RENDERED: DECEMBER 14, 2017 TO BE PUBLISHED 

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# uf**~tnfurku** "--- 2015-SC-000639-DG
. JEROME HAWKINS APPELLANT



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

OPINION OF THE COURT BY JUSTICE WRIGHT

. ' ' AFFIRMING APPELLEE

A circuit courtjury convicted Jeroll1:e Hawkins oftrafficking in four or ' more grams ofcocaine and other charges. The Commonwealth's evidence '

. . showed that police seized from Hawkins more than eighteen grams ofa white substance appearing to be crack cocaine. Later laboratory testing confirmed the seized substance actually contained some amount ofcocaine. But

### Hawkin~ argues that he was improperly convicted ofthis particular crime because the Commonwealth's evidence failed to show that the substanc;:e seized contained four or more grams ofpure cocaine. On discretionary review, we affirm the

·judgment ofthe Court ofAppeals. I.
. FACTUAL AND PROCEDURAL BACKGROUND. Based on information provided by a confidential informant (CI), Detective Brad Newman obtained a search warrantfor Hawkins's home and one ofhis 1 \vehicles. The resulting search disclosed more than eighteen grams ofa white substance appearing to be crack cocaine, nearly one pound ofmarijuana, ·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 grandjury indicted Hawkins on charges offirst-degree trruficking in a controlled substance (cocaine, four grams or more),1 trafficking in marijuana (over eight 

## ' ounces),2 and ofbeing 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 ofhis 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 ofa privilege under Kentucky Rule ofEvidence (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 courtheld**~** hearing on the suppression motion 

### at which Detective Newman was the only witness called by the Commonwealth. He testified that most ofthe information usedto obtain the search warrants for

1 Kentucky Revised Statutes (KRS) 2l 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 whatthey had heard. At the end ofthe suppression hearing, the trial court reaffirmed its prior ruling that the·Cl's identitywas 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 ofthe laboratory thatperformed the drug testing in this case, who testified that the lab did not conduct an analysis ofthe purity ofthe cocaine in the substance seized from Hawkins and that itwas rare to do so. At the close ofthe 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 ofmeasuring the weight ofthe

.cocaine. The trial court denied the directed-verdict motion, and thejury

convicted Hawkins offirst-degree trafficking in a controlled substance (cocaine, four grams or mote), trafficking iri**marijuan~** (over eight ounces), and ofbeing
a first-degree PFO. Accepting th_ejury's recommendation, the trial cburt sentenced him to an enhanced sentence of seventeenyears' 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
3ordered the two sentences to run concurrently. Finaljudgmentwas entered accordingly. Hawkins appealed thejudgmentto the Court ofAppeals. He argued to that court and now to this Court that the trial court committed two errors: (1)
; the failure to compel disclosure ofthe Cl's identity and (2) failure to direct a verdict ofacquittal ofthe first-degree trafficking in cocaine (four grams or more) charge, due to the Commonwealth's failure to offer any proofofthe presence of four or more grams of

### pure cocaine.
. . J A divided panel ofthe Court ofAppeals affirmed thejudgment. Itupheld the trial court's ruling that the Commonwealth should not be compelled to disclose the identity ofthe CI and that Hawkins was not entitled to a directed verdict on his trafficking charge because the law does not'require proofofthe actual weight ofpure cocaine to secure a conviction under the first-degree trafficking statute. II. ANALYSIS. A. Standard ofReview 1.. The standard ofreview.is different for each ofthe alleged_errors in this appeal. The trial court's ruling denying Hawkins the ability to reveal the identity ofthe CI we analyze under:an abuse-of-discretion standard.4 Hawkins's claim that he was entitled to a directed verdict on the cocaine

) . ' 4 SeeHeard 

### v. Commonwealth, 172 S.W.3d 372 (Ky. 2005); Taylor v. 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 ofthe ' - cocaine is_not preserved for our review, as Hawkins was notentitled to a

.directed verdict ofacquittal ofall lesser-included charges related to the cocaine i
.

- ' ) trafficking under the evidence adduced attrial. And when Hawkins**fail~d** to object to the trial coyrt'sjury 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 notproperly preserve this
I

. I issue. Havinglost t)le directed-verdict, motion, Hawkins should have objected I to the giving ofa 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 reliefupon a showing of "palpable error."9,A finding ofpalpable error

. \ requires a showing that the alleged error affected the "substantial rights" ofa

5 BopHook 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 maybe,reviewed de nova.").

/ 6 In addition to**fir~t-degree** trafficking in cocaine, four grams or more, the trial**~ourt** gave lesser-included offense instructions on first-degree traffickingin a controlled substance, less than four grams, and first-degree possession ofa controlled substance. · · I
. - 7 Kimbrough v. Commonwealth, 550 S.W.2d 525, 529 (Ky. 1977) ("When the. evidence is insufficientto sustainthe burden ofproofon one or more, butless than all, ofthe issues presented bythe case, the correctprocedure is to objeet to the giving ofinstructions on those.particular issues."). ( s Kentucky Rules ofCriminal Procedure 10.26. 9 Id. 

### 5defendant, for whom reliefmay be granted "upon a determination that manifest injustice has resulted from the error."10 When weighing the Court ofAppeals' holding involving statutory construction, we apply a·de novo standard.11 Hawkins·asserts that a**convicti~::m** oftrafficking infour grams or more ofcocaine requires the Commonwealth to prove he was in possession offour grams or more ofpure cocaine, and because the Commonwealth did not produce any evidence as to the purity ofthe
. cocaine weighed, that he should have been.entitled to a directed verdict. In a split opinfon, the Court ofAppeals majority held that the plain language ofKRS**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 offour grams or more. We agree with the majority ofthat**court~** ' Hawkins was convicted under KRS 2lBA.1412(1)(a), trafficking in cocaine
( four grams or more. The pertinent partofthe statute reads as follows: (1) A person is guilty oftrafficking in a·controlled substance in the first degree when he or she knowingly and unlawfully traffics in: (a) Four (4) grams or more ofcocaine; (b)
...; (e) Any quantity ofa controlled substance specified in paragraph (a), (b),-or (c) ofthis subsectionin an amount less than the amounts specified in those paragraphs. (2)
...; (3) (a) Any person who violates the provisions of su,bsection (l)(a)
... ofthi.s section shall be guilty ofa 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

10 Id. this section: (1) Shall be guilty ofa Class D felony for the.first offense and a Class C felony for a second or subsequent offense[.]

11 BobHook ChevroletIsuzu, Incorporated, 963 S.W.2d at 490. 6

### Cocaine is defined in KRS**218A~Ol0(5)** as, "a substance containing any quantity ofcocaine, 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 ofcutting agents and other foreign substances. We disagree. In our analysis, we turn first 

### tp our printiples of statutory construction: In construing statutes, our goal, ofcourse, is to give effect to the intent ofthe General Assembly. We_ derive that intent; if at all possible, from the language the GeneralAssembly chose, either as defined by the General Assembly or as generally understood in the context ofthe matter under
. consideration. 

### Osborne v. Commonwealth, 185 S.W.3d 645 (Ky. 2006). We presume that the GeneralAssembly intended for the statute to be construed as a whole, for all ofits 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 ifthe 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 ofmodel or uniform statutes, interpretations by other courts. 

### MPMFinancial 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 ofcocaine, its salts, optical arid geometric

12 Shawnee TelecomRes., Inc. v. Brown, 354 S.W.3d 542, 551 (Ky. 2011). 7isomers, and salts ofisomers." To interpret the statute as Hawkins would suggest, we would have to hold that the legislature did not mean "mixture" when itused 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 ofits parts to have meaning." 13 The statute clearly defines "a substance 

### containing anyquantity of cocaine"·as cocaine.14 It is impossible to give effect to the words

. . "containing any quantity ofcocaine" ifthe definition is read to apply 

### only to pure cocaine. It goes without saying that pure cocaine contains a quantity ofcocaine
.. This definition was not meant to be read so narrowly, though. By its ownwords, it includes a.substancecontaining 

### any quantity ofcocaine. Any other interpretation strains_the plain meaning ofthe statute. In the current case, the.forensic analysis was ofa solid appearing to be crack cocaine weighing .5.475 grams·. ·Webster's Dictionary defines 

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



### .Webster's IINew Riverside University Dictionary (1984) (emphasis added). The "constitution" ofthe 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.. CombiningWebster;s definition of substance with the definition ofcocaine found in the statute makes it

13 Jd. 14 KRS 218A.010(5). 8clear that the entirety ofth-e solid tested must be considered cocainenot only those amounts that are "pure." For these reasons, the Court ofAppeals' 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 ofdiscretion.15 KRE 508 graJ?.tS the Commonwealth the privilege to refuse to disclose the identity ofa confidential informant, but \. . the privilege is not indefinite.16 Ifa defendant makes a prima fade case that the informant's identity "is. relevant
... to the defense ofan accused, or is essential to a fair**~etermination** ofa cause," the.Cl's identity should be,_revealed. 1 7 ' When decidingwhether to reveal the identity ofa 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 .Ifthe defendant makes a showing that one ofthe , exceptions applies then "the burden shifts to the Commonwealth to overcome this inference."20 Factors a court "would normally consider'include whether the :

15 .GoodyearTire andRubber Company v. Thompson, 11 S.W.3d 575, 577 (Ky. 2000) ("[A]buse ofdiscretion is the proper standard ofreview ofa 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 ifhe 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 chambers where Detective Newman, under oath, was

. .. r , ' questionedabout 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 alwaysbeen 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 orher identitywould compromise the

. . investigations and put the**CI'~** life in danger. Haying properly weighed the testimony ofDetective Newman and the surrounding facts, the trial court . withheld disclosure ofthe Cl's identity. Hawkins argues that denying his ability to call the CI as a witness

. 

## ' prevented him from examining a material witness and cites BurkS v. 4
. 

### Commonwealthto support the position, "when an informer participates qr



### . . .

### pl~ces himselfin the position ofobserving a criminal transaction-he ceases to be**~erely** a source ofinformation and becomes a witness."22 Butthose 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 ofthe search warrants, and therefore the CI was not a material witness to the crime charged.23 Hawkins further asserts that the inadvertent disclosure ofthe Cl's name durir;ig the suppression hearing operated as a waiver ofthe**Commonw~alth's** , ability to assert its privilege. After review ofthe record, we agree with the Court J ·ofAppeals 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 ofconfrontation is to insure the right· ofcross-examination and protect the accused.from conviction by means ofex parte testimony or affidavits given in his absence. Itis a rule concerned with
. the method by which evidence is produced during trial."24 Our holding is supported,by 

### Thompkins v. Commonwealthwhere we stated, "The Confrontation clause does not give a defendant the right to discover the·identity ofan informant at a pretrial hearingunder the guise ofattacking 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 informantin 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."). 2

4 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)~** 11convicted criminal and had been paid in the past for the information he provided against others. As a result ofthe careful steps taken by the trial court, we find no abuse ofdiscretion.
I 

### \ III. CONCLUSION For the foregoing reasons we affirm the- Court ofAppeals. 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 ofKRS 218A.1412(1)(a) because it allows prosecution for trafficking in cocainewithout proofofthe 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 oftrafficking 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 ofcocaine, its salts, optical and geometric isomers, and salts ofisomers."27

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

### substanceis "matter ofparticular 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 GeneralAssembly defined 

### cocaineusing the term 

### substance, it did so for the purpose ofpunishing more severely

. '
. those persons trafficking in larger quantities ofthe actual narcotic 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;ofany traceable amount ofcocaine, no matter how small, allows the aggregate weight ofthe product is to be usedto**enhan~e** the severity ofthe charge and penalty to be imposed, leading to what I believe is an absurd result.29 It is worth noting, when defining 

### marijuanaunder 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 ofthe plant, its seeds or resin or any compound, 

### mixture, or preparation which contains any quantity ofthese substances."31 In the same definitions section, the General Assembly did

2s Substance, Merriam-Webster**D~ctionary** (11th ed. 2003). 29 Layne v. Newberg, 841 S.W.2d 181, 183 (citing Ovemite Transportation 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 . Inot 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 ofthe range ofwords 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 ofthis goal, lowering the prison population, the General Assembly heard from and studied·plans implemented in other states. Representatives ofother states that had passed legislation with the same goal gave guidance to the General Assembly, three ofthe states explicitly discussed on the GeneralAssembly floor were Texas, South

.___,, Carolina, and.Kansas.32 Each ofthese 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 ofthese states was clear in their purpose to include the aggregate weight, and the General Assembly was aware ofthe·approach taken by these states. After study ofthese states and their statutes, the General

32KET 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 ofcocaine 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 ofany substances, including a compound or a mixture, which contains any quantity ofa 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 ofthe 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 ofAppeals on this point.

COUNSEL FORAPPELLANT: Robert Chung-HuaYang Assistant Public Advocate COUNSEL FORAPPELLEE: Andy Beshear Attorney General ofKentucky Bryan Daryvin Morrow AssistantAttorney General·

)

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