Criminal: MATHENEY V. COMMONWEALTH (SCOKY; 3/23/2006)

In determining the elements of manufacturing methamphetamine under the 1998 version of the statute, SC overruled Kotila v. Commonwealth, 114 S.W.3d 226 (Ky. 2003), and held that 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.  In Kotila, the SC previously held that the version of KRS 218A.1432(1)(b) then in effect required possession of all the chemicals or equipment necessary to manufacture methamphetamine.

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(1)(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) .

SC concluded KRS 218A.1432(1)(b) is not unconstitutionally vague.  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.

In a blistering 41 page dissent, Justice Cooper expressed (1) why the majority opinion violates principles of statutory construction; (2) why it violates the doctrine of stare decisis; (3) why its new interpretation of former KRS 218A.1432(1)(b) renders the statute void for vagueness; and (4) why the General Assembly’s 2005 amendment of the statute does not affect the interpretation of the 1998 enactment.