CHRISTOPHER SHAHEID PEYTON V. COMMONWEALTH OF KENTUCKY
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2006-SC-000343-MR
CHRISTOPHER SHAHEID PEYTON
APPELLANT
ON APPEAL FROM HOPKINS CIRCUIT COURT
HONORABLE SUSAN WESLEY MCCLURE, JUDGE
NOS. 05-CR-000062 & 05-CR-000157
V.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION OF THE COURT BY JUSTICE SCOTT
AFFIRMING IN PART AND REVERSING IN PART
Appellant, Christopher Shaheid Peyton, was convicted by a Hopkins
Circuit Court jury of three counts of first-degree trafficking in a controlled
substance and of being a persistent felony offender in the first degree. For these
crimes, Appellant was sentenced to a total of 34 years in prison . Appellant now
appeals to this Court as a matter of right. Ky. Const. ยง110(2)(b) . For the
reasons set forth herein, we affirm Appellant's convictions, but reverse for a new
sentencing .
The Hopkins Circuit Court grand jury returned two indictments against
Appellant . Both indictments included two counts of first-degree trafficking in a
controlled substance . Appellant's charges stemmed from a series of controlled
drug buys performed by the Madisonville Police Department, the Hopkins County
Sheriff's Department, and the Pennyrile Narcotics Task Force. The first
controlled buy was on or about the afternoon of September 27, 2004. The
informant used by the Madisonville Police Department to set up and purchase
the drugs was Brian Lane. Lane was searched before making the purchase and
outfitted with a wire to record any conversations . The police set up video
surveillance near where the transaction was to occur. After waiting for a brief
period, a van pulled up with an African-American male passenger. The police
surveillance could not see the passenger's face, but Lane testified that Appellant
was the passenger and that he sold him cocaine . The substance sold to Lane by
Appellant tested positive for cocaine.
The second buy occurred on or about the evening of September 27, 2004 .
Lane was again the informant for the transaction . This time the dealer rode into
the area on a bicycle and met with Lane to conduct the transaction . Lane, along
with Detective Charles Cobb of the Pennyrile Narcotics Task Force, identified
Appellant as the person on the bicycle . Again the substance purchased tested
positive for cocaine .
The final transaction occurred on or about May 10, 2005. This time,
informant Carl Haley was used for the purchase. Initially, Haley was in contact
with an individual named McNarry, but Haley believed that he would ultimately
make the drug purchase from a dealer named Mann . However, Detective Cobb
testified that before Haley entered the shed where the drug deal was to take
place, Mann left. Haley, being from out of town, did not personally know who he
would be purchasing drugs from and could only identify the seller by what his
contact called him . During the transaction, the seller was identified by the
nickname "Black." Haley informed Detective Cobb of the seller's nickname.
Detective Cobb asked the assistance of Officer Leslie Gregory of the
Madisonville Police Department to see if he knew of any potential drug dealers in
town who had the nickname "Black ." Officer Gregory identified Appellant as
possibly having that nickname .
The next day Detective Cobb asked Haley to join him at the courthouse
because he had been told by Officer Gregory that Appellant would be present
there on another matter. Haley was not informed of why he was to meet
Detective Cobb until he reached the courthouse . Once at the courthouse
Detective Cobb asked Haley if "Black" was present . Haley identified Appellant as
"Black." Testimony indicated that Haley was not influenced by Detective Cobb in
making his identification . Additionally, further testimony presented at trial
indicates that twenty-five to thirty people were present at the time the
identification was made . However, it is uncertain how many African-Americans
were present .
Appellant was ultimately convicted of the three counts of trafficking and of
being a persistent felony offender . He was sentenced to a total of thirty-four
years in prison .
I.
Although the jury instructions were proper, the trial court's
sentencing was in error.
Appellant's first argument, which is unpreserved, is that the trial court's
jury instructions improperly gave the jury the capacity to choose whether the
sentences for Appellant's convictions would run concurrently or consecutively,
since the court ultimately concluded that concurrent sentencing was not an
option . As requested, we will review for palpable error. RCr 10 .26 .
Here, Appellant was convicted of three counts of trafficking in a controlled
substance . These crimes were committed while Appellant was on parole .
Appellant now argues that the jury was improperly instructed as to sentencing
because the trial court ignored the jury's sentence recommendations, and such
instructions were erroneous in that they instructed as to an unavailable
alternative . Specifically, Appellant claims that the trial court erred in instructing
the jury that they could choose to run his terms consecutively or concurrently, as
the court ultimately concluded otherwise . Moreover, Appellant alleges that had
the jury known that their sentencing recommendations would not be followed
there is a great likelihood they would have recommended a reduced sentence .
During sentencing, the jury was instructed, in sentencing instruction 11,
"You, the jury, have convicted the Defendant of multiple felonies. You shall also
decide whether the felony sentences shall be run concurrently (at the same time)
or consecutively (one after the other) ." Thereupon, the jury recommended
sentences of seven, eight, and nine years for the three counts. The sentences
were then doubled due to the persistent felony offender conviction . This
enhanced the jury's recommendations to fourteen, sixteen, and eighteen years,
respectively. The jury elected, as per their right, to run these sentences
concurrently so that Appellant would serve a total of eighteen years . KRS
532 .055(2); see Foley v. Commonwealth , 942 S.W.2d 876, 886 (Ky. 1996).
At sentencing, however, the trial judge determined she could not sentence
Appellant to concurrent terms . The judge concluded the sentences for the two
counts in the first indictment should run concurrently, but the sentence for the
' At the time of the drug deals, Appellant was on parole for convictions of
possession of cocaine and second-degree escape .
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count in the second indictment should run consecutively to the first indictment.
This gave Appellant a thirty-four year sentence .
Accordingly, the crux of the present issue becomes whether the trial court
properly applied KRS 533.060(2) in its treatment of Appellant's sentence . To
answer, we must determine, then, whether Devore v. Commonwealth , 662
S.W.2d 829, 831 (Ky. 1984) still presents good law.
KRS 533.060(2) mandates:
When a person has been convicted of a felony and is committed to
a correctional detention facility and released on parole or has been
released by the court on probation, shock probation, or conditional
discharge, and is convicted or enters a plea of guilty to a felony
committed while on parole, probation, shock probation, or
conditional discharge, the person shall not be eligible for probation,
shock probation, or conditional discharge and the period of
confinement for that felony shall not run concurrently with any other
sentence.
KRS 533.060(2) (emphasis added) . This Court initially addressed KRS
533 .060(2)'s impact on sentencing in Devore, where Chief Justice Stephens,
writing for the majority, articulated that the General Assembly, through its
enactment of KRS 533 .060(2), sought to elicit certain consequences for felons
who commit subsequent felonies while on probation or parole . Devore , 662
S .W .2d at 831 . Consequently, in such instances, these ramifications are twofold :
(1) The defendant shall not (for the subsequent felony) be eligible
for probation, shock probation or conditional discharge, and (2) The
length of the person[']s sentence (again, for the subsequent felony
conviction) shall not run concurrently with any other sentence. By
obvious inference, the General Assembly has said that the prison
sentence (for the second felony conviction) shall be run
consecutively.
The Court went on to further explain that in enacting the statute, the
legislature's intent was to institute stiffer penalties on those who commit
subsequent felonies while paroled by "not having their subsequent sentences
served concurrently." Id. It is undoubtedly true, as Devore recognizes, that the
legislature's intent was to strengthen the ramifications for repeat offenders and
those who have betrayed the position of trust they have been afforded by a grant
of parole or probation. However, it is our belief here today that Devore sought to
interpret this legislative intent with a much heavier hand than the statute, the
legislature or the jails and prisons of this Commonwealth could have ever
envisioned .
Devore posits that subsequent multiple-count felony convictions
committed while on parole must be run consecutively to one another. And,
indeed, this has been the courts' treatment of KRS 533 .060(2) in many instances
since Devore. However, the proper application of the statute under Devore's
interpretation has been a source of conflict and confusion within the
Commonwealth's courts for nearly twenty-four years now, stemming partly from
the incongruous and excessive sentencing results which it may, in some
instances, yield . Thus, under Devore , the trial courts' treatment of felony
offenses committed while on parole has been anything but uniform .
Further adding to the confusion in applying KRS 533.060(2) under Devore
is its seeming incompatibility with KRS 532 .055(2), which states :
Upon return of a verdict of guilty or guilty but mentally ill against a
defendant, the court shall conduct a sentencing hearing before the
jury, if such case was tried before a jury . In the hearing the jury will
determine the punishment to be imposed within the range provided
elsewhere by law. The jury shall recommend whether the
sentences shall be served concurrently or consecutively.
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Id . Clearly, the language of KRS 532.055(2) vests the jury with the mandate of
sentence recommendation . As we have previously recognized, while this
recommendation is by no means binding upon the court, the directive of the
statute granting this ability is. See Nichols v. Commonwealth, 839 S.W .2d 263,
265 (Ky. 1992). Moreover, a jury's recommendation as to punishment in a jury
trial is an integral aspect of the trial landscape .
In all felony cases the jury in its initial verdict makes a
determination of guilt or innocence . Then the jury makes a
recommendation to the trial judge who imposes the final sentence .
In making the initial determination, it is clear that this action is
subject to the final imposition of sentence by the trial judge . These
distinct activities have significance, meaning and importance. They
are not automatic or pro forma. Each entity in the sentencing
system as established by the legislature has a specific statutory
role. KRS 532.055(2) provides in part that the jury will determine
punishment. Such determination relates to the initial establishment
of a sentence and not to how or in what manner the sentence is to
be served . The same section also states that the jury will only
recommend whether the sentences shall be served concurrently or
consecutively .
Dotson v. Commonwealth, 740 S .W.2d 930, 931 (Ky. 1987) (emphasis added).
While Devore's logic is workable in circumstances wherein a paroled or
probated individual commits a singular subsequent felony, it becomes
unreasonable when dealing with multiple count subsequent felonies. See Riley
v. Parke , 740 S.W.2d 934, 935 (Ky. 1987) (the Court stated that pursuant to KRS
533.060(2), conviction for a singula r subsequent felony offense should be run
consecutive to the reinstated offense for which the offender was on parole) ; see
also Brewer v. Commonwealth , 922 S .W.2d 380, 381 (Ky. 1996) (holding that
KRS 533.060(2) unambiguously required that appellant's second sentence could
not run concurrently with the reinstated sentence that he was on parole for). For
example, in the present instance, had the trial court properly applied Devore's
interpretation of the statue, Appellant would have received a forty-eight year
sentence in addition to the reinstated sentence for which he was on parole .
While we refrain from passing judgment as to whether this sentence is fitting, it is
clearly not the eighteen-year sentence which the jury intended to assign .
Therefore, we are of the opinion the majority's position in Devore leads to
an unworkable interpretation of KRS 533 .060(2). Rather, we now hold that the
logic espoused by Justice Leibson in his dissent provides an inherently more
practical understanding of the statute. "A reasonable interpretation of the phrase
`with any other sentence,' (KRS 533.060(2)) is that `any other sentence' means
only the unserved portion of the sentence for the felony for which probation or
parole should be revoked." Devore, 662 S.W.2d at 831 (Leibson, J ., dissenting).
This viewpoint interprets the language, "shall not run concurrently with any other
sentence," in KRS 533 .060(2) as meaning any other sentence previously
imposed .
Thus, it becomes quite clear in the context of KRS 533.060(2), that the
language, "the period of confinement for that felony shall not run concurrently
with any other sentence," should be construed as meaning that subsequent
felony offense(s) committed while on probation or parole may not be run
concurrently with the sentence for which the individual is on probation or parole .
In the instance of multiple-count subsequent felony offenses committed while on
probation or parole, however, these subsequent offenses may be run either
consecutively or concurrently, at the court's discretion . This connotation is the
only rational and practical manner in which the statute can be reasonably
applied .
What is at stake here is judicial transparency . The judiciary is duty-bound
to maintain credibility with the jurors of this Commonwealth . As a matter of
policy, the Commonwealth's courts should not instruct a jury that they have
options in relegating a sentence for a criminal defendant, and then take these
options away. It is incumbent upon this Court to ensure that the People have
confidence in their judiciary. Therefore, if we instruct the jury that they have the
power to recommend a sentence with one hand, and then take that decision
away from them with the other, we have failed in our task to uphold the mandates
and ideals of our Constitution .
Accordingly, we hold that to the extent Devore requires all subsequent
sentences for crimes committed while on probation or parole to be run
consecutively to each other, it is overruled .
Thus, we now turn to the merits of Appellant's argument. In instances
such as the one at present, when an individual on parole is facing multiple and
contemporaneous felony convictions for subsequent crimes (committed while on
parole), the jury may still recommend whether to run these subsequent
convictions consecutively or concurrently with each other. In these
circumstances, the discretion remains with the jury to recommend consecutive or
concurrent treatment, as per their statutory right. KRS 532.055(2) .
It must be reiterated, however, that the court may not run these
subsequent convictions concurrent with the paroled offense. KRS 533.060(2) .
Here, the trial court incorrectly determined that the jury's recommendation
was not an option . Instead, the court concluded that it must run the eighteen
year sentence (from the second indictment) consecutively with the concurrent
treatment (sixteen years) of the first two counts (from the first indictment) . This
imposed a total sentence of thirty-four years . In this manner, the judge ran the
sentences for the two counts in the first indictment concurrently but ran the
sentence for the count in the second indictment consecutively to the first
indictment.
The trial judge erroneously applied KRS 533.060(2) by reading it as
applicable to subsequent indictments, rather than to the original paroled or
probated offense(s). Therefore, while there was no error in the trial court's jury
instructions, the court did err, however, to Appellant's substantial prejudice in its
determination of sentencing . The court was not required under KRS 533 .060(2)
to run the sentences of the subsequent separate indictments consecutively.
While Appellant, here, failed to contemporaneously object to the improper
sentence, we nevertheless find that the erroneous sentence was injurious to
Appellant's substantial rights. Morman v. Commonwealth, No. 2005-SC-000957
MR, 2007 WL 541925, at *4 (Ky. 2007) (finding palpable error when trial court
imparted a sentence beyond the maximum allowed under KRS 532 .110(1)(c)
despite a failure to raise the issue at trial) ; Lawson v. Commonwealth, 85
S .W.3d 571, 581 (Ky. 2002) ("Although we recognize that trial courts have the
authority to make a final decision whether a defendant's sentences are to run
concurrently or consecutively, and that juries' determinations as to that issue are
merely recommendations, we decline the Commonwealth's invitation to find that
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the error in this case is harmless.").
"[W]e believe due process entitles Appellant
to a jury recommendation as to whether the sentences for his convictions run
concurrently or consecutively, and we also know that the jury's recommendation
will be considered by the trial court before it makes a final decision ." Lawson . 85
S .W .3d at 582 .
Accordingly, we vacate the sentence of the trial court and
remand for resentencing by the court, not the jury. Id. ; Boone v. Commonwealth,
821 S.W.2d 813, 814 (Ky. 1992).
II.
The trial court did not abuse its discretion in denying Appellant the
opportunity to present witnesses .
During voir dire the trial court requested that both parties identify their
witnesses and any potential witnesses that each side intended to call and have
testify. Appellant's counsel informed the court that it had no witnesses to call, but
that Appellant may decide to testify on his own behalf. `After the jury was
impaneled, but prior to opening statements, Appellant's counsel informed the trial
court that Appellant had thought of a witness he would like to have testify .
Appellant stated that he had tried to alert his attorney to this fact during voir dire,
but could not get his attention. The trial judge countered that voir dire lasted for
over two hours and Appellant could have slipped his attorney a note informing
him of the new witness . The trial judge ruled against letting the witness testify
because the jury was not questioned whether they had a bias for or against that
witness and the trial judge feared that this might lead to prejudice against both
parties . Further, the trial judge believed that allowing the witness to testify at this
point may delay the trial and would lead to parties coming up with an infinite
number of witnesses for the purpose of delaying trial .
It is undisputed that the determination of whether a surprise or
unannounced witness may testify is within the sound discretion of the trial judge.
Sanborn v. Commonwealth , 892 S.W.2d 542, 552 (Ky. 1994) ; Collins v.
Galbraith , 494 S .W .2d 527, 530 (Ky. 1973). In making this determination we
have previously held that a trial judge should determine whether the witness was
undisclosed because that party was operating in bad faith, and if allowing that
witness to testify will prejudice the other party. Collins , 494 S.W.2d at 530 ; see
also Williams v. Indiana , 714 N .E.2d 644, 651 (Ind. 1999) (holding that "trial
courts have the discretion to exclude a belatedly disclosed witness when there is
evidence of bad faith on the part of a party or a showing of substantial prejudice
to the state") .
In this matter, the trial judge properly exercised her discretion in denying
Appellant the opportunity to present his witness . While we do not take lightly the
denial of a defendant's right to call a witness, there is no indication here that the
trial judge acted arbitrarily . It is clear from her ruling that the trial judge believed
allowing the witness would potentially prejudice both parties and implied that
Appellant was trying to delay his trial in bad faith by not informing his counsel
about this witness earlier . Additionally, Appellant offers no argument that this
witness would have presented any exculpatory evidence that would have altered
the jury verdict . The trial judge properly exercised her discretion and there is no
error here .
111111 .
The trial court did not abuse its discretion in consolidating two
separate indictments for trial.
Appellant's next argument is that the trial court improperly consolidated his
two indictments for purposes of trial . Appellant's first indictment contained two
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counts of first-degree trafficking in a controlled substance . Those particular
charges stemmed from drug buys on September 27, 2004, and October 5, 2004.
The agencies involved in this indictment were the Madisonville Police
Department and the Hopkins County Sheriff's Department . Appellant's second
indictment contained two other counts of first-degree trafficking in a controlled
substance. This indictment included drug buys from September 27, 2004, as
well as May 10, 2005. The agencies involved in this indictment were the
Madisonville Police Department and the Pennyrile Narcotics Task Force . Two
different confidential informants were used in the drug buys .
Prior to trial the Commonwealth moved to consolidate the two indictments.
The Commonwealth argued that all of the controlled buys involved cocaine and
that two of the controlled buys occurred on the same day. Additionally, the
Commonwealth believed that the majority of the drug buys occurred close
enough to each other to make consolidation logical . The Commonwealth also
argued that consolidating the two indictments would lead to judicial economy.
Appellant's counsel countered that since several different law enforcement
agencies were involved in the drug buys with two different confidential
informants, the trials should remain separate . Appellant feared that the length in
time between the drug buys and number of people involved would cause
confusion for the jury and prejudice the jury against him. Further, Appellant
feared that the number of charges in a consolidated trial may cause the jury to
conclude that Appellant must be guilty .
The trial court granted the Commonwealth's motion for consolidation . The
trial court reasoned that Appellant's counsel could question each juror's ability to
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differentiate between the facts and the dates and that the court could, upon
request, admonish the jury to avoid commingling the facts of the two indictments .
A trial judge has broad discretion in deciding whether to allow joinder of
offenses . Brown v. Commonwealth , 458 S .W.2d 444, 447 (Ky. 1970) . We thus
review the trial court's determination under an abuse of discretion standard .
Violett v. Commonwealth , 907 S .W .2d 773, 775 (Ky. 1995). RCr 9.12 states that
"[t]he court may order two (2) or more indictments . . . to be tried together if the
offenses . . . could have been joined in a single indictment ." RCr 6 .18 states that
two or more charges may be joined in an indictment "if the offenses are of the
same or similar character or are based on the same acts or transactions
connected together or constituting parts of a common scheme or plan ."
In this matter, the trial judge did not abuse her discretion in consolidating
the indictments for trial. All of the charges made against Appellant are similar he is accused in each of selling cocaine . While the confidential informant or the
witnesses may be different for several of the charges, the facts are distinct
enough to prevent jury confusion . Appellant was even able to question each
juror on his ability to differentiate between the facts of each charge. This
questioning apparently worked because the jury actually acquitted Appellant of
one of the charges . Further, there is no evidence that Appellant was unable to
provide a proper defense for himself. See Brown, 458 S .W .2d at 447 (holding
that since defendant was not "embarrassed or confounded" in making his
defense the joinder of offenses was not improper) . Despite the fact that the acts
leading to the charges occurred over several months, they were not too remote
from each other to prevent joinder. See Violett , 907 S.W.2d at 775-776 (holding
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that offenses occurring approximately four years apart were not too remote in
time to be joined for purposes of trial) . "[E]fficiency in judicial administration by
the avoidance of needless multiplicity of trials was not outweighed by any
demonstrably unreasonable prejudice to the [Appellant] as a result of the
consolidations ." Brown, 458 S .W.2d at 447. There is no error here .
IV.
The identification procedure used by the Commonwealth to identify
Appellant was appropriate .
Prior to trial, Appellant moved the trial court to suppress the identification
of Appellant made by confidential informant Haley and any of the fruits of that
identification . The identification in question is where Haley identified Appellant at
the county courthouse as the man who sold him drugs on May 10, 2005. Haley
initially knew the person who sold him drugs only by the nickname "Black" and
thought the dealer's name was Michael Mann . At the courthouse Haley identified
Appellant as "Black ." Evidence introduced indicated that at the time the
identification was made about 25 to 30 people were present in the courtroom .
Appellant moved to exclude the identification on the grounds that the
identification was an improper "show-up" identification . Appellant argued that
there was no exigent circumstance warranting the police to have Haley pick
Appellant out at the courthouse . Further, Appellant argued that a proper photo
lineup could have been easily performed and would be more reliable. Appellant
also argued that since there is no evidence of how many African-Americans were
present in the courtroom Haley's identification may not be reliable.
The trial judge ruled that Haley's identification was not a "show-up"
procedure . The trial judge believed that a show-up procedure is where an officer
presents a suspect to a victim one-on-one soon after a crime occurs . In this
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situation, Haley was not specifically introduced to Appellant . Further, the trial
judge believed that even if Haley's identification constituted a show-up
procedure, it was reliable according to the guidelines set out in Merriweather v.
Commonwealth, 99 S .W.3d 448, 451 (Ky. 2003). The trial judge therefore denied
Appellant's motion to suppress .
When reviewing the trial court's findings of fact after a suppression
hearing, the conclusion shall be conclusive if "supported by substantial
evidence." RCr 9 .78 ; Adcock v. Commonwealth , 967 S .W.2d 6, 8 (Ky. 1998) . If
the findings are supported by substantial evidence, then the trial judge's
application of the applicable law to the facts is reviewed de novo. Id. ; see
Commonwealth v. Neal , 84 S .W .3d 920, 923 (Ky. App. 2002).
In this matter, the trial judge's factual findings are supported by adequate
evidence . The procedure used to identify Appellant was not a single suspect
show-up as alleged because Haley was shown at least twenty-five people and
asked to choose one . Further, while Haley may have been initially mistaken as
to the actual name of the dealer, he confidently picked out Appellant from a room
of nearly thirty people.
Even if the method used to identify Appellant was a show-up, it was
reliable under the standard articulated in Merriweather. Merriweather requires
the trial court to:
assess the probability that the witness would make an irreparable
misidentification based upon the totality of the circumstances and in
light of the five factors enumerated in Neil v. Biggers, 409 U.S . 188,
199, 93 S .Ct. 375 . 382, 34 L .Ed .2d 401 (1972), which include (1)
the opportunity of the witness to view the criminal at the time of the
crime ; (2) the witness' degree of attention ; (3) the accuracy of the
witness' prior description of the criminal; (4) the level of certainty
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demonstrated by the witness at the confrontation ; and (5) the length
of time between the crime and the identification .
Merriweather , 99 S.W.3d at 451 . In the present matter, there is no evidence that
these five factors were not met. While Haley was inevitably under stress while
completing the drug deal, this alone does not lead to a conclusion that he was
unable to properly identify who dealt him the cocaine . Moreover, the short period
of time between the purchase of the drugs and the identification leads to a
conclusion that the identification procedure was reliable. Thus, there is no error.
V.
The Commonwealth's introduction of Appellant's prior bad acts did
not rise to the level of palpable error .
Appellant next argues that the Commonwealth introduced improper prior
bad acts evidence at trial. During trial, Deputy Shawn Bean of the Hopkins
County Sheriff's Department testified regarding the circumstances surrounding
the controlled buys involving Appellant . During this examination the following
conversation occurred :
Deputy Bean : We had several targets, [Appellant] being
one of them.
Commonwealth : Was he randomly selected?
Deputy Bean: No, sir, we had a meeting in your office .
We shared information and picked out several large
dealers and targeted them out for cases.
Commonwealth : And he [Appellant] was one of them?
Deputy Bean : Yes, sir.
Deputy Bean later testified that he had dealt with Appellant on "many occasions ."
Also Appellant complains that later in the trial, the police were able to testify that
Appellant was in court on another charge when he was identified by Haley as the
man who sold him drugs. Appellant further argues that the Commonwealth
provided no KRE 404(c) notice of their intent to admit this evidence. Appellant
did not object at the time to this testimony, but now argues that it consisted of
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impermissible evidence of his prior bad acts under KRE 404(b) . We therefore
review this allegation for palpable error. RCr 10.26 .
KRE 404(b) states "[e]vidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to show action in
conformity therewith." However, such evidence may be admissible : "1) [i]f
offered for some other purpose, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident ; or 2)
[i]f so inextricably intertwined with other evidence essential to the case that
separation of the two (2) could not be accomplished without serious adverse
effect on the offering party." Id . In determining the admissibility of other crimes
evidence, it is useful to analyze the evidence using a three-tier inquiry involving
its: (1) relevance, (2) probativeness, and (3) prejudice. Matthews v.
Commonwealth , 163 S .W .3d 11,19 (Ky. 2005).
This Court has previously held that testimony explaining why a defendant
had become a suspect in a drug investigation is relevant . Gordon v.
Commonwealth , 916 S .W.2d 176, 179 (Ky. 1995). The testimony is relevant to
avoid any implication that the defendant was unfairly singled out in the drug sting
operation and to explain why the defendant was targeted . Id . However, Gordon
further stated that "there was no legitimate need to say or to imply that appellant
was a drug dealer or that he was suspected by the police department of selling
drugs in a particular vicinity ." Id. Importantly, however, the error in Gordon was
preserved . Id . at 178.
In Commonwealth v. Mitchell, 165 S.W.3d 129,134 (Ky. 2005), similar
testimony to that given in this matter was found not to be palpable error. The
testimony in Mitchell was as follows :
Commonwealth : And how did the Defendant become the subject of
this investigation?
Detective Hunter: Upon the initial interview of the informant, he
identified several targets that he had conducted transactions with
that he had purchased narcotics from. Generally, what I would do
is I make a list somewhere in some personal notes and we'll - I'll
verify some of the information that he's told me, and then we'll start
working from that. Ms. Mitchell over there was identified by the
informant . I had received some other complaints . . . . [after an
overruled objection from the defense counsel] 2 . . . . I had received
some other complaints, thus verifying the informant's information
that he told me, and then we decided to set up a transaction with
Ms. Mitchell.
Id . at 133-134. Since Detective Hunter never gave any explanation of what the
"complaints" received against Ms. Mitchell were, and since his reference to the
informant having identified Mitchell as one he had conducted drug transactions
with before was vague, the testimony did not constitute a prior bad act under
KRE 404(b). Id. at 134. Further, there was nothing in the testimony that rose to
the level of manifest injustice against Mitchell. Id .
In this matter, the testimony of Deputy Bean does not rise to the level of
palpable error. Deputy Bean's testimony is generally admissible under KRE
404(b)(2) because it would be difficult to explain why Appellant was being
targeted for a drug sting operation without providing some background
information . See generally Gordon , 916 S.W .2d at 179 (holding that evidence
showing why a drug sting operation was being performed is relevant). While
Deputy Bean should not have stated that he believed Appellant was a drug
2 Despite the objection after the testimony, this Court treated the error as
unpreserved because the objection was ambiguous .
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dealer, that statement alone does not rise to the level of manifest injustice and
did not single-handedly lead to Appellant's conviction . In fact, there was plenty of
evidence presented at trial to support his conviction . Further, the jury could not
have been prejudiced by Deputy Bean's statement because they acquitted
Appellant of one of the charges against him. Deputy Bean's statements only laid
a foundation for why the different police agencies targeted Appellant for their
drug operation . While Deputy Bean's statement constituted error, it does not rise
to the standard of palpable error.
Deputy Bean's statement that he had dealt with Appellant on many
different occasions does not fall under KRE 404(b). His statement was vague
and did not allude to any particular bad act Appellant committed . See Mitchell ,
165 S .W.3d at 134 (holding that since testimony regarding defendant's prior run
in with informants was vague and did not address any particular bad act, such
statements did not fall under KRE 404(b)) . Further, any statement regarding
Appellant's presence at the county courthouse when he was identified by Haley
does not fall under KRE 404(b). There is nothing in the record which indicated
that Appellant was at the courthouse for a criminal matter. A person's mere
presence at a courthouse does not indicate that he has committed a bad act.
It does appear from the record that the Commonwealth did not provide
404(c) notice regarding the introduction of the bad acts evidence implying that
Appellant was a drug dealer. However, since no objection was made regarding
the lack of notice, this must be reviewed under our palpable error standard . RCr
10.26. Here, the lack of notice does not rise to the level of manifest injustice
because the brief mention of Appellant's potential prior bad acts did not prejudice
20
his ability to have a fair trial . Hence, the failure to receive notice on the
Commonwealth's intention to use the bad acts evidence did not harm Appellant .
VI .
The Prosecutor did not engage in prosecutorial misconduct in her
penalty phase closing argument.
Appellant next argues that the prosecutor made improper statements,
constituting prosecutorial misconduct, during the penalty phase closing
argument. Appellant failed to preserve this argument at the trial court, so we will
again review only for palpable error. RCr 10.26.
The prosecutor's statements included the following comments :
But there are consequences when we choose to break the law. Or
the law has no validity. If juries can say `yeah he broke the law but
it was only a tenth of a gram,' or if it was only this, or it was only
that, the message that gets sent is you can get away with it, it is not
that big of a deal . But one of the reasons we in Kentucky let the
people do it, is you get to decide whether it is a deal or not. You
get to decide, is this a problem? Having people selling drugs on
our street corner, is that a problem we are concerned with? And
when people break the law, when they intentionally, knowingly,
persistently break the law, do we ignore it?
. . . it sets a pattern the law doesn't apply to them and that
sometimes they have to learn, you can't do that, there is a reason
for it and I have told you don't do it. Now you have it three times
and its fortunate in Kentucky that we don't do like California and
some states, honestly [Appellant] would be in prison forever, he
would never walk out of prison simply because he had two prior
convictions. We don't do that here, we don't have a three strikes
and you are out. But we do recognize that people who break the
law repeatedly, persistently, can not be given courtesy and easy
treatment . . .
. . . it is your decision and that's a lot to put on your shoulders and I
am sorry . That is why I don't like this particular system, 12 honest
citizens trying to do a good job and they don't know how to
compare this to other cases. We are not allowed to tell you to send
a message to drug dealers in the community. We are not allowed.
We don't do that. But I will tell you don't tread lightly on three
offenses, PFO I and give him the minimum, because the net effect
is when you speak, you are speaking as our community. And you
say 10 years for three trafficking counts, is what we think this crime
21
is worth . This is a substantial problem if the man is a substantial
[inaudible] and you didn't cause this, am I going to tell you to give
him, I am not going to try to put my judgment on, that is not my
authority, I am here to explain the law to you . But I am telling you,
10 years concurrent is not adequate, for a PFO 1, 3 counts, it
needs to be more than that.
(emphasis added). Appellant argues that the above emphasized statements
were improper because they asked the jury to "send a message" through their
sentencing . Improper they may have been, but within the context in which they
appeared, they did not constitute palpable error.
Kentucky analogizes such statements to arguments which "tend to cajole
or coerce a jury to reach a verdict that would meet the public favor" or suggests
"that a jury convict on grounds not reasonably inferred from the evidence ."
Commonwealth v. Mitchell , 165 S .W.3d 129,132 (Ky. 2005) . On the other hand,
prosecutors have wide latitude in their closing arguments and may attempt to
convince jurors that the matter before them should not be dealt with lightly.
Brewer v. Commonwealth , 206 S .W.3d 343, 350 (Ky. 2006) .
While the jury did recommend a strong sentence for Appellant, it did not
recommend the maximum sentence and Appellant was sentenced within the
allowable parameters of the law. Notably, the prosecutor's statements in this
matter were far less harmful than statements held in other cases not to be
palpable error. See Mitchell , 165 S .W.3d at 131-133 (holding that urging the jury
to make an example out of defendant to help fight the spread of Oxycontin
related crimes was not palpable error), Brewer, 206 S .W .343, 349-350 (holding
that closing statement urging the jury to show that Owen County has the
"backbone" to stand up to crime and to increase the sentence so that the
22
community can keep "a hammer" over the heads of defendants does not
constitute palpable error) . Thus, we find no palpable error.
VII.
The trial court properly denied a directed verdict in favor of Appellant
because there was sufficient evidence to support the May 10th
trafficking conviction .
Appellant next argues that he should have received a directed verdict of
acquittal on the trafficking conviction relating to the May 10, 2005 drug purchase .
Appellant argues that there was inadequate evidence to support the conviction
because the drug informant, Haley, who purchased the drugs initially believed he
purchased the drugs from Mann . Despite Haley's confusion as to what the actual
name of the drug dealer was, he was certain that his nickname was "Black ."
Later, Haley identified Appellant as the drug dealer. Due to the confusion
regarding who the drug dealer was, Appellant now argues that the
Commonwealth did not prove every element of the crime of first-degree
trafficking and hence a jury could not have convicted him beyond a reasonable
doubt. See Commonwealth v. Gentry , 261 Ky. 565, 88 S.W.2d 273 (1935)
(holding that when a defendant enters a not guilty plea "that plea puts in issue
every fact necessary to a conviction, and the burden of establishing those facts
beyond a reasonable doubt remains with the Commonwealth throughout the trial
and never shifts to the accused .") Further, Appellant argues that since Haley
was confused about the drug dealer's real name, his testimony lacks the
"atmosphere of verisimilitude" to support a conviction . See Kentucky Power Co.
v. Dillon, 345 S.W .2d 486,489 (Ky. 1961).
A trial court's decision regarding a directed verdict motion is reviewed
under the standard articulated in Commonwealth v. Benham , 816 S.W.2d 186
(Ky. 1991):
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 such testimony.
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. KRS 218A.1412 states that a person is guilty of first-degree trafficking
if he:
knowingly and unlawfully traffics in: a controlled substance, that is
classified in Schedules I or II which is a narcotic drug; a controlled
substance analogue ; lysergic acid diethylamide ; phencyclidine; a
controlled substance that contains any quantity of
methamphetamine, including its salts, isomers, and salts of
isomers ; gamma hydroxybutyric acid (GHB), including its salts,
isomers, salts of isomers, and analogues; or flunitrazepam,
including its salts, isomers, and salts of isomers .
In this matter, there is more than adequate evidence for a
jury to convict
Appellant of first-degree trafficking .
While it is true that Haley was initially confused about the name of the
person he purchased the cocaine from, he was certain that his nickname was
"Black." When asked to pick out the person named "Black" from a crowd of
people at the courthouse, he chose Appellant. There is no evidence that Haley
could not remember the physical description of the person he purchased drugs
from other than an allegation from Appellant that Haley could not remember
24
because he was nervous . A jury could reasonably rely on Haley's testimony and
find Appellant guilty beyond a reasonable doubt of first-degree trafficking . See
Estep v. Commonwealth , 957 S .W .2d 191, 193 (Ky. 1997) (stating that a jury
makes all determinations regarding the credibility and weight of a witness's
testimony) . The trial judge properly denied Appellant's directed verdict motion .
VIII.
Statements made at trial indicating Appellant answered to his own
nickname did not violate Appellant's due process .
Appellant's final allegation of error is that the Commonwealth improperly
introduced evidence that was not turned over to him in discovery. In particular,
Appellant objects to the testimony of Officer Gregory stating that the day before
trial Appellant answered to the nickname "Black" in his presence. Since this
statement constituted an oral statement made by the Appellant to a witness,
Appellant now argues that this should have been disclosed to his counsel
pursuant to RCr 7.24(1). Appellant believes that if Officer Gregory had not made
this statement, the jury would not have convicted him of first-degree trafficking on
the May 10, 2005 drug purchase. At trial Appellant's counsel failed to object to
Officer Gregory's testimony, so any error will be reviewed under our palpable
error standard . RCr 10.26.
It is obvious from reviewing the record that there was "no manifest
injustice" caused by Officer Gregory's statements . There was testimony from
several witnesses that Appellant was referred to as "Black" in the community .
Further, Haley testified that the person who sold him drugs was named "Black,"
and then picked Appellant out as "Black ." Additionally, since Appellant certainly
knew from previous discovery that the determination of his nickname being
"Black" would be crucial to the Commonwealth's case, he is hard pressed to
25
claim surprise when evidence regarding his nickname comes into court . Since
the event here in question happened .one day before trial, Appellant had to be
aware of his acknowledgement of his nickname in front of Officer Gregory. There
is no palpable error here .
IX. CONCLUSION
For the reasons set forth herein, we hereby remand this matter back to the
Hopkins Circuit Court for resentencing .
All sitting . All concur.
COUNSEL FOR APPELLANT :
Shannon Dupree
Assistant Public Advocate
Department for Public Advocacy
100 Fair Oaks Lane, Suite 302
Frankfort, KY 40601
COUNSEL FOR APPELLEE:
Jack Conway
Attorney General of Kentucky
Room 118, Capitol Building
Frankfort, KY 40601
George G. Seelig
144 West Main Street
Lebanon, KY 40033
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