CRIMINAL: CLAY V. COMMONWEALTH (COA 1/12/2007)

CLAY V. COMMONWEALTH
CRIMINAL:  Crimes (trafficking)
2006-CA-000411
PUBLISHED: AFFIRMING; PAISLEY
DATE RENDERED: 1/12/2007

Clay appealed following his convictions of solicitation of prostitution, possession of drug paraphernalia, trafficking in a controlled substance in the first degree, and being a persistent felony offender in the first degree arguing that the Commonwealth failed to present sufficient evidence to sustain a conviction for trafficking; that the jury instruction for trafficking presented multiple theories of guilt that were not supported by the evidence, thereby violating Clay’s right to a unanimous verdict, and that the Commonwealth solicited inadmissible opinion testimony. 

However, COA affirmed the convictions, but noted that since appellant had failed to object, COA was required under Rodefer to determine if the error rose to the level of being palpable.  Under these cases, this error cannot be harmless if preserved, yet is not necessarily palpable if unpreserved. Although the facts in this case are not exactly those in Rodefer, they are very similar.  COA did not believe that there is a substantial possibility that the result would have been different absent Detective Ford’s allegedly improper testimony. Therefore, COA held any irregularity to be nonprejudicial and decline to address the merits of Clay’s assignment of error.

The judgment of conviction is affirmed.

Digested by Michael Stevens

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