BARNETT (TOMMY L.) VS. COMMONWEALTH OF KENTUCKYAnnotate this Case
RENDERED: NOVEMBER 14, 2008; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
TOMMY L. BARNETT
APPEAL FROM BELL CIRCUIT COURT
HONORABLE JAMES L. BOWLING, JR., JUDGE
ACTION NO. 07-CR-00052
COMMONWEALTH OF KENTUCKY
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BEFORE: KELLER AND WINE, JUDGES; LAMBERT,1 SENIOR JUDGE.
WINE, JUDGE: On March 14, 2007, a Bell County grand jury indicted Tommy L.
Barnett on one count each of first-degree trafficking in a controlled substance, first
offense, and theft by unlawful taking (under $300). Following a trial, the jury
found Barnett guilty on both counts. The jury fixed Barnett’s sentences at ten
Senior Judge Joseph E. Lambert sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes
years for the trafficking count, and six months on the theft count, to be served
consecutively. The trial court imposed the jury’s sentence, and also imposed a
$300.00 fine. Barnett now appeals. Finding no error, we affirm.
The charges arose from an undercover drug buy conducted by the
Kentucky State Police in Middlesboro on June 13, 2006. Trooper Brian Greene
and Detective Roy Pace employed Crystal Money to conduct the drug buy. Money
regularly worked for the Kentucky State Police, the Kentucky Drug Enforcement
Agency, and the Middlesboro Police Department as a paid informant. Money
testified that she called Barnett, who agreed to sell her two methadone tablets for
$20.00 and one ounce of marijuana for $150.00.
After meeting with Money to discuss the buy, Trooper Greene and
Detective Pace searched her person and car and found both to be free of money and
drugs. Detective Pace then gave Money $170.00 to purchase the drugs. He also
gave her an audio recorder, which she concealed on her body, and a video recorder,
which she concealed in her car.
Money then drove alone to the Binghamtown Market in Middlesboro.
Trooper Greene and Detective Pace followed in their car. Barnett and his wife,
Anna Bowling, were already there. According to Money, both Barnett and
Bowling approached her car. Barnett said that he and Bowling only had one
methadone pill because they had already snorted the other. Bowling told Money
that they did not have the marijuana on them and they would return with it within
one hour. Barnett then returned to the other automobile. Money then gave
Bowling $160.00 ($150.00 for the marijuana and $10.00 for one methadone pill).
Bowling then returned to the car where she apparently obtained the methadone pill
from Barnett. Upon returning, Bowling gave Money the methadone pill. As
instructed, Money went to the BP station across the street from her house and
waited for Barnett and Bowling to return with the marijuana. However, they never
Barnett first argues that he was entitled to a directed verdict because
the Commonwealth failed to present sufficient credible evidence for the jury to
find him guilty beyond a reasonable doubt. The standard for granting a directed
verdict is set out in Commonwealth v. Benham, 816 S.W.2d 186 (Ky. 1991), as
On motion for directed verdict, the trial court must
draw all fair and reasonable inferences from the evidence
in favor of the Commonwealth. If the evidence is
sufficient to induce a reasonable juror to believe beyond
a reasonable doubt that the defendant is guilty, a directed
verdict should not be given. For the purpose of ruling on
the motion, the trial court must assume that the evidence
for the Commonwealth is true, but reserving to the jury
questions as to the credibility and weight to be given to
On appellate review, the test of a directed verdict
is, if under the evidence as a whole, it would be clearly
unreasonable for a jury to find guilt, only then the
defendant is entitled to a directed verdict of acquittal.
Id. at 187 (internal citations omitted).
Barnett first argues that the Commonwealth put forth no credible
evidence that he was involved in the drug transaction or the theft of the money.
Barnett notes Money’s admission that she is a “professional” informant who is
routinely paid by law enforcement agencies to participate in controlled drug buys.
As such, he contends that Money is an inherently unreliable witness.
He further argues that Money’s testimony was not corroborated by the
police witnesses or by the surveillance tapes. Neither Trooper Greene nor
Detective Pace saw the drug exchange described by Money. The surveillance
video only shows Bowling approaching the car and Money’s hand reaching out
from the car to pass money to Bowling. Barnett’s voice is not identified on the
audio tape. Barnett also points out that the officers did not closely supervise
Money during the one hour period after he and Bowling left. During this time,
Money left her car several times to go to her apartment and to the BP station.
Barnett maintains that Money had ample opportunity to obtain drugs or take the
missing $150.00 for herself.
In this case, however, Money clearly testified about Barnett’s
involvement in the transaction. Any inconsistencies in her testimony and the lack
of direct corroboration in the recordings were purely questions of weight and
credibility that are within the jury’s province to determine. Likewise, Barnett
pointed out to the jury that the police did not closely supervise Money after the
initial transaction. She left her car several times during this period and had
conversations with several people, including a person selling television equipment
for $150.00 – the same amount which was the basis for the theft charge.
Nevertheless, the jury found Money’s testimony to be credible. The
jury’s determination of the credibility of witnesses “will not be disturbed unless it
is so incredible on its face as to require its rejection as a matter of law.” Taylor v.
Commonwealth, 301 Ky. 109, 113, 190 S.W.2d 1003, 1005 (1945). See also
Bussey v. Commonwealth, 797 S.W.2d 483, 484 (Ky. 1990), and Holland v.
Commonwealth, 272 S.W.2d 458, 459 (Ky. 1954). Considering the totality of the
evidence, we cannot say that Money’s testimony was so improbable as to render
her account unworthy of credence.
Barnett also argues that the trial court abused its discretion by
allowing the Commonwealth to play all of the audio surveillance tape and a portion
of the video surveillance tape to the jury. He maintains that the recordings are
ambiguous regarding any drug transaction, and that neither depicts any
involvement by him. Consequently, he asserts that the recordings’ prejudicial
effect substantially outweighed any probative value which they had. We disagree.
Under Kentucky Rules of Evidence (“KRE”) 403, 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
consideration 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).
The audio and video recordings were clearly relevant to depict the
circumstances surrounding the alleged drug transaction. They were also relevant
to show the procedures which the officers followed in setting up the controlled
buy. Although neither recording directly implicated Barnett, they were clearly
admissible against Bowling, who was also a defendant at this trial.
And as previously noted, Barnett had the opportunity to point out that
the recordings did not directly implicate him. Under the circumstances, we cannot
say that the unfair prejudicial effect of the recordings substantially outweighed
their probative value. Therefore, the trial court did not abuse its discretion by
allowing the Commonwealth to present them to the jury.
Accordingly, the judgment of conviction by the Bell Circuit Court is
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Jennifer J. Hall
Assistant Public Advocate
Attorney General of Kentucky
David W. Barr
Assistant Attorney General