ALBERT DARYL SPILLMAN v. COMMONWEALTH OF KENTUCKY
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RENDERED:
November 21, 2001; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-002123-MR
ALBERT DARYL SPILLMAN
v.
APPELLANT
APPEAL FROM GARRARD CIRCUIT COURT
HONORABLE C. HUNTER DAUGHERTY, JUDGE
ACTION NO. 00-CR-00002
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: GUIDUGLI, MILLER AND SCHRODER, JUDGES.
GUIDUGLI, JUDGE.
Albert Darryl Spillman (Spillman) appeals his
conviction and sentence of fifteen (15) years entered by the
Garrard Circuit Court following a trial by jury.
We affirm.
Spillman was convicted of three counts of trafficking
in a controlled substance in violation of Kentucky Revised
Statutes (KRS)218A.1412.
The jury sentenced him to seven years
on each of the trafficking offenses, but enhanced each sentence
to fifteen (15) years after determining that he was a persistent
felony offender (PFO), second degree.
Each of the fifteen years
sentences was ordered to run concurrently.
The indictment charged that during two separate
occasions on May 12, 1999, Spillman sold a quantity of cocaine, a
schedule II narcotic, to a police informant and that on July 15,
1999, Spillman again sold cocaine to the same police informant.
On appeal, Spillman raises four separate issues as to why his
conviction should be overturned.
We shall address each issue
raised.
Spillman’s first contention is that the trial court
erred when it permitted the audio tape recording of the July 15,
1999, drug transaction to be admitted into evidence despite his
claims that the Commonwealth failed to timely provide him the
tape in violation of his discovery request [Rules of Criminal
Procedure (RCr) 7.24(9)].
As stated in Spillman’s appellate
brief (page 3), this issue arose in the following manner:
The morning of trial, defense counsel
made a motion to dismiss count three of the
indictment because the Commonwealth had
failed to timely provide the recording of the
drug buy of July 15, 1999, the Commonwealth
having provided the tape on that very
morning-the first day of trial. Defense
counsel explained that although she had been
provided with a transcript of the recording,
after having heard the recording, she
disputed the veracity of the transcript.
Further, Mr. Spillman, had had no opportunity
to listen to the recording at all, as he had
been transported to the courtroom from the
jail only thirty minutes before the trial was
to begin.
Spillman requested that the July 15, 1999, trafficking charge be
dismissed or severed and continued until a later date.
He
claimed he was unduly prejudiced by the alleged failure of the
Commonwealth to provide the audio tape, that he could not
properly prepare his defense, and that there is a “reasonable
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probability” that his trial would have ended differently had the
trial court granted his motion and severed the three trafficking
charges.
See generally, Kyles v. Whitley, 115 S.Ct. 1555 (1995).
We disagree.
RCr 7.24(1) states:
Upon written request by the defense, the
attorney for the Commonwealth shall disclose
the substance of any oral incriminating
statement known by the attorney for the
Commonwealth to have been made by a defendant
to any witness, and to permit the defendant
to inspect and copy or photograph any
relevant (a) written or recorded statements
or confessions made by the defendant, or
copies thereof, that are known by the
attorney for the Commonwealth to be in the
possession, custody, or control of the
Commonwealth, and (b) results or reports of
physical or mental examinations, and of
scientific tests or experiments made in
connection with the particular case, or
copies thereof, that are known by the
attorney for the Commonwealth to be in the
possession, custody or control of the
Commonwealth.
In this case, despite Spillman’s failure to file a written motion
requesting discovery, the Commonwealth provided him with both a
copy of the alleged audio tapes and a written transcript of each
tape.
Although Spillman contends he did not receive the audio
tape of the July 15, 1999, transaction, the Commonwealth stated
that it had sent a copy of that tape to the defendant on April
25, 2000, some three months prior to the trial date.
Whether
Spillman received the alleged audio tape mailed by the
Commonwealth is not controlling in this issue.
Since Spillman
admits that he had been furnished a written transcript of the
drug transaction in question, we do not believe he can reasonably
argue that he was unduly prejudiced or unprepared for the
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Commonwealth’s use of the audio tape during the trial.
Spillman
had not complied with the rule himself by failing to file a
written motion, and he had received at least two audio tapes and
three written transcripts of the alleged drug transactions.
He
obviously was aware of how the Commonwealth intended to proceed
at trial regarding the audio tape, and he if had any questions as
to the existence of a third tape, he should have contacted the
Commonwealth prior to the trial date or filed the appropriate
written motion.
“A discovery violation justifies setting aside a
conviction only where there exists a “reasonable probability”
that had the evidence been disclosed the result at trial would
have been different.”
Weaver v. Commonwealth, Ky., 955 S.W.2d
72, 725 (1997) (citations omitted).
In this case, we believe no
discovery violation occurred, but even if it had, we do not
believe there was a “reasonable probability” that the result of
trial would have been different based on the discovery Spillman
had received from the Commonwealth prior to trial and the
overwhelming evidence of guilt presented at trial.
Spillman next contends that the trial court erred by
allowing the drug evidence to be introduced without requiring the
Commonwealth to prove a complete chain of custody.
Spillman
argues that after the cocaine had been tested at the Kentucky
State Police Laboratory, the evidence was released to Kentucky
State Police Sergeant Massey, who transported the drugs back to
the evidence locker.
Sergeant Massey did not testify at trial
and Spillman contends this breach in the chain of custody
mandates that the evidence be suppressed.
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We disagree.
In the case of Pendland v. Commonwealth, Ky. App., 463
S.W.2d 130 (1971), this Court stated that “while it is true that
items offered in evidence must be properly identified and their
integrity must be properly preserved, the burden of the state to
prove the integrity of the evidence is not absolute.
All
possibility of tampering does not have to be negated.
It is
sufficient if efforts taken to preserve the integrity are
reasonable under the circumstances.”
Id. at 133.
The more
recent case of Rabovsky v. Commonwealth, Ky., 973 S.W.2d 6
(1998), stated:
Even with respect to substances which are not
identifiable or distinguishable, it is
unnecessary to establish a perfect chain of
custody or to eliminate all possibility of
tampering or misidentification, so long as
there is persuasive evidence that “the
reasonable probability is that the evidence
has not been altered in any material
respect.” United States v. Cardenas, 864
F.2d 1528, 1532 (10th Cir. 1989), cert.
denied, 491 U.S. 909, 109 S.Ct. 3197, 105
L.Ed.2d 705 (1989). See also Brown v.
Commonwealth, Ky, 449 S.W.2d 738, 740 (1969).
Gaps in the chain normally go to the weight
of the evidence rather than to its
admissibility. United States v. Lott, 854
F.2d 244, 250 (7th Cir. 1988).
Id. at 8.
In this case, the testimony revealed that the officers
followed normal procedures in securing, identifying and
maintaining the evidence obtained from the Spillman drug
transactions.
There was nothing presented by Spillman which
indicated that anyone had a reason or opportunity to tamper with
the drug samples and no showing that the integrity of the
evidence had been compromised.
See Reneer v. Commonwealth, Ky.,
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784 S.W.2d 182 (1990).
The trial court did not err in admitting
the test results and the drugs obtained from Spillman into
evidence.
Spillman’s third issue on appeal is that his trial
attorney had a conflict of interest which adversely affected her
performance in representing his interests.
On the second day of
trial, Spillman’s attorney, Ms. Heather Vanderford, made the
following statement to the court:
I am sorry, judge, but I just wanted to state
on the record that when all these drug cases
came up, and Suzanne’s [McCollough] office
had a conflict of interest and that is why I
was appointed. When I moved to Suzanne’s
office, I wrote Mr. Spillman a letter and
advised him that we could hire him another
attorney. He told me that he did not want to
do that, verbally, but I had neglected to put
a written waiver in, and this is what I am
doing now. That’s where he has signed that
he understands that Suzanne represents Mr.
Ballew, and he declined for us to hire him
someone else.
Spillman’s attorney on appeal now contends this statement and the
signing of the waiver of dual or multiple representation [RCr
8.30(1)] on the second day of trial creates an impermissible
conflict of interest mandating reversal.
We disagree.
Spillman
maintains that this alleged conflict of interest led to his
attorney being impaired in her ability to provide him with the
zealous representation to which he was entitled.
Spillman has
cited no case law in which a situation as presented by the
lawyers in this case was deemed a conflict of interest.
Furthermore, he has failed to point to any specific action or
lack of action on the part of his attorney which would indicate
she failed to aggressively and adequately represent him or any
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action on her part that resulted in prejudice to him due to her
representation.
When the trial court addressed this issue, it
was clear that Ms. Vanderford had properly and adequately advised
him of her situation and afforded him the opportunity to retain
other counsel.
Spillman responded that he was satisfied with
her, did not want another attorney and knowingly and voluntarily
signed the waiver.
While we do not believe an actual conflict of
interest existed, we believe Ms. Vanderford properly advised
Spillman of the situation and rightfully, in an abundance of
caution, had him sign a waiver of dual representation.
While it
would have been more prudent to have the waiver signed
immediately upon her assuming his representation or at least
prior to trial, we see nothing that would require reversal with
him signing the waiver during the trial itself.
Spillman’s final issue deals with redaction of the
certified copies of judgments being introduced into evidence to
prove the PFO charge.
Spillman originally objected to the
introduction of certain prior judgments.
When the trial court
denied his objection, he requested that certain portions of the
judgments be redacted.
The court granted that motion and the
objectionable portions of the judgments were blackened with a
marker.
No further objection was raised.
On appeal, Spillman now contends that the redaction was
not completed in that if one looks at the sections blackened out
one can discern what the original document states.
The
Commonwealth mistakenly argues that the redacted exhibits were
not included in the record.
The redacted judgments are in the
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record on appeal and if one holds the document to the light, the
objectionable material can be seen.
However, it is obvious that
this issue has not been preserved for appeal.
During the trial,
Spillman’s motion to redact his prior judgments of conviction was
sustained and he received the relief he sought.
relief was requested or sought.
No further
He was satisfied with the
court’s action in redacting the judgments.
RCr 9.22.
Had
Spillman brought the alleged problem of insufficient redaction to
the trial court’s attention, further steps could have been taken
at that time to avoid the problem now at issue.
However, since
Spillman’s motion to redact was granted and he was satisfied with
the relief granted at that time, he cannot now raise the issue of
inadequate relief.
For the foregoing reasons, we affirm the judgment of
conviction and sentence entered by the Garrard Circuit Court.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Linda D. Roberts
Assistant Public Advocate
Frankfort, KY
A. B. Chandler, III
Attorney General
George G. Seelig
Assistant Attorney General
Frankfort, KY
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