan
Circuit Court of violating KRS1 218A.1412 (i.e., trafficking in a controlled
substance in the first degree, first offense, fewer than ten (10) pills (oxycodone)).
At trial, Middleton effectively raised the defense of entrapment; the jury was
1
Kentucky Revised Statute.
provided an instruction regarding his entrapment defense; and, in finding him
guilty, the jury ultimately rejected his defense. On appeal, Middleton now asserts
the jury should not have been permitted to decide the issue of entrapment at all. In
other words, he claims he should have been acquitted because, in his view, the
Commonwealth failed to disprove entrapment, thus entitling him to a directed
verdict.
Middleton never raised this point at trial through a directed verdict
motion.2 Instead, Middleton requests palpable error review,3 the essence of his
argument being that the circuit court erred by not raising this point and acquitting
him on this basis sua sponte. We will grant Middleton’s request for palpable error
review because the Kentucky Supreme Court has indicated it is proper to do so in
this context. See Mackey v. Commonwealth, 407 S.W.3d 554, 558 (Ky. 2013)
(granting palpable error review of appellant’s unpreserved argument that a directed
verdict was warranted based on entrapment defense). Upon review, we affirm.
To begin, entrapment is a defense delineated in KRS 505.010, which
provides in pertinent part as follows:
(1) A person is not guilty of an offense arising out of
proscribed conduct when:
2
Kentucky Rule of Criminal Procedure (RCr) 10.24 allows a defendant to make a motion for a
directed verdict if the Commonwealth has not presented enough evidence to support a
conviction.
3
See RCr 10.26.
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(a) He was induced or encouraged to engage
in that conduct by a public servant or by a
person acting in cooperation with a public
servant seeking to obtain evidence against
him for the purpose of criminal prosecution;
and
(b) At the time of the inducement or
encouragement, he was not otherwise
disposed to engage in such conduct.
In other words, if the defendant is tricked or induced into committing
a crime at the behest of the governmental actor and the criminal intent originates
with the governmental actor, then a conviction for the crime is inappropriate. See
Alford v. Commonwealth, 240 Ky. 513, 42 S.W.2d 711 (1931). Conversely, “[i]f
the evidence is that the defendant otherwise is disposed to engage in the criminal
activity, then inducement or encouragement does not constitute entrapment.”
Commonwealth v. Sanders, 736 S.W.2d 338, 340 (Ky. 1987).
To obtain a directed verdict based upon entrapment, a defendant must
establish “undisputed” evidence demonstrating a “patently clear” absence of
predisposition. United States v. Harris, 9 F.3d 493, 498 (6th Cir. 1993); United
States v. Tucker, 28 F.3d 1420, 1428-29 (6th Cir. 1994). And, in determining
whether the evidence was insufficient to establish predisposition, a reviewing court
must view the evidence in the light most favorable to the prosecution, resolve all
reasonable inferences in favor of the prosecution, and cannot choose between
conflicting testimony or make credibility determinations. United States v. Barger,
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931 F.2d 359, 366 (6th Cir. 1991); United States v. Silva, 846 F.2d 352, 355 (6th
Cir. 1988); see also Commonwealth v. Benham, 816 S.W.2d 186 (Ky. 1991)
(similarly delineating the general standard for reviewing a criminal defendant’s
motion for directed verdict in Kentucky). This is because, where conflicting
evidence of substance exists on the question of entrapment, it is a factual issue for
a jury to decide. See Mathews v. United States, 485 U.S. 58, 63, 108 S. Ct. 883,
886, 99 L. Ed. 2d 54 (1988); Barger, 931 F.2d at 366; Commonwealth v. Day, 983
S.W.2d 505, 508 (Ky. 1999).
“Predisposition . . . focuses upon whether the defendant was an
unwary innocent or, instead, an unwary criminal who readily availed himself of the
opportunity to perpetrate the crime.” Mathews, 485 U.S. at 62, 108 S.Ct. at 886
(internal quotation marks and citations omitted). Courts have identified five
factors relevant to determine whether a defendant was predisposed to commit a
crime: (1) the character or reputation of the defendant; (2) whether the initial
suggestion of criminal activity was made by the government; (3) whether the
defendant engaged in criminal activity for a profit; (4) whether the defendant
expressed reluctance to commit the offense which was overcome by government
persecution; and (5) the nature of the inducement or persuasion applied by the
government. See, e.g., United States v. Khalil, 279 F.3d 358, 365 (6th Cir. 2002);
United States v. Thomas, 134 F.3d 975, 978 (9th Cir. 1998); United States v.
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Santiago-Godinez, 12 F.3d 722, 728 (7th Cir. 1993). Although none of these
factors alone is determinative, the most important factor is whether the defendant
exhibited a reluctance to commit the offense that was overcome by government
inducement. Santiago-Godinez, 12 F.3d at 728; United States v. Skarie, 971 F.2d
317, 320 (9th Cir. 1992); United States v. McLernon, 746 F.2d 1098, 1113 (6th Cir.
1984).
Keeping that in mind, the evidence adduced at trial reflected the
following. Harvey Middleton and John4 (a confidential informant) both resided in
Harlan County. On the morning of June 13, 2017, John initiated contact with
Middleton through Facebook Messenger. The messages the two men exchanged
were not introduced as evidence, but John and Middleton both testified at trial
regarding the substance of the messages: John asked if Middleton could supply
him with “roxies” (his term for oxycodone), and Middleton agreed to do so. Both
men also testified they exchanged telephone calls afterward, during which they
agreed John would purchase the oxycodone from Middleton at his home later that
day.
Unbeknownst to Middleton, John had been working as a confidential
informant for the Harlan County Sheriff’s Department. After arranging the
narcotics transaction, John contacted Sergeant Jason Snelling at the department,
4
We chose to only use the first name of the confidential informant throughout this opinion.
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advising him that he could purchase narcotics from Middleton. Snelling then met
with John, with whom he was familiar, and he outfitted John with a digital
recorder.
Thereafter, Snelling provided John with a ride to effectuate the
transaction. He could only drive John to the approximate area of Middleton’s
home, near a “school,” because John had never before visited Middleton’s home
and did not know precisely where Middleton lived – a point that was highlighted
during the first two minutes of the audio recording from the controlled buy that
was played for the jury at trial. There, while riding with Snelling, John is heard to
say, “I don’t want to go too far up, I don’t know where he’s at.” John’s cellular
telephone then rings; John remarks that Middleton is calling him and answers the
call; and he and Middleton have the following relevant exchange:
JOHN: Hey, buddy, I’m at the school.
MIDDLETON: [Inaudible]
JOHN: I said I’m at the school right now.
MIDDLETON: I tried calling you [inaudible].
JOHN: I tried calling you, too. I don’t get real good
service here. Now how far up are you up here now?
What’s it?
MIDDLETON: I’m at, keep looking at your left side,
and you’ll see a two, a two-mile marker. I live on
Middleton Road.
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JOHN: Okay, you gonna be out?
MIDDLETON: I’ll [inaudible] with you.
JOHN: Are you gonna be out? My mobile, my phone
won’t pick up far up through here, but, uh, I’m having
my ride drop me off too, man, because you know me and
my people don’t know you, you don’t know them, I like
to keep things that way, but um, just give me a general
idea about how far up from the school it is, how many
minutes.
MIDDLETON: Two miles.
JOHN: Two miles? Alright, brother.
The entire audio recording from the controlled buy was played for the
jury. After concluding his telephone conversation with Middleton, John is heard
exiting the vehicle; walking for several minutes; and is eventually greeted by
Middleton. The two men interact for approximately ten minutes. After
exchanging small talk, Middleton is heard telling John that he could get narcotics
“all day long”; and that if he did not have what John wanted, he could get it. When
John inquired about Subutex, which is another narcotic, Middleton informed him
that he could get it for John if he wanted. Consistent with the recording, Middleton
also admitted at trial that he sold drugs to John during their interaction –
specifically, two oxycodone pills for $100; that he was guilty of trafficking in a
controlled substance; and that if John had asked him to get the Subutex for him, he
probably would have sold that to him, too.
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With that said, we now turn to Middleton’s entrapment defense and
the five factors outlined above. As to the first factor, there was no evidence
adduced either way. Middleton was not asked at trial if he had ever sold drugs
prior to this occasion, nor was any evidence presented in that vein.
As to the second factor, the initial suggestion of criminal activity (i.e.,
drug trafficking) was made by John, who was a confidential informant. The record
indicates that John arranged for the purchase of narcotics from Middleton but that
he was not specifically directed to do so by the government.
As to the third factor, Middleton contends he accumulated quantities
of pain medication in his home, albeit illegally, for his own consumption due to his
own issues with pain. Notwithstanding, Middleton sold John two oxycodone pills
for $100. Therefore, Middleton did engage in criminal activity for profit.
As to the fourth factor, nothing of record indicates Middleton
expressed any reluctance to commit the offense of trafficking. Rather, a
reasonable jury could infer that Middleton readily complied with John’s request to
purchase narcotics from him, considering the audio recording of the sale itself;
Middleton’s testimony discussed previously; and the relative brevity of
Middleton’s interaction with John leading up to the sale (i.e., the first time John
contacted Middleton about purchasing narcotics from him was the morning of June
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13, 2017; and the men completed the narcotics transaction that same day, shortly
after 12:30 p.m.).
Lastly, regarding the nature of the inducement or persuasion applied
by the government (i.e., the fifth factor enumerated above), Middleton asserts in
his brief that he sold John narcotics because he believed John was suffering from
pain and because he considered John his friend.
To be sure, tactics found by courts to be excessive in the context of
entrapment have included appeals to sympathy, see Sherman v. United States, 356
U.S. 369, 373, 78 S. Ct. 819, 821, 2 L. Ed. 2d 848 (1958), or “preying upon the love
and loyalty of [a] special relationship.” McLernon, 746 F.2d at 1114. But, to the
extent that entrapment can be predicated upon a confidential informant’s appeal to
sympathy or friendship, the evidence presented at the trial of this matter was less
than compelling. Middleton merely testified he “assumed” John was in pain
because that was what John had told him on the morning of June 13, 2017, in a
Facebook message, and because he knew John had played football in high school
and had perhaps sustained injuries. As to the extent of their friendship, John and
Middleton acknowledged they had been friends through middle school and high
school. But, on the date of their transaction, Middleton was 38 years old, and John
did not even know where Middleton lived. Middleton also testified:
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COUNSEL: You characterized your relationship as
“acquaintances” and you saw each other out. Did you
regularly hang out with [] John?
MIDDLETON: No, not after high school.
COUNSEL: Did he regularly call you?
MIDDLETON: No.
COUNSEL: So, was it unusual that he called you that
day?
MIDDLETON: Yeah, kinda.
COUNSEL: Okay. Um, and then you said that you
knew him to have some football injuries?
MIDDLETON: Yeah, he was a good football player, I
thought.
COUNSEL: Okay, so when he called you, what were
you thinking?
MIDDLETON: At first, I thought he was just calling to,
when he mentioned me, I thought he was just wanting to
catch up on, you know, ‘cause we ain’t seen each other in
so long.
As discussed, for Middleton to have been entitled to a directed
verdict, we would have to conclude that reasonable minds could not fairly reject
his defense of entrapment. Here, viewing the evidence in the light most favorable
to the Commonwealth with respect to the factors enumerated above, the totality of
the evidence was such that reasonable minds might fairly find Middleton guilty
beyond a reasonable doubt. See Commonwealth v. Sawhill, 660 S.W.2d 3 (Ky.
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1983). Accordingly, the circuit court’s failure to grant Middleton a directed
verdict of acquittal was not error, and we AFFIRM.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Karen Shuff Maurer Daniel Cameron
Assistant Public Advocate Attorney General of Kentucky
Frankfort, Kentucky
Stephanie L. McKeehan
Assistant Attorney General
Frankfort, Kentucky
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