DILLMAN (GREGORY) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: JUNE 6, 2008; 2:00 P.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2007-CA-000455-MR
GREGORY DILLMAN
v.
APPELLANT
APPEAL FROM PULASKI CIRCUIT COURT
HONORABLE DAVID A. TAPP, JUDGE
ACTION NO. 06-CR-00100
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: KELLER AND THOMPSON, JUDGES; GRAVES,1 SENIOR JUDGE.
THOMPSON, JUDGE: Gregory Dillman appeals his conviction in the Pulaski
Circuit Court for two counts of trafficking in a controlled substance in the first
degree. For the reasons set forth herein, we affirm.
Senior Judge John W. Graves sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
1
On February 10, 2005, Beverly Morgan, a confidential informant
wearing an audio recording device, purchased two methadone tablets from Dillman
for eighty dollars. On March 24, 2005, Morgan, wearing an audio recording
device, purchased from Dillman one-half of an oxycodone tablet for sixty dollars.
On March 22, 2006, Dillman was indicted for two counts of
trafficking in a controlled substance, first-degree. Following a jury trial, Dillman
was found guilty on both counts and sentenced to twelve years’ imprisonment.
This appeal followed.
Dillman first contends his Fifth Amendment privilege against selfincrimination was violated. Specifically, he contends the trial court impermissibly
ordered him to answer a question from the prosecutor regarding an unindicted
crime. We disagree.
The Fifth Amendment to the United States Constitution provides that
a defendant cannot be compelled to incriminate himself by his own testimonial
communications. Varble v. Commonwealth, 125 S.W.3d 246, 253 (Ky. 2004).
However, when a defendant decides to testify in his own defense, he subjects
himself to the rigors of cross-examination and must answer all questions relevant
to the prosecution of the case. Lumpkins v. Commonwealth, 425 S.W.2d 535, 536
(Ky. 1968).
During trial, Dillman exercised his constitutional right to testify in his
own defense. Although admitting that he had obtained oxycodone for Morgan, he
testified that he was merely a middleman in the transaction and sold the oxycodone
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to her “at cost” simply to provide drugs to a friend and fellow drug addict. During
cross-examination, Dillman was asked to identify the person who supplied him
with oxycodone. After Dillman invoked the Fifth Amendment, the trial court
ordered him to disclose the identity of his supplier over his objection.
Dillman’s privilege against compelled self-incrimination was not
violated. After Dillman testified that he was merely a non-profit middleman, the
trial court properly permitted the prosecutor to inquire into the nature of Dillman’s
middleman status, which included the identity of his supplier. Dillman’s own
testimony placed the prosecutor’s question within the scope of relevancy.
Dillman next contends that the trial court erred by admitting evidence
against him of uncharged crimes and bad acts despite the Commonwealth’s failure
to provide him with reasonable pretrial notice in violation of Kentucky Rules of
Evidence (KRE) 404(b) and (c). He also alleges that the evidence was
inadmissible under KRE 404(b). We disagree.
Generally, as provided in KRE 404(b) and (c), the Commonwealth
cannot produce evidence of crimes and bad acts other than the crimes charged in
the indictment. O'Bryan v. Commonwealth, 634 S.W.2d 153, 156 (Ky. 1982).
However, when a defendant’s testimony introduces the prior bad acts, he is
precluded from claiming that the prosecutor’s use of the prior conduct constitutes
inadmissible evidence. Thompson v. Commonwealth, 648 S.W.2d 538, 539
(Ky.App. 1983). Dillman’s testimony introduced the prior conduct that he now
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seeks to declare inadmissible. While we do not seek to discourage such a sacred
right, these are the perils of testifying in one’s own defense.
Dillman also contends that the Commonwealth was improperly
permitted to ask him whether or not he made a statement to police in 2002 that he
sold drugs for profit. He further points out that he was not provided with
reasonable pre-trial notice regarding the Commonwealth’s intention to introduce
this evidence.
During cross-examination, Dillman testified, “I don’t sell drugs, I just
picked that up for her [Morgan].” After Dillman agreed that he had taken
Morgan’s money in exchange for drugs, Dillman testified that he believed
trafficking or selling only occurs when drugs are sold for profit. The prosecutor
then asked Dillman if he was in it for the money. Dillman replied, “No, I work.”
After requesting a bench conference, the prosecutor informed the
court that he sought to introduce Dillman’s 2002 statement to police in which he
stated that he was acquiring particular drugs because he could make a three
hundred percent profit. After Dillman voiced his objections, the trial court ruled
that the evidence was admissible under two different legal theories.
First, the trial court ruled that Dillman’s assertion of the entrapment
defense permitted the introduction of his past statement to establish a predisposition to commit drug trafficking for profit. Second, the trial court ruled that
the past statement was admissible to rebut Dillman’s trial testimony that he does
not sell drugs for profit.
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We believe that the trial court incorrectly admitted the statement as
evidence of Dillman’s pre-disposition in regard to his entrapment defense. A
defendant may assert an entrapment defense, which if successful would exonerate
him from criminal liability, if he was induced by police or their agent to commit a
crime for which he was not otherwise predisposed to commit. Johnson v.
Commonwealth, 554 S.W.2d 401, 402 (Ky.App. 1977). When a defendant has met
his evidentiary burden of establishing this defense, the Commonwealth may
demonstrate that a defendant originated or was otherwise disposed to engage in the
criminal conduct prior to being induced by a government agent by introducing
evidence of a defendant’s past similar criminal conduct. Wyatt v. Commonwealth,
219 S.W.3d 751, 757 (Ky. 2007).
Notwithstanding its ability to introduce past criminal conduct, the
Commonwealth’s evidence of such conduct cannot be so remote that the probative
worth of the evidence is outweighed by the prejudice to the defendant. Gray v.
Commonwealth, 843 S.W.2d 895, 897 (Ky. 1992). Fundamental fairness requires
that a jury’s verdict be predicated on the particular crime charged in the indictment
and not prior bad conduct dovetailed to the charged offense with the effect of
emphasizing a general criminal disposition. Robey v. Commonwealth, 943 S.W.2d
616, 618 (Ky. 1997).
We conclude that Dillman’s assertion of an entrapment defense was
not sufficient to support the introduction of his prior unsworn out-of-court
statement. Dillman’s prior statement was made several years prior to the dates he
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committed the charged offenses. The introduction of the prejudicial prior
statement substantially outweighed its probative value. However, we conclude that
Dillman “opened the door” for the introduction of his prior statement, and
therefore, affirm the trial court.
Dillman testified that he did not sell drugs for profit. This testimony
could have been interpreted to state that Dillman never sold drugs for profit at any
time in his life. However, he told police something different in 2002. Thus,
evidence of Dillman’s prior statement could be introduced to rebut and impeach
his trial testimony. Ernst v. Commonwealth, 160 S.W.3d 744, 762 (Ky. 2005).
With respect to Dillman’s contention that the introduction of his prior
statement violated the notice requirement of KRE 404(c), we conclude that there
was no error. Although the Commonwealth did not disclose its possession of
evidence regarding this statement during pre-trial proceedings, it disclosed its
intention to introduce the prior statement after hearing the defense’s opening
statement.
Under the circumstances, the Commonwealth did not violate the
notice requirement of KRE 404(c). As demonstrated to the trial court, the
Commonwealth acted in as prudent a manner as possible under the circumstances.
The Commonwealth disclosed the prior statement at the earliest feasible time in
which it believed the evidence was relevant.
Dillman next contends that the trial court erred when it failed to
exclude evidence of his unindicted crime and past bad act due to prejudice.
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Specifically, even if this evidence was otherwise admissible, Dillman contends its
probative value was substantially outweighed by the danger of undue prejudice as
prohibited by KRE 403. We disagree.
KRE 403 provides the following:
Although relevant, evidence may be excluded if its
probative value is substantially outweighed by the danger
of undue prejudice, confusion of the issues, or misleading
the jury, or by considerations of undue delay, or needless
presentation of cumulative evidence.
In making an evidentiary determination under KRE 403, the trial court’s ruling will
be reviewed for abuse of discretion. Partin v. Commonwealth, 918 S.W.2d 219,
222 (Ky. 1996). “The test for abuse of discretion is whether the trial judge's
decision was arbitrary, unreasonable, unfair, or unsupported by sound legal
principles.” Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
First, as previously noted, Dillman cannot contest the introduction of
his oxycodone purchase because he originated this testimony. Secondly, even
though extremely prejudicial, the Commonwealth’s inquiry regarding Dillman’s
2002 statement to police was in direct rebuttal to his denial of selling drugs for
profit. The prosecution is granted latitude to prove its case with competent
evidence, and defendants cannot determine the facts they do not want the jury to
receive. Page v. Commonwealth, 149 S.W.3d 416, 420 (Ky. 2004). Accordingly,
the trial court properly admitted the evidence and Dillman was not unduly
prejudiced.
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Dillman next contends that the trial court erred by failing to instruct
the jury on criminal facilitation to commit trafficking in a controlled substance.
Based on the testimony at trial, Dillman contends that the evidence compelled an
instruction on criminal facilitation because the jury could reasonably find him
guilty of the offense.
A trial court must instruct the jury on the whole law of the case, which
includes instructions applicable to every legal issue supported to any extent by the
evidence. Holland v. Commonwealth, 114 S.W.3d 792, 802 (Ky. 2003). We
conclude that the trial court did not commit error by not instructing the jury on
facilitation because Dillman did not present a sufficient evidentiary foundation.
Unlike being a mere facilitator, he was an active participant in the commission of
drug trafficking. Thompkins v. Commonwealth, 54 S.W.3d 147, 150-151 (Ky.
2001); see also Commonwealth v. Day, 983 S.W.2d 505, 508 (Ky. 1999)(holding
that facilitation instructions were not warranted under similar facts as this case).
For the foregoing reasons, the judgment of the Pulaski Circuit Court is
affirmed.
ALL CONCUR.
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BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Donald H. Morehead
Assistant Public Advocate
Department of Public Advocacy
Frankfort, Kentucky
Gregory D. Stumbo
Attorney General of Kentucky
ORAL ARGUMENT FOR
APPELLANT:
ORAL ARGUMENT FOR
APPELLEE:
Steven J. Buck
Assistant Public Advocate
Department of Public Advocacy
Frankfort, Kentucky
James C. Maxson
Assistant Attorney General
Frankfort, Kentucky
James C. Maxson
Assistant Attorney General
Frankfort, Kentucky
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