GEORGE WALKER V. COMMONWEALTH OF KENTUCKY
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RENDERED: AUGUST 23,200l
TO BE PUBLISHED
2000-SC-0407-MR
GEORGE WALKER
V.
APPEAL FROM MADISON CIRCUIT COURT
HONORABLE WILLIAM T. JENNINGS, JUDGE
99-CR-0027-001
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION OF THE COURT BY JUSTICE JOHNSTONE
AFFIRMING
George Walker was convicted of first-degree trafficking in a controlled
substance, tampering with physical evidence, and second-degree persistent felony
offender. He was sentenced to ten years’ imprisonment on both the trafficking and the
tampering charges. The sentences were ordered to run consecutively, for a total of
twenty years. He appeals to this Court as a matter of right. We affirm.
The events leading to Walker’s arrest begin with the arrest of one Robert Minter
for driving without a license and possession of crack cocaine. Upon arrest, Minter
agreed to assist the police in investigating suspected drug trafficking in Madison County
in exchange for avoiding prosecution. After equipping Minter with a tape recorder and a
twenty dollar bill, the police sent him to the residence of one Freddie Brooks to
purchase crack cocaine. The police had Brooks’ residence under surveillance for a
number of weeks as a possible crack house.
Minter entered the Brooks’ house and paid Walker $20.00 for a baggy of crack
cocaine. This buy supplied the police with the necessary probable cause to obtain a
search warrant for Brooks’ residence. Pursuant to the search warrant, Brooks’
residence was searched the next day. While executing the warrant, the police
discovered Walker and another individual in a bathroom attempting to flush a plastic
packet down the toilet. The contents of the packet field tested positive for cocaine.
Walker’s trafficking charge was not based on the undercover buy. Rather, it was
based on the police discovering him in the bathroom trying to flush away a packet of
crack cocaine during the search of Brooks’ residence.
Prior to trial, Walker moved to exclude any evidence that he had sold an illegal
substance the day before the search warrant was executed. In response to the motion,
the Commonwealth stated that it would not introduce the evidence. The
Commonwealth reiterated this position in response to Walker’s motion to discover the
identity of the confidential informant (Minter), who allegedly purchased cocaine from
Walker. The Commonwealth maintained that Walker was being prosecuted based
solely on evidence obtained during the search and that revelation of the Cl’s identity
was not necessary. The Commonwealth twice more reaffirmed that it would not use
evidence of the controlled buy at Walker’s trial, before reversing its position six days
before trial.
As the Commonwealth explained at a pre-trial hearing on the issue, it decided to
disclose Minter’s identity and introduce evidence of the controlled buy because of an
unfortunate turn of events involving a prospective witness, one Ruth Miller, who had
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entered into a plea agreement with the police. As part of the agreement, Miller agreed
to testify against Walker. Specifically, her testimony was to be that Walker had been
selling crack cocaine on the day of the search. But she recanted, failed to appear for
sentencing, and could not be found. Thus, Miller’s defection and disappearance
caused the Commonwealth to re-evaluate its need to introduce the controlled buy
evidence.
Walker objected on grounds that the controlled buy evidence was inadmissible
under KRE 404(b). Additionally, Walker moved for a continuance, in the alternative, in
order to prepare for the witness. The trial court ruled that the evidence was admissible
only to show Walker’s intent to sell and denied the continuance. Walker first argues
that the trial court erred in allowing the Commonwealth to introduce evidence of the
controlled buy.
EVIDENCE OF OTHER CRIMES
Walker argues that the trial court should have excluded the evidence of the
controlled buy under KRE 404(b), which provides in pertinent part:
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. . . .
The trial court admitted the evidence of the controlled buy on grounds that it was
admissible to show Walker’s intent to traffic in cocaine ,U his intent to sell. Further,
i e
the trial court admonished the jury that the controlled buy only could be considered as
proof of Walker’s intent to traffic if the jury first found that Walker was in possession of
the cocaine. On appeal, Walker argues that the evidence of the controlled buy was
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inadmissible to prove intent because intent was an element of the offense for which
Walker was indicted. In other words, Walker’s argument is that a prior bad act cannot
be used to prove an ultimate issue in the case. We disagree.
Professor Lawson notes that under KRE 404(b), evidence of other crimes should
be admitted to prove intent only when intent is in genuine dispute. Robert G. Lawson,
The Kentuckv Evidence Law Handbook, § 2.25, p. 98 (3d ed. 1993).
Of course, even
when in dispute, a trial court must still determine that the evidence is relevant to prove
the intent to commit the crime charged. Id. Further, the evidence is subject to
exclusion under KRE 403.
Under the instructions given in this case, to find Walker guilty of first-degree
trafficking in cocaine, the jury had to believe beyond a reasonable doubt that: (1)
Walker knowingly possessed cocaine; and (2) he possessed the cocaine with intent to
sell it to another person. Walker did not testify and put on almost no defense. Rather,
the defense based its strategy on discrediting the Commonwealth’s witnesses in order
to create reasonable doubt as to both possession and intent to sell. This is reflected in
defense counsel’s opening statement and closing argument and in Walker’s motion for
a directed verdict of acquittal.
We believe this attack on the sufficiency of the evidence placed the issue of
intent to sell into dispute. As revealed in closing argument, Walker’s defense basically
was that he was merely present at the scene and could not be convicted based on a
theory of guilt by association. The question of whether a “mere presence” defense
creates a material issue as to the defendant’s mental state is addressed in United
States v. Thomas, 58 F.3d 1318 (8th Cir. 1995). After noting that the issue was one of
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first impression within the circuit, the Thomas Court answered the question in the
affirmative:
When a defendant raises the issue of mental state, whether by a “mere
presence” defense that specifically challenges the mental element of the
government’s case or by means of a general denial that forces the
government to prove every element of its case, prior bad act evidence is
admissible because mental state is a material issue.
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Because [the] “mere presence” defense raises the[] issues of intent and
knowledge, admission of . . . prior bad act evidence [is] not relevant solely
to a propensity inference, and [is] therefore proper under Rule 404(b).
Id. at 1322, 1323.
In this case, the Commonwealth was required to prove intent to sell as a
separate element of the crime charged. This alone was probably enough to place the
issue of Walker’s mental state in dispute. Walkers “mere presence” defense that
attacked both the possession and intent to sell elements of the trafficking charge
certainly placed the issue of intent to sell in dispute. Now, we examine whether the
controlled buy evidence is relevant to the issue of intent to sell.
To be relevant, the controlled buy evidence must make it more probable that
Walker intended to sell the cocaine in his possession. See KRE 401. The number of
cases holding that prior sale evidence is relevant under the Federal Rules of Evidence
to show intent to sell is legion. See. e.g., United States v. Thomas, 58 F.3d 1318 (8th
Cir. 1995) collecting cases; United States v. Adrian, 978 F.2d 486 (9th Cir. 1992);
United States v. Hadfield, 918 F.2d 987 (1st Cir. 1990) cert. denied, 500 U.S. 936, 111
S. Ct. 2062, 114 L. Ed. 2d 466 (1991) collecting cases; United States v. Robison, 904
F.2d 365 (6th Cir. 1990), cert. denied, 498 U.S. 946, 111 S. Ct. 360, 112 L. Ed. 2d 323
(1990); United States v. Harris, 903 F.2d 770 (10th Cir. 1990); United States v. Hicks,
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798 F.2d 446 (11 th Cir. 1986) cert. denied, 479 U.S. 1035, 107 S. Ct. 886, 93 L. Ed. 2d
839 (1987); and United States v. Beechum, 582 F.2d 898 (5th Cir. 1978), cert. denied,
440 U.S. 920, 99 S. Ct. 1244, 59 L. Ed. 2d 472 (1979). The Beechum Court well stated
the reason that such evidence is admissible under FRE 404(b):
Where the issue addressed is the defendant’s intent to commit the
offense charged, the relevancy of the extrinsic offense derives from the
defendants indulging himself in the same state of mind in the perpetration
of both the extrinsic and charged offenses. The reasoning is that because
the defendant had unlawful intent in the extrinsic offense, it is less likely
that he had lawful intent in the present offense.
Beechum, 582 F.2d at 911.
We hold likewise. The evidence of the controlled buy tended to make it more
probable that Walker intended to sell the drugs in his possession.
Finally, we address Walker’s argument that Marshall v. Commonwealth, Ky., 482
S.W.2d 765 (1972), requires reversal in this case. Marshall is easily distinguishable
from the case at bar.
In Marshall, the defendants were convicted of possession of burglary tools and
attempted breaking and entering in connection with an attempted break-in at a
Lexington grocery store. Id. at 765. The trial court admitted evidence of prior crimes by
the defendants as evidence of their intent to break into the grocery store, “to show that
they were the kind of characters who would do such a thing, and were not hardy,
honest citizens having a casual social visit in back of the market at 2:30 A.M. on a cold
morning.” Id. at 766. The prior crime evidence consisted of proof of convictions for
disorderly conduct, receiving stolen property, drunkenness, carrying a concealed deadly
weapon, burglary, storehouse breaking, grand larceny, breach of peace, and knowingly
receiving stolen goods. Id.
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The possession of burglary tools charge required proof of both possession and
intent to commit a crime. The attempted breaking and entering required proof of their
intent to break into the market. Thus, intent was clearly at issue in the case.
Nonetheless, the Marshall Court reversed:
The best we can say for this evidence of past records is that it indicates
that the appellants were men morally capable of burglarizing Griffith’s
Market at various times in their lives, but not that they necessarily
intended to do it the night in question. Their specific intent on the night of
the current crimes must be inferred from circumstances in which they
were found at that particular time and place, and not from their past
records.
Id. In other words, the Marshall Court concluded that the probative value of the othercrime evidence was scant in relation to its potential for undue prejudice.
The other crimes introduced in Marshall were diverse and at least some of them
were far removed in time (more than eighteen years) from the crimes charged. As the
Marshall Court determined, the evidence of prior crimes merely served to paint the
defendants in a bad light and was simply evidence of their propensity to commit a
crime. Not so in the instant case.
The evidence of the controlled buy related directly to the question of Walker’s
intention as to the cocaine the jury found Walker to be in possession of.’ Further, the
trial court tempered the prejudice inherent in the evidence by giving the jury an
appropriate admonishment. Thus, the danger of undue prejudice in the introduction of
the evidence of the controlled buy did not substantially outweigh the probative value of
‘We note that the question of whether the evidence had any relationship to the
other element to the issue in the case, i.e., whether Walker knowingly possessed the
cocaine, is not at issue here.
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the evidence. Therefore, we hold that the trial court did not abuse its discretion in
admitting the control-buy evidence under KRE 404(b) or KRE 403.
REASONABLE NOTICE
Walker argues that the Commonwealth failed to provide reasonable notice under
KRE 404(c) of its intent to use the controlled buy as evidence at trial. Again, we
disagree.
KRE 404(c) serves “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.” Tamme v. Commonwealth, Ky., 973 S.W.2d 13, 31 (1998)
cert. denied, 525 U.S. 1153, 119 S. Ct. 1056, 143 L. Ed. 2d 61 (1999). Whether
reasonable pre-trial notice has been given is decided on a case-by-case basis. Robert
G. Lawson, The Kentucky Evidence Law Handbook, § 2.25, p. 106 (3d ed. 1993).
In this case, in addition to being able to challenge the admissibility of Minter’s
testimony in limine on KRE 404(b) grounds, defense counsel was able to question
Minter himself at the hearing. Further, the existence of a Cl and the allegation of an
illegal sale of drugs was not unknown to the defense, which minimized any surprise.
Based on the facts of this case and in light of the purpose of the rule, we hold that the
trial court did not abuse its discretion in finding that six days was reasonable notice.
DIRECTED VERDICT
Walker argues there was insufficient evidence to convict him of first-degree
trafficking, which entitled him to a directed verdict of acquittal. This argument is based
on the admissibility of Minter’s testimony and its alleged lack of credibility. But, we have
already held that Minter’s testimony was admissible. Further, the credibility of witness
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testimony is left to the jury to weigh. Baker v. Commonwealth, KY., 973 S.W.2d 54, 55
(1998). There was no error.
IRRELEVANT EVIDENCE
Next, Walker argues that a great deal of evidence concerning the circumstances
surrounding the search of Freddie Brooks’ house and evidence concerning the quantity
of drugs, drug paraphernalia, and the use of drugs was erroneously admitted against
him. The challenged evidence includes:
b
b
Testimony concerning the police stakeout and search of Freddie Brooks’
home including evidence of the number people seen entering and leaving
the house.
Testimony that Freddie Brooks’ was found lighting a crack pipe when
police executed the search warrant.
b
Testimony that police officers found drugs and drug paraphernalia
throughout Freddie Brooks’ house and a videotape showing the same
evidence.
v
Expert testimony concerning other drugs in the house, i.e., drugs with
which Walker was not charged with possession of.
b
Numerous references to “Freddie Brooks’ drug emporium and distribution
center.”
On appeal, Walker argues that the above evidence was not relevant and should
have been excluded. However, there was no objection to the evidence when it was
introduced. Thus, the issue is not preserved. Nonetheless, Walker argues that the
error was palpable under RCr 10.26 and is grounds for reversal. We disagree. The
error, if any, is not palpable.
PROSECUTORIAL MISCONDUCT
Walker’s last argument is likewise not preserved. Again he argues palpable
error. Again, we disagree.
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Walker argues that the Commonwealth Attorney made numerous and
inflammatory attacks on defense counsel and defense strategy during closing
argument.
Upon review of the argument, we do not believe that the prosecutor went
beyond the reasonable latitude given to counsel during closing argument. See Lvnem
v. Commonwealth, Ky., 565 S.W.2d 141, 144-45 (1978). There was no error.
For the reasons set forth above, the judgment of the Madison Circuit Court is
hereby affirmed.
Lambert, C.J.; Cooper, Graves, Keller, and Wrntersheimer, JJ., concur. Stumbo,
J., dissents by separate opinion.
COUNSEL FOR APPELLANT:
Emily Holt
Assistant Public Advocate
Department of Public Advocacy
100 Fair Oaks Lane, Suite 302
Frankfort, KY 40601-I 133
COUNSEL FOR APPELLEE:
A. B. Chandler III
Attorney General of Kentucky
Samuel J. Floyd, Jr.
Assistant Attorney General
Criminal Appellate Division
Office of the Attorney General
1024 Capital Center Drive
Frankfort, KY 40601-8204
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RENDERED: AUGUST 23,200l
TO BE PUBLISHED
2000-SC-0407-MR
APPELLANT
GEORGE WALKER
V.
APPEAL FROM MADISON CIRCUIT COURT
HONORABLE WILLIAM T. JENNINGS, JUDGE
1999-CR-0027-001
COMMONWEALTH OF KENTUCKY
APPELLEE
DISSENTING OPINION BY JUSTICE STUMBO
Respectfully, I must dissent. I take issue with the majority opinion’s finding that
no palpable error exists from the inclusion of an enormous amount of irrelevant
evidence. I believe the evidence was excessive, massively irrelevant, and prejudicial,
and as a result would hold that its admissibility at trial constituted a manifest injustice.
As the majority recounts, there was myriad evidence presented characterizing
Freddie Brooks’ house as a “drug emporium and distribution center.” In addition, the
Commonwealth introduced testimony regarding other drugs found in the house at the
time of Walker’s arrest-drugs which had no bearing on Walker’s trafficking charge.
KRE 401 defines relevant evidence as any “evidence having any tendency to make the
existence of any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence.” I agree with Appellant
when he argues that rampant drug use in Freddie Brooks’ house does not tend to make
the existence of the fact that Walker flushed crack cocaine down the toilet or that he
was tampering with evidence any more probable than without the evidence.
No doubt this plethora of evidence was presented in an effort to inflame the jury,
and convict Walker of guilt by association. He was hanging out in a “crack house,”
therefore he must be a drug dealer. The relevance of this evidence to the question of
whether Walker intended to sell the crack cocaine that he flushed down the toilet, or
whether he was tampering with evidence is lost on me. Even if the evidence is
relevant, it still should not have been admissible because KRE 403 allows the exclusion
of even relevant evidence “if its probative value is substantially outweighed by the
danger of undue prejudice.”
I believe the majority might even agree that the admission of such evidence
constituted an abuse of discretion by the trial judge.
However, the issue is not
preserved and therefore the majority does not address it at all. I believe the fact that
the error was not preserved is the true irrelevancy here. Without this evidence, the
Commonwealth would be left with evidence of Walker standing over a flushing toilet,
from which the police later recovered crack cocaine. Therefore, I believe the verdict
may have been different but for the inclusion of this evidence. Abernathv v.
Commonwealth, Ky., 439 S.W.2d
949 (1969). As a result, I would hold the trial court
committed palpable error in admitting the irrelevant testimony regarding the drugdealing transactions in the Brooks’ household, and I would hear this issue on its merits.
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