RENDERED: DECEMBER 14, 2017 TO BE PUBLISHED

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JEROME HAWKINS APPELLANT

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

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION . OF THE COURT BY JUSTICE ' WRIGHT '

AFFIRMING

A circuit court jury convicted Jeroll1:e 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 Hawkin~

argues that he was improperly convicted of this particular crime because the

Commonwealth's evidence failed to show that the substanc;:e 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

1 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 Hawk_ins's vehicle police

recovered what appeared to be more cocaine, pills, and cash. The grand jury

indicted Hawkins on charges of first-degree trruficking in a controlled

substance (cocaine, four grams or more),1 trafficking in marijuana (over eight ' ounces),2 and of being a first-degree PF0.3

In a pretrial motion, Hawkins moved the trial court to compel the

. Commonwealth to reveal the identity of t~e 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 tr~al

court ruled .that the Cqmm01;1wealth was not required to revea.l 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 Cl's identity·

would compromise ongoing investigations, possibly putting the Cl's life in

danger.

Hawkins, then filed a pretrial motion to suppress evidence seized from his

home and truck. The trial court held ~ 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

1 Kentucky Revised Statutes (KRS) 2 l 8A.1412 (1)(a). 2 KRS 218A.1421. 3 KRS 532.080. 2 \_ Hawkins's property had come frorri the CI. On cross-examination, Detective

Newman mentioned the Cl's real name. The trial court found that Detective

·Newman's disclosure was accidental, ordered the clerk to seal the portion of· ! the he~ing 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· Cl'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 suppr~ssion

hearing or at trial.

During cross-examination at trial, Hawkins eiicited 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 di~ected verdict

on the trafficking charge. He ·argued that the Commonwealth failed to introduce

evidence Hawkins had trafficked in four grams or more of coc~ne 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 mote), trafficking iri marijuan~ (over eight ounces), and of being

a first-degree PFO. Accepting th_e jury's recommendation, the trial cburt

sentenced him to an enhanced sentence of seventeen years' imprisonment for

the trafficking in cocaine as a ~rst-degree PFO and an enhanced sentence of

ten years' imprisonment for trafficking in marijuana as a first-degree PFO and

3 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 Cl'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. J ..

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 1..

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

) .

' See Heard v. Commonwealth, 172 S.W.3d 372 (Ky. 2005); Taylor v. 4

Commonwealth, 987 S.W.2d 302 (Ky. 1998). 4 trafficking charge requires us to .conduct a statutory analysis, which we

perform de novo. s '· 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 i . - ' )

trafficking under the evidence adduced at trial. And when Hawkins fail~d to

object to the trial coyrt's jury instruction on first-degree trafficking, four grams

or more, the Commonwealth asserts he failed to pres~rve the_ issue for appeal. 6

We agree with the Commonwealth that.Hawkins did not properly preserve this I

. I issue. Having lost t)le directed-verdict, motion, Hawkins should have objected I

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. I We review unpreserved err_ors under RCr 10.26,s 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

5Bop Hook Chevrolet lsu~, Jnco.,Porated v. Commonwealth Transportation. · Cabinet, 983 S.W.2d 488, 490 (Ky. 1998) ("The coristniction and application of statutes is a matter oflaw and may be,reviewed de nova."). /

In addition to fir~t-degree trafficking in cocaine, four grams or more, the trial 6

~ourt gave lesser-included offense instructions on first-degree trafficking in a controlled substance, less than four grams, and first-degree possession of a controlled substance. · · I . - 7 Kimbrough v. Commonwealth, 550 S.W.2d 525, 529 (Ky. 1977) ("When the. evidence is insufficient to sustain the burden of proof on one or more, but less than all, of the issues presented by the case, the correct procedure is to objeet to the giving of instructions on those. particular issues."). s Kentucky Rules of Criminal Procedure 10.26. ( 9 Id. 5 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 convicti~::m

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 opinfon, 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 where1Jy 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 2lBA.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 su,bsection (l)(a) ... of thi.s 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 l(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 or subsequent offense[.]

10 Id. 11 Bob Hook Chevrolet Isuzu, Incorporated, 963 S.W.2d at 490. 6 Cocaine is defined in KRS 218A~Ol0(5) as, "a substance containing any

quantity of cocaine, its salts, optical anq geometric isc;nners, and salts of

isomers."

Again, Hawkins argues that ~his Court should rea~ the statutes\ as

requiring that the weight refers to "pure" cocaine-exclusive of cutting

agents and other foreign substances. We disagree.

In our analysis, we turn first tp our printiples of statutory

construction:

In construing statutes, our goal, of course, is to give effect to the intent of the General Assembly. We_ derive that intent; if at all possible, from the language the General Assembly chose, either as defined by the General Assembly or as generally understood in the context of the matter under . consideration. Osborne v. Commonwealth, 185 S.W.3d 645 (Ky. 2006). We presume that the General Assembly intended for the statute to be construed as a whole, for all of its parts to have meaning, and for it to harmonize with related statutes. Hall v. Hospitality Resources, Inc., 276 S.W.3d 775 _(Ky. 2008); Lewis v. Jackson Energy Cooperative Corporation, 189 S.W.3d 87 (Ky. 2005). We also presume that the General Assembly did not intend an absurd statute or an unconstitutional one. Layne v. Newberg, 841 S.W.2d 1_81 (Ky. 1992). Only if the statute is ambiguous or otherwise frustrates a plain reading, do we resort to extrinsic aids such as the statute's legislative history; the canons of construttion; or, espedally in the case of model or uniform statutes, interpretations by other courts. MPM Financial Group, Inc. v. Morton, 289 S.W.3d 193 (Ky. 2009); Knotts.v. Zurich, 197 S.W.3d 512 (Ky. 2006); Stephenson v. Woodward, 182 S.W.3d 162 (Ky. 2005).12,

Here, the statute is not ambiguous, therefore, ·we need not look to

legislative_ intent. KRS 218A.010(5) defines cocaine as, "a substance

containing any quantity of cocaine, its salts, optical arid geometric

12 Shawnee Telecom Res., Inc. v. Brown, 354 S.W.3d 542, 551 (Ky. 2011). 7 isomers, and salts of isomers." To interpret the statute as Hawkins

would suggest, we would have to hold that the legislature did not mean

"mixture" when it used the word "substance" in the definition. . . However,

that interpretation would go against the statute's plain meaning and fail

to construe it in a way "for all of its parts to have meaning." 13

The statute clearly defines "a substance containing any quantity of

cocaine"·as . cocaine.14 It is impossible to give effect to the . words

"containing any quantity of cocaine" if the definition is read to apply only

to pure cocaine. It goes without saying that pure cocaine contains a

quantity of cocaine.. This definition was not meant to be read so

narrowly, though. By its ownwords, it includes a.substance containing

any quantity of cocaine. Any other interpretation strains_ the plain

meaning of the statute.

In the current case, the. forensic analysis was of a solid appearing

to be crack cocaine weighing .5.4 75 grams·. · Webster's Dictionary defines

substance as "b. a mate.rial of a particular kind or constitution."

. Webster's II New Riverside University Dictionary (1984) (emphasis added).

The "constitution" of the solid in this case included both pure cocaine

and cutting agents. . The key is that the solid contained. "any quantity of \, .\ .

cocaine," as required by the statute .. Combining Webster;s definition of

substance with the definition of cocaine found in the statute makes it

13 Jd. 14 KRS 218A.010(5). 8 clear that the entirety of th-e solid tested must be considered cocaine-

not only those amounts that are "pure."

For these reasons, the Court of Appeals' opinion is affirmed as to

this alleged error.

C. KRE 508

Because we are asked to review an evidentiary ruling, we review the trial

court's decision for abuse of discretion.15 KRE 508 graJ?.tS the Commonwealth

the privilege to refuse to disclose the identity of a confidential informant, but \. . the privilege is not indefinite.16 If a defendant makes a prima fade case that the

informant's identity "is. relevant ... to the defense of an accused, or is essential

to a fair ~etermination of a cause," the.Cl's identity should be,_revealed. 17 ' When deciding whether to reveal the identity of a CI, the trial court

follows a procedure set forth in Heard v. Commonwealth: 1B "[the] defendant

must first make a proper showing that an exception [to the Commonwealth's

privilege] applies."19 .If the defendant makes a showing that one of the ,

exceptions applies then "the burden shifts to the Commonwealth to overcome

this inference."20 Factors a court "would normally consider 'include whether the :

15 .Goodyear Tire and Rubber Company v. Thompson, 11 S.W.3d 575, 577 (Ky. 2000) ("[A]buse of discretion is the proper standard of review of a trial court's evidentiary ~lings."). 16 Heard, 172 S.W.3d 372. 11 Id. 1s Id. 19 Id. at 374. 20 Id. 9

/ informant's. life would be in d~nger were his identity .revealed or if he is needed

for other undercover work. .. "21

In ~he case at hand, the trial court properly conducted a Heard analysis

and did not abuse its discretion in its conclusion. When Hawkins moved to

have the Cl's . name revealed, the trial court held a hearing on the motion. The _/

hearing . was conducted .. in chambersr where Detective Newman, under oath, , was ' questioned about the CI. During his in-chambers testimony, Detective Newman

testified that the CI bad been an informant for over one year, had been used in

multiple i;arcotics cases, had always been found reliable, had several felony

. convictions himself, and the information, he had provided for warrant purposes

had proved to be consistently accurate. Furthermore, Detective Newman / _)

testified that the CI was still performing confidential work for the police.on ·

multiple cases and exposing his. or her identity would compromise. the

investigations and put the CI'~ life in danger. Haying properly weighed the

testimony of Detective Newman and the surrounding facts, the trial court .

withheld disclosure of the Cl's identity.

Hawkins argues that denying his ability to call the CI as a witness . ' prevented him from examining 4 a material witness and cites . BurkS v.

Commonwealth to support the position, "when an informer participates qr . . .

pl~ces himself in the position of observing a criminal transaction-he ceases to

be ~erely a source of information and becomes a witness."22 But those are not

the facts today. The CI was not a witness to the crime ch~rged, rather the

21 Id. ~2 Burks v. Commonwealth, 471 S.W:2d 298, 301-02 (Ky. 1971). io (

trafficking charge was based on the drugs found upon the execution of the

search warrants, and therefore the CI was not a material witness to the crime

charged.23

Hawkins further asserts that the inadvertent disclosure of the Cl's name

durir;ig the suppression hearing operated as a waiver of the Commonw~alth's ,

ability to assert its privilege. After review of the record, we agree with the Court J

·of Appeals that this argument was never presented to the trial court and it is'

therefore unpreserved. ,, As a result; we will not delve into the argument made

today about the witness's inadvertent disclosure resulting in waiving the

Commonwealth's privilege.

Furthermore, Hawkins does not ·have a valid claim under the

Confrontation Clause to call the CI as a witness at his suppression hearing. It

has been stated that, "The main purpose of confrontation is to insure the right·

of cross-examination and protect the accused. from conviction by means of ex

parte testimony or affidavits given in his absence. It is a rule concerned with .

the method by which evidence is produced during trial. "24 Our holding is

supported, by Thompkins v. Commonwealth where we stated, "The

Confrontation clause does not give a defendant the right to discover the· identity

of an informant at a pretrial hearing under the guise of attacking his/her

reliability."25 Hawkins had ample ability .to question Detective New~an about . .

\ the CI at the suppression hearing, incluqing the fact that the CI was a

23 Taylor v. Commonwealth, 987 S. W.2d 302, 304' (Ky. 1998) ("The informant in this case was not a material witness to the crimes charged ... the informant was not present or near the vehicle when the charged crime was co:minitted. "). 24 Harris v. Commonwealth, 315 S.W.2d 630, 632 (Ky. 1958) (citations omitted). 2s Thompkins v. Commonwealth, 54 S.W.3d 147, 152 (Ky. 2001)~

11 convicted criminal and had been paid in the past for the information he

provided against others.

As a result of the careful steps taken by the trial court, we find no abuse

of discretion. I

\ III. CONCLUSION

For the foregoing reasons we affirm the- Court of Appeals.

All sitting. Cunningham, Hughes, Keller, VanMeter, Venters and Wright,

JJ., concur. Minton, C.J., concurs in part and "dissents in part by separate

opinion.

- - . MINTON, C.J., CONCURRING IN PART AND DISSENTING IN PART: I

fully concur with the majority's holdirig in regard to the confidential informant,

but I must dissent from the majority's reading of KRS 218A.1412(1)(a) because

it allows prosecution for trafficking in cocaine without proof of the quantity of . ',

pure cocaine involved. ·. ' Hawkins was convicted under KRS 218A.1412(1)(a), trafficking in cocaine

four grams or more. The statute provides, "A person is guilty of trafficking in a

controlled substance in the first degree when he or she knowingly and

unlawfully traffics in ... four (4) grams or more·ofcocaine."26 Cocaine is defin~d

in KRS 218A.010(5) as, "a substance conta,ining any quantity of cocaine, its

salts, optical and geometric isomers, and salts of isomers. "2 7 . '

26 KRS 218A. l 412( 1)(a). 21 KRS 218A.010(5). 12 .___,, I am persuaded by Hawkins's argument that substance, as used in

this statute, is rtot the same as mixture.. Included in the dictionary

definition of substance is "matter of particular or definite chemical

constitution. "2s Hawkins argues the definite chemical structure required·

is actual cocaine.·This definition of substance supports Hawkins's

argument that when the General Assembly defined cocaine using the

term substance, it did so for. the purpose of punishing more severely ' .

those persons trafficking in larger quantities of the actual narcotic . I

cocaine, and not the cutting agents used in the final product.

As the majority reads the statute, substance is interchangeable

with mixture. So the presence; of any traceable amount of cocaine, no

matter how small, allows the aggregate weight of the product is to be

used to enhan~e the severity of the charge and penalty to be imposed,

leading to what I believe is an absurd result.29

It is worth noting, when defining marijuana under KRS

218A.210(21), the General Assembly explicitly u.sed the term mixture~ 30

Marijuana is defined as·" ... every compound, manufacture, salt,

derivative, 1J1,ixture, or preparation of the plant, its seeds or resin or any

compound, mixture, or preparation which contains any quantity of these

substances."31 In the same definitions section, the General Assembly did

2s Substance, Merriam-Webster D~ctionary (11th ed. 2003). Layne v. Newberg, 841 S.W.2d 181, 183 (citing Ovemite Transportation 29

Company v. Gaddis 793 S.W.2d 129 (Ky. Ct. App. 1990)) (As a court ~e should not read a statute "in such a manner as to render [its] application an absurdity;"). 30 KRS 218A.210(21). 31 Id. 13 not include mixture when defining cocaine. It is not illogical then to

conclude that when defining two terms in the same section, the General ..._/ ., '

Assembly was aware of the range of words it could use and purposely \

omitted the word mixture in defining cocaine.

The definition of cocaine and the statute pertaining to trafficking ( ' drugs was revised by HB 463, a comprehensive statutory revision aimed

at reducing the rising costs associated with the burgeoning population of 1

state prisoners serving sentences for low-level drug possessio'n.

In furtherance of this goal, lowering the prison population, the

General Assembly heard from and studied· plans implemented in other

states. Representatives of other states that had passed legislation with

the same goal gave guidance to the General Assembly, three of the states

explicitly discussed on the General Assembly floor were Texas, South

.___,, Carolina, and. Kansas. 32 Each of these states revamped their drug laws I

·and specifically indicated in their statutes that when weighing the drugs

recovered, that the weight was to be taken as the aggregate weight. 33

Each of these states was clear in their purpose to include the aggregate

weight, and the General Assembly was aware of the· approach taken by

these states. After study of these states and their statutes, the General

32 KET Archived Legislative Coverage, Senate Chambers-February 28, 2011, ( 1:37:28, . ) . https: / /www.ket.org/legislature /?archive&program=WGAOS&epoch=2011 &nola=WG AOS+012113. · 33 SC ST §44-53-370(e)(2) r'ten grams or more of cocaine or any mixtures containing cocaine ... "); V.T.C.A. §481.112 ("aggregate weight, including adulterants or dilatants .... "); KS ST 2'1-5705(g) ("the total amount of any substances, including a compound or a mixture, which contains any quantity of a controlled substance or controlled substance analog."). 14 - Assembly chose not to include the same language, indicating its intent

not to weigh the drugs by the aggregate weight of the mixture used.

\ Because I believe the Commonwealth is required· to prove the purity of

the substance recovered by authorities, whicli was not done in this case, I

would reverse the Court of Appeals on this point.

COUNSEL FOR APPELLANT:

Robert Chung-Hua Yang Assistant Public Advocate

COUNSEL FOR APPELLEE:

Andy Beshear Attorney General of Kentucky

Bryan Daryvin Morrow Assistant Attorney General·

)

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