Criminal, forfeitures: GRAY V. COMMONWEALTH (SC 9/20/2007)

GRAY V. COMMONWEALTH
CRIMINAL:  FORFEITURE STATUTE FOR CONTROLLED SUBSTANCE CRIMES

2006-SC-000141-MR.pdf
PUBLISHED: AFFIRMING
OPINION BY SCOTT (ABRAMSON NOT SITTING)
FROM WEBSTER COUNTY
DATE RENDERED: 09/20/2007

SC affirmed Gray’s convictions for trafficking in a controlled substance in the first degree, illegal possession of marijuana, and illegal possession of drug paraphernalia (subsequent offender), all of which were firearm-enhanced. Gray was also found guilty of being a persistent felony offender in the second degree and was sentenced to a total of fifty-eight (58) years.

Gray’s first argument is that the forfeiture of the money found during Deputy Madden’s search violates Kentucky forfeiture law and his due process rights. In particular, Gray argues that the forfeiture was improper because there was no connection between the money and the charged offenses since the money was not shown to have been exchanged in the sale of illegal drugs.

Kentucky’s forfeiture statute, KRS 218A.410, permits the forfeiture of "[e]verything of value furnished. . . in exchange for a controlled substance in violation of this chapter, all proceeds . . . traceable to the exchange, and all moneys. . . used, or intended to be used to facilitate any violation of this chapter." Brewer v . Commonwealth, 206 S.W.3d 313, 326 (Ky. 2006) . The statute further provides that it shall be a rebuttable presumption "that all moneys, coin, and currency found in close proximity to controlled substances, to drug manufacturing or distributing paraphernalia . . . are presumed to be forfeitable under this paragraph ." Brewer, 206 S.W.3d at 326. "The Commonwealth may meet its initial burden of proof by producing slight evidence of traceability." Id. at 326 . The Commonwealth must prove that "the currency or some portion of it had been used or was intended to be used in a drug transaction." Osborne v. Commonwealth, 839 S.W.2d 281, 284 (Ky. 1992). If the Commonwealth provides additional proof that the currency sought to be forfeited was found in close proximity then it is deemed sufficient to make a prima facie case. Id . "Thereafter, the burden is on the claimant to convince the trier of fact that the currency was not being used in the drug trade." Thus, the trial court is vested with the discretion to determine whether the burdens contained in KRS 218A.410 are met as well as discretion in ordering the ultimate forfeiture. Brewer, 206 S.W.3d at 325.

TC’s order of forfeiture was proper. The considerable amount of money found on Gray coupled with the large amount of drugs found in Gray’s van – including a large quantity of methamphetamine and drug paraphernalia – leads to a reasonable conclusion that Gray had used or, at the very least, intended to use the currency in an illegal drug transaction.

Lastly, there were no reasonable grounds to believe that Gray was incompetent to stand trial. The trial court took into consideration the fact that the case had been ongoing for a year with no sign of incompetency from Gray. Gray testified competently, and spoke clearly and intelligently while answering his counsel’s questions. On cross-examination Gray was clever and evasive with his answers. Even Gray’s counsel admitted that he did not detect any signs of mental illness throughout the representation. Gray fully communicated with his attorney and participated rationally in his own defense. There being no contrary evidence to support or reasonably believe that the problems he was being treated for rose to the level of incompetency, the trial judge did not abuse her discretion in rejecting Gray’s late request for a competency hearing.

Digested by Scott C. Byrd
www.olginandbyrd.com

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