Commonwealth v. Wright

467 S.W.3d 238, 2015 Ky. LEXIS 1744, 2015 WL 4967149
CourtKentucky Supreme Court
DecidedAugust 20, 2015
Docket2013-SC-000226-DG; 2013-SC-000824-DG
StatusPublished
Cited by6 cases

This text of 467 S.W.3d 238 (Commonwealth v. Wright) 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
Commonwealth v. Wright, 467 S.W.3d 238, 2015 Ky. LEXIS 1744, 2015 WL 4967149 (Ky. 2015).

Opinion

OPINION OF THE COURT BY

JUSTICE KELLER

A jury convicted Floyd Wright of complicity to first-degree trafficking in a controlled substance and of being a second-degree persistent felony offender (PFO II). During deliberations, the court permitted the jurors to use the Commonwealth’s attorney’s laptop computer to review an audio recording of a controlled buy. The Court of Appeals found that the trial court abused its discretion by doing so and remanded this matter to the trial court for a new trial. The Commonwealth appealed from that opinion, arguing the issue was not properly preserved and any error was not palpable. Wright argues to the contrary and, because the Court of Appeals adversely addressed several issues raised by Wright, he cross-appeals. For the reasons set forth below, we reverse the Court of Appeals.

I. BACKGROUND.

Sherri Klups testified at trial that she agreed to work with Officer Aaron Arsnp-erger as a confidential informant in exchange for dismissal of charges stemming from her unlawful possession of prescription pain medication. In her role as a confidential informant, Klups met with Officer Arnsperger on August 6, 2008. He searched her and her car, equipped her with an audio recorder, and told her to go to Sean Records’s house and attempt to purchase drugs. Klups testified that she drove to Records’s house and, when she knocked on the front door, he greeted her [242]*242and let her into the living room. When Klups went into the living room, she saw Wright and his girlfriend sitting there.

Klups asked Records if he had any drugs and he told her that he had some crack cocaine. The two then negotiated a purchase price, and Records and Wright left the living room together and went into the adjoining kitchen. Klups testified that she could not see into the kitchen but that she could hear Records and Wright talking, although she could not hear what they said. Klups testified that she also heard a refrigerator or freezer door open and close, and someone “rattling” baggies. A few minutes later, the two men came out of the kitchen. Records showed Klups a baggie with cocaine in it, which Klups said looked “mushy.” When she asked Records about the condition of the cocaine, he told her that he had just gotten it from his source in Cincinnati, and it had gotten hot because he had hidden it in his pants during the drive home. According to Klups, Wright then said, “We stuck it in the freezer for a few minutes.” Klups smelled the contents of the baggy to confirm that it was cocaine, paid Records, and left the house.

Additionally, Klups testified she believed Records and Wright were working together because:- Wright kept a close watch over the proceedings; Wright accompanied Records into the kitchen; and Wright said they had put the cocaine in the freezer. As part of Klups’s testimony, the Commonwealth played the audio recording of the transaction and introduced the recording into evidence.

During deliberations, the jurors asked if they could listen to the part of the recording wherein Wright talked about putting the cocaine in the freezer. After some discussion, the parties and the .court agreed that bringing the jury back into the courtroom to play that part of the recording was the appropriate course of action. The court did so and, after listening to the recording several times, the jurors returned to the jury room to deliberate.

Approximately one hour later, the jurors asked if they could listen to the recording in the jury room. Wright objected arguing that, pursuant to Kentucky Rule of Criminal Procedure (RCr) 9.74, all information-must be presented to the jury in open court. The court disagreed and ruled that the recording was an exhibit and the jurors were free to review it during deliberations, as they could "any other exhibit. However, the only equipment available on which to play the recording was the Commonwealth’s attorney’s laptop. The attorney admitted that the laptop might contain information related to Wright’s case as well as information related to other cases, but he was unsure exactly what was on the laptop.

Following additional discussion with counsel, the court called the jurors into the courtroom and told them that there would be a short recess in deliberations so the attorneys could setup the laptop in the jury room. The attorneys then setup the laptop, and, after recalling the jurors, the court gave the foreperson the recording and told her the jurors could listen to it by using the laptop’s Windows Media Player application. Before sending the jurors back to the jury room, the judge asked if he needed “to do anything else” and neither party said that he did.

Following further deliberations, the jury found Wright guilty, and Wright appealed his conviction to the Court of Appeals. The Court of Appeals reversed based on the jury’s use of the Commonwealth’s laptop to listen to the recording during deliberations. In doing so, the Court of Appeals stated as follows:

Allowing the jury to take the prosecutor’s laptop into the deliberation room [243]*243with unfettered access to the laptop’s files, as well as possible internet connection, was an abuse of the trial court’s discretion. This situation is not as straightforward as sending a paper exhibit or tape cassette into the deliberation room, perhaps with portable speakers or another type of listening device. Here, the Commonwealth’s laptop, which likely contained a sea of inadmissible and irrelevant evidence, was given to the jury to access in the privacy of the deliberation room with not even an admonition not to access any other files or the internet. Giving jurors unrestricted and unmonitored access to a party’s laptop, outside of the'defendant’s presence, is highly improper and the likelihood of prejudice very high.

Wright v. Commonwealth, No. 2011-CA-000759-MR, 2013 WL 845020 (Ky.Ct.App. Mar. 8, 2013). We set forth additional background information as necessary below.

II. STANDARD OF REVIEW.

Because the issues presented require us to apply different standards of review, we set forth the appropriate standard as necessary when addressing each issue.

III. ANALYSIS.

A. It Was Not Error for the Court to Permit the Jury to Review the Recording Using the Commonwealth’s Laptop.

The Commonwealth argues that Wright did not properly preserve this issue and that Wright did not establish that any error was palpable. Wright argues to the contrary.

We first address the preservation issue. As noted by the Commonwealth, Wright argued before the trial court that the jury should only have been permitted to review the recording in open court. Wright did not specifically argue what he argues now — that the jurors should not have been permitted to use the Commonwealth’s laptop. We agree with the Commonwealth that Wright did not specifically raise an issue related to use of the Commonwealth’s laptop. However, Wright’s argument that the jury should not have been permitted to listen to the recording in the jury room necessarily encompassed whatever device the jurors might use; therefore, the issue is preserved.

Having determined that this issue was preserved, we must next determine if the trial court properly permitted the jury to listen to the recording in the jury room. Finally, we must determine if the trial court erred in permitting the jury to do so using the Commonwealth’s laptop.

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467 S.W.3d 238, 2015 Ky. LEXIS 1744, 2015 WL 4967149, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-wright-ky-2015.