John David Graves v. Commonwealth of Kentucky ( 2021 )

RENDERED: MARCH 26, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-1797-MR
JOHN DAVID GRAVES APPELLANT
APPEAL FROM MONROE CIRCUIT COURT
v. HONORABLE DAVID L. WILLIAMS, JUDGE
ACTION NO. 19-CR-00063
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
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BEFORE: JONES, LAMBERT, AND K. THOMPSON, JUDGES.
LAMBERT, JUDGE: John David Graves has appealed from the November 18,
2019, judgment and sentence entered by the Monroe Circuit Court following the
entry of his guilty plea conditioned upon his right to seek review of the circuit
court’s ruling on his motion to exclude evidence. We affirm.
In April 2019, a Monroe County grand jury indicted Graves on several
drug-related charges, including first-degree trafficking in a controlled substance,
first offense (methamphetamine); first-degree trafficking in a controlled substance,
second offense (cocaine); and possession of drug paraphernalia. He was also
indicted on two first-degree persistent felony offender (PFO I) charges. These
charges arose on March 11, 2019, when several police and probation and parole
officers performed a home visit at Graves’ residence in Tompkinsville, Kentucky.
After receiving consent to search, the officers located substances identified through
field testing as cocaine and methamphetamine. Graves was arrested and taken into
custody. He hired private counsel to represent him and entered a not guilty plea at
his arraignment.
Prior to the scheduled trial, Graves filed a motion in limine to exclude
the drug evidence seized from Graves’ residence during the search. Discovery
provided by the Commonwealth included a Kentucky State Police (KSP) lab report
reflecting that the substances were analyzed by a chemist on June 11, 2019, and a
request from Officer Jordan Page requesting this analysis dated March 10, 2019,
prior to the seizure date. Therefore, he argued that there was a lack of proof of a
chain of custody that these were the substances seized from the residence.
The court held a hearing on October 24, 2019, on Graves’ motion.
Counsel for Graves addressed the alleged issues with the chain of custody related
to dates on two forms. The Tompkinsville Police Department Request for
Evidence Examination form listed an offense date of January 11, 2019, and a
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signature date of March 10, 2019. Both of these dates predated the actual March
11, 2019, arrest and seizure date. Another document from the KSP lab listing the
chain of custody dates indicates that the items were received from Assistant Chief
Kerry Denton on May 21, 2019, months after the evidence was seized.
Officer Page was the first witness to testify for the Commonwealth.
He is a sergeant with the Tompkinsville Police and was the arresting officer in this
case. Officers, including Officer Page, had received complaints of drugs related to
Graves, and he and other officers organized a home visit. He seized all of the
suspected drugs and related items found during the search and filed a report dated
March 11, 2019, detailing the investigation that day. After he arrested Graves, he
put the evidence in his patrol car and took it back to the police department where
he filled out the citations and started the forms. He placed the evidence in Chief
Denton’s office, and Chief Denton took it to the KSP lab. Officer Page did not
have possession of or access to the evidence after he turned it over to Chief
Denton. As to the dates on the Request for Evidence Examination form, Officer
Page explained that these were typographical errors on his part. He stated that “a
lot of the time” the arrestees were still there while he would be filling out the form
and would try to talk to him. He confirmed that the items listed on the form were
the items he seized from Graves’ residence on March 11, 2019. On cross-
examination, Officer Page testified that he filled out the forms on the date of the
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arrest and that it took several days to complete the Evidence/Recovered Property
form dated March 16, 2019.
Chief Denton testified next. He was the designated evidence officer at
the police department. Chief Denton received the evidence seized in this case from
Officer Page once the officer had finished his paperwork. He explained that
evidence could not be turned over to him without two forms, the KSP 41 and KSP
26 forms, which were filled out in this case. Chief Denton placed the evidence in
the evidence locker once Officer Page gave it to him on March 11, 2019. He
explained that it took five days to complete the Evidence/Recovered Property form
due to the amount of evidence collected. The evidence was held behind three locks
per the applicable code, and Chief Denton was the only person who had access to
the room. The evidence was removed to be examined at the KSP lab. Chief
Denton took the evidence to the KSP lab on May 21, 2019, and he picked it up on
July 31, 2019, once the examination had been completed. He explained the dates
on the Request for Evidence Examination form as typographical errors. Chief
Denton also explained the two-month delay in taking the evidence to the KSP lab
as being a result of having a small police department. It was his regular practice to
wait until he had eight to ten items to be tested to take them to the KSP lab. A
two- to three-month gap would be normal.
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In closing, counsel for Graves argued that he did not have clear,
documentary proof of where the evidence was located from March 11 to May 21,
2019. He questioned the number of alleged typographical errors on forms that
Officer Page testified he completed on March 11, 2019. There were three other
dates listed on these forms: January 11, March 10, and March 16, 2019. Based on
the dates and questions about custody, counsel requested that the evidence be
excluded. The Commonwealth argued that the testimony established an unbroken
chain of custody. The court did not doubt that typographical errors occurred in this
case, and it ruled that the testimony and documents were more than sufficient to
establish chain of custody. Therefore, the court denied the motion. A calendar
order entered October 25, 2019, memorialized this oral ruling.
Rather than proceeding to trial, Graves opted to accept the
Commonwealth’s offer on a plea of guilty. The Commonwealth recommended
that the trafficking in methamphetamine, possession of drug paraphernalia, and
PFO I charges be dismissed, leaving the trafficking in cocaine charge as the
remaining charge. For that charge, the Commonwealth recommended that Graves
be sentenced to ten years’ imprisonment, and it opposed probation or shock
probation. The offer detailed that the ten-year sentence in this case would run
consecutively with other indictments in Monroe and Cumberland Counties. The
drugs and paraphernalia seized were to be disposed of in accordance with
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Kentucky law. Graves’ motion to enter a guilty plea reflected his understanding of
what his acceptance of the Commonwealth’s offer would mean.
The court held a guilty plea hearing on November 13, 2019. The
court proceeded with a colloquy, including informing Graves that he would be
waiving his right to appeal by pleading guilty, among other rights. Graves
responded to the court that he understood he would be waiving these rights. The
Commonwealth informed the court that Graves would be pleading guilty to first-
degree trafficking in a controlled substance, second offense, and he would be
sentenced to ten years’ imprisonment. Graves confirmed that was what he had
agreed to and stated that he was satisfied with his counsel’s advice. The court
accepted Graves’ plea of guilty. At this point, Graves’ counsel stated that Graves
might want to appeal the ruling on his motion to exclude evidence and asked the
court if someone would be contacting him. The court asked if the plea was
conditional; counsel responded no. The Commonwealth stated that Graves did not
have a right to appeal without entering a conditional plea. Counsel thought he
would retain the right to appeal the ruling, but not the final judgment or plea. The
court told him that was incorrect. In order to protect Graves’ right to appeal, the
court entered a finding on the record that Graves had entered a conditional guilty
plea to reserve his right to appeal the issue he raised in the motion.
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The court entered a calendar order on November 18, 2019, reflecting
that it had accepted Graves’ conditional guilty plea and set forth the terms of the
agreement. The court dismissed the four charges pursuant to this agreement by an
order entered the same day. Finally, and also on the same day, it entered a final
judgment sentencing Graves pursuant to the terms of his plea agreement. This
appeal now follows.
Before we may reach the merits of Graves’ appeal, we must address a
preliminary issue related to the judgment on appeal that was not raised by either
party. The actual final judgment does not reflect that it was entered pursuant to a
conditional guilty plea. Rather, it was entered pursuant to an unconditional guilty
plea, and the language of the judgment reflects that Graves had knowingly and
voluntarily waived his right to appeal his case to a higher court. Based upon the
guilty plea hearing and the calendar order, however, it is clear that Graves’ guilty
plea was conditioned upon his right to appeal the denial of his motion to exclude
evidence. We consider the mistake in the judgment to be a clerical error, which is
subject to correction. See generally Fagan v. Commonwealth, 374 S.W.3d 274,
278-79 (Ky. 2012) (addressing the distinction between a judicial error and a
clerical error as being whether the error “was the deliberate result of judicial
reasoning and determination” and the application of Kentucky Rules of Criminal
Procedure (RCr) 10.10, which “permits a court to amend clerical errors ‘at any
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time on its own initiative or on the motion of any party[.]’”). While such
correction should properly be made by the lower court, we shall nevertheless
recognize that the plea was conditional and consider the merits of the appeal.
Graves’ sole argument on appeal is that the circuit court should have
granted his motion to exclude the drug evidence based upon the Commonwealth’s
failure to establish a credible chain of custody. While the motion was styled below
as a motion in limine, we agree with Graves that it is more akin to a motion to
suppress evidence for purposes of our review.
In Simpson v. Commonwealth, 474 S.W.3d 544 (Ky. 2015), the
Supreme Court of Kentucky set forth the most current law as to our standard of
review in an appeal from a ruling on a motion to suppress evidence.
At the time of Appellant’s trial, (RCr) 9.78 was in
effect and governed pretrial motions to suppress
evidence. RCr 9.78 provided that “[i]f supported by
substantial evidence, the factual findings of the trial court
shall be conclusive.” Under RCr 9.78 we apply the two-
step process adopted in Adcock v. Commonwealth, 967
S.W.2d 6 (Ky. 1998). First, we review the trial court’s
findings of fact under a clearly erroneous standard.
Welch v. Commonwealth, 149 S.W.3d 407, 409 (Ky.
2004). Under this standard, the trial court’s findings of
fact will be conclusive if they are supported by
substantial evidence. See [Kentucky Rules of Civil
Procedure (CR)] 52.01; Canler v. Commonwealth, 870
S.W.2d 219, 221 (Ky. 1994) (citations omitted). We then
“conduct a de novo review of the trial court’s application
of the law to the facts to determine whether its decision is
correct as a matter of law.” Payton v. Commonwealth,
327 S.W.3d 468, 471-72 (Ky. 2010) (quoting
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Commonwealth v. Neal, 84 S.W.3d 920, 923 (Ky. App.
2002)).
Effective January 1, 2015, RCr 9.78 was
superseded by RCr 8.27. Unlike its predecessor, RCr
8.27 does not specifically address an appellate standard
of review. However, CR 52.01 provides that findings of
fact shall not be set aside unless clearly erroneous. “A
finding supported by substantial evidence is not clearly
erroneous.” Hunter v. Mena, 302 S.W.3d 93, 97 (Ky.
App. 2010) (citation omitted). Consequently, the
application of CR 52.01 leads us to the identical standard
applied under RCr 9.78. Accordingly, while RCr 9.78
has been superseded, the standard of review for a pretrial
motion to suppress as stated in Adcock, Welch, Canler,
Payton, and Neal, all of which were buttressed by RCr
9.78, remains substantively unaffected.
Id. at 546-47 (footnotes omitted).
“At a suppression hearing, the ability to assess the credibility of
witnesses and to draw reasonable inferences from the testimony is vested in the
discretion of the trial court.” Pitcock v. Commonwealth, 295 S.W.3d 130, 132 (Ky.
App. 2009) (citing Commonwealth v. Whitmore, 92 S.W.3d 76, 79 (Ky. 2002)).
“On review, the appellate court should not reevaluate the evidence or substitute its
judgment of the credibility of the witnesses for that of the jury.” Commonwealth v.
Suttles, 80 S.W.3d 424, 426 (Ky. 2002) (citing Commonwealth v. Jones, 880
S.W.2d 544 (Ky. 1994)). “In conducting our review, our proper role is to review
findings of fact only for clear error while giving due deference to the inferences
drawn from those facts by the trial judge.” Perkins v. Commonwealth, 237 S.W.3d
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215, 218 (Ky. App. 2007) (citing Commonwealth v. Whitmore, 92 S.W.3d 76, 79
(Ky. 2002)).
Kentucky Rules of Evidence (KRE) 901(a) provides that “[t]he
requirement of authentication or identification as a condition precedent to
admissibility is satisfied by evidence sufficient to support a finding that the matter
in question is what its proponent claims.” Our Supreme Court addressed the
application of KRE 901 and chain of custody as it relates to evidence integrity in
Rabovsky v. Commonwealth, 973 S.W.2d 6 (Ky. 1998), albeit related to blood
testing:
The more serious and ultimately fatal problem
with respect to the admission of the blood test results is
the total failure of the Commonwealth to establish a
chain of custody of the blood samples. This issue relates
to the integrity of the evidence and is an integral part of
the authentication requirement of KRE 901(a). The
purpose of requiring proof of the chain of custody of a
blood sample is to show that the blood tested in the
laboratory was the same blood drawn from the victim. R.
Lawson, The Kentucky Evidence Law Handbook, §
11.00, p. 592 (3rd ed. Michie 1993). While the integrity
of weapons or similar items of physical evidence, which
are clearly identifiable and distinguishable, does not
require proof of a chain of custody, e.g., Beason v.
Commonwealth, Ky., 548 S.W.2d 835 (1977), Smith v.
Commonwealth, Ky., 366 S.W.2d 902 (1962), a chain of
custody is required for blood samples or other specimens
taken from a human body for the purpose of analysis.
Henderson v. Commonwealth, Ky., 507 S.W.2d 454(1974); Calvert v. Commonwealth, Ky.App., 708 S.W.2d
121, 124 (1986); Haste v. Kentucky Unemployment Ins.
Comm’n, Ky.App., 673 S.W.2d 740 (1984); Lawson,
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supra, § 11.00, p. 593; 32A C.J.S. Evidence § 797
(1996).
Even with respect to substances which are not
clearly identifiable or distinguishable, it is unnecessary to
establish a perfect chain of custody or to eliminate all
possibility of tampering or misidentification, so long as
there is persuasive evidence that “the reasonable
probability is that the evidence has not been altered in
any material respect.” United States v. Cardenas, 864
F.2d 1528, 1532 (10th Cir. 1989), cert. denied, 491 U.S.
909, 109 S.Ct. 3197, 105 L.Ed.2d 705 (1989). See also
Brown v. Commonwealth, Ky., 449 S.W.2d 738, 740
(1969). Gaps in the chain normally go to the weight of
the evidence rather than to its admissibility. United
States v. Lott, 854 F.2d 244, 250 (7th Cir. 1988). Here,
however, there was no attempt at all to establish the chain
of custody of these blood samples, even though the
samples apparently were transferred and stored internally
within the hospital, then transferred and stored outside
the hospital, first at a laboratory in Louisville, then,
presumably, at another laboratory in Nashville. As
Justice Palmore aptly put it in Henderson v.
Commonwealth, supra:
Hence the integrity of the evidence from the
time it was relinquished by the investigative
officers until it reached the laboratory
analyst was not proved. We think that
surely it is unnecessary to delve into the
literature of the law in order to document the
point that this type of carelessness in the
development of important evidence during
the course of a trial simply will not do. We
know it is tedious and time-consuming to
trace the integrity of an exhibit; in fact, it is
tedious and time-consuming to have a trial
at all when we think we know the defendant
is guilty anyway, but it is not half as bad a
nuisance to do it right the first time as it is to
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go through the whole process a second time
two years later.
Id. at 461.
Rabovsky, 973 S.W.2d at 8-9.
Graves posits that, based upon the errors in the documentation of the
evidence by the police department coupled with Chief Denton’s stockpiling of
evidence prior to taking it to the KSP lab, there was no way to know whether the
evidence tested by the lab came from his home. We disagree.
Officer Page and Chief Denton testified about how the evidence in
this case was handled and were able to explain the discrepancies in the dates as
being typographical errors and the delay in transporting the evidence to the KSP
lab as a normal course of procedure for this particular police department. This
testimonial evidence is reasonable and provides substantial evidence for the circuit
court’s findings and ultimate ruling that the Commonwealth had established a
proper chain of custody for the evidence seized from Graves’ residence. There is
no support for Graves’ claim that the evidence transported to the KSP lab was not
the evidence seized from his residence. Therefore, we cannot find any abuse of
discretion in the circuit court’s decision.
For the foregoing reasons, the judgment of the Monroe Circuit Court
is affirmed.
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JONES, JUDGE, CONCURS.
THOMPSON, K., JUDGE, CONCURS IN RESULT ONLY.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Kayla D. Deatherage Daniel Cameron
Assistant Public Advocate Attorney General of Kentucky
Frankfort, Kentucky
Courtney Kay Han
Assistant Attorney General
Frankfort, Kentucky
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