Note on Publication Status and Use

This is an unpublished memorandum opinion of the Supreme Court of Kentucky rendered March 20, 2025. Under RAP 40(D), it is not binding precedent and may not be cited as such in Kentucky courts, though unpublished decisions rendered after January 1, 2003, may be cited for consideration if no published opinion adequately addresses the issue. The analysis below treats the opinion as persuasive authority and focuses on the court’s reasoning and its practical implications.

Introduction

In Timothy Cole McNeal v. Commonwealth of Kentucky, the Supreme Court of Kentucky affirmed most of a judgment arising from a traffic stop that yielded methamphetamine pills, a handgun, and later a blood alcohol result above the legal limit. The jury convicted McNeal of first-degree trafficking in methamphetamine over two grams, second or subsequent offense, firearm-enhanced; DUI; resisting arrest; and having no/expired registration plates. In a severed count, McNeal entered a conditional Alford plea to being a convicted felon in possession of a handgun; that sentence ran concurrently. The trial court imposed 30 years’ imprisonment and fines on the misdemeanors.

On appeal, McNeal raised multiple issues: (1) suppression under the plain feel doctrine; (2) the sufficiency and presentation of proof supporting the “second or subsequent” trafficking enhancement and jury unanimity; (3) the scope of expert testimony on intent to traffic; (4) discovery and admissibility issues concerning late correction of a lab report and reliance on random sampling; (5) alleged prosecutorial misconduct via arguments touching on race; (6) an asserted “double enhancement” from applying both the KRS 218A subsequent-offender provision and the firearm enhancement; and (7) the propriety of imposing a misdemeanor fine on an indigent defendant.

The Court affirmed on all questions except one: it vacated the $250 fine for resisting arrest under KRS 534.040(4), because McNeal was indigent, and remanded for entry of a corrected judgment. The opinion both synthesizes and clarifies existing law in several recurring criminal law contexts—especially “plain feel,” proof mechanics for KRS 218A subsequent-offender status, admissibility of narcotics experts’ opinions on trafficking intent, the use of random sampling to prove controlled substance weight, the boundaries of responsive closing argument, the cumulation of enhancements under KRS 218A.1412 and KRS 218A.992, and the non-imposition of Penal Code misdemeanor fines on indigent defendants.

Summary of the Opinion

• Suppression: The Court upheld seizure of a baggie containing ~160 pills discovered during a consent pat-down under the “plain feel” doctrine. The incriminating nature was immediately apparent in light of the officer’s tactile recognition of a baggie of pills, McNeal’s suspicious behavior (slurred speech, covering his mouth), and knowledge of his trafficking history. The case was distinguished from Commonwealth v. Jones (pill bottle), where the item’s incriminating character was not immediately apparent.
• Subsequent-offender enhancement and directed verdict: Certified copies of McNeal’s 2013 federal convictions for possession with intent to distribute and distribution of cocaine sufficed to support KRS 218A “second or subsequent” enhancement. The Court did not decide whether a Kentucky conviction for criminal facilitation to trafficking qualifies, deeming any instruction referencing facilitation harmless surplusage because the jury also unanimously found the qualifying federal convictions.
• Expert testimony: The Court reaffirmed Sargent and progeny, allowing a qualified officer to opine that possession of 160 pills indicated trafficking, and to testify about trafficking practices (e.g., pricing, pill form methamphetamine, use of firearms, electronic payments).
• Lab testing and discovery: No reversible error from a corrected KSP lab report disclosed on the first day of trial that brought the total weight of tested pills over two grams. Random sampling/extrapolation (Taylor) supported the trafficking weight element. Any late correction concerned weight, not admissibility or sufficiency, and did not prejudice the defense.
• Prosecutorial misconduct: Denied. The prosecutor’s brief reference to implications of racial bias was a fair response to defense themes and the bodycam audio (where McNeal invoked profiling and “Black Lives Matter”), not an attempt to inflame the jury or render the trial unfair.
• Double enhancement: No error in applying both KRS 218A.1412(3)(a) (second/subsequent offense) and KRS 218A.992(1) (firearm) enhancements. They serve distinct purposes and target different conduct. Under Mills, the firearm enhancement elevates the conviction class at the charging stage.
• Indigent fine: Clear error to impose a Penal Code misdemeanor fine (resisting arrest) on an indigent defendant; fine vacated and case remanded to correct the judgment. Fines for DUI and expired plates (from outside the Penal Code) were proper.

Detailed Analysis

1) The Plain Feel Doctrine and the “Immediately Apparent” Standard

Framework: The Fourth Amendment bars unreasonable searches and seizures; warrantless searches are per se unreasonable unless an exception applies. The “plain feel” doctrine parallels “plain view”: if, during a lawful pat-down, an officer feels an object whose contour/mass renders its contraband identity immediately apparent, the officer may seize it without a warrant. Kentucky precedents require that the officer not manipulate the object beyond the pat-down and that the incriminating nature be discernible from touch within the totality of circumstances. The existence of probable cause is assessed from facts sufficient to warrant a person of reasonable prudence to believe the object is contraband, with due weight given to inferences by trained officers and trial judges.

Precedents cited and applied:

• Payne v. Commonwealth: reiterates the default against warrantless searches and the two-tiered standard of review for suppression rulings (substantial evidence for facts; de novo for legal application).
• Commonwealth v. Whitmore: articulates Kentucky’s plain feel doctrine in the mold of plain view.
• Commonwealth v. Jones: exclusion where the officer felt a prescription pill bottle; because one can lawfully carry a pill bottle, its incriminating nature was not immediately apparent without further inspection.
• Gasaway v. Commonwealth and Commonwealth v. Conner: probable cause may rest on known facts, circumstances, and reasonable inferences by trained officers.
• Bembury (Nickell, J., concurring): reiterates “reasonableness” as the touchstone.
• Halvorsen: abandonment of a prolongation argument for failure to brief; noted by the Court but not decided (the stop here was valid).

Reasoning and distinction from Jones: In Jones, the officer felt a pill bottle—an item with many lawful uses—and there was no evidence of trafficking behavior or specialized narcotics experience demonstrating the item’s inherent incrimination by touch. Here, the officer testified he immediately recognized a large pliable baggie of pills, not a neutral container, and this was informed by his training (five years, pill investigation training) and the totality of suspicious cues: slurred speech, covering his mouth, knowledge of prior trafficking history, and the circumstances of a valid traffic stop. The Court held that a baggie full of pills can reasonably be deemed incriminating, unlike a pill bottle, and that probable cause existed without manipulation beyond a lawful pat-down.

Takeaway: In Kentucky, the “immediately apparent” requirement can be satisfied where a trained officer, in context, tactilely discerns a baggie of pills during a consent pat-down and the totality supports probable cause. Jones remains a limiting counterpoint for non-incriminating containers like pill bottles absent further reliable indicia of illegality.

2) Proof of “Second or Subsequent” Offender Status under KRS 218A.1412

Framework: Under Apprendi and Kentucky cases applying it, any fact (other than the fact of a prior conviction) that increases the statutory maximum must be found by a jury beyond a reasonable doubt. Kentucky has applied this rubric to enhancements, including persistent felony offender (Moore) and certain “subsequent offense” enhancements (Brewer). The substantive statutes at issue:

• KRS 218A.1412: makes trafficking two grams or more of methamphetamine a Class C felony, elevated to Class B for a second or subsequent offense.
• KRS 218A.010: defines “traffic” to include possession with intent to distribute, distribution, sale, transfer, etc., and defines what counts as a “second or subsequent offense,” including qualifying prior convictions under federal or other states’ laws for controlled substances offenses, with caveats for non-trafficking offenses.

Proof mechanics and sufficiency: The Commonwealth introduced certified copies of two sets of prior convictions: a 2010 Kentucky conviction for facilitation to trafficking (second or subsequent offense), and a 2013 federal judgment for conspiracy to possess with intent to distribute, multiple counts of possession with intent to distribute and distribution of cocaine base, and aiding and abetting those offenses. Over objection, the trial court admitted the certified judgments at the penalty phase and provided a subsequent-offender instruction listing each as an alternative ground; the jury expressly found both.

The Supreme Court held the federal judgment, on its face, established prior qualifying trafficking convictions because “possession with intent to distribute” and “distribution” fall within “traffic” under KRS 218A.010. No additional witness testimony was required for the nature or identity because the certified judgment itself sufficed. The Court relied on Faught’s principle that Chapter 218A does not prescribe a specific method to prove prior convictions, and properly authenticated judicial records can suffice. The Court therefore rejected the directed-verdict challenge.

Unanimity and the “facilitation” alternative: The Court assumed arguendo that criminal facilitation to trafficking might not qualify (and noted a Sixth Circuit decision declining to treat solicitation as a qualifying controlled substance offense for federal career offender purposes), but declined to decide the point. Any error in listing facilitation as an alternative theory was harmless surplusage under Travis because the jury also unanimously and expressly found the qualifying federal convictions. This was not a mutually exclusive “combination” instruction; no realistic risk of a split verdict existed.

Takeaway: Certified federal judgments for possession with intent to distribute and distribution satisfy KRS 218A subsequent-offender enhancement without live testimony. Whether Kentucky “facilitation” counts remains an open question in Kentucky after McNeal, but instructional surplusage referencing a non-qualifying alternative can be harmless if the jury separately and unanimously finds a qualifying prior.

3) Scope of Expert Testimony on Intent to Traffic

Framework and precedents: Kentucky admits qualified police expert testimony that drugs are possessed for sale rather than personal use (Sargent). This line has been consistently reaffirmed (Dixon; McCloud; Robbins; Brown). At the same time, Kentucky distinguishes evidence-based police expertise from speculative behavioral “profiles” insufficiently reliable to infer guilt (Ordway).

Holding: The Court declined to revisit or overrule Sargent. It held Detective Clark’s testimony—detailing methamphetamine in pill form, typical pill dosages, pricing, traffickers’ use of firearms and electronic payment methods, and ultimately the opinion that 160 pills indicated trafficking—“fell comfortably within” Sargent and its progeny. The testimony was grounded in Clark’s training and local experience, was not a prediction of specific human behavior, and did not usurp the jury’s province. No abuse of discretion occurred in admitting the testimony.

Takeaway: Kentucky continues to allow narcotics expert testimony to explain market practices and to opine that specified quantities and packaging support an inference of trafficking rather than personal use, so long as it is properly grounded in training and experience and does not purport to determine guilt independent of the evidence.

4) Lab Testing, Discovery, and Random Sampling

Facts and issue: KSP’s forensic analyst randomly tested one of 160 visually similar pills and reported methamphetamine content with a total aggregate weight of ~39g. After the defense moved (then withdrew) for additional testing, the Commonwealth requested more sampling. The lab tested eight additional pills at random. An initial clerical omission in the second report understated the combined weight as under two grams; a corrected report (disclosed at trial) included the eighth pill and showed tested pills exceeded two grams. The defense objected on “unfair surprise”; the trial court overruled the objection.

Discovery law: RCr 7.24 requires disclosure of scientific reports and expert summaries. The discovery rules seek to avoid gamesmanship and unfair surprise (Stieritz), but a defendant must show prejudice to obtain reversal (Trigg; Akers; Weaver).

Random sampling sufficiency: Kentucky permits conviction based on random-sampling extrapolation when methodological safeguards are met (Taylor): proper random selection; contemporaneous seizure; substantial similarity of appearance; accepted testing methodology; all tested samples positive; and no evidence the untested differed from the tested. If reliability is unchallenged, disputes go to weight, not admissibility or sufficiency (see also Jackson from the Sixth Circuit).

Holding: The late correction did not prejudice McNeal because he already knew one randomly selected pill tested positive and that all pills were visually alike; additional random tests also yielded methamphetamine. Under Taylor, the first report alone provided legally sufficient evidence to establish the controlled substance and weight by extrapolation. The corrected report affected weight, not admissibility or fairness, and McNeal cross-examined the analyst. No reasonable probability of a different result existed.

Takeaway: Kentucky reaffirms Taylor’s acceptance of random sampling and treats clerical corrections to lab reports as weight issues absent concrete prejudice. Counsel should request—and courts should ensure—timely disclosure, but late corrections do not necessarily warrant exclusion or mistrial when the methodology and results otherwise meet Taylor.

5) Prosecutorial Misconduct in Closing Argument

Framework: Misconduct encompasses improper acts that could unfairly influence the jury (Noakes; Dickerson; Duncan). Arguments are not evidence; prosecutors may comment on tactics, evidence, and the falsity of defenses (Slaughter). The question is whether the conduct rendered the trial fundamentally unfair (McGorman; Soto).

Facts and holding: The prosecutor briefly referenced the defense’s implications of racial bias—in response to the defendant’s opening reminder about stereotypes and the bodycam footage where McNeal accused profiling and invoked “Black Lives Matter.” The trial court denied a mistrial but instructed the Commonwealth to move on. The Supreme Court found no misconduct: the comments were responsive, not inflammatory, and did not undermine overall fairness.

Takeaway: Responsive commentary on themes introduced by the defense (including claims of racial bias) can be permissible, especially when supported by admitted evidence like bodycam audio. Trial courts retain discretion to cabin the argument’s scope.

6) No “Double Enhancement” in Applying KRS 218A.1412(3)(a) and KRS 218A.992(1)

Framework: Whether punishments are “multiple” turns on legislative intent (Quisenberry; Johnson). “Double enhancement” concerns the same conduct being used to support separate, indistinct, overlapping enhancements serving identical purposes (Rojas; Reyes-Pena). Under KRS 218A.1412(3)(a), a second/subsequent trafficking conviction elevates the offense class (from C to B). Under KRS 218A.992(1), possession of a firearm “in furtherance of” the offense increases the penalty “one class more severely.” Kentucky recognizes the General Assembly’s broad authority to define penalties (Workman).

Holding: The enhancements target different conduct and purposes—deterring recidivism (second/subsequent) versus addressing increased violence risk when drugs and guns coincide (firearm). Applying both therefore is not an impermissible double enhancement. The Court further relied on Mills, which holds KRS 218A.992 enhances the conviction class at the charging stage; by operation of the firearm enhancement, a Class B trafficking offense can be treated as a Class A for classification purposes. The Court found no ambiguity warranting the rule of lenity (Moskal).

Takeaway: In Kentucky, a defendant can be sentenced under both the recidivist enhancement and the firearm-in-furtherance enhancement for trafficking offenses in Chapter 218A. Mills remains controlling that KRS 218A.992 elevates the conviction class itself, not merely the sentence.

7) Indigent Defendants and Penal Code Misdemeanor Fines

Framework: KRS 534.040(4) prohibits imposing a misdemeanor fine “upon any person determined by the court to be indigent pursuant to KRS Chapter 31.” This restriction applies to Penal Code misdemeanors but not to fines created outside the Penal Code (Commonwealth v. Moore). Improper fines on indigent defendants constitute a “true sentencing issue” that cannot be waived by failure to object (Roberts).

Holding: Because McNeal was indigent (as evidenced by appointed counsel and in forma pauperis status), the $250 fine for resisting arrest—a Penal Code misdemeanor—was improper. The fines for DUI and expired registration were permissible because they are imposed under statutes outside the Penal Code. The Court vacated the resisting arrest fine and remanded for a corrected judgment.

Takeaway: Trial courts must ensure no Penal Code misdemeanor fines are imposed on indigent defendants. Defense counsel should scan judgments to correct such errors on direct appeal; the issue is unwaivable and correctable even if not preserved.

Precedents Cited and Their Influence

• Search and seizure: Payne; Whitmore; Jones; Gasaway; Conner; Bembury (concurring) provided the standards and the plain feel framework, anchoring the Court’s approval of the seizure based on tactile recognition plus contextual cues.
• Directed verdict and sufficiency: Benham and Acosta supplied the deferential standard; Faught supplied the principle that Chapter 218A does not dictate rigid proof modalities for priors and that authenticated judicial records can suffice.
• Apprendi line: Apprendi; Moore; Brewer established the jury-proof requirement for enhancements (met here by the jury’s finding and certified judgments).
• Expert testimony: Sargent; Dixon; McCloud; Robbins; Brown cemented admissibility of expert opinions on intent to traffic. Ordway demarcated the boundary with unreliable behavioral predictions.
• Discovery and random sampling: RCr 7.24; Stieritz; Trigg; Akers; Weaver set the prejudice standard for discovery claims; Taylor and Jackson validated random sampling/extrapolation for drug weight.
• Closing arguments: Noakes; Dickerson; Duncan; McGorman; Soto; Slaughter set the misconduct and fairness analysis framework.
• Enhancements: Workman; Quisenberry; Johnson; Rojas; Reyes-Pena guided the double-enhancement analysis; Mills controlled the conviction-class effect of KRS 218A.992; Montaque and Sanchez articulated the firearm enhancement’s public-safety rationale; Morrow described the recidivist policy of the subsequent-offender statute.
• Indigent fines: Roberts and Moore framed the error as unwaivable and delineated the Penal Code limitation.

Impact and Practical Significance

Although unpublished, McNeal is a clear, practice-oriented synthesis likely to be cited persuasively where no published opinion squarely addresses the specific configuration of issues:

• Plain feel: Officers and trial courts can rely on tactile recognition of a baggie of pills, coupled with surrounding indicators and training, as establishing probable cause. Defense challenges should focus on whether the item could lawfully be possessed in the specific tactile form (e.g., neutral containers) and whether the officer exceeded the pat-down’s scope.
• Proving subsequent-offender status: Certified federal judgments for PWID/distribution are sufficient to prove Chapter 218A “traffic” priors without live witnesses. Jury instructions can list multiple prior convictions; erroneous inclusion of a questionable prior may be harmless if the jury independently finds a clearly qualifying prior. The question whether “facilitation” qualifies remains open.
• Expert testimony: Kentucky’s permissive approach to narcotics experts remains intact. Parties should focus on the expert’s qualifications, the grounding of opinions in local experience and recognized practices, and avoiding any slide into speculative behavioral profiling.
• Forensics: Random sampling/extrapolation continues to be a robust avenue for proving controlled substance identity and weight. Clerical corrections to lab reports—without methodological defects—are typically matters of evidentiary weight, not admissibility, absent demonstrable prejudice.
• Closing argument boundaries: Responsive argument touching on race, when based on admitted evidence and defense themes, will usually be tolerated, though trial judges should ensure the discussion remains brief and focused to avoid unfairness.
• Enhancements: Prosecutors can confidently apply both the KRS 218A subsequent-offender and firearm enhancements to the same trafficking offense. Mills’ view that KRS 218A.992 elevates the conviction class continues to shape sentencing and classification consequences.
• Sentencing accuracy: Sentencing courts must avoid Penal Code misdemeanor fines for indigent defendants; defense counsel should systematically review judgments for this common oversight.

Complex Concepts Simplified

• Plain feel doctrine: If an officer is lawfully touching a suspect’s clothing (e.g., during a pat-down) and instantly recognizes by touch an object as contraband (without manipulating it), the officer may seize it without a warrant. The key is whether, considering all circumstances, there was probable cause that the item was illegal.
• “Immediately apparent”: Not instantaneous clairvoyance; it means probable cause arising at the time of the pat-down, viewed under the totality of circumstances and the officer’s training.
• Subsequent-offender enhancement (KRS 218A.1412): Raises the class of a trafficking offense if the defendant has qualifying prior controlled-substance convictions (including federal or other states’ convictions) for “trafficking” behaviors (manufacture, distribute, possess with intent, etc.).
• Proving priors: Authenticated court records of conviction can be enough; live testimony is not mandatory if the judgment’s face shows the qualifying offense and the defendant’s identity is not in dispute.
• Random sampling: Labs need not test every unit if they randomly test several items from a group of visually similar items seized together, and all tests are positive under accepted methods; the law allows extrapolating to the whole batch.
• Prosecutorial misconduct vs. fair response: Prosecutors may answer defense themes and comment on evidence. Crossing into misconduct generally requires arguments likely to inflame bias or mislead the jury so severely as to undermine the trial’s fairness.
• Double enhancement: Two different statutory enhancements can both apply to the same conviction when they address different risks or behaviors (e.g., recidivism vs. firearm-in-furtherance). This is not “double enhancement.”
• Indigent misdemeanor fines: Kentucky law forbids imposing Penal Code misdemeanor fines on indigent defendants. Fines created by other statutes (like DUI or registration violations) can still be imposed.

Conclusion

McNeal v. Commonwealth offers a comprehensive, tightly reasoned application of several criminal law doctrines in Kentucky. The Court:

• Affirmed seizure of a baggie of pills under the plain feel doctrine based on tactile recognition and totality of the circumstances;
• Confirmed that certified federal drug convictions for possession with intent to distribute and distribution satisfy KRS 218A subsequent-offender enhancement and can be proved by judgments alone;
• Reaffirmed the admissibility of narcotics expert testimony on trafficking indicators under Sargent and progeny;
• Endorsed random sampling/extrapolation for controlled substance identity and weight, while rejecting a discovery-based challenge to a corrected lab report absent prejudice;
• Found no prosecutorial misconduct where the Commonwealth’s brief reference to racial bias was a fair response to defense themes and admitted evidence;
• Held that KRS 218A’s recidivist and firearm-in-furtherance enhancements are cumulative and serve distinct purposes, consistent with Mills’ treatment of KRS 218A.992; and
• Vacated an improperly imposed Penal Code misdemeanor fine on an indigent defendant and remanded for correction.

While unpublished, the opinion synthesizes and clarifies important aspects of Kentucky criminal practice. Practitioners should note, in particular, the Court’s treatment of tactile identification of contraband in baggies, the sufficiency of certified federal judgments to establish “traffic” priors, the continuing vitality of Sargent, the robustness of Taylor’s random sampling doctrine, the limits and permissibility of responsive closing argument, and the absence of “double enhancement” in applying both recidivist and firearm enhancements to KRS 218A offenses. Finally, McNeal underscores the need for careful sentencing review to avoid Penal Code misdemeanor fines on indigent defendants.