GUSMAN (JAIME) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: JANUARY 22, 2010; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2008-CA-002121-MR
JAIME ERIC GUSMAN
v.
APPELLANT
APPEAL FROM BOONE CIRCUIT COURT
HONORABLE ANTHONY W. FROHLICH, JUDGE
ACTION NO. 08-CR-00325
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: DIXON, MOORE, AND STUMBO, JUDGES.
STUMBO, JUDGE: Jaime Gusman appeals from his conviction on the charge of
first-degree trafficking in a controlled substance. Gusman argues that he is entitled
to a new trial because the trial court erred in allowing the Commonwealth Attorney
to ask leading questions of its own witness, erred when it advised the
Commonwealth about how to pose a certain question, and erred when it failed to
enter a directed verdict. The Commonwealth argues there was no error and would
have us affirm the conviction. We find that there was no error in this case and
affirm.
On April 12, 2008, Victor Velasquez was at home in the trailer he
rented from Gusman. Gusman was at his girlfriend’s house at the time. Luis
Rendan was with Velasquez at the trailer. Eventually, two individuals came to the
trailer looking for Gusman, purportedly to buy drugs. Velasquez then called
Gusman. Gusman told Velasquez to meet him and pick up some drugs. Velasquez
and Rendan went to Gusman’s girlfriend’s house. They waited outside in a vehicle
until Gusman came out and gave Velasquez some drugs wrapped in white paper.
Velasquez was to take some of the drugs to the two individuals who came to the
trailer who would meet him at the Dixie Mini Mart and then take the rest home.
Two officers who were patrolling the area observed the meeting
between Gusman and Velasquez and believed they had just witnessed a drug
transaction. The officers followed Velasquez’s vehicle to the Dixie Mini Mart
where the white package was given to two individuals. This was also witnessed by
the two officers.
After the vehicle being driven by Velasquez left the Dixie Mini Mart,
the officers stopped it due to observed traffic violations. Velasquez did not have a
driver’s license and was arrested. Upon being arrested, he was searched and the
officers found the remaining drugs in his possession. Velasquez eventually told
the police that Gusman gave him the drugs.
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Gusman was indicted by the Boone County Grand Jury on June 3,
2008, and was charged with trafficking in a controlled substance, first-degree.
Gusman’s trial began September 18, 2008.
At trial, the Commonwealth called Velasquez to testify. Velasquez
could not speak English, so an interpreter was provided for him. Part of
Velasquez’s testimony is the basis for Gusman’s first claim of error. As Velasquez
was describing the events of April 12, 2008, he stated that “they told me to call
him,” meaning the two men told him to call Gusman. Gusman’s counsel correctly
objected to this statement as hearsay and the court agreed.
Through the interpreter, the Commonwealth attempted to explain to
Velasquez that he could not testify about what other people said. The
Commonwealth was attempting to get Velasquez to testify that he did call Gusman,
but without saying the call was made at the direction of the two men. However,
Velasquez continued stating that the two men told him to call Gusman. Gusman’s
counsel continued to object. There were multiple bench conferences, during which
both counsel and the court discussed the language problem. At one point, the jury
was removed and the interpreter tried to explain the hearsay rules to Velasquez.
The jury returned to the courtroom, but Velasquez continued to state he called
Gusman at the men’s direction.
The Commonwealth then sought permission to ask a leading question
in order to avoid the hearsay testimony. The trial judge did not permit the
Commonwealth to ask the proposed question, but crafted a question that he
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believed would elicit the appropriate testimony. In essence, the trial judge told the
Commonwealth what question to ask. The question still elicited hearsay
testimony. This is the basis for one of Gusman’s claims of error.
Gusman argues that the trial court should not have helped the
Commonwealth determine what questions to ask. We find this was not in error.
The trial court was trying to move the proceedings along. We will caution though
that the trial judge came close to becoming an advocate rather than an impartial
referee of the proceedings. However, we do not believe the court strayed beyond
its duty under KRE 611(a) to exercise control over to mode of interrogating
witnesses effectively and without “needless consumption of time.”
The Commonwealth Attorney eventually asked for and was granted a
recess to research whether she could ask leading questions in this circumstance.
Upon returning to court, the Commonwealth argued that KRE 611 and the
unpublished case of Malm v. Commonwealth, 2008 WL 3890077 (Ky. 2008),1
could allow some leading questions to be asked. The court agreed and permitted
the Commonwealth to ask leading questions. The Commonwealth, using leading
questions, was able to get testimony from Velasquez that did not contain hearsay
evidence.
Gusman next argues that the trial court should not have allowed the
Commonwealth to ask leading questions. We disagree. KRE 611 states:
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This case is cited pursuant to CR 76.28(4)(c).
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(a) Control by court. The court shall exercise reasonable
control over the mode and order of interrogating
witnesses and presenting evidence so as to:
(1) Make the interrogation and presentation effective for
the ascertainment of the truth;
(2) Avoid needless consumption of time; and
(3) Protect witnesses from harassment or undue
embarrassment.
(b) Scope of cross-examination. A witness may be crossexamined on any matter relevant to any issue in the case,
including credibility. In the interests of justice, the trial
court may limit cross-examination with respect to matters
not testified to on direct examination.
(c) Leading questions. Leading questions should not be
used on the direct examination of a witness except as
may be necessary to develop the witness’ testimony.
Ordinarily leading questions should be permitted on
cross-examination, but only upon the subject matter of
the direct examination. When a party calls a hostile
witness, an adverse party, or a witness identified with an
adverse party, interrogation may be by leading questions.
“[A]llowing the use of leading questions on direct examination is within the
discretion of the trial court and is not grounds for reversal unless there is an abuse
of discretion and a shocking miscarriage of justice.” Malm at 8 (citing Tamme v.
Commonwealth, 973 S.W.2d 13, 27 (Ky. 1998)). “The test for abuse of discretion
is whether the trial judge’s decision was arbitrary, unreasonable, unfair, or
unsupported by sound legal principles.” Commonwealth v. English, 993 S.W.2d
941, 945 (Ky. 1999).
In Malm, one witness was not fluent in English and required a
translator, as in the case at bar. The Kentucky Supreme Court found that “[t]he
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language barrier was significant enough to allow the use of the leading questions in
this case.” Malm at 8.
As in Malm, we do not believe it was an abuse of discretion or a
shocking miscarriage of justice for the court to permit the Commonwealth to ask
Velasquez leading questions. KRE 611(a) allows the trial court to determine the
manner in which a witness is questioned. Trying to get Velasquez to answer this
one question, without giving hearsay testimony, took close to an hour. The trial
court was within its discretion to limit the amount of wasted time. Both KRE
611(c) and Malm, supra, support the judge’s decision to permit leading questions
in order to develop the testimony of a witness who was experiencing trouble due to
a language barrier. We therefore find no error.
At the conclusion of the Commonwealth’s proof, defense counsel
moved for a directed verdict. Gusman argues that the only real evidence that he
trafficked in drugs was in the form of unreliable evidence, namely testimony from
Velasquez who had trouble understanding the questions, did not speak English, and
was asked leading questions. We disagree.
On motion for directed verdict, the trial court must draw
all fair and reasonable inferences from the evidence in
favor of the Commonwealth. If the evidence is sufficient
to induce a reasonable juror to believe beyond a
reasonable doubt that the defendant is guilty, a directed
verdict should not be given. For the purpose of ruling on
the motion, the trial court must assume that the evidence
for the Commonwealth is true, but reserving to the jury
questions as to the credibility and weight to be given to
such testimony.
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On appellate review, the test of a directed verdict is, if
under the evidence as a whole, it would be clearly
unreasonable for a jury to find guilt, only then the
defendant is entitled to a directed verdict of acquittal.
Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991). “A reviewing court
does not reevaluate the proof because its only function is to consider the decision
of the trial judge in light of the proof presented.” Id. “Circumstantial evidence is
sufficient to support a criminal conviction as long as the evidence taken as a whole
shows that it was not clearly unreasonable for the jury to find guilt.” Bussell v.
Commonwealth, 882 S.W.2d 111, 114 (Ky. 1994) (citing Trowel v.
Commonwealth, 550 S.W.2d 530 (Ky. 1977)); Benham, supra.
In the case sub judice, the Commonwealth had the testimony of
Velasquez who identified Gusman as the man who gave him the drugs, the
testimony of Rendan who stated he saw Gusman give Velasquez the package that
contained the drugs, and the testimony of the two police officers. When
considering all this evidence in favor of the Commonwealth, it is clear that the trial
court properly denied the motion for directed verdict.
For the foregoing reasons, we affirm Gusman’s conviction.
ALL CONCUR.
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BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Linda Roberts Horsman
Assistant Public Advocate
Department of Public Advocacy
Frankfort, Kentucky
Jack Conway
Attorney General of Kentucky
M. Brandon Roberts
Assistant Attorney General
Frankfort, Kentucky
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