Childers v. Commonwealth

332 S.W.3d 64, 2010 WL 5135331
CourtKentucky Supreme Court
DecidedMarch 24, 2011
Docket2009-SC-000297-MR
StatusPublished
Cited by25 cases

This text of 332 S.W.3d 64 (Childers v. Commonwealth) is published on Counsel Stack Legal Research, covering Kentucky Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Childers v. Commonwealth, 332 S.W.3d 64, 2010 WL 5135331 (Ky. 2011).

Opinions

Opinion of the Court by Justice

ABRAMSON.

Debbie Childers appeals from an April 14, 2009, Judgment of the Lawrence Circuit Court convicting her of complicity to trafficking in a controlled substance in the first degree. Finding Childers to be a second-degree persistent felony offender (PFO 2), the jury enhanced her sentence from ten to twenty years’ imprisonment; and the trial court sentenced her accordingly. Childers raises three issues on appeal: (1) the trial court erred when it ruled she could not invoke Kentucky Rules of Evidence (KRE) 608(b) to inquire into the nature of confidential informant Thomas Osborne’s prior felony convictions; (2) [67]*67the Commonwealth’s Attorney and Detective Wireman impermissibly interpreted the drug buy tape; and (3) there was insufficient evidence to support her conviction. We find no error on the first and third claims. Regarding the second claim, we find the Commonwealth’s Attorney’s comments on the tape were proper; but Wireman’s interpretations were impermissible. However, the unpreserved error is not palpable and so does not require a reversal. Accordingly, we affirm.

RELEVANT FACTS

On September 3, 2008, Detectives Justin Wireman and Neil Adams of Operation UNITE anti-drug task force were working with a confidential informant, Thomas Osborne, to make drug buys in Louisa, Kentucky. Osborne testified that on September 3rd he called Childers to “see if she could get anything (drugs).” Childers told Osborne she could get him “Oxycodone 15s” for twenty dollars apiece. Osborne and Childers made arrangements to immediately meet at a local car wash. On the way to the car wash, the detectives searched Osborne and equipped him with a wire, a recording device and $100 of photographed buy money. Because this preparation took longer than anticipated, Osborne made a second call to Childers to assure her he was on his way. In a taped conversation with the police at the police station, Childers admitted she was the one who talked with Osborne on the phone, made the arrangements and drove herself, Chad Johnson, a participant in the drug transaction, and others to the car wash.

Osborne testified that at the car wash he gave Childers the $100 of buy money and, upon receiving the money, Childers asked him “if there was a hundred dollars there.” Testimony by Detective Wireman and Osborne and the buy tape reveal Childers then handed something to Johnson. Osborne testified that Childers handed the pills to Johnson, who then gave them to Osborne. The defense argued it is not possible to discern from the tape exactly what Childers handed to Johnson and that it was actually a handful of coins. After the transaction, the police recovered from Childers the $100 buy money and, from Osborne, the five pills he received from Johnson. The Kentucky State Police Laboratory confirmed the pills were Oxyco-done.

Childers was charged with complicity to first-degree trafficking in a controlled substance and being a second-degree PFO. At the close of the Commonwealth’s case, Childers moved for a directed verdict based on insufficiency of the evidence. The trial court denied the motion. Child-ers did not present any evidence but did renew her motion for a directed verdict. The trial court again denied the motion. The jury found Childers guilty of complicity to trafficking in a controlled substance in the first degree. She received ten years for the complicity conviction, which was enhanced to twenty years because of the second-degree PFO. Childers brings this appeal as a matter of right. Ky. Const. § 110(2)(b). We begin our review with Childers’s claim that the trial court erred when it ruled she could not inquire into the nature of Osborne’s prior felony convictions.

ANALYSIS

I. The Trial Court Did Not Abuse its Discretion by Refusing Inquiry into the Nature of Osborne’s Prior Felony Convictions.

Detective Wireman, the Commonwealth’s first witness, testified about obtaining Osborne’s assistance with Operation UNITE and about his role in the September 3rd drug buy. On cross-examination, Childers sought to discredit Os[68]*68borne by asking Detective Wireman the nature and detail of Osborne’s prior felony convictions. The questioning proceeded as follows:

Defense Counsel: You also did a Personal History and Conduct of Confidential Witness [form for Thomas Osborne], correct?
Detective Wireman: Yes, sir.
Defense Counsel: And it revealed that he had previously been convicted of several felonies, correct?
Detective Wireman: I don’t have it in front of me. I believe he did have a felony [inaudible].
Commonwealth’s Attorney: Objection.
Judge: Overruled.
Defense Counsel: And do these felonies involve crimes of dishonesty?
Detective Wireman: I can’t remember what he was actually charged with on any of them.
Commonwealth’s Attorney: Your Hon- or, can we approach?

At this point, a bench conference ensued, during which the Commonwealth’s Attorney argued that defense counsel could ask whether Osborne was a prior convicted felon but could not inquire further. Defense counsel countered he should be allowed to inquire further if the crimes were crimes of dishonesty because they would reflect on Osborne’s credibility. The trial court agreed with the Commonwealth and ruled that defense counsel could do no more than establish that Osborne was a convicted felon. Defense counsel preserved the issue for appeal by obtaining Detective Wireman’s testimony by avowal.

This Court reviews a trial court’s decision regarding the admissibility of evidence for abuse of discretion. Clark v. Commonwealth, 223 S.W.3d 90, 95 (Ky.2007). A trial court abuses its discretion when its decision is arbitrary, unreasonable, unfair or unsupported by sound legal principles. Commonwealth v. English, 993 S.W.2d 941, 945 (Ky.1999).

We conclude that the trial court did not abuse its discretion when it disallowed Childers’s inquiries into the nature of Osborne’s convictions. Childers concedes such inquiry is not permitted under KRE 609, but maintains it may be conducted under KRE 608(b). KRE 608(b) provides, in relevant part:

Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness’ credibility, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness: (1) concerning the witness’ character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.

However, KRE 609(a) provides:

For the purpose of reflecting upon the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted if elicited from the witness or established by public record if denied by the witness, but only if the crime was punishable by death or imprisonment for one (1) year or more under the law under which the witness was convicted.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Tina M. Simmons v. Commonwealth of Kentucky
Court of Appeals of Kentucky, 2025
Clifford Brown, Jr. v. Commonwealth of Kentucky
Court of Appeals of Kentucky, 2021
Diana Markle v. Commonwealth of Kentucky
Court of Appeals of Kentucky, 2021
Thomas Reeves v. Commonwealth of Kentucky
Court of Appeals of Kentucky, 2021
Jimmy Dean Williams v. Commonwealth of Kentucky
Court of Appeals of Kentucky, 2020
Commonwealth v. Douglas
553 S.W.3d 795 (Missouri Court of Appeals, 2018)
State v. Holley
175 A.3d 514 (Supreme Court of Connecticut, 2018)
Julius Tackett v. Commonwealth of Kentucky
Kentucky Supreme Court, 2016
Stephanie Olson v. Jeff Little
604 F. App'x 387 (Sixth Circuit, 2015)
Cherry v. Commonwealth
458 S.W.3d 787 (Kentucky Supreme Court, 2015)
St. Clair v. Commonwealth
451 S.W.3d 597 (Kentucky Supreme Court, 2014)
McAtee v. Commonwealth
413 S.W.3d 608 (Kentucky Supreme Court, 2013)
Hale v. Commonwealth
396 S.W.3d 841 (Kentucky Supreme Court, 2013)
Allen v. Commonwealth
395 S.W.3d 451 (Kentucky Supreme Court, 2013)
Peacher v. Commonwealth
391 S.W.3d 821 (Kentucky Supreme Court, 2013)
Ordway v. Commonwealth
391 S.W.3d 762 (Kentucky Supreme Court, 2013)
Chames v. Commonwealth
405 S.W.3d 519 (Court of Appeals of Kentucky, 2012)
People v. Sykes
2012 IL App (4th) 111110 (Appellate Court of Illinois, 2012)

Cite This Page — Counsel Stack

Bluebook (online)
332 S.W.3d 64, 2010 WL 5135331, Counsel Stack Legal Research, https://law.counselstack.com/opinion/childers-v-commonwealth-ky-2011.