         IMPORTANT NOTICE
    NOT TO BE PUBLISHED OPINION


THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED ."
PURSUANT TO THE RULES OF CIVIL PROCEDURE
PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),
THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS BINDING PRECEDENT IN ANY OTHER
CASE IN ANY COURT OF THIS STATE ; HOWEVER,
UNPUBLISHED KENTUCKY APPELLATE DECISIONS,
RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR
CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED
OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE
BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION
BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED
DECISION IN THE FILED DOCUMENT AND A COPY OF THE
ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE
DOCUMENT TO THE COURT AND ALL PARTIES TO THE
ACTION.
                                                         RENDERED: NOVEMBER 1, 2007
                                                               NOT TO BE PUBLISHED


                     ,;VUyrrMr          Courf of ~6
                                     2005-SC-000878-MR



 KEITH B. HARRIS                                                               APPELLANT


                       ON APPEAL FROM CALDWELL CIRCUIT COURT
V.                       HONORABLE BILL CUNNINGHAM, JUDGE
                                   NO . 05-CR-00027


COMMONWEALTH OF KENTUCKY                                                        APPELLEE



                           MEMORANDUM OPINION OF THE COURT

                                         AFFIRMING

         Keith B . Harris appeals as a matter of right' from a circuit court judgment

convicting him of two counts of first-degree Trafficking in a Controlled Substance and

sentencing him to thirty-nine years' imprisonment. He contends that the trial court

violated his due process rights by denying his request to withdraw a stipulation at trial

regarding the chain of custody of a quantity of cocaine, which the Commonwealth

alleged had been sold by Harris . We find no error and affirm.


                                          I . FACTS .

         The grand jury indicted Harris on two counts of first-degree Trafficking in a

Controlled Substance, Second Offense . A few days before the date originally set for

trial, the Commonwealth filed a motion for a continuance, stating that it had been unable

     Ky. Const. § 110(2)(b) .
 to serve a subpoena upon a witness who would testify to part of the chain of custody--

 specifically, to transporting the controlled substances at issue to the regional crime

 laboratory for testing. In the alternative, the Commonwealth asked that the court issue

 a pretrial ruling that it could proceed without this witness's testimony and still sufficiently

establish the chain of custody, further stating that:

       As grounds for this alternative request, the Commonwealth will state that
       [this witness] was the evidence officer at the Pennyrile Narcotics Task
       Force at the time these drugs were logged into evidence, that said drugs
       were logged into evidence in a sealed package, and that [this witness]
       only picked up the sealed package and delivered it in the same condition
       to the Madisonville Laboratory. The Officer putting the drugs into the
       evidence locker will testify as to the sealed nature of this package, and the
       laboratory person receiving the drugs in Madisonville, Kentucky, can
       testify that the package was in its same condition when received .

       At the hearing on this motion, the parties informed the court that they had

reached an agreement whereby Harris would stipulate that the chain of custody was

established and that the substance submitted was cocaine . In exchange for Harris's

agreement to stipulate, the Commonwealth agreed to recommend a one-year reduction

in Harris's ultimate sentence, provided that Harris received a conviction and the

recommended sentence exceeded the minimum sentence permitted by statute .

       The trial court remarked that it sounded like Harris might be getting a "good deal"

under this agreement and that often such witnesses supplying one link in a chain of

custody were "perfunctory" and not critical for proving the case against the defendant.

But the trial court also explained that Harris was not obligated to stipulate to anything

and that, normally, the procedure would be to hold a hearing to determine if the break in

the chain of custody was substantial before ruling on the Commonwealth's pending

motions. The trial court then verified that Harris had spoken with his attorney about this
 matter and agreed to the stipulation . The trial court then confirmed with the parties that

 the trial would not take place as originally scheduled but would take place five days

 later .   It is unclear from the videotaped record of this hearing why the trial was

 rescheduled, especially in light of the stipulation as to chain of custody; however, both

parties accepted the new trial date without comment at that time.

           Five days later, on the new trial date, the parties appeared before the court for a

pretrial hearing. Harris had filed a written motion on the preceding day, asking for a

continuance to obtain new counsel and stating that he no longer wished to stipulate to

the chain of custody. The proposed Agreed Order and Stipulation appear in the written

record; however, they are not signed by the trial court or by Harris's counsel, and a

written notation states that Harris no longer wished to enter into the stipulation. At this

first pretrial hearing, the trial court denied Harris's motion for a continuance as untimely.

The trial court did not explicitly rule on his motion to withdraw the stipulation to chain of

custody, and Harris did not bring this issue to the trial court's attention at that time .

           After the trial court attended to matters unrelated to this case, the parties again

appeared before the court immediately before the trial began . The Commonwealth

announced it was ready for trial ; however, defense counsel stated that it needed to

bring some other matters to the trial court's attention before trial . Defense counsel

stated that Harris moved to continue the trial, based on the fact that Harris no longer

wished to stipulate to the chain of custody and that Harris wished to obtain other

counsel : The trial court stated that it had dealt with that before, and the motion was

denied (presumably, the trial court was referring to Harris's motion for continuance

rather than any request to withdraw the stipulation) .
        The Commonwealth then stated that it was not ready without the stipulation . The

trial court stated that Harris had already entered into the stipulation ; and that "motion"

was denied, too. The parties then discussed how the stipulation would be entered into

the record without Harris or his counsel's signature and whether the sentence reduction

would be given . The Commonwealth stated that if the court did not read the stipulation

to the jury, he would have the officer testify as to the chain of custody. The trial court

then stated something to the effect of "that's what we'll do" (whether this meant reading

the stipulation or having the officer testify to the chain of custody was not apparent) .

The prosecutor then asked whether he could at least tender the stipulation for the

record, and the court agreed . Shortly after that discussion, the trial began .

       First to testify at trial was the paid informant . According to him, Harris sold him

crack cocaine on two separate occasions . He further testified that police would give the

informant money and send him off to buy drugs in his vehicle, which was wired with an

audiotape device to record any transactions . The informant then picked up Harris on

each of these two days, gave him money for an order of a certain quantity of crack

cocaine, and let Harris out of the vehicle . After the informant drove around the block a

few times, he would then pick Harris up again and collect the ordered drugs from him.

       Two detectives also testified at trial. Both admitted never to actually seeing

Harris sell drugs in person but to monitoring the transactions .via the audiotape

recording as the transactions occurred . The first detective testified to receiving

substances from the paid informant, who had bought them from Harris, and to placing

the substances in a sealed envelope in an evidence locker after field testing to be

   At the time of this hearing, the trial court indicated that the sentence reduction would not be
   given as the defendant had "waived" it. But, ultimately, the sentence reduction was given .
transported to the regional crime laboratory for testing. He also testified to receiving the

substances back in a sealed envelope from the crime lab following testing. The trial

court then interrupted Harris's testimony to inform the jury that the parties had reached

an agreement and stipulated to chain of custody, reading to them the tendered

stipulation :

        (1)     The parties stipulate all evidence obtained by the Pennyrile
                Narcotics Task Force in this case and delivered to the Western
                Regional Forensic Laboratory, Madisonville, Kentucky[,) is deemed
                evidence herein without the necessity of proof.

        (2)     The chain of custody is intact and complete.

        (3)     The evidence tested is cocaine .

        (4)     It is agreed the Court read same to the jury.

        Defense counsel did not interrupt to object to the court's reading of the

stipulation . Almost immediately after the trial court read the stipulation, the

Commonwealth moved to have the bag of substances admitted into evidence ; and the

trial court called the parties to the bench. Defense counsel simply stated : "Note our

previous objection ." The trial court overruled the objection without comment.

       The jury found Harris guilty on both charged counts and recommended twenty

years' imprisonment on each count, to be served consecutively, for a total of forty years'

imprisonment . The trial court applied the one-year sentence reduction in accordance

with the parties' earlier agreement regarding the stipulation and entered final judgment

convicting Harris of both counts and imposing a sentence of thirty-nine years'

imprisonment . Harris then filed this timely appeal.
                                       11. ANALYSIS .

        Harris contends that the trial court deprived him of his due process rights by

denying his request to withdraw the stipulation regarding the chain of custody. He

contends that he and his lawyer were confused about how the stipulation would actually

work; yet, the trial court allowed him to consent to this stipulation by simply stating, "yes,

sir." He also argues that it "appears that defense counsel was attempting to explain the

meaning of the stipulation to [Harris] for the first time in open court that day" and that the

trial court's comment about the stipulation agreement sounding like a "good deal" may

have been misleading since the trial court had not yet determined whether the break in

the chain of custody was "substantial ." Overall, Harris contends that he did riot have

sufficient time for reflection or consultation with counsel before agreeing to the

stipulation at the hearing held five days before trial began and that he was unsure about

proceeding to trial with his attorney on the actual day of trial. So he argues that the

voluntariness of the stipulation was doubtful, and the trial court erred in not allowing him

to withdraw the stipulation.

       It is clear that Harris asked the trial court to withdraw the stipulation and that the

trial court denied this request at the hearing immediately before trial . But Harris never

argued to the trial court that his agreement to the stipulation was involuntary. In fact, at

the hearing in which Harris agreed to the stipulation, the trial court asked whether he

had talked with his attorney and explained that Harris was not obligated to make the

stipulation. Harris did not tell the trial court that he was confused about the stipulation

or that he had not had a chance to discuss the issue further with his attorney . So the
trial court had no reason to doubt the voluntariness of his agreement to the stipulation at

that point .

        Furthermore, when Harris attempted to withdraw from the stipulation on the eve

of trial, he stated no specific reasons for his request to withdraw the stipulation in his

written motion3 or in oral objections before the trial court. He did not allege to the trial

court, as he does now, that he had entered into the stipulation agreement involuntarily .

Nor did he make factual allegations to the trial court that could cast doubt on the

voluntariness of his consent to the stipulation--such as not being informed about the

contents of the agreement before the hearing, or being "misled" by the trial court's

suggestion that the stipulation agreement might be a "good deal ."

        In light of Harris's failure to state any reasons to the trial court why he should be

allowed to withdraw from the stipulation agreement, we find no abuse of discretion in

the trial court's denying such relief. Since Harris had previously stated his agreement to

the stipulation in open court without indicating any confusion or need to discuss the

matter further with his attorney, his eleventh-hour attempt to withdraw from the

agreement without stating any reason why he should be allowed to do so was

understandably rejected by the trial court.

       While we are unaware of any Kentucky cases on point, we note that at least one

other jurisdiction has held that it is not necessary to find that a defendant made an




   Technically, the motion filed was a motion for a continuance, stating as one ground that
   Harris wished to withdraw from the stipulation agreement.
informed, voluntary decision to stipulate to chain of custody and identity of controlled

substance where these are not the sole or main issues in dispute .4

        We reject Harris's argument that his initial agreement to the stipulation as to

chain of custody and the identification of the substance as cocaine was tantamount to

entering a guilty plea. The Commonwealth still had to prove that the substance was

sold by him and, apparently, did so to the jury's satisfaction through the testimony of the

informant and the investigating officers. Thus, since Harris had previously indicated in

open court that he agreed to this stipulation without any apparent hesitation or

confusion and since the Commonwealth had relied upon his agreement to this

stipulation when preparing this case for trial, we find no abuse of discretion in the trial

court's handling of this evidentiary matter,5 despite Harris's expressions of a last-minute

change of heart.


                                      III . CONCLUSION.

       For the foregoing reasons, the circuit court's judgment is affirmed .

       All sitting, except Cunningham, J., not sitting . All concur.

   See People v. Phillips , 840 N .E.2d 1194, 1205 (Ill . 2005) ("In sum, it is not necessary for
   either the court or counsel to admonish a defendant about the implications and
   consequences of a stipulation, and defendant's explicit agreement to the stipulation on the
   record is not required where, as here, (1) defense counsel's decision to stipulate appears to
   have been a matter of trial tactics and strategy and defendant does not object to counsel's
   decision, and (2) the State's entire case is not presented by stipulation, the defendant does
   present or preserve a defense, and the stipulation does not include a statement that the
   evidence is sufficient to convict ."). The Phillips court had noted that the defendant had not
   protested when counsel acquiesced to the prosecutor's mention of the stipulation as to
   chain of custody and identification of controlled substances and that the key issue in the
   case was whether the defendant had knowingly possessed illegal drugs, not whether the
   seized substances were actually illegal drugs or the chain of custody was intact. See id.
   at 1204.
   See Johnson v. Commonwealth , 184 S .W.3d 544, 551 (Ky. 2005) ("a judge's decision to
   admit certain evidence is subject to reversal only after a finding that the decision amounted
   to an abuse of discretion.").
COUNSEL FOR APPELLANT :

Shelly R. Fears
Assistant Public Advocate
Department of Public Advocacy
100 Fair Oaks Lane, Suite 302
Frankfort, KY 40601-1133


COUNSEL FOR APPELLEE:

Gregory D . Stumbo
Attorney General of Kentucky

Kristen N. Logan
Assistant Attorney General
Office of Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, KY 40601
