CHARLES W. STRATTON V. COMMONWEALTH OF KENTUCKY
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RENDERED : JANUARY 25, 2007
NOT TO BE PUBLISHED
Auprant (90urf of ~lp~it"W
2005-SC-000307-MR
CHARLES W. STRATTON
D
DAT f
APPELLANT
APPEAL FROM CAMPBELL CIRCUIT COURT
HONORABLE JULIE REINHARDT WARD, JUDGE
04-CR-00469
V
COMMONWEALTH OF KENTUCKY
APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
A Campbell Circuit Court jury convicted Charles W. Stratton of complicity to firstdegree trafficking in a controlled substance (cocaine, second offense), first-degree
trafficking in a controlled substance (cocaine, second offense) and possession of
marijuana . At the conclusion of the guilt phase, the Commonwealth, in order to simplify
the sentencing phase, moved to dismiss the possession count as it was a misdemeanor
offense and the sentence would run concurrently with the felony sentences . The trial
court granted the motion. In accordance with the jury's recommendation, the trial court
sentenced Stratton to 20 years in prison on the two remaining counts to be served
consecutively. Thus, he appeals to this Court as a matter of right. Ky. Const. ยง
110(2)(b) .
Stratton raises two issues on appeal . First, he argues that the trial court erred in
denying his motion to instruct the jury on criminal facilitation . Second, he argues that
the trial court erred in allowing the prosecutor to ask Stratton if the other witnesses were
lying when their version of the events at issue differed from his.
Upon review, we reject Stratton's contention that the evidence supported an
additional jury instruction on criminal facilitation . And even though we agree that the
trial court erred in allowing the prosecutor to ask Stratton if other witnesses were lying,
we hold that this error is harmless. Thus, we affirm the judgment of conviction and
sentence.
I . Factual and Procedural History
On July 8, 2004, an agent with the Northern Kentucky Drug Strike Force
(NKDSF) arranged for a controlled buy from Stratton using a confidential informant,
Steven Burke . According to the arrangement, Burke was to purchase a half-gram of
cocaine for $50, and the purchase was to take place at Stratton's residence . When
Burke arrived at Stratton's residence, however, Stratton was leaving with a friend .
Stratton informed Burke that his girlfriend, Beth Gabbard, had "it" and that he would be
right back. The NKDSF tape-recorded this conversation and the ensuing purchase of a
half-gram of cocaine from Gabbard .
At trial, Burke alleged that "it" was a half-gram of cocaine, which he purchased
for $50. But Stratton alleged that Burke came by his house to pick up $40 that Burke
had left at his home for safekeeping the night before.
Four days later, on July 12, 2004, the NKDSF arranged for another controlled
buy from Stratton using Burke. This time, Burke simply showed up at Stratton's home
as he was unable to reach him by telephone . He found Stratton at home, however, and
purchased another half-gram of cocaine from him for $50 . This purchase was also
tape-recorded .
About a month and a half after the two purchases, the NKDSF obtained a search
warrant and searched Stratton's home . During the search, they found two sets of hand
scales, a tray containing marijuana residue, rolling papers, and a single marijuana plant
growing in the flowerbed in the back yard .
The Campbell County Grand Jury indicted Stratton on two counts of first-degree
trafficking in a controlled substance and one count of cultivating marijuana, under five
plants. Two weeks before trial, however, the grand jury amended the indictment in at
least three ways. First, as to the July 8, 2004, trafficking count, it amended the
indictment to state that Stratton acted as an accomplice in the commission of the crime .
Second, as to both trafficking counts, it amended the indictment to add that Stratton
had previously been convicted of a drug trafficking offense in a 1991 Campbell County
case. Third, as to the count of cultivating marijuana, it amended the indictment to
possession of marijuana .
The case against Stratton proceeded to trial. At the conclusion of the evidence,
Stratton's counsel requested a jury instruction on facilitation to first-degree trafficking on
the count stemming from July 8, 2004. The trial court denied Stratton's request for a
facilitation instruction . The jury convicted Stratton of complicity to first-degree
trafficking, first-degree trafficking and possession of marijuana . Stratton received a 20
year sentence on the complicity and trafficking convictions to run consecutively for a
total of 40 years .
II . Did the trial court err in denying Stratton's motion to instruct the jury on
criminal facilitation?
Because the evidence presented at trial supported only two theories -- (1) that
Stratton was an active participant in trafficking cocaine and intended that Gabbard sell
cocaine to Burke on July 8, 2004, or (2) that he did not act as an accomplice with
Gabbard in her commission of this offense -- the trial court did not err in denying
Stratton's motion to instruct the jury on criminal facilitation .
The relevant part of the statute criminalizing complicity, KRS
KRS 502 .020(1), reads :
A person is guilty of an offense committed by another person when,
with the intention of promoting or facilitating the commission of the
offense, he :
(a) Solicits, commands, or engages in a conspiracy with such other
person to commit the offense; or
(b) Aids, counsels, or attempts to aid such person in planning or
committing the offense;
In slight contrast, the statute criminalizing facilitation, KRS 506 .080(1), reads :
A person is guilty of criminal facilitation when, acting with
knowledge that another person is committing or intends to commit
a crime, he engages in conduct which knowingly provides such
person with means or opportunity for the commission of the crime
and which in fact aids such person to commit the crime .
The distinction between the applicability of the two statutes depends on the
defendant's mental state . See White v. Commonwealth , 178 S.W .3d 470, 489 (Ky.
2005) .
Under either statute, the defendant acts with knowledge that the
principal actor is committing or intends to commit a crime. Under
the complicity statute, the defendant must intend that the crime be
committed ; under the facilitation statute, the defendant acts without
such intent. Facilitation only requires provision of the means or
opportunity to commit a crime, while complicity requires solicitation,
conspiracy, or some form of assistance . "Facilitation reflects the
mental state of one who is `wholly indifferent' to the actual
completion of the crime ."
Thompkins v. Commonwealth, 54 S.W .3d 147,150-51 (Ky. 2001) (citing Skinner v.
Commonwealth, 864 S.W .2d 290, 298 (Ky. 1993) and quoting Perdue v.
Commonwealth , 916 S .W.2d 148,160 (Ky. 1995), cert. denied , 519 U .S . 855,117 S .
Ct. 151, 136 L. Ed . 2d 96 (1996)) .
An instruction on facilitation (as a lesser-included offense of complicity) "is
appropriate if and only if on the given evidence a reasonable juror could entertain
reasonable doubt of the defendant's guilt on the greater charge, but believe beyond a
reasonable doubt that the defendant is guilty of the lesser offense." Skinner, 864
S.W .2d at 298. An instruction on a lesser included offense requiring a different mental
state from the primary offense is unwarranted, however, unless there is evidence
supporting the existence of both mental states . See Taylor v. Commonwealth , 995
S .W.2d 355, 362 (Ky. 1999) .
Turning to the evidence in this case, Burke testified that he called Stratton and
arranged to purchase cocaine from Stratton at Stratton's residence . When he arrived,
Stratton was leaving, and he yelled to Burke that Gabbard had it. Burke purchased a
half-gram of cocaine from Gabbard for $50. Gabbard testified that she sold cocaine to
Burke on July 8, 2004, because Stratton told her to . According to her, Stratton told her
where the cocaine was, and she gave the $50 that Burke gave her to Stratton when he
returned home. But Stratton claimed that he had no knowledge that Burke was coming
to his house to purchase cocaine, and he did not know that Gabbard sold cocaine to
Burke after he left. Stratton did not claim that he knew at any time on July 8, 2004, that
Gabbard intended to sell cocaine to Burke. To the contrary, he testified that he
believed that Burke was coming to his house to pick up the $40 that he had left at his
house the night before.
This evidence supported only two theories : (1) that Stratton was an active
participant in trafficking cocaine and intended that Gabbard sell cocaine to Burke on
July 8, 2004, or (2) that he did not act as an accomplice with Gabbard in her
commission of this offense. It did not support a middle-ground violation of the
facilitation statute . See White v. Commonwealth , 178 S .W .3d at 490-91 (rejecting a
"splitting the difference" approach that would effectively require that a facilitation
instruction be given in every case in which the defendant is charged with complicity,
instead relying on affirmative evidence of defendant's mental state).
Citing Taylor v. Commonwealth, 995 S .W.2d at 361, Stratton argues that the trial
court must prepare and give jury instructions regarding each theory of the case
supported by the testimony to any extent without regard to how preposterous or
unbelievable that testimony may be. Stratton contends that the evidence presented
was that Stratton aided Gabbard by providing her with cocaine to sell to Burke.
Noticeably absent from Stratton's argument, however, is any discussion of affirmative
evidence that would demonstrate the requisite mental state for facilitation -- that he was
wholly indifferent to Gabbard's actual completion of the crime . There is none.
Accordingly, as discussed above, the trial court was correct in denying Stratton's
request for a facilitation instruction .
111 . Did the trial court err in allowing the prosecutor to ask Stratton if the other
witnesses were lying when their version of the events at issue differed from his?
The trial court erred in allowing the prosecutor to ask Stratton if other witnesses
were lying ; however, we hold that this error is harmless.
This second claim of error concerns the prosecutor's questioning of Stratton on
re-cross-examination. The prosecutor asked him if Gabbard was lying when her
testimony of the events of July 8, 2004, differed from his . Stratton's counsel objected .
Despite counsel's objection, the trial court allowed the questioning and did not direct the
prosecutor to rephrase . The prosecutor resumed questioning regarding Gabbard, and
then asked if Burke was lying when his testimony of both controlled buys differed from
Stratton's . Stratton was forced to answer in response that both Gabbard and Burke
were lying.
Stratton argues that the law is clear that a witness should not be required to
characterize the testimony of another witness as lying. He is correct . See Moss v.
Commonwealth, 949 S .W .2d 579, 583 (Ky. 1997) ; Caudill v. Commonwealth , 120
S .W .3d 635, 662 (Ky. 2003). The reason that such a characterization is improper is
that it "places the witness in such an unflattering light as to potentially undermine his
entire testimony. Counsel should be sufficiently articulate to show the jury where the
testimony of the witnesses differ without resort to blunt force ." Moss, 949 S.W.2d at
583.
Stratton is incorrect, however, in his assertion that the trial court's allowance of
this type of testimony over counsel's contemporaneous objection constitutes reversible
error as additional analysis is still required . A judgment will not be reversed for an error
in the admission of evidence or defect in any ruling unless it appears that the
substantial rights of the defendant were prejudiced ; otherwise, the error must be
disregarded as harmless . RCr 9.24. The test for harmless error is "whether on the
whole case there is a substantial possibility that the result would have been any
different." Commonwealth v. McIntosh, 646 S .W.2d 43, 45 (Ky. 1983).
Here, Stratton does not argue that there is a substantial possibility that the result
would have been any different in this case .
Nonetheless, having reviewed the trial, we conclude that no substantial
possibility exists that the outcome would have been different had the trial court not
allowed the prosecutor's questions . On Stratton's direct examination, he essentially
testified that Burke and Gabbard were not credible. As to Burke, Stratton volunteered
that he did not know how he could say that he bought cocaine in his house . And as to
Gabbard, Stratton theorized that she testified as she did because they [presumably the
Commonwealth] had made threats to her. Stratton further stated that Gabbard would
"say anything" because she was a "people pleaser ." Later in his direct testimony,
Stratton commented that Burke and Gabbard's testimony was "funny" because they
could remember the events of the days of July 8 and July 12, 2004, but they could not
remember what happened at night on those dates . Stratton further maligned Burke by
accusing him of making advances on Gabbard and stating that Burke's mission was to
go get high .
On cross-examination, Stratton was extremely contentious, at one point even
asking the prosecutor what she offered Gabbard to write a statement (introduced in
evidence) implicating both herself and Stratton. (This inquiry came after Gabbard's
testimony that she had not received any promises from the Commonwealth in exchange
for her testimony) . In short, while the prosecutor should not have resorted to asking
Stratton to characterize Gabbard's and Burke's testimony as lies on re-crossexamination, we believe that any error in allowing the prosecutor to do so was harmless
as Stratton had already openly attacked their credibility on direct and crossexamination . In the end, however, the jury chose to believe them over him .
We affirm the judgment of conviction and sentence of the Campbell Circuit
Court .
All Concur.
COUNSEL FOR APPELLANT :
Karen Shuff Maurer
Assistant Public Advocate
Department of Public Advocacy
100 Fair Oaks Lane, Suite 302
Frankfort, Ky 40601
COUNSEL FOR APPELLEE:
Gregory D . Stumbo
Attorney General of Kentucky
Room 118, Capitol Building
Frankfort, Ky 40601
Susan Roncarti Lenz
Assistant Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, Ky 40601
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