Matheney v. Commonwealth , 191 S.W.3d 599 ( 2006 )

Opinion of the Court by Justice ROACH.

Appellant Jeffrey Matheney was convicted by a Hopkins Circuit Court jury of manufacturing methamphetamine and of being a persistent felony offender in the second degree. He was sentenced to twenty years imprisonment and appeals to this Court as a matter of right. Appellant argues that since he did not possess all the chemicals necessary to manufacture methamphetamine, his conviction must be reversed pursuant to Kotila v. Commonwealth, 114 S.W.3d 226 (Ky.2003). We conclude that Kotila was wrongfully decided and affirm Appellant’s conviction.

I. Kotila Issue

On March 4, 2001 Appellant, accompanied by his wife and children, traveled to Madisonville, Kentucky. In Madisonville, Mrs. Matheney purchased two boxes of cold medicine at the Dollar Store. Appellant then purchased two boxes of cold medicine at the More for Less Store. The family then traveled to an auto parts store and purchased three cans of Pyro (starting fluid) and then went to a hardware store and purchased a gallon of Liquid Fire. They then traveled to another shopping center and purchased two boxes of Su-dafed. After this purchase, the family traveled to yet another shopping center, where Appellant purchased two more boxes of Sudafed from a Rite Aid drug store. The store manager of this Rite Aid recognized Appellant as the same individual who had bought two boxes of Sudafed three weeks earlier and called the police to report the purchases. A police officer confronted Appellant in the parking lot and ultimately the Matheneys consented to a search of their car. The trunk contained 396 cold and allergy pills containing ephedrine or pseudoephedrine, a gallon of Liquid Fire and three cans of Pyro. Appellant and his wife were arrested.

The evidence at trial established that the following chemicals are necessary to manufacture methamphetamine: (i) ephedrine or pseudoephedrine; (ii) potassium, lithium, or some other reactive metal; (iii) anhydrous ammonia; (iv) ether; (v) acid; and (vi) salt or potassium.¹ Appellant possessed only ephedrine (in the Sudafed and cold pills), acid (Liquid Fire can serve as the requisite acid), and ether (starting fluid contains ether). This case was tried before our decision in Kotila, thus the jury was not instructed that Appellant had to possess all of the chemicals necessary for the manufacture of methamphetamine. Counsel for Appellant did not object to the instructions, but Appellant claims that the error constitutes palpable error.

From July 15, 1998, when manufacturing methamphetamine was first made a crime in this Commonwealth, until June 20, 2005, KRS 218A.1432(1) simply provided:

A person is guilty of manufacturing methamphetamine when he knowingly and unlawfully:

(a) Manufactures methamphetamine; or

(b) Possesses the chemicals or equipment for the manufacture of methamphetamine with the intent to manufacture methamphetamine.

The General Assembly has now amended KRS 218A.1432(l)(b) to read that a person is guilty of manufacturing methamphetamine when he knowingly and lawfully “(b) with intent to manufacture methamphetamine possesses two (2) or more chemicals or two (2) or more items of equipment for the manufacture of methamphetamine.” 2005 Kentucky Laws ch. 150, § 9 (effective June 20, 2005).

In Kotila v. Commonwealth, 114 S.W.3d 226 (Ky.2003), this Court held that the version of KRS 218A.1432(l)(b) then in effect required possession of all the chemicals or equipment necessary to manufacture methamphetamine. Essentially, this Court found that the statute’s use of the word “the” meant that a person could be convicted under subpart (l)(b) of the statute only for possession of all the chemicals or equipment (as opposed to “any” or “some” of the chemicals or equipment) for the manufacture of methamphetamine. The Kotila majority based this conclusion on grammatical construction and subsequent statutory enactments by the General Assembly. While attempting to discern the General Assembly’s intent by analyzing subsequent legislation, the majority opinion conceded that the precise intent of the General Assembly was ambiguous.

The majority also rejected the applicability of criminal attempt under KRS 506.010 unless all the chemicals or equipment necessary to manufacture methamphetamine were present. Justice Keller concurred in the Court’s opinion relating to KRS 218A.1432(l)(b). However, he believed that KRS 506.010 applied to “defendants who intend to manufacture methamphetamine and who undertake ‘substantial steps’ towards manufacturing methamphetamine by knowingly accumulating materials necessary to do so, but who are apprehended before they can complete the KRS 218A.1432(l)(b) Manufacturing Methamphetamine offense by knowingly possessing all of the chemicals or all of the equipment necessary to manufacture methamphetamine.” Kotila, 114 S.W.3d at 251 (Keller, J., concurring in part and dissenting in part).

Chief Justice Lambert authored a dissent, which was joined by Justice Winter-sheimer. Chief Justice Lambert argued that if the General Assembly had intended the statute to be construed as the majority did, “it would surely have used the word ‘all’ rather than the more general ‘the.’ ” Kotila, 114 S.W.3d at 256 (Lambert, C.J., dissenting). One member of the Kotila majority has subsequently admitted that he “was seduced by a metaphysical infatuation which led to an absurdity” and concluded that Kotila “does violence to the concept of common sense.” Fulcher v. Commonwealth, 149 S.W.3d 363, 381 (Ky. 2004) (Graves, J., dissenting).

In Fulcher, despite the fact that the defendant possessed a plethora of equipment and chemicals to make methamphetamine, the Court held that since there was no evidence of sodium metal or lithium, the defendant did not possess all the chemicals necessary to manufacture methamphetamine. In addition, since there were no mixing bowls, stirring devices or pliers, the defendant also failed to possess all the equipment necessary to manufacture methamphetamine.

This Court has struggled with the effects of Kotila from day one. This is clear from the fact that the bright line rule of Kotila survived for only about six months.

In Varble v. Commonwealth, 125 S.W.3d 246, 254 (Ky.2004), this Court upheld a conviction under KRS 128A.1432(1)(b) where all the chemicals except anhydrous ammonia and all the equipment except for a filter were present. The Court held that “the odor of anhydrous ammonia” and a “filter of unspecified nature and a dust filter mask” were sufficient evidence to satisfy Kotila. Id. at 254. Chief Justice Lambert remarked that the holding in Varble represented “a significant departure from the bright line rule announced in Kotila.” Id. at 256 (Lambert, C.J., concurring).

Additionally, with Justice Graves’s express disavowal of Kotila in his dissent in Fulcher, four members of this Court have cast votes that necessarily demonstrate their disagreement with Kotila’s holding regarding the application of KRS 506.010 (Criminal Attempt) to methamphetamine manufacturing offenses. See Kotila, 114 S.W.3d at 249 (Keller, J., concurring in part and dissenting in part); id. at 256 (Lambert, C.J., dissenting in part, joined by Wintershiemer, J.); Fulcher v. Commonwealth, 149 S.W.3d 363, 381 (Ky.2004) (Graves, J., dissenting).

Since Kotila was rendered, over two years ago, it has become increasingly clear that Justice Graves was correct in that requiring possession of all the chemicals or equipment to uphold a conviction under KRS 128A.1432(l)(b) defies common sense. And though considerations of stare decisis would normally guide us to adhere to Koti-la, we simply cannot overlook the fact that the Court’s reasoning in subsequent decisions addressing KRS 218A.1432(l)(b) has already departed significantly from the bright-line rule. Therefore, we go one step further and hold that Kotila’s construction of KRS 218A.1432(l)(b) was incorrect.

We do not reverse Kotila lightly. As the dissent observes in its extensive discussion, stare decisis is an important guiding principle in American jurisprudence. On that point, we are in complete agreement. However, as this Court has noted recently,

the doctrine of stare decisis does not commit us to the sanctification of ancient or relatively recent fallacy. While we recognize this Court should decide cases with a respect for precedent, this respect does not require blind imitation of the past or unquestioned acceptance ad infinitum. Rather, in many ways, respect for precedent demands proper reconsideration when we find sound legal reasons to question the correctness of our prior analysis.

Morrow v. Commonwealth, 77 S.W.3d 558, 559 (Ky.2002) (internal brackets, quotation marks, and footnotes omitted), overruling Gray v. Commonwealth, 979 S.W.2d 454 (1998). Morrow, like this case, concerned statutory construction of relatively recent vintage.² And when we found that construction wanting, we ruled, as we do here, that stare decisis must give way.

We construe the language in KRS 218A.1432(1)(b) that states “the chemicals or equipment for the manufacture of methamphetamine” to mean that one must possess two or more chemicals or items of equipment with the intent to manufacture methamphetamine to fall within the statute. This construction is based on a common sense , approach that gives proper import to the use of the plural “chemicals.” Of course, any conviction must also satisfy the scienter requirement contained in KRS 218A.1432(l)(b). In light of this construction, we need not consider Appellant’s argument regarding palpable error, because no error occurred regarding the jury instructions.

Appellant also argues that KRS 218A.1432(1)(b) is unconstitutionally void for vagueness. Essentially, Appellant argues that if KRS 218A.1432(1)(b) is interpreted to encompass possession of less than all the chemicals or equipment necessary for the manufacture of methamphetamine, then a citizen is required to guess what combinations would result in a violation of the statute. Appellant overlooks that the statute allows conviction only when an individual possesses the requisite chemicals or equipment with the intent to manufacture methamphetamine. This makes certain what conduct is proscribed. “It would be difficult, if not impossible, for a person to inadvertently purposely or knowingly take action in furtherance of the criminal production or manufacture of dangerous drugs.” State v. Leeson, 319 Mont. 1, 82 P.3d 16, 19 (2003); see also Kotila, 114 S.W.3d at 256 (holding that “the additional requirement that the possession be with the intent to manufacture methamphetamine cures any uncertainty as to the nature of the conduct proscribed”). Although in Leeson the Supreme Court of Montana was interpreting a statute that listed certain chemicals, Kotila correctly dismissed the argument that the statute should be required to list “all of the possible combinations of chemicals and equipment used to manufacture methamphetamine.” Kotila, 114 S.W.3d at 249. Therefore, we conclude that KRS 218A.1432(l)(b) is not unconstitutionally vague.

II. Prior Ephedrine Purchase

Appellant also claims he was denied due process when the trial court admitted evidence of a prior ephedrine purchase from the Rite Aid where he made his final ephedrine purchase. The trial court allowed the evidence because it showed why the Rite Aid manager called the police: she had recognized Appellant as a person who had purchased an additional large quantity of cold/allergy pills only a few weeks before. Appellant cites to Sanborn v. Commonwealth, 754 S.W.2d 534 (Ky. 1988), for the proposition that this evidence was inadmissible because the Rite Aid manager’s action (in calling the police) was not an ultimate issue in the case. Sanborn, however, is inapplicable to this case because its rule applies only to whether a potential hearsay statement may be admitted for a non-hearsay purpose, e.g., as a “verbal act.” Sanborn’s basic thrust, in that respect, was to do away with the concept “investigative hearsay” as a means to admit statements made to the police.

The evidence that Appellant objected to in this case, however, was not hearsay. Rather, it was the direct testimony from the Rite Aid manager to explain why she called the police. At most, this evidence might raise a KRE 404(b) issue in that it consists of a description of a prior bad act committed by Appellant. And even though Appellant has not raised this ground on appeal, we simply note that the Rite Aid manager’s testimony showed Appellant’s intent to manufacture methamphetamine, thus it was admissible under the exception in KRE 404(b)(1).

III. Prosecutorial Misstatement

Appellant next alleges that the prosecutor misstated the law during closing argument. Specifically he claims the prosecutor erred by stating:

[The General Assembly] put into the statute that people who possess chemicals and/or equipment necessary to manufacture, with intent that those chemicals and equipment be used in manufacture are guilty [of violating KRS 218A.1432(1)(b) ]. Do not fall into the trap, and do not let the defense counsel rewrite the law, to make me have to prove that they themselves were going to do the manufacturing or that I have to prove they were going to manufacture the product themselves. That is not a requirement of the law.

Basically, the prosecutor argued that Appellant did not have to intend to manufacture methamphetamine himself, but only that he intended that the chemicals and equipment in his possession be used in the manufacture of methamphetamine, even if that act was committed by someone else. There was no objection to this statement at trial. Appellant admits that the issue is unpreserved but asks that we review it as palpable error under CR 10.26.

We first note that Appellant is correct that the prosecutor technically misstated the law. The language of KRS 218A.1432(l)(b) is clear that the requisite intent is “inten[t] to manufacture methamphetamine,” not intent that the chemicals and/or equipment be used (by someone else) in the manufacture of methamphetamine. The prosecutor’s description of the law would only be appropriate if Appellant had been prosecuted for complicity to manufacturing methamphetamine as allowed by KRS 502.020 or criminal facilitation under KRS 506.080.

To support his claim that reversal is required, Appellant points to Mattingly v. Commonwealth, 878 S.W.2d 797 (Ky. App.1993),³ where the Court of Appeals reversed a conviction where during the trial the prosecutor misstated the law of the insanity defense and the defendant had made a “very strong case for insanity.” Id. at 800. However, a misstatement alone, especially when it is not objected to at trial, does not automatically require reversal.

A claim that the prosecutor misstated the law in closing argument is a claim of prosecutorial misconduct. We follow the approach of the Court of Appeals for the Sixth Circuit when reviewing alleged prosecutorial misconduct, thus

we reverse for prosecutorial misconduct in a closing argument only if the misconduct is “flagrant” or if each of the following three conditions is satisfied:

(1) Proof of defendant’s guilt is not overwhelming;

(2) Defense counsel objected; and

(3) The trial court failed to cure the' error with a sufficient admonishment to the jury.

Barnes v. Commonwealth, 91 S.W.3d 564, 568 (Ky.2002) (citing United States v. Carroll, 26 F.3d 1380, 1390 (6th Cir.1994); United States v. Bess, 593 F.2d 749, 757 (6th Cir.1979)). Because Appellant did not object at trial, we need only evaluate whether the prosecutor’s misstatement was “flagrant.”

The prosecutor appears to have misstated the law only the one time noted above. During the rest of his closing argument, when he referred to intent, he simply stated that Appellant had to have possessed the chemicals “with intent”— without again defining, correctly or incorrectly, that term. This single misstatement was also mitigated by the fact that the trial court’s jury instructions correctly reflected the law in that they required the jury to find that Appellant possessed the chemicals or equipment “with the intent to manufacture.” Juries are presumed to follow the instructions of the trial court. Johnson v. Commonwealth, 105 S.W.3d 430, 436 (Ky.2003); see also Scobee v. Donahue, 291 Ky. 374, 164 S.W.2d 947, 949 (1942) (“It is to be assumed that the jury ..; followed the evidence and instructions in their entirety.”); United States v. Davis, 306 F.3d 398, 416 (6th Cir.2002) (“Juries are presumed to follow the instructions they are given.”). And Appellant, whose defense was that he did not have the requisite intent, obviously did not think that the prosecutor’s misstatement was flagrant since he did not object at trial. Given that the jury was correctly instructed by the trial court and that the prosecutor backed off from his misstatement of the law as his closing argument proceeded, we cannot say that his misstatement rose to the level of flagrant misconduct.⁴

IV. School Employee Testimony

Appellant next claims that the prosecutor improperly shifted the burden of proof by introducing nonprobative evidence to impeach his out-of-court statements about why he possessed the cold and allergy pills, when he did not testify at trial. Again, there was no objection at trial, and Appellant now asks us to review the matter for palpable error.

Specifically, Appellant objects to testimony offered about his children’s use of cold and allergy pills. When Appellant was arrested, he told the police that he had bought the cold and allergy pills because he and his children have allergies and because he would send the pills to school with his children. This statement was introduced at trial. The school nurse and a guidance counselor at Appellant’s children’s school testified that it would violate school policy to send the pills to school with the children, that the school had been given no notice of any medical problems, including allergies, of the children, and, most importantly, that the children’s teachers would have reported allergy pill use to the nurse but no such report had been made. Appellant argues that this evidence was more prejudicial than probative, showing only that Appellant lied to the police and not that he had intent to manufacture methamphetamine.

Despite Appellant’s claim to the contrary, this evidence was offered and was relevant to show his intent. In his reply brief, Appellant states that this goes only to whether he possessed the pills for a lawful purpose, which is not a fact of consequence. But proof that a person does not possess pills containing ephedrine/pseudoephedrine for a claimed lawful purpose is circumstantial evidence that the person possesses those pills for an unlawful purpose, namely for manufacturing methamphetamine, which in turn is evidence of intent. As such, introduction of the evidence was not error, much less palpable error.

V. Medical Testimony

Appellant also raises issue with similar testimony that was introduced to refute his claim that he took the pills for his own allergies. Appellant told the police that he took 12-16 allergy pills per day. This statement was introduced, and the prosecutor then proceeded to refute it with medical testimony that such large, sustained pseudoephedrine consumption would lead to “significant medical problems,” including extreme hypertension and an elevated heart rate. Appellant actually objected to this testimony at trial and now claims that its introduction was improper impeachment on a collateral matter.

The law in Kentucky has consistently prohibited impeachment on collateral facts. See Metcalf v. Commonwealth, 158 S.W.3d 740, 744 (Ky.2005); Purcell v. Commonwealth, 149 S.W.3d 382, 397-98 (Ky.2004); Neal v. Commonwealth, 95 S.W.3d 843, 849 (Ky.2003); Slaven v. Commonwealth, 962 S.W.2d 845, 858 (Ky.1997). The medical testimony in question, however, was not about collateral facts. Rather, it was circumstantial evidence of Appellant’s intended unlawful use of the drugs he had purchased because it showed that he had purchased far more than was medically necessary or even advisable to use. The medical testimony was proper.

For the foregoing reasons, we affirm Appellant’s conviction.

LAMBERT, C.J.; GRAVES, SCOTT and WINTERSHEIMER, JJ., concur. GRAVES, J., also concurs by separate opinion in which SCOTT, J., joins. COOPER, J., dissents by separate opinion. JOHNSTONE, J., dissents and would affirm the HOPKINS Circuit Court in accordance with the legal analysis contained in Justice COOPER’S dissenting opinion, but does not join the dicta contained therein.

1 . This list of chemicals is consistent with the expert testimony in Kotila. Kotila, 114 S.W.3d at 236.

2 . We note that, although Morrow reversed the Court's construction of the statute in question, Justice Cooper nonetheless joined its majority opinion.

Curiously, Justice Cooper’s dissent cites to his concurring opinion in Kentucky Dept, of Corrections v. McCullough, 123 S.W.3d 130, 141 (Ky.2003), another case involving statutory construction, to demonstrate his fidelity to the doctrine of stare decisis. Justice Cooper’s entire concurring opinion in that case reads as follows:

Despite my continuing belief that Department of Corrections v. Furr, Ky., 23 S.W.3d 615 (2000), was wrongly decided, four Justices (including one who joined my dissent in Furr) have reaffirmed it today, albeit sub

silentio. Accordingly, and mindful of stare decisis, I join the opinion of the Court, primarily to ensure that the punitive damages analysis receives a majority vote. I do so, however, with the hope that in due time a majority of the Court will recognize and correct the error made in Furr. See Scott v. Illinois, 440 U.S. 367, 374-75, 99 S.Ct. 1158, 1162-63, 59 L.Ed.2d 383 (1979) (Powell, J., concurring).

Id. at 141' (emphasis in last sentence added). The emphasized language, which the dissent fails to include with its quotation of the rest of the concurrence, demonstrates a willingness to disregard stare decisis, even when a question of statutory construction is involved.

3 . Appellant mistakenly claims that Mattingly was rendered by this Court. In fact, it was a decision of the Court of Appeals, review of which was denied by this Court.

4 . We also note that even if Appellant had shown flagrant misconduct, because there was no objection at trial, we would also have to find that Appellant suffered "manifest injustice” before we could grant any relief to which he might have been entitled as to the unpreserved error. CR 10.26. Given that the trial court’s instructions properly stated the law as to Appellant’s intent and that there was substantial evidence (in the form or possession of a substantial amount of ephedrine/pseudoephedrine and other chemicals used in the manufacturing process, repeated trips to multiple retail stores to buy pills containing ephedrine/pseudoephedrine) of Appellant's intent to manufacture methamphetamine, we simply cannot say that Appellant suffered manifest injustice.