BRADLEY EUGENE SMITH v. COMMONWEALTH OF KENTUCKY
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RENDERED: December 10, 1999; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-001327-MR
BRADLEY EUGENE SMITH
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE EDWIN A. SCHROERING, JUDGE
ACTION NO. 97-CR-2228
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
COMBS, EMBERTON AND GUIDUGLI, JUDGES.
GUIDUGLI, JUDGE: Bradley Eugene Smith (Smith)appeals a Judgment
of Conviction and Sentence entered on May 19, 1998, in the
Jefferson Circuit Court.
Smith was found guilty of trafficking
in a controlled substance I and possession of marijuana.
After
the jury verdict, Smith entered a guilty plea to an amended count
of being a persistent felony offender (PFO) II.
We affirm.
On September 16, 1997, Smith and Jacqueline Duke (Duke)
were indicted by a Jefferson County Grand Jury for trafficking in
a controlled substance I, possession of marijuana and PFO I.
On
the day of their arrest, June 2, 1997, both Smith and Duke gave
untaped statements to the police regarding the circumstances of
the arrest.
In January of 1998, Duke pled guilty and gave a
taped statement to the police in exchange for the Commonwealth’s
offer of a probated sentence of five years.
Smith’s jury trial on the charges was held on May 18,
1998.
The day before the trial was set to begin, the
Commonwealth provided Smith with a copy of Duke’s January
statement and notified Smith that Duke would testify against him
at trial.
On the day of the trial, Smith moved for a continuance
arguing that he was not properly prepared due to this “surprise”
development.
The Commonwealth argued that Duke’s testimony would
be similar to the statement that she had given police on the day
of her arrest and that Smith was aware that Duke had cooperated
from the beginning.
The trial court denied Smith’s motion for a
continuance.
Before the trial, Smith moved the trial court to
dismiss the PFO I charge because one of his prior convictions was
reversed on appeal.
The trial court denied the motion.
Smith
then moved the court in limine to prevent Duke from testifying as
to other uncharged crimes.
The Commonwealth argued that Duke’s
testimony regarding other uncharged crimes in the six months
prior to Smith’s arrest went to prove the trafficking portion of
the indictment.
Smith argued that the testimony was unnecessary
to prove trafficking and would duplicate other evidence.
The
trial court denied Smith’s motion.
During voir dire, the trial court struck several jurors
for cause relative to biased statements they had made.
Further,
during voir dire, the Commonwealth made a statement with regard
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to “reasonable doubt”.
Smith objected and moved to strike the
jury panel arguing that the Commonwealth had impermissibly
attempted to define “reasonable doubt”.
overruled the objection.
The trial court
Thereafter, the trial went forward and
the jury convicted Smith on charges of trafficking in a
controlled substance and possession of marijuana.
Smith waived
sentencing by the jury and entered a guilty plea to the amended
charge of PFO II in exchange for the Commonwealth’s
recommendation of fifteen years.
The trial court followed the
Commonwealth’s recommendation and sentenced Smith to fifteen
years.
This appeal followed.
On appeal, Smith raises the following four issues:
1.
2.
Smith argues that the trial court erred
when it denied his motion for a
continuance;
Smith argues that the trial court erred
when it allowed Duke to testify to other
uncharged crimes;
3.
Smith argues that the trial court erred
when it refused to allow him to question
a potential juror about his ability to
be fair; and
4.
Smith argues that the trial court erred
when it refused to discharge the jury
panel after the Commonwealth improperly
defined reasonable doubt.
Smith first argues that he was entitled to a
continuance because the Commonwealth did not notify him until the
day of the trial that Duke had pled guilty and would testify
against him.
Smith argues that he needed time to change his
trial strategy because he had believed he and Duke would be tried
as co-defendants.
Rule of Criminal Procedure (RCr) 9.04 states,
“[t]he court, upon motion and sufficient cause shown by either
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party, may grant a postponement of the hearing or trial....” “The
decision whether or not to grant a continuance lies within the
sound discretion of the trial court and, unless from a review of
the record as a whole it appears that the trial judge has abused
his discretion, we will not disturb his ruling.”
Stump v.
Commonwealth, Ky., App., 747 S.W.2d 607, 609 (1987).
See also
Williams v. Commonwealth, Ky., 644 S.W.2d 335 (1982).
“Whether a continuance is appropriate in a particular
case depends upon the unique facts and circumstances of that
case.”
Snodgrass v. Commonwealth, Ky., 814 S.W.2d 579 (1991)
(citations omitted).
In the present case, Smith argues that he
was surprised that Duke would testify against him and that he
needed additional time to prepare a new defense.
However, a
thorough review of the record shows that Smith had actual
knowledge that Duke had cut a deal with the Commonwealth and
planned to testify against him some four months before the trial
began.
On January 29, 1998, the Commonwealth filed a motion to
review or alter Smith’s conditional release.
Paragraph five of
the motion states:
The Co-Defendant in this case, Jacqueline
Duke, has decided to cooperate in this matter
and testify against Mr. Smith. She has
already provided a taped statement indicating
her and Mr. Bradley’s [sic] involvement in
this case. Ms. Duke notified the
Commonwealth’s Office on December 1, 1997,
well before she decided to cooperate, that
Mr. Smith had contacted her with threats of
physical violence.
The Commonwealth argued to the trial court that the taped
statement Duke gave to the Commonwealth corresponded with the
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statement she had given the police on the day she was arrested.
On appeal the Commonwealth notes that the statement Duke gave on
the day of her arrest was contained in the Commonwealth’s
discovery, which was filed with the trial court on October 23,
1997.
The trial court found that there was no element of
surprise regarding Duke’s taped statement and willingness to
testify and, therefore, denied Smith’s motion for a continuance.
The Commonwealth is bound by the notice requirement
contained in Kentucky Rule of Evidence (KRE)404(c) which states:
Notice requirement. In a criminal case, if
the prosecution intends to introduce evidence
pursuant to subsection (b) of this rule
[evidence of other crimes, wrongs or acts] as
a part of its case in chief, it shall give
reasonable notice to the defendant of its
intention to offer such evidence. Upon
failure of the prosecution to give such
notice the court may exclude the evidence
offered under subdivision (b) or for good
cause shown may excuse the failure to give
such notice and grant the defendant a
continuance or such other remedy as is
necessary to avoid unfair prejudice caused by
such failure.
The Supreme Court of Kentucky has interpreted the notice
requirement contained in KRE 404(c) as follows:
KRE 404(c) requires the Commonwealth to give
notice to a defendant of its intent to
introduce evidence of other crimes, wrongs or
acts. However, that rule is of no benefit to
Appellant in this case. “The intent of [KRE
404(c) is to provide the accused with an
opportunity to challenge the admissibility of
this evidence through a motion in limine and
to deal with reliability and prejudice
problems at trial.” Obviously, no prejudice
occurred, because Appellant had actual notice
of this evidence....KRE 404(c) permits the
trial judge “for good cause shown” to excuse
failure to give the required notice. No
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error occurred with respect to the admission
of this evidence.
Tamme v. Commonwealth, Ky., 973 S.W.2d 13, 31 (1998) (citations
omitted).
In the case sub judice, Smith had actual knowledge
that Duke had given a taped statement to the Commonwealth and
decided to testify against him some four months before the trial
began.
The trial court correctly ruled that there was no
surprise regarding Duke’s testimony in its order denying Smith’s
motion for a continuance.
We see no abuse of discretion in that
ruling.
Smith next argues that the trial court abused its
discretion in allowing Duke to testify about Smith selling drugs
from his apartment in the past.
The Commonwealth argued that
Duke’s testimony was necessary to prove the trafficking element
of Smith’s indictment.
Smith argued that the testimony given by
Duke would duplicate other evidence and that the Commonwealth
could prove trafficking by the amount of cocaine found in Smith’s
apartment alone.
The trial court found that Duke’s testimony was
admissible under KRE 404(b) which states:
Other crimes, wrongs or acts. Evidence of
other crimes, wrongs or acts is not
admissible to prove the character of a person
in order to show action in conformity
therewith. It may, however, be admissible:
(1)
if offered for some other purpose,
such as proof of motive,
opportunity, intent, preparation,
plan, knowledge, identity or
absence of mistake or accident;
(2)
if so inextricably intertwined with
other evidence essential to the
case that separation of the two
could not be accomplished without
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serious adverse effect on the
offering party.
In Daniel v. Commonwealth, Ky., 905 S.W.2d 76 (1995),
the Supreme Court held that the Commonwealth may introduce
evidence of other uncharged crimes, wrongs or acts under 404(b)
if it can show a proper basis for such evidence, including a need
for such evidence, subject to the Drumm analysis.
Under Drumm v.
Commonwealth, Ky., 783 S.W.2d 380 (1990), the trial court must
consider whether the evidence is relevant, probative and whether
its probative value outweighs potential prejudice.
“A ruling
based on a proper balancing of prejudice against probative value
will not be disturbed unless it is determined that at trial court
has abused its discretion.”
Bell v. Commonwealth, Ky., S.W.2d
882, 890 (1994).
In the present case, the trial court held that Duke’s
testimony regarding other uncharged crimes went to intent, course
of conduct, absence of mistake or accident, knowledge,
preparation and plan and therefore was admissible pursuant to KRE
404(b).
We agree.
In addition, Smith attempts to play the
“surprise card”, arguing that he had no notice of the substance
of Duke’s testimony.
Not only was there no surprise concerning
the fact that Duke planned to testify against Smith, but there
was no element of surprise regarding the substance of her
testimony.
Smith was aware of Duke’s statement to police on the
day of her arrest.
The trial court did not abuse its discretion
by allowing Duke to testify that Smith had previously sold drugs
from his apartment.
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Smith next argues that the trial court erred when it
excused Juror No. 73 for cause without allowing him to question
the potential juror during voir dire.
However, “[t]he
determination of whether to exclude a juror for cause lies within
the sound discretion of the trial court....Unless the action of
the trial court is clearly erroneous, we will not reverse it.”
Caldwell v. Commonwealth, Ky. App., 662 S.W.2d 405 (1982)
(citations omitted).
See also Holbrook v. Commonwealth, Ky.
App., 662 S.W.2d 484 (1984).
During voir dire, Juror No. 73
stated to the trial court that he could not be fair and impartial
because he had formed opinions that made him tend to acquit
because he worked in a law office (which performed criminal
defense work) as a paralegal and he distrusted evidence in drug
cases.
The trial court dismissed this potential juror for cause
without further questioning.
in this decision.
The trial court did not clearly err
See Simmons v. Commonwealth, Ky., 746 S.W.2d
393 (1988).
Finally, Smith argues that the Commonwealth’s attorney
impermissibly defined reasonable doubt during voir dire when he
stated that although he was not allowed to define reasonable
doubt, “I can tell you what it’s not.
beyond any doubt.”
I can tell you, it’s not
This statement is not a violation of Callahan
v. Commonwealth, Ky., 675 S.W.2d 391 (1984), which prohibits
counsel from defining reasonable doubt at any point in the trial.
In King v. Commonwealth, Ky. App., 875 S.W.2d 902 (1993), the
court held reasonable doubt does not mean beyond “any doubt.”
Therefore, we do not believe it is error for counsel to so state.
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Counsel merely explained to the jury panel that the standard was
reasonable doubt and not something higher.
This is permissible.
Simpson v. Commonwealth, Ky., 759 S.W.2d 224 (1988).
For the foregoing reasons, the decision of the trial
court is affirmed.
ALL CONCUR.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Elizabeth Shaw
Richmond, KY
Albert B. Chandler III
Attorney General of Kentucky
Frankfort, KY
Todd D. Ferguson
Assistant Attorney General
Frankfort, KY
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