CALVIN ABBOTT v. COMMONWEALTH OF KENTUCKY
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RENDERED: SEPTEMBER 15, 2000; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-002288-MR
CALVIN ABBOTT
APPELLANT
APPEAL FROM OHIO CIRCUIT COURT
HONORABLE RONNIE C. DORTCH, JUDGE
ACTION NO. 98-CR-00008
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING IN PART; REVERSING IN PART AND REMANDING
** ** ** ** **
BEFORE: GUDGEL, CHIEF JUDGE; BUCKINGHAM AND JOHNSON, JUDGES.
JOHNSON, JUDGE: Calvin Abbott has appealed from the judgment of
conviction entered by the Ohio Circuit Court on September 17,
1998, which convicted him of conspiracy to traffic in a
controlled substance in the second degree (methamphetamine)1 and
sentenced him to prison for a term of one year and fined him
“a sum of $10,000.00 plus penalized an additional $5,000 to be
forfeited to the Ohio County Sheriff’s Department Drug Fund.”
Having concluded that the errors committed by the trial court in
1
Kentucky Revised Statutes (KRS) 218A.1413.
allowing the detective during his testimony to interpret the
surveillance tape and in allowing into evidence other
inadmissible testimony were harmless errors, we affirm on those
issues.
Having concluded that the trial court did not err in
allowing the paid informant to testify and in refusing to give a
jury instruction on the defense of renunciation, we also affirm
on those issues.
Having concluded that the $10,000 fine was
proper, we affirm as to the fine; however, we must reverse and
remand as to the “$5,000 to be forfeited to the Ohio County
Sheriff’s Department Drug Fund.”
During 1997, Kentucky State Police Detective Eric
Walker retained the services of Brian Godak to work as a
confidential informant during a series of controlled drug buys in
Ohio County.
Godak, who was an admitted drug addict, had
burglary charges pending against him in Ohio County.
The
testimony revealed that in July 1997, Godak attempted to purchase
one-eighth of an ounce2 of methamphetamine3 from Abbott for $300.
After Godak had, in his words, “infiltrated” Abbott’s life and in
some ways befriended him, Godak asked Abbott to get him “an eight
ball of crank.”
At trial, the Commonwealth contended that Abbott
conspired with Godak to sell Godak the crank by taking $300 from
2
The quantity of one-eighth of an ounce is commonly referred
to as “an eight ball.”
3
Methamphetamine is a Schedule II, non-narcotic drug that is
commonly referred to as “crank.”
-2-
him, by discussing the sale of crank with Godak, and by
attempting, but failing, to obtain the drug from a supplier.4
Abbott testified in his own defense and claimed that he had no
intention to conspire with Godak to sell drugs, but was merely
attempting to mislead Godak and to get Godak to leave him alone.
The jury convicted Abbott of the conspiracy charge and
recommended a one-year prison term.
In addition to sentencing
Abbott to prison for one year, the trial court also ordered that
he be fined $15,000.
This appeal followed.
The first issue that we address concerns the testimony
of Det. Walker that consisted in part of his own interpretation
of the tape recording that had been made of the events
surrounding the alleged attempted drug buy on July 23, 1997.
Before Godak left to meet with Abbott, Det. Walker searched
Godak, provided him with $500 cash, and “wired” him with a
concealed tape recorder and transmitting device.
Det. Walker
strategically located himself to observe Godak as much as
possible and to hear Godak’s conversations that were transmitted
over the listening device.
During Det. Walker’s testimony, the
Commonwealth introduced the surveillance audio tape into evidence
and it was played for the jury.
In his brief, Abbott states that “[t]he trial court erred
in permitting Detective Walker and Brian Godak to interpret the
‘surveillance tape’ after same had been played to the jury.”
4
The Commonwealth alludes to Godak’s son, Kevin, who lived
near Abbott, as being the drug supplier.
-3-
Abbott relies on Gordon v. Commonwealth,5 wherein our Supreme
Court found error in the testimony of the paid informant and
reversed a drug trafficking conviction.
As with any participant in a conversation,
the informant witness was entitled to testify
as to his recollection of what was said. In
this case the tape recording was played for
the jury. Thereafter, the witness gave his
recollection of the salient portions of the
conversation and then, upon replay of a
portion of the tape, the witness was asked if
he could hear it. When he answered “yes,” he
was then asked what he said. Unresponsively,
he answered,
Yes, I went and asked Maurice if he had
any stuff. And he told me yes. And I
told him I wanted a fifty dollar piece.
And he gave it to me. And I said,
alright, I sure thank you, Maurice.
From our examination of the transcript,
it is apparent that the witness purported to
interpret the tape recording rather than
testify from his recollection. This was in
error. Upon retrial, the court must
determine whether the tape should be admitted
and, of course, the witness should be
permitted to testify. The court should
refrain, however, from permitting the witness
to interpret what is on the tape. It is for
the jury to determine as best it can what is
revealed in the tape recording without
embellishment or interpretation by a witness
[citation omitted].6
Unfortunately, in the case sub judice, Abbott fails to
clearly set forth the testimony that he finds objectionable.
In
the three pages of his brief that Abbott devotes to this issue,
he makes reference to various parts of the video record; but he
5
Ky., 916 S.W.2d 176 (1995).
6
Id. at 180.
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fails to specify the testimony that he finds objectionable.
In
an effort to give Abbott a thorough review of his appeal, we have
reviewed the video record in toto.
Our review of the record demonstrates that before the
surveillance audio tape was played for the jury, Det. Walker
testified from his notes and made several references to what “you
could hear on the tape;” and that while the surveillance audio
tape was being played for the jury, Det. Walker stopped the audio
tape on several occasions for the purpose of further explaining
what had been said on the audio tape.
While Godak also made
reference to the audio tape during his testimony, the audio tape
was not played during his testimony.
Since all the citations to
the record that were provided by Abbott concerning this issue
refer to Det. Walker’s testimony, we will address only his
testimony.
The Commonwealth responds to Abbott’s argument by
misstating the record.
The Commonwealth’s witnesses in the case
at bar testified from their recollection.
Det. Walker testified from recollection to
what he observed and heard through the realtime electronic transmitter of the
conversation between Informant Godak and
appellant. He played the tape and made
comments, based on his recollection, about
the terrain and events happening during the
meeting between the appellant and the
informant, not about the contents on the
tape. The tape was not played during the
examination of Informant Godak. Det. Walker
testified about the drug transaction from his
recollection of the events. There was no
interpretation of the tape. Therefore, there
was no error [citation to record omitted].
-5-
Clearly, the record shows that Det. Walker interpreted
the tape on several occasions; and counsel for Abbott objected
several times to this improper commentary by Det. Walker.
Abbott
first raised his concerns in this regard when he filed a motion
in limine.
Even though the trial court in ruling on Abbott’s
motion said, “you can’t interpret the tape Detective Walker,”
during Det. Walker’s testimony the trial court overruled all of
Abbott’s objections.
On one occasion when the trial court
addressed Abbott’s objection, it erroneously instructed Det.
Walker to “just say, ‘the tape says.’”
Thus, the trial court
failed to draw a distinction between what Det. Walker actually
heard in real time from the listening device and what he heard at
a later time from the recording device.
As our Supreme Court stated in Gordon, supra, “it is
apparent that the witness purported to interpret the tape
recording rather than testify from his recollection.
error.”
This was in
However, since Abbott testified in his own behalf and
did not challenge Det. Walker’s interpretation of the tape
recording, this error was harmless.7
7
Abbott, in fact, admitted
Kentucky Rules of Criminal Procedure (RCr) 9.24, the
“harmless error” rule, states: “No error in either the admission
or the exclusion of evidence and no error or defect in any ruling
or order, or in anything done or omitted by the court or by any
of the parties, is ground for granting a new trial or for setting
aside a verdict or for vacating, modifying or otherwise
disturbing a judgment or order unless it appears to the court
that the denial of such relief would be inconsistent with
substantial justice. The court at every stage of the proceeding
must disregard any error or defect in the proceeding that does
not affect the substantial rights of the parties.”
-6-
that he took $300 from Godak on two separate occasions on July
23, 1997, and that Godak wanted to buy some crank.
It was
Abbott’s defense that he was duping Godak; that he had no
intention of ever selling Godak crank and was only going along
with Godak to “get rid of him.”
Since the content of the
conversations between Abbott and Godak was not really in issue,
the improper commentary by Det. Walker was harmless error, and we
affirm on this issue.
In the same section of Abbott’s brief where he made his
argument concerning the interpretation of the tape, he also makes
various references to what he claims were the erroneous
admissions of other testimony.
These include: (1) “Detective
Walker at one point referred to the Defendant [ ] as being
someone who the confidential informant had dealt with in the past
when the confidential informant was an addict[;]” (2) “When Brian
Godak testified, he immediately stated the Defendant was a person
from whom he had purchased marijuana previously[;]” (3) “Brian
Godak then testified [ ] he knew Defendant’s son, Kevin Abbott,
by stating [,] ‘he is supposed to be a drug dealer[;]’” (4)
“Detective Walker [ ] advise[d] the jury that Defendant was
arrested and promptly made a $25,000.00 cash bond[;]” and (5)
“Det. Walker advised the jury [ ] that Defendant had made a
statement on the tape that he may wish to purchase marijuana from
the confidential informant, and some discussion ensued regarding
-7-
the ‘cooking of meth.’”8 Abbott claims that under KRE9 404(c)
none of this testimony was admissible because the Commonwealth
failed “to give reasonable pre-trial notice to [the] Defendant of
their intention to introduce evidence of other crimes,
wrongdoings or acts.”
We agree with Abbott that each of these
objections should have been sustained, but we believe so for
different reasons.
Det. Walker’s statement that Godak knew Abbott because
he had dealt with him in the past when Godak was an addict
constituted inadmissible investigative hearsay.10
The fact that
there had been a prior relationship between Godak and Abbott
should have been, and was, testified to by Godak.
Since Abbott
claimed that he was entrapped by Godak, and received an
instruction on entrapment, evidence of any prior drug dealing
between the two was clearly relevant.11
Since Godak did in fact
testify to this same evidence, the trial court’s error in
allowing Det. Walker to testify to this hearsay was harmless
error.
As to the second objection, Abbott is correct that any
8
Abbott did not include this last issue in the argument
section of his brief, but only raised it in his statement of the
case.
9
Kentucky Rules of Evidence.
10
Gordon, supra at 179; Sanborn v. Commonwealth, Ky., 754
S.W.2d 534, 541 (1988).
11
See Fuston v. Commonwealth, Ky.App., 721 S.W.2d 734, 735
(1986).
-8-
allegation that he had previously sold marijuana to Godak should
have been disclosed as a prior bad act under KRE 404(c).
The
fact that this alleged prior bad act may have been admissible to
refute the entrapment defense does not eliminate the need for
disclosure.12
However, since Abbott was claiming entrapment and
his prior relationship with Godak was relevant, we believe any
error was harmless.
Godak’s testimony that he knew Kevin Abbott as someone
who “supposedly [is] a drug dealer” was also improper.
When
Godak blurted out this statement, Abbott’s counsel moved for a
mistrial.
The Commonwealth’s Attorney responded by saying that
he expected Godak to merely state that Kevin Abbott was Calvin
Abbott’s son.
The trial court denied the motion for a mistrial
and Abbott requested no further relief.
We agree that the
witness’ answer was not responsive to the Commonwealth’s question
and that the testimony was clearly improper.
However, we cannot
conclude that the trial court abused its discretion in refusing
to grant a mistrial.
The trial judge was in the unique position
to determine whether a mistrial was required.13
We cannot
conclude that the record reveals “‘a manifest necessity for such
12
Apparently the trial court permitted this testimony to
allow the Commonwealth to establish that Godak knew Abbott and
could identify him. This was erroneous since Abbott’s identity
as not in issue.
13
Grimes v. McAnulty, Ky., 957 S.W.2d 223, 228 (1997).
-9-
an action or an urgent or real necessity.’”14
Det. Walker’s testimony concerning Abbott making “a
$25,000.00 full cash bond” when he was arrested on February 12,
1998, was also clearly improper.
However, Abbott’s counsel told
the trial court, “I don’t want an admonition to the jury.
it struck from the tape.”
I want
What counsel meant by this is unclear,
but clearly he did not ask for a mistrial.
The trial judge did
admonish the jury as follows: “Ladies and Gentlemen, the last
remark by Detective Walker shall have no bearing upon [your]
deliberation in this matter.”
Based on this objection, the trial
court provided Abbott with the only relief that was appropriate.
The remark could not be “struck from the tape.”
Since Abbott did
not request a mistrial, he has not preserved that issue for our
review.
As to the fifth issue, Abbott claimed that any
testimony concerning his interest in buying marijuana or in
“cooking of meth” was inadmissible as uncharged bad acts under
KRE 404(c) and that under KRE 403 its probative value was
outweighed by its prejudicial effect.
The trial court ruled that
the probative value of this evidence outweighed its prejudicial
effect and overruled the objection.
Abbott fails to state in his
brief why this ruling by the trial court was erroneous and how
any error would be harmful; and we cannot say that the trial
14
Skaggs v. Commonwealth, Ky., 694 S.W.2d 672, 678
(1985)(quoting Wiley v. Commonwealth, Ky.App., 575 S.W.2d 166
(1969); Brown v. Commonwealth, Ky., 558 S.W.2d 599 (1977)).
-10-
court abused its discretion in allowing the evidence.
Thus, we
affirm the trial court on all five evidentiary rulings.
Abbott also claims the trial court erred in denying his
motion in limine to prohibit the Commonwealth from calling Godak
as a witness.
The Commonwealth concedes that it failed to comply
with the trial court’s discovery order by not timely disclosing
that Godak was the confidential informant.
The trial judge
stated to Abbott’s counsel that if he did not know that Godak was
the confidential informant, he “would probably be the only one in
the county” who did not know it.
Abbott’s counsel agreed and stated:
That was my assumption, and I have prepared a
subpoena based on that assumption. But,
technically I don’t think we are suppose to
have to assume that. They are under the
obligation to provide the name if they intend
to use the witness; and they just simply
haven’t done so.
The trial judge responded:
That is correct. And if there is any
prejudice to you, simply let me know and I
will give you a continuance of whatever time
is necessary to investigate any prejudicial
conduct or actions that may have occurred by
the Commonwealth’s failure to provide that
name.
Abbott never requested a continuance and has not shown
any prejudice from this discovery violation.
Clearly, the trial
court acted properly when, pursuant to RCr 7.24(9), it offered
Abbott a continuance to allow him additional time to prepare for
this witness who had not been properly disclosed during
discovery.
There is no merit to Abbott’s argument, and we affirm
-11-
on this issue.
Abbott further claims that the trial court erred when
it refused to give his proposed jury instruction on the defense
of renunciation, which stated: “That the Defendant did not
manifest a voluntary and complete renunciation of his criminal
purpose before the crime of trafficking in a controlled substance
second degree was committed.”
KRS 506.060 provides:
(1) In any prosecution for criminal
solicitation or criminal conspiracy in which
the crime solicited or the crime contemplated
by the conspiracy was not in fact committed,
it is a defense that, under circumstances
manifesting a voluntary and complete
renunciation of his criminal purpose, the
defendant prevented the commission of the
crime.
(2) A renunciation is not “voluntary and
complete” within the meaning of this section
when it is motivated in whole or in part by:
(a)
A belief that circumstances exist
which pose a particular threat of
apprehension or detection of the
accused or another participant in
the criminal enterprise or which
render more difficult the
accomplishment of the criminal
purpose; or
(b)
A decision to postpone the criminal
conduct until another time or to
transfer the criminal effort to
another victim or another but
similar object.
In his brief, Abbott claims
that since he had returned the funds to the
confidential informant and since there was no
agreement to postpone their conspiracy to a
later date or to transfer the criminal effort
to another victim or object, the Defendant
renounced his intention to conspire.
-12-
However, Abbott also admits that he is not aware of any Kentucky
case law that supports his position.
Defendant is unable to find any specific
Kentucky case law on this point however,
[sic] feels that denial of the trial Judge to
instruct on a renunciation defense was
fundamentally unfair to this Defendant and
warrants reversal of his conviction.
We agree with the Commonwealth that Abbott clearly was
not entitled to a renunciation instruction.
The Commonwealth’s
theory of the case was that the only reason Abbott did not
complete the sale was because he was unable to obtain the drugs.
Abbott’s defense was that he was not predisposed to, and never
intended to, supply the drugs to Godak and was merely trying to
mislead him and to get rid of him.
Since neither version of the
evidence supports a renunciation instruction, we affirm on this
issue.15
Additionally, Abbott contends that he is entitled to a
reversal of his conviction and a new trial because of the
cumulative effect of the various errors that occurred.
While we
agree with Abbott that several errors did occur, we cannot
conclude as a whole that these errors were such that denying
Abbott a new trial is inconsistent with substantial justice.
conclude that such errors did not affect Abbott’s substantial
15
See Trimble v. Commonwealth, Ky., 447 S.W.2d 348, 350
(1969).
-13-
We
rights, and we affirm his conviction.16
Finally, we affirm Abbott’s sentence in part and
reverse and remand in part.
As conceded by the Commonwealth,
under KRS 534.030 (1) the statutory maximum fine for a person
convicted of a felony was $10,000.00.
Even though the jury was
not instructed concerning a fine, the trial court was within its
authority to impose the statutory maximum.17
Thus, we affirm the
one-year prison sentence and the $10,000 fine.
However, the
trial court exceeded its authority when it ordered “[t]hat in
addition to the defendant’s sentence, the defendant is hereby
fined a sum of $10,000.00 plus penalized an additional $5,000.00
to be forfeited to the Ohio County Sheriff’s Department Drug
Fund.”18
Since there is no statutory basis for this $5,000
“forfeiture,” we reverse and remand on this issue.19
Accordingly, Abbott’s conviction is affirmed; but the
judgment is vacated as to the sentence imposing a fine of
$15,000, and this matter is remanded for the trial court, within
its discretion if it should so choose, to impose a fine
consistent with KRS 534.030(1).
16
RCr 9.24; Bowling v. Commonwealth, Ky., 942 S.W.2d 293,
308 (1997).
17
See Simpson v. Commonwealth, Ky., 889 S.W.2d 781, 783-84
(1994).
18
The trial court apparently recognized that the sentence
was contrary to law since the trial judge stated, “Probably if
you challenged that, that would be overturned.”
19
This was not a forfeiture within the meaning of KRS
218A.405 to 218A.460.
-14-
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Dan Jackson
Hartford, KY
A.B. Chandler, III
Attorney General
Brian T. Judy
Assistant Attorney General
Frankfort, KY
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