CELIA D. HOOSIER v. COMMONWEALTH OF KENTUCKY
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RENDERED: June 26, 1998; 2:00 p.m.
NOT TO BE PUBLISHED
NO.
97-CA-1293-MR
CELIA D. HOOSIER
APPELLANT
APPEAL FROM TODD CIRCUIT COURT
HONORABLE TYLER L. GILL, JUDGE
ACTION NO. 96-CR-0027
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
REVERSING AND REMANDING
*
BEFORE:
*
*
*
*
HUDDLESTON, JOHNSON and MILLER, Judges.
JOHNSON, JUDGE: Celia D. Hoosier(Hoosier) appeals from a final
judgment entered on April 23, 1997, in the Todd Circuit Court
which convicted her of trafficking in a controlled substance in
the first degree in violation of Kentucky Revised Statutes (KRS)
218A.1412 and sentenced her to prison for a term of five years.
The issue on appeal is whether the trial court committed
reversible error by allowing a police officer to testify
concerning a controlled drug buy conducted outside of his
presence.
Having concluded that error did occur and that this
error affected the substantial rights of Hoosier, we must reverse
and remand.
On January 25, 1996, the Pennyrile Area Narcotics Task
Force (Task Force) was involved in the investigation of illegal
drug trafficking in Guthrie, Todd County, Kentucky.
That
afternoon Task Force Detective James Acquisto (Detective
Acquisto) attached a transmitter to Vicki Whitaker (Whitaker), a
confidential informant, provided her with a recorded $20 bill,
and told her to drive to the Squib area of Guthrie and make
cocaine buys from whomever would sell the drug to her.
Detective
Acquisto testified that neither Whitaker nor her vehicle were
searched for cocaine prior to her leaving to make the buy.
Whitaker had worked with Detective Acquisto previously and was
paid $150 for each buy she made regardless of whether she could
identify the seller.
As Whitaker drove to Guthrie, she spoke into the
transmitter giving her location, what she was seeing and what she
was doing.
Detective Acquisto was not in the immediate area
where Whitaker was to make the controlled buys and was unable to
see Whitaker; however, he listened to her over the transmitter
and recorded the transmissions on a cassette tape.
After she
allegedly made two purchases of crack cocaine, Whitaker met
Detective Acquisto at a pre-arranged location and gave him two
rocks of crack cocaine.
Whitaker told Detective Acquisto that
"Shawn's sister" sold her a rock of crack cocaine for $20.
With
this information, Detective Acquisto subsequently identified
Hoosier as being Shawn Hoosier’s sister.
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Hoosier was indicted on
June 4, 1996, for trafficking in a controlled substance in the
first degree.
On August 26, 1996, Hoosier filed a motion to dismiss
the indictment which the trial court denied.
On October 26,
Hoosier moved the trial court to enter an Alford1 plea on the
Commonwealth's offer of a two-year prison sentence on a plea of
guilty to the offense of possession of cocaine.
Hoosier told the
trial court that she wanted to enter a guilty plea because she
was afraid of going to trial; however, she maintained her
innocence.
The trial court refused to accept her guilty plea
stating that it is not appropriate to accept a guilty plea based
on the defendant's fear of going to trial because a guilty plea
must be based on an admission of guilt.
Hoosier’s first jury trial was conducted on November 8,
1996.
Detective Acquisto, Hoosier's mother, Whitaker and a
forensic chemist testified and the audiotape of the alleged
cocaine buy was played.
The trial resulted in a hung jury and
the trial judge declared a mistrial.
Hoosier was retried and convicted on March 20, 1997.
The evidence at the second trial was essentially the same as the
first trial with the major exception of Detective Acquisto
testifying to what he heard over the radio transmitter and
providing some very specific details about the controlled buy.
Detective Acquisto testified first for the Commonwealth, and he
1
North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27
L.Ed.2d 167 (1970).
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told the jury that: (1) he was a narcotics detective; (2) he had
worked 14 years as a police officer; and (3) he had been the lead
investigator on approximately 800 drug investigations.
Over
Hoosier's objection, Detective Acquisto testified that he was
“selective” in deciding whether to choose a person to work with
him as a confidential informant and that he would “verify their
honesty” by looking at the “motivation of the person.”
testified as follows:
He
"Part of my training is that to determine
the motivation of a confidential informant is very important so
that you know what the truth is and you can verify their honesty
by knowing what their motivation is."
He stated that Whitaker
was motivated because she had had drug problems in her family and
wanted to “get drug dealers off the streets of Guthrie,
Kentucky.”
To the extent that Detective Acquisto's testimony
vouched for the credibility of Whitaker, it was improper.
LaMastus v. Commonwealth, Ky. App., 878 S.W.2d 32, 34 (1994).
When Detective Acquisto began to testify about Whitaker
making a controlled buy, Hoosier objected to this testimony as
inadmissible hearsay since Detective Acquisto had no personal
knowledge of the events which occurred after Whitaker left his
presence.
The trial court, relying on the "verbal acts"
exception to the hearsay rule, overruled the objection stating
that this hearsay testimony was admissible since it explained why
the officer did what he did and that it was merely cumulative.
Detective Acquisto then testified, in pertinent part, as follows:
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Detective Acquisto (DA): Yes sir. She
[Whitaker] requested a twenty from Mr. Clardy
which, in drug slang for the Guthrie area, in
my experience, is a $20 piece of crack
cocaine. He, uh, agreed to go get it and
left. Came back once. Asked for the money
which we, we had instructed her once not to
front the money. In other words, give
someone the money without getting the dope in
exchange because they don't come back. We
just get ripped off. Uh, again, she told,
you know, to go get the drugs and she would
not give him the money until he came back
with the drugs. He left again. Very shortly
thereafter, approximately three minutes
thereafter, or in that time frame, Ms.
Hoosier approached, uh, our informant Ms.
Whitaker and, uh, Ms. Whitaker told her that,
uh, Wayne had gone to get some drugs for her
and, uh, asked Ms. Hoosier if she would get
her her twenty and she said, yeah, she could.
She goes, go get it and bring it back. She
left and went into her trailer, and, uh, they
arrived, Mr. Clardy and Ms. Hoosier, arrived
back at the informant approximately at the
same time and the informant purchased drugs
from each person at the same time.
Commonwealth’s Attorney (CA): Now, when, uh,
Vicki was sent out to make the drug buy, or
buys, uh, was she sent out to make one or
more than one or what, uh, what were her
instructions?
DA: Her instructions for this operation or
any other operation for any informant that we
use, especially in the Squib area is to buy
drugs from whoever you can. Uh, it makes no
difference if you know what their name is
because we don't expect them to, in most
cases anyway, we identify them later on
through different means. Uh, it's very rare
that you find a person that does know
somebody's name, especially their first and
last name.
CW: Was Vicki able to give you an
identification?
DA: She identified, uh, Ms. Hoosier to us at
first as being Shawn's [sic] Hoosier's
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sister. And, uh, my notes indicate that I
just put down blank Hoosier as a suspect at
that time.
CW: And you were subsequently able then to
fill that blank in?
DA:
That's correct.
Detective Acquisto later testified as follows:
"I
consider this a pretty good case because we knew the person's
last name."
Hoosier’s objection to this opinion testimony was
sustained and the trial court admonished the jury "that
statements of opinion are useless and you are to disregard the
officer's statement of his opinion regarding whether this was a
good case or not."
Detective Acquisto was asked why Whitaker and
her car were not searched prior to the controlled buy and he
testified as follows:
“We had no reason to believe that there
was anything being done dishonest by the informant, whatsoever
. . . .”
On cross-examination, Detective Acquisto was also asked
what Whitaker had to do in order to be paid the $150 for a
controlled buy, and he said “it’s got to be, a, uh, as I say, in
my opinion, a good buy.”
The trial court, sua sponte, admonished
the jury to disregard this testimony and told Detective Acquisto
he did not want to hear any more expressions of opinion.
During the redirect of Detective Acquisto, the
Commonwealth asked him to play the audiotape of the transaction.2
2
A transcript of the audiotape was given to Hoosier in
response to a discovery request; however, contrary to the
(continued...)
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Much of the argument in this case revolves around the contents of
the tape.
The record only contains the videotaped record of the
trial that recorded the replaying of the audiotape during the
trial.
After careful review, we conclude that, other than
Whitaker’s and Detective Acquisto’s voices, the audiotape is
largely unintelligible or inaudible.
We can only assume that the
jury heard what we heard on the audiotape.3
After Detective Acquisto concluded his testimony and
the tape had been played, Whitaker took the stand and testified
that she worked with Detective Acquisto "because people are fed
up with drugs."
Whitaker explained that her son was on drugs and
because of her son's drug problem she had to raise his child.
She stated that her son was in trouble with the law during the
time she was working as an informant because he “skipped town”
while on work release.
She testified that her son's problems
with the law did not play a role in her determination to become a
confidential informant.
Contrary to the Commonwealth's assertion, Detective
Acquisto's testimony concerning the controlled buy was not merely
cumulative of Whitaker's testimony.
In fact, as can be discerned
from Whitaker's testimony below, Detective Acquisto's testimony
(...continued)
position taken by the Commonwealth at oral argument, the jury was
never given the transcript and the audiotape was not admitted
into evidence--the jury only listened to the audiotape. The
audiotape is not a part of the record on appeal.
3
The videotape recording was of excellent quality.
-7-
provided much more detail about the controlled buy than
Whitaker's testimony, which was much more general in nature.
Whitaker testified, in pertinent part, as follows:
Commonwealth’s Attorney (CA): And what did
you do? Just tell us what you did on that
day.
Vicki Whitaker (VW): Well, I met with, uh,
Pennyrile Narcotics agents that morning and,
uh, around dinnertime I left to go out to
make as many buys, you know, as I had, could
make that day. So, uh, I made three buys. I
went through Guthrie, went across the tracks
in Guthrie and uh, I made, uh, a buy and I
went back to them and I went back and made
another buy and then I went back and made
another buy. I’m sorry. I said that wrong.
I made a buy and then I went back and made
two more buys at one time.4
CA: So the tape that we listened to, you
weren't in here but we listened to a tape,
you made another buy that day?
VW:
Yes sir.
CA: Okay. Were you equipped with any
recording device--a microphone or anything?
VW:
Yes sir.
I was wired.
CA:
And you were aware of that going in?
VW:
Yes sir.
CA: Um, where did, where did, you make a
buy? What street? Do you know that street,
the location?
4
On cross-examination, Whitaker stated that she spent $30
that afternoon--she bought a $10 piece of crack cocaine with her
own money from another drug dealer and she bought a $20 piece
from Hoosier with the money provided to her by Detective
Acquisto.
-8-
VW: I went to the Dinner Bell Cafe.
a buy there.
CA:
I made
Do you know that street that's on?
VW: I think it's the corner of Howell. I
don't know, its been a while. I do, um, I'm,
it’s right there on the main drag going
through.
CA: Now Vicki, I want to get into
particulars in just a minute; but I want you
to tell the jury how it was you were able to
go down there, uh, to the Dinner Bell Cafe
and buy cocaine. Did you know the people you
were buying from?
VW: I'm pretty well from Guthrie.
everybody around Guthrie.
CA:
I knew
Did you yourself have any drug problems?
VW: I had drug problems about twenty years
ago.
CA: Do you, do you, then know that people
just from sight, or um-VW:
Yes sir, I do.
CA: And based on your experience they had no
problem coming up to you and selling you
cocaine?
VW:
No sir, they didn't.
CA: Now, on that day that you said you made
two buys, uh, how close in time were those
two buys?
VW: Uh, let's see, I'd say about thirty
minutes apart. Now I made two together.
CA: That's what, that's what I'm talking
about.
VW: Okay. They were right there together.
A minute, two minutes apart.
CA:
Okay.
Where were they made?
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VW: They were made in front of Celia
Hoosier's house, trailer, her mother's
trailer.
CA:
And who sold you cocaine?
VW: Wayne Clardy and Celie.
CA: And did you know Celia Hoosier at that
time?
VW: Yes. I knew of, I knew, yes, I did.
knowed Celie for a long time.
CA:
I
How did you know her?
VW: I used to work in two different stores
in Guthrie, Kentucky.
CA:
Did you know her as Celia Hoosier?
CA:
How?
VW:
Cecelia.
But everybody calls her Celie.
CA: Now, on this tape, you refer to her as
Shawn's sister, who is that?
VW:
Celie Hoosier.
CA:
I mean who's Shawn.
VW:
Shawn Hoosier.
CA:
And you know Shawn?
VW:
Yes, I do.
CA:
And did you know her to be his sister?
VW:
Yes, I did.
CA: Where do they live or where did they
live in January of '96.
VW: Well, I think Celie was living in the
apartments but she stayed around her mother's
trailer. Shawn, I always knew him from the
trailer.
CA:
And where was her mom's trailer?
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VW: It's right across from the Dinner Bell
Cafe.
CA: Do you know her mom's name? (No
response). Do you see her in the courtroom?
VW:
Yes sir.
CA:
Can you point her out please?
VW:
That's her. (Pointing).
CA:
The lady sitting there behind her?
VW:
Yes sir.
CA: And you know that to be her trailer
across from the Dinner Bell?
VW:
Yes.
CA: And did you now that prior to January
the 25th of '96?
VW:
Yes I did.
CA: And in referring to a person as Shawn's
sister, can you point out to us who you are
referring to? (Points to Hoosier).
CA: Do you have any doubt that this is the
person who sold you a rock of cocaine on the
25th of January?
VW: There is no doubt in my mind that she is
the person who sold it to me.
Following the testimony of the forensic chemist, the
Commonwealth closed its case; and Hoosier’s motion for a directed
verdict was denied.
The defense offered no evidence.
The jury
returned a guilty verdict on the single count of trafficking in
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cocaine, first offense.
The trial court sentenced Hoosier to the
minimum prison sentence of five years.5
On March 25, Hoosier filed a motion for a judgment
notwithstanding the verdict and a motion for a new trial.
She
argued that the jury based its decision on hearsay testimony and
cumulative testimony since Detective Acquisto was permitted to
testify as to what Whitaker had said and done even though
Whitaker testified at trial.
The trial court denied the motion.
This appeal followed.
Hoosier argues that the trial court erred in allowing
Detective Acquisto to testify to "investigative hearsay."
Hoosier contends that there was no mention of drugs on the tape,
only Whitaker asking for "a twenty"6 and the only mention of
cocaine or a twenty dollar rock was when Hoosier was not present
and Whitaker spoke into the transmitter for Detective Acquisto's
benefit.
Hoosier argues that before a police officer may testify
to hearsay pursuant to the "verbal act" doctrine there must be an
"issue in controversy."
Sanborn v. Commonwealth, Ky., 754 S.W.2d
534, 541 (1988), Carter v. Commonwealth, Ky., 782 S.W.2d 597, 600
5
Nine members of the jury signed a note that was given to
the trial court that read as follows: “We, the Jury, Reccomend
[sic] that Celia Hoosier be given a lesser sentence than the one
we were given to decide. We, the undersigned, suggest release
after 18 months and with good behavior.”
6
This reference to the testimony is apparently based upon
the transcript of the audiotape which the jury did not see. We
cannot hear this language on the videotape of the trial.
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(1989), and Daniel v. Commonwealth, Ky., 905 S.W.2d 76, 79
(1995).
Hoosier points out that the Supreme Court of Kentucky
has been exceedingly clear that "a police officer may testify
about information furnished to him only where it tends to explain
the action that was taken by the police officer as a result of
this information and the taking of that action is an issue in the
case."
Sanborn, supra at 541 (emphasis original).
that no police actions were in issue in this case.
She notes
She also
contends that Detective Acquisto's testimony improperly bolstered
Whitaker's credibility and improperly "amounted to a declaration
that he believed the story told by" Whitaker.
S.W.2d at 34.
LaMastus, 878
See also Sharp v. Commonwealth, Ky., 849 S.W.2d
542, 545 (1993), and Hester v. Commonwealth, Ky., 734 S.W.2d 457,
458 (1987).
The Commonwealth concedes that Detective Acquisto's
testimony was not admissible under the "verbal act" doctrine, but
argues that the trial court's decision to allow Detective
Acquisto's testimony was correct for the wrong reason.
Friend v. Rees, Ky.App., 696 S.w.2d 325, 326 (1985).
See
The
Commonwealth claims that the testimony was admissible under the
present sense exception to the hearsay rule, Kentucky Rules of
Evidence (KRE) 803(1).
KRE 803(1) states as follows:
“The
following are not excluded by the hearsay rules, even though the
declarant is available as a witness:
impression.
(1) Present sense
A statement describing or explaining an event or
condition made while the declarant was perceiving the event or
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condition, or immediately thereafter.”
The Commonwealth argues
that Whitaker's statements into the transmitter were her
contemporaneous perceptions about what was transpiring as she
drove into Guthrie and as she purchased cocaine--her present
sense impression.
We have found only three cases in Kentucky which
mention present sense impression:
Jarvis v. Commonwealth, Ky.,
1998 WL 19528 (1998), Slaven v. Commonwealth, Ky., 962 S.W.2d 845
(1998), and Cecil v. Commonwealth, Ky., 888 S.W.2d 669 (1994).
As noted in Jarvis, supra:
There is a dearth of case law in this
Commonwealth concerning the present sense
impression exception of KRE 803(1). The
language of the rule makes clear that time is
an important element of the exception. This
is born out in the commentary to FRE 803(1),
upon which KRE 803(1) is based. "The
underlying theory of [FRE 803(1)] is that
substantial contemporaneity of event and
statement negative the likelihood of
deliberate or conscious misrepresentation
. . . . With respect to the time element,
[FRE 803(1)] recognizes that in many, if not
most, instances precise contemporaneity is
not possible, and hence a slight lapse is
allowable." Fed. R. Evid. 803, Advisory
Committee's Note (emphasis in original).
According to Slaven, supra, a present sense impression must
"describe an event as it is occurring" or "at the time she was
perceiving it."
Id. at 854.
While it is true that the statements on the audiotape
were made as the events being described were allegedly happening,
Whitaker was working for the police and was being paid for buying
cocaine.
This significantly reduces the reliability of her
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descriptions and explanations--it is not as if she were a
disinterested party contemporaneously describing an event.
We
believe that the circumstances surrounding the described events
clearly distinguish the case at bar from Slaven and Cecil, where
the persons making the statements were not agents of the
Commonwealth and there was no financial incentive for making the
statements.
Thus, we do not believe this testimony could have
been properly admitted as evidence under the present sense
impression exception to the hearsay rule.
Hoosier also argues that Detective Acquisto's testimony
improperly bolstered Whitaker's testimony.
We agree.
"The
credibility of a witness' relevant testimony is always at issue
. . . ."
Sanborn, 754 S.W.2d at 545.
Professor Lawson, The
Kentucky Evidence Law Handbook, § 4.05 (1993), quotes United
States v. Tate, 915 F.2d 400, 401 (8th Cir. 1990) (emphasis
original) as follows:
"The prosecution may not place the
prestige of the government behind a witness, giving personal
assurances of veracity . . . ."7
In LaMastus, supra, a police
officer, Brown, testified to what the victim had told him:
7
We are to presume that, “[a]bsent bad faith, an
admonition given by the trial judge can cure a defect in
testimony.” Alexander v. Commonwealth, Ky., 862 S.W.2d 856, 859
(1993). Therefore, any prejudice from Detective Acquisto having
expressed his opinion regarding this being a "pretty good case"
or "a good buy" was cured by the trial court's admonition.
However, Detective Acquisto's opinion about the honesty of a
confidential informant was allowed and the jury was not
admonished in relation to this testimony.
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LaMastus initially contends that the
testimony of Police Officer Brown, the
Commonwealth's first witness, constituted
extensive hearsay and prejudiced the jury.
During trial, Brown started to relate what
Mrs. Taft [the victim] had told him about the
offense. LaMastus' counsel objected on
hearsay
grounds, and the trial judge
sustained the objection. Brown then
continued to explain the case facts, but soon
testified again concerning Mrs. Taft's
statements to him. LaMastus' counsel again
objected, but the judge overruled the
objection for the purpose of allowing Brown
to "relate the nature of the complaint" to
the jury. The judge then allowed Brown to
discuss what Mrs. Taft had reported to him
during the investigation leading to LaMastus'
arrest, culminating with Brown stating, "She
(pause) at that point in time, and with
concern for her safety and the safety of her
husband, I obtained a district court warrant
. . . [for LaMastus' arrest]."
LaMastus argues that Brown's testimony
constituted "investigative hearsay," the
introduction of which has been repeatedly
condemned by Kentucky courts. The
Commonwealth counters that Brown merely
testified as to what Taft later repeated.
Because Taft testified and was available for
crossexamination [sic], the Commonwealth
claims that any error was harmless, citing
Carter v. Commonwealth, Ky., 782 S.W.2d 597,
(1989) cert. denied, 497 U.S. 1029, 110 S.Ct.
3282, 111 L.Ed.2d 791 (1990). We disagree.
Our Supreme Court dealt with a similar
situation in Bussey v. Commonwealth, Ky., 797
S.W.2d 483 (1990). In Bussey, the victim of
sexual abuse testified concerning his
recollection of the offense. Then, during
the Commonwealth's case in chief, four police
officers were permitted to repeat the
victim's version of the events. Id. at 484.
Additionally, the trial court allowed one of
the officers to testify as to his conclusion
of whether the events had transpired as the
victim had described. The officer was
permitted to state,"Yes. I came to the
conclusion that there had to have been some
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type of misconduct or I would not have
received a complaint." Bussey, 797 S.W.2d at
485.
In reversing the Bussey conviction, the
Supreme Court cited Sanborn v. Commonwealth,
Ky., 754 S.W.2d 534 (1988), for the rule that
a police officer may testify about
information furnished to him only where it
tends to explain the action that was taken by
the police officer and not to prove the facts
told. Bussey, 797 S.W.2d at 486 (quoting
Sanborn, supra, at 541). The Bussey court
stated:
The only witnesses to the occurrence of
this crime were appellant and the Bussey
brothers. To arrive at a conviction, it
was necessary for the jury to believe
the victim and disbelieve appellant. As
such, the jury was required to determine
the credibility of all fact witnesses.
This process was flawed when four law
enforcement witnesses were permitted to
bolster the victim's testimony by
repeating what he had told them.
* * *
There is little doubt that Officer
Shirley's statement amounted to a
declaration that he believed the story
told by the victim. In a number of
cases, this has been held reversible
error. [Citations omitted].
. . . .
In this case, the police officer
testified that he believed the victim's
report of the incident and determined on
this basis to initiate further
investigation by telling his captain
. . . .
This Court has firmly rejected the
admission of hearsay evidence under the
so-called "investigative hearsay
exception." Trial courts and counsel
should understand that such evidence is
not less hearsay because it comes from a
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police officer and that any conviction
obtained through the use of such
evidence is in jeopardy of reversal.
Id. at 485-86.
In the case at bar [LaMastus], Officer
Brown was permitted to testify concerning the
facts of the case as told to him by the
victim, Mrs. Taft. He then stated to the
jury that, based upon those facts, he
obtained an arrest warrant for LaMastus
because of his concern for the Tafts’ safety.
Officer Brown's actions were not an issue in
this case. Cf. Sanborn, 754 S.W.2d at 541.
We believe that, according to Bussey, supra,
Officer Brown's testimony improperly lent
credence to Mrs. Taft's testimony and
unfairly prejudiced the jury in her favor.
Furthermore, Carter, 782 S.W.2d 597 cited
by the Commonwealth for the proposition that
such testimony is harmless, is
distinguishable from this case by the fact
that the statements made in Carter did not
directly name or implicate the defendant.
Carter, 782 S.W.2d at 600. That is not the
case here. Finally, the Commonwealth does
not argue, nor do we find, that Brown's
testimony qualified as an exception to the
hearsay rule. See KRE 803-805.
Consequently, we must reverse the conviction
by the trial court.
LaMastus, 878 S.W.2d at 33-34.
The issue in LaMastus deals with the police testifying
to the victim's version of the events and then expressing an
opinion about the merits of the case.
and Carter, supra.
See also Bussey, supra,
In the case sub judice, Detective Acquisto's
testimony went beyond the police repeating the victim's testimony
as in LaMastus, Bussey, and Carter.
8
He not only repeated8
Since Detective Acquisto testified first, he could hardly
(continued...)
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Whitaker's testimony but he also testified extensively about
events to which Whitaker did not testify.
We conclude that his
testimony was not admissible even though Whitaker
contemporaneously described the events as they allegedly
happened.
There were strong indices of unreliability, i.e.,
Whitaker worked for the police and was paid by them for buying
drugs from willing sellers.
No purpose was served by allowing
Detective Acquisto to testify to the taped drug transaction other
than to allow him to add details of the drug transaction and
bolster the informant's credibility.
The Commonwealth argues that if the admission of
Detective Acquisto's testimony regarding the transaction was
error, it was harmless error.
The harmless error doctrine can be
explained as "whether on the whole case there is a substantial
possibility that the result would have been any different."
Commonwealth v. McIntosh, Ky., 646 S.W.2d 43, 45 (1983) (emphasis
added).
In this case, Detective Acquisto was the first witness
for the Commonwealth.
After giving a long list of his
credentials in law enforcement concerning the investigation of
drug cases, he explained the alleged drug transaction between
Whitaker and Hoosier in much more detail than Whitaker did on the
audiotape or at trial.
The videotape recording of the audiotape
(...continued)
have been repeating Whitaker’s testimony, but for simplicity's
sake we refer to it as repeating.
-19-
was largely inaudible and Whitaker simply testified that Hoosier
sold her drugs.
The only substantial difference in the first trial
which resulted in a hung jury9 and the second trial which
resulted in a conviction and a five-year prison sentence was the
substance of Detective Acquisto's testimony.10
We believe that
this inadmissible testimony unfairly bolstered the credibility of
the confidential informant in a case which hinged on witness
credibility.
We cannot say that this error was harmless.
The judgment of the Todd Circuit Court is reversed and
this matter is remanded for further proceedings in accordance
with this Opinion.
ALL CONCUR.
9
Hoosier claims that the hung jury was eleven to one in
favor of acquittal. At the close of the first trial, Hoosier
requested the trial court to ask the foreman the count of the
jury’s vote. The foreman replied that the split was eleven to
one, but he did not state if that was in favor of acquittal or
conviction.
10
Hoosier's mother testified in the first trial that
Hoosier was her daughter and Shawn was her son. Hoosier's mother
attended the second trial and was identified by Whitaker.
-20-
BRIEFS AND ORAL ARGUMENT FOR
APPELLANT:
BRIEF FOR APPELLEE:
Hon. A. B. Chandler, III
Attorney General
Hon. Elizabeth Shaw
Richmond, KY
Hon. R. Evelyn Freer
Assistant Attorney General
Frankfort, KY
ORAL ARGUMENT FOR APPELLEE:
Hon. R. Evelyn Freer
Assistant Attorney General
Frankfort, KY
-21-
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