Castle v. Commonwealth

44 S.W.3d 790, 2000 Ky. App. LEXIS 128, 2000 WL 1597545
Court of Appeals of Kentucky·Decided October 27, 2000·No. No. 1998-CA-003048-MR·Published·Cited by 4 cases

Opinion

OPINION

JOHNSON, Judge.

Anita M. Castle has appealed from the judgment of the Johnson Circuit Court that convicted her of trafficking in a controlled substance within 1,000 yards of a school1 and sentenced her to prison for one year. Castle concedes that she failed to object to certain testimony by a police officer that she claims was inadmissible hearsay, but she contends she is entitled to a new trial under the palpable error rule.2 While we agree that the testimony concerning Castle having trafficked in marijuana was inadmissible hearsay, we do not believe that a manifest injustice has resulted from the error. Hence, we affirm.

Castle was indicted on January 20, 1998, by the Johnson County Grand Jury for allegedly trafficking in a controlled substance (marijuana) within 1,000 yards of the Paintsville Elementary School on December 6, 1995. At the jury trial held on October 12, 1998, the Commonwealth’s evidence included the testimony of Kentucky State Police (KSP) Detective Jeff Mayber-ry; the testimony of a paid informant, Bill Stacy; testimony of a chemist from the crime lab; and two tape recordings. Castle did not call any witnesses. The jury convicted Castle and recommended a one-year prison sentence, which the trial court imposed on December 7, 1998. This appeal followed.

Castle raises only one issue on appeal. She claims, under RCr 10 .26,3 that the admission of Det. Mayberry’s testimony concerning her having trafficked in marijuana constituted palpable error. She contends that the palpable error affected her substantial rights and that a manifest injustice occurred.

Det. Mayberry testified as the Commonwealth’s first witness and stated that his responsibilities as a detective for the Kentucky State Police included investigating drug cases in the eastern part of Kentucky. He testified that he knew Bill Sta[792] cy as a paid informant for the KSP who lived in Johnson County. In reference to Stacy, he stated, “[A]t times he would introduce me to people that were targets of the drug investigation we were conducting up here. Sometimes he would make drug purchases from the perpetrator or he would introduce me to them to make a drug purchase.”

The following testimony from Det. May-berry is at the center of this appeal: Assistant Commonwealth’s Attorney Brian Sergent:

Q 8 When we refer to you as the controlling officer, could you explain to the Ladies and Gentlemen of the Jury exactly how you control the situation or what safeguards you take to control the situation?

Det. Mayberry:

A Yes sir, The ... when using a confidential informant we instruct them ... we develop intelligence on persons that [are] suspected of trafficking in drugs in whatever area we’re working and in this case it was Johnson County. We had information that Ms. King, seated there, was trafficking in marijuana from the, I believe it was the El Rancho Apartments here in Paintsville.4

Castle argues, and the Commonwealth does not disagree, that the testimony from Det. Mayberry was inadmissible hearsay. Our Supreme Court in Gordon v. Com monwealth,5 clearly held that allowing such testimony over the objection of the defendant constituted reversible error. While in many respects Gordon is similar to the case sub judice, Gordon has the significant distinction of the evidentiary error having been properly preserved. Thus, the Court’s analysis in Gordon did not involve the palpable error rule.

In Gordon, the police were also using a paid informant to make a controlled drug buy from a suspected dealer. The informant “had been ‘wired’ with a tape recorder [, but] this device essentially failed and produced a tape recording of poor quality. As such, the evidence at trial was hotly disputed.” The informant “testified for the Commonwealth that he had made the cocaine purchase and [Gordon], testifying on his own behalf, denied it. Jury assessment of the witnesses’ credibility was crucial.” 6

The Supreme Court discussed the hearsay testimony as follows:

Appellant claims reversible error arising out of hearsay testimony given by Detective Robert Link on direct examination. The Commonwealth’s first witness was Detective Link, a narcotics officer for the City of Russellville Police Department. Without objection, he testified that in the course of a county-wide investigation, he had reason to suspect appellant of drug trafficking. He was then asked how he proceeded to further [793] investigate appellant. In response, Detective Link replied,
On June 4 we did what’s called preliminary surveillance of the area around Sportman’s Lounge at Fifth and Morgan, which we had had quite a bit of drug activity go on in that area. Mr. Gordon was suspected to be selling narcotics from the Fifth and Morgan Area.
Appellant, by counsel, objected on hearsay grounds and an extensive colloquy then ensued between counsel for the parties and the trial court. In essence, appellant claimed that the answer was based on hearsay statements and indeed, upon voir dire of the witness, established that the witness had relied in part on information from others including confidential informants. The Commonwealth contended that the testimony was not hearsay because it was not offered for the truth of the matter asserted; that it was only to show the course of the investigation. The trial court overruled the objection.7

In reversing Gordon’s conviction and ordering a new trial, the Supreme Court cited Lawson, The Kentucky Evidence Law Handbook,8 Releford v. Commonwealth,9 Sanborn v. Commonwealth,10 and Hughes v. Commonwealth.11 The Court noted that “hearsay may be admissible to prove why the police acted in a certain manner, but not to prove the facts given to the officer” and that “such information is admissible only if there is an issue about the action of the police officer.”12

The Supreme Court concluded:

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Castle v. Commonwealth, 44 S.W.3d 790, 2000 Ky. App. LEXIS 128, 2000 WL 1597545 (Ky. Ct. App. 2000).

44 S.W.3d 790 (Castle v. Commonwealth) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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