RENDERED: AUGUST 16, 2018 TO BE PUBLISHED
of
2017-SC-000112-MR
DONTE LITTLE APPELLANT
ON APPEAL FROM KENTON CIRCUIT COURT V. HONORABLE KATHLEEN S. LAPE, JUDGE NO. 15-CR-00742
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION OF THE COURT BY JUSTICE VANMETER
AFFIRMING
Donte Little appeals as a matter of right^ from the Kenton Circuit Court’s
judgment convicting him of two counts of trafficking in a controlled substance
in the first degree (less than two grams of heroin), two counts of trafficking in a
controlled substance in the first degree (more than two grams of heroin), one
count of complicity to trafficking in a controlled substance in the first degree
(more than two grams of heroin), and sentencing him to 20 years’
imprisonment. For the following reasons, we affirm.
I. BACKGROUND.
Ky. Const. § 115; Ky. Const. § 10. The undercover narcotics investigation in this case was conducted by
Detective David Hoyle and confidential informant D.N., who was working for
the Covington Police Department making undercover heroin buys to “work off’
her prior drug charges. D.N. was familiar with Little because she had bought
heroin from him previously. With respect to this case, D.N. made a total of five
undercover buys from Little, each transaction being recorded by a concealed
audio and video recording equipment with which D.N. was outfitted, and a
transmitter that allowed police to monitor the transaction in real time. After a
three-day trial, the jury convicted Little on all five counts for which he had
been indicted. This appeal followed.
IL ANALYSIS.
a. Commonwealth's KRE 508 Disclosure of Confidential Informant’s Identity.
Little asserts that the Commonwealth violated the notice requirement set
forth in KRE^ 508 by waiting until 40 hours prior to trial to disclose D.N.’s
identity, in violation of the trial court’s order directing the Commonwealth to
disclose the informant’s identity 48 hours before trial. Little had filed a pre
trial motion asking the court to direct the Commonwealth to provide him with
the name of the informant at least 30 days prior to trial, and for transcripts of
the informant’s prior testimony from any case in which she had testified in
Kenton County in the past three years. The court denied his motion, but did
order the Commonwealth to disclose the informant’s name to Little 48 hours
2 Kentucky Rules of Evidence. prior to trial, which the Commonwealth stated was its typical practice. The
court further found that since Little had not been declared indigent, he could
obtain a copy of the recording of any testimony of public record in Kenton
County through the Clerk’s office.
On the morning of trial, December 14, 2016, Little moved to exclude the
informant’s testimony due to the late disclosure. The Commonwealth informed
the court that it had attempted to contact Little’s counsel numerous times by
phone during business hours on December 12, 2016 to provide the informant’s
name and, when unable to reach counsel by phone, emailed him the name of
the informant around 4:20 p.m. that afternoon, approximately eight hours later
than the 48-hour disclosure time ordered by the court. Little’s counsel
conceded that he did not expect the Commonwealth to leave the informant’s
name on a voicemail, but questioned why the Commonwealth waited until 4:20
p.m. to email him when it could have done so earlier. The trial court denied
Little’s motion to exclude. Little now argues on appeal that he was prejudiced
as a result, and deprived of his due process right to prepare a defense, since
the eight-hour delay reduced the time he had to go to the Kenton County
Clerk’s office and search through three years of drug trial cases to find those in
which D.N. had been a confidential informant, and watch the pre-trial and trial
CDs. Little also challenges the trial court’s imposition of the 48-hour
disclosure period to begin with, instead of the 30-day disclosure period he
requested. This Court reviews a trial court’s evidentiary rulings for an abuse of
discretion. Dunlap v. Commonwealth, 435 S.W.3d 537, 553 (Ky. 2013).
“The test for abuse of discretion is whether the trial [court’s] decision was
arbitrary, unreasonable, unfair, or unsupported by sound legal principles.” Id.
at 554 (internal quotations and citation omitted).
KRE 508 creates a privilege by which the Commonwealth may properly
refuse to disclose the identity of an informant, and KRE 508(c) delineates
exceptions to the privilege. One of those exceptions is when the informant is a
witness for the state. Here, since D.N. was a witness for the Commonwealth,
disclosure of her identity was required. KRE 508(c)(1). Notably, KRE 508
places no time constraint on the disclosure. This Court has held, “KRE 508
reflects the decision of the United States Supreme Court in Roviaro v. United
States, 353 U.S. 53, 77 S. Ct. 623, 1 L. Ed. 2d 639 (1957), which indicates that
a proper balance regarding nondisclosure must depend on the particular
circumstances of each case, taking into consideration the crimes charged, the
possible defenses, the possible significance of the informer's testimony and
other relevant factors.” Taylor v. Commonwealth, 987 S.W.2d 302, 304 (Ky.
1998). In Roviaro, the Court eschewed rigid rules dictating disclosure,
explaining “[t]he problem is one that calls for balancing the public interest in
protecting the flow of information against the individual’s right to prepare his
defense.” 353 U.S. at 62, 77 S. Ct. at 628-29.
In this case, withholding the identity of a material witness until less than
two days before a trial was unacceptable. Competent lawyering places demands upon trial attorneys in the days immediately preceding a trial; given
the final tasks of trial preparation that can only be done immediately before the
trial, a lawyer has no business spending hours researching the background of
a material witness to assure effective cross-examination. Forcing a criminal
defense lawyer into that position was an abuse of a trial court’s discretion.
This Court cannot imagine a scenario in which a plaintiff in a slip-and-fall or
car wreck case would be allowed to withhold the identity of a material witness
until the second day before trial: criminal cases should be no different.
Further, if concern for the safety of the material witness was a factor, the late
disclosure of critical information is totally ineffective. The guilty drug dealer
generally knows his customers and knows who the informant is soon after
charges are filed. Only the innocent and falsely-accused defendants are
prejudiced by the late disclosure.
That said. Little is unable to articulate any specific prejudice from the
late disclosure, and although some measure of prejudice can surely be
presumed, this Court does not regard the lack of timely information in this
instance as substantial enough to compel a new trial. The Commonwealth
provided Little with all the audio and video recordings of the controlled buys
with D.N. eleven months before trial. With respect to D.N.’s identity, the record
reflects that Little had a prior, two-year history selling heroin to D.N.; we doubt
that Little was unable to identify D.N. after listening to and viewing the five
recorded transactions. Little argues that the tape quality was poor, and D.N.
exhibited some confusion while on the stand at trial, mixing up the controlled buys in this case with other cases she was working on, therefore impeaching
her with her testimony in other cases was crucial to his defense. However, at
this point, Little’s argument is pure speculation. He did not present to the trial
court, and has not presented to this Court, any prior testimony of D.N. that he
would have used to undermine her credibility as a witness at trial. Notably,
D.N.’s credibility was thoroughly placed into question at trial: she admitted she
was a convicted felon and heroin addict, and that she began working as a
confidential informant because she was charged with drug trafficking and
possession. And in fact, she was incarcerated on new drug charges at the time
of Little’s trial.
Thus, despite the late disclosure, and the unconscionable 48-hour
disclosure period imposed by the trial court. Little was afforded a meaningful
opportunity to impeach D.N., and was not deprived of his right to present a
meaningful defense. We are unable to say the late disclosure compels a new
trial.
b. Complicity to Trafficking in a Controlled Substance in the First Degree.
Little raises three claims of error with respect to the one count of
complicity to trafficking in a controlled substance in the first degree. We will
address each in turn.
i. Indictment.
Little asserts that the failure to name his accomplice in the indictment
for complicity to trafficking in a controlled substance in the first degree violates
his constitutional right to presentment and due process. Prior to trial, the 6 court denied Little’s request for disclosure of the accomplice’s identity. The
Commonwealth argues on appeal that Little failed to preserve the
constitutional infirmity argument, but Little maintains that his request for
disclosure of the accomplice’s identity was sufficient to preserve this issue.
Regardless, even if we accept Little’s constitutional claim as preserved,
and review it accordingly, we find it lacks merit. Of the five counts of
trafficking charged against Little, only one count contained a complicity charge:
indicting Little for the offense of first-degree trafficking in a controlled
substance, either as principal actor, or in complicity with another. Little relies
on the holding in United States v. Salinas, 654 F.2d 319 (5th Cir. 1981),
overruled on other grounds by United States v. Adamson, 700 F.2d 953 (5th Cir.
1983), for the notion that the Commonwealth should not be permitted to
expand its theory of the case at trial, but the Commonwealth did no such thing
here. In Salinas, the indictment charged the defendant with the crime of aiding
and abetting a particular, named individual in the misapplication of bank
funds.” Id. at 324. The trial court instructed the jury “to convict if it found
that the principal whom Salinas aided and abetted was an officer, director,
employee, or agent of the bank.” Id. On appeal, the Fifth Circuit reversed,
holding that the jury instructions improperly modified an essential element of
the offense (that that the named principal in fact misapplied these funds) by
expanding the class of individuals to include officers, directors, employees, and
agents. Id. Notably, the Salinas court observed that the grand jury could have
7 charged “unnamed principals” but chose instead to charge a named individual.
Id.
Unlike in Salinas, the indictment charged Little with first-degree
trafficking in a controlled substance, either as principal actor, or in complicity
with another, and the jury instructions mirrored that language. Thus, neither
the Commonwealth nor the trial court impermissibly expanded an element of
the charge. Furthermore, Little fails to offer any other legal precedent in
support of his assertion that an accomplice must be named in an indictment
for complicity. Accordingly, this claim of error is unfounded.
a. Denial of Directed Verdict.
Little argues that the trial court should have directed a verdict of
acquittal on the charge of complicity to trafficking in a controlled substance in
the first degree because the Commonwealth failed to prove his accomplice
knowingly trafficked heroin. Little made a token motion for a directed verdict
below, but provided no grounds in support thereof; he concedes on appeal that
the claim with respect to the sufficiency of the evidence is unpreserved. See
Seay v. Commonwealth, 609 S.W.2d 128, 130 (Ky. 1980) (“The proper
procedure for challenging the sufficiency of evidence on one specific count is an
objection to the giving of an instruction on that charge)]”). “Because this
[sufficiency] issue is unpreserved, we will review it only for a palpable error that
8 affected Appellant’s substantial rights and resulted in manifest injustice.”
Potts V. Commonwealth, 172 S.W.3d 345, 348 (Ky. 2005); RCr^ 10.26.
The law is well settled that, where proof of knowledge is required, the
proof can be by circumstantial evidence. Love v. Commonwealth, 55 S.W.3d
816, 825 (Ky. 2001). “[DJirect proof of knowledge is not necessary.” Crabtree v.
Commonwealth, 455 S.W.3d 390, 399 (Ky. 2014). Here, the circumstantial
evidence of the accomplice’s knowledge was sufficient to permit the jury to
draw a reasonable conclusion that the accomplice knowingly trafficked heroin.
Evidence was presented that Little took money from D.N., told D.N. he had a
pair of shoes for her, and then directed D.N. to a red Kia where his accomplice
was waiting. When D.N. approached the Kia, the accomplice handed her a pair
of shoes containing a large amount of heroin. Little argues that with no
evidence to support the accomplice’s knowledge regarding the contents of the
shoes, proof of complicity failed. However, under the standard for a directed
verdict, this Court considers all evidence favoring the Commonwealth as true
and determines from that evidence whether a reasonable jury could be induced
to believe beyond a reasonable doubt that the defendant is guilty of each and
every element of the crime. Pollini v. Commonwealth, 172 S.W.3d 418, 429 (Ky.
2005). Considering the evidence presented here, a reasonable jury could have
concluded that the accomplice knowingly participated in the heroin
3 Kentucky Rules of Criminal Procedure.
9 transaction; thus, the proof was sufficient to avoid creating a palpable error
giving rise to manifest injustice.
Hi. Jury Instructions.
Little maintains that the jury instructions on the charge of complicity to
trafficking in a controlled substance in the first degree permitted a non-
unanimous verdict. At trial, Little’s counsel did not tender any jury
instructions, stating instead that he was fine with whatever the Commonwealth
tendered and that “they always do a good job.” Since this claim of error is
unpreserved, we will review it only for palpable error pursuant to RCr 10.26.
Section 7 of the Kentucky Constitution requires a unanimous jury
verdict to sustain a conviction. Johnson v. Commonwealth, 405 S.W.Sd 439,
448 (Ky. 2013). The right to a unanimous verdict is violated when a trial court
gives identical instructions to a jury on multiple counts of a single offense
which are adjudicated in one trial. Harp v. Commonwealth, 266 S.W.3d 813,
817 (Ky. 2008). A second type of unanimous verdict violation occurs when a
jury instruction can be met by any of multiple acts committed by the
defendant. Johnson, 405 S.W.3d at 449.
Little contends that the verdict against him is non-unanimous because
under the proof presented, the jury could have convicted because it believed he
was acting in complicity with the woman in the red Kia who handed D.N. the
shoes, or because it believed he was acting in complicity with higher-up drug
10 dealers in Cincinnati^ Little argues that because the jury could have been
split on the facts of accomplice liability, and the jury instructions did not
require identification of the accomplice as an element, his right to a unanimous
verdict was violated under Johnson.
Notably, the complicity statute, KRS^ 502.020, does not require proof of
the accomplice’s identity as an element. Here, the jury was instructed on one
count of complicity to trafficking in a controlled substance in the first degree
for a transaction that occurred on December 11, 2014. Since the jury was only
instructed on a single count, the type of unanimity violation delineated by Harp
did not occur. Furthermore, D.N. and Det. Coots testified to only a single
heroin transaction that occurred on December 11, 2014, and which involved a
third person, the woman in the red Kia. As the evidence established only a
single act that met the instruction, the type of unanimity violation delineated
by Johnson did not occur either. Because neither type of unanimity violation
occurred, no palpable error resulted.
c. Parole Officer’s “Good Time” Credit Testimony During Penalty Phase.
Little argues that incomplete and inaccurate information presented
during the penalty phase of trial violated his right to due process and thus this
case should be remanded for a new sentencing proceeding. Specifically, he
claims that Probation and Parole Officer Marty Fiedler’s testimony failed to
4 The investigation in this case contained information that Little might be connected to drug organizations in Cincinnati. 5 Kentucky Revised Statutes.
11 indicate that meritorious “good time” credits were not automatic, which led the
jury to recommend a 38-year sentence, 18 years more than the Commonwealth
requested. This argument is unpreserved, thus we will review it for palpable
error under RCr 10.26.
Officer Fiedler explained to the jury the four types of “good time” credit
available to inmates: statutory, meritorious, educational, and work. She
testified that meritorious credit is seven days per month that is given to all
offenders if not cited for bad behavior and statutory credit is 10 days given all
offenders (excluding violent and sex offenders) and can be taken away due to
disciplinary actions. The Commonwealth clarified with Officer Fiedler that
between meritorious and statutory credit, so long as one behaves in prison, one
earns 17 days, 170 days every 10 months, or around 200 days per year.
Officer Fiedler testified that taking into account Little’s 20% parole eligibility,
and the “good time” credits, if sentenced to 20 years. Little would spend only
four years in prison before going before the Parole Board, could then get
paroled, and spend 16 years on probation, minus the two years off the back
end of his sentence from earning “good time” credits.
Little argues that the Commonwealth failed to convey that under KRS
197.045, only prior time served and educational credits are automatically
awarded.6 He further maintains that the Commonwealth failed to elicit
6 KRS 197.045 provides (1) Any person convicted and sentenced to a state penal institution: (a) Shall receive a credit on his or her sentence for: 1. Prior confinement as specified in KRS 532.120; 12 testimony from Officer Fiedler that “good time” credits are not automatically
awarded, nor in any real sense “earned” by good behavior; rather, the credits
are a complete matter of grace. Little emphasizes that under the statute, a
prisoner “may” receive “good time” credits, including statutory and meritorious
good time, at the complete discretion of the commissioner. Moreover, Little
asserts that the Commonwealth failed to inform the jury that all sentence
credits, including educational credits, may be forfeited at the complete
discretion of the commissioner, and are in no way guaranteed to any prisoner.
Our review of Officer Fiedler’s testimony reveals that she correctly
explained to the jury that an inmate can receive four types of sentence credits,
thereby reducing their overall sentence. She accurately testified that by
working a job in prison, an inmate can accumulate work time credit;
educational time credit was predicated on the successful completion of a
2. Successfully receiving a High School Equivalency Diploma or a high school diploma, a two (2) or four (4) year college degree, a two (2) year or four (4) year degree in applied sciences, a completed technical education program, or an online or correspondence education program, each as provided and defined by the department, or a civics education program that requires passing a final exam, in the amount of ninety (90) days per diploma, degree, or technical education program completed; and 3. Successfully completing a drug treatment program or other evidence-based program approved by the department, in the amount of not more than ninety (90) days for each program completed; and (b) May receive a credit on his or her sentence for: 1. Good behavior in an amount not exceeding ten (10) days for each month served, to be determined by the department from the conduct of the prisoner; 2. Performing exceptionally meritorious service or performing duties of outstanding importance in connection with institutional operations and programs, awarded at the discretion of the commissioner in an amount not to exceed seven (7) days per month; and 3. Acts of exceptional service during times of emergency, awarded at the discretion of the commissioner in an amount not to exceed seven (7) days per month.
13 qualifying program; meritorious time credit was conditioned upon good
behavior; and statutory time credit can be taken away due to disciplinary
actions. Her testimony conveyed to the jury that sentence credits were not
automatic or guaranteed, and that under certain circumstances, they may be
withheld or forfeited. The jury was sufficiently informed as to the potential
effect of sentence credits on any sentence it recommended. Moreover, the
jury’s recommended 38-year sentence was capped at 20 years by the trial
court. Thus, Little has failed to show any palpable error occurred.
d. Prosecutor’s Closing Argument.
Little contends that the prosecutor’s closing argument during the penalty
phase of trial amounted to flagrant misconduct because it exhorted the jury to
recommend a harsher sentence under an inapplicable law. He also claims the
prosecutor’s “send a message” remarks during closing argument violated his
right to due process. Little concedes neither claim of error is preserved;
accordingly, “we will review it for palpable error, reversing a conviction based
on prosecutorial misconduct during closing argument only if that misconduct
was flagrant.” Lewis v. Commonwealth, 475 S.W.3d 26, 37 (Ky. 2015).
During the penalty phase of trial. Officer Fiedler testified that Little
would be eligible for parole after serving 20% of his sentence. Thereafter, the
prosecutor asked whether parole eligibility had changed since 2014 for the
counts involving two or more grams of heroin. She responded that it had;
parole eligibility on those counts would have been set at 50% if the crimes had
occurred after March 15, 2015. In addition, she confirmed that the legislature
14 had enacted a new statute making it a crime to import heroin into Kentucky for
the purpose of trafficking, and similarly setting parole eligibility at 50%. Officer
Fiedler agreed that given a 20-year sentence, Little would meet the parole
board after serving four years. But if he had committed the crimes after March
2015, Little would have had to wait 10 years to meet the parole board. At no
time did Little object to this testimony, nor does he challenge it on appeal.
During closing argument, the prosecutor argued:
The legislature has made a statement. They have said we are not doing this anymore. They have changed the penalties. They have made it now 50% parole eligibility and they created a new crime for people like Mr. Little that he would have been subject to - who bring heroin from Cincinnati to Kentucky for the purpose of trafficking.
The longstanding rule in Kentucky is that “counsel has wide latitude
while making opening or closing statements. [A[ prosecutor is . . . entitled to
draw reasonable inferences from the evidence, as well as respond to matters
raised by the defense.” Lewis, 475 S.W.Sd at 38 (internal quotations and
citations omitted). Because Little failed to object to Officer Fiedler’s testimony
regarding either the recently increased parole eligibility for the crime, or the
new crime of importing heroin, and has not objected to that testimony before
this Court on appeal. Officer Fiedler’s testimony in this regard remains
unchallenged, admitted evidence. Accordingly, the prosecutor was permitted to
comment on that testimony during closing argument and no palpable error
resulted.
Nor was the following portion of the prosecutor’s “send a message”
argument so improper as to rise to the level of palpable error: 15 You have heard the Kentucky Legislature has sent a message to the Cincinnati heroin traffickers and to those here in the state of Kentucky. They sent a message loud and clear that said don’t do it or you’re going to pay a much steeper price. Ladies and Gentleman, today I’m asking you to send the same message. I’m asking you to send it to the people sitting at the jail, the heroin traffickers in Cincinnati who think every day about driving over here and selling their heroin, and those people here in Kenton County that are thinking about doing the same thing. I’m asking you to send them a message and say we’re tired of hearing about overdoses on the news, we’re tired of all these families having to support their loved ones. Do not peddle your poison here in Kenton County unless you want to pay a heavy price. Ladies and Gentlemen, I’m asking you to send a message by the only way these people understand and sentence him to 20 years.
This Court confronted a similar “send a message” penalty phase closing
argument made by the prosecutor in Brewer v. Commonwealth, 206 S.W.Sd
343, 350 (Ky. 2006). In Brewer, we held that while the argument may have
constituted ordinary error, it did not amount to palpable error, especially since
the prosecutor’s remarks were a response to defense counsel’s plea for
leniency, and the evidence against the defendant was overwhelming. Id. at
350-51. Thus, we did not find a substantial probability that the prosecutor’s
argument seriously affected the overall fairness of the proceedings, given the
context in which the comments were made, and upon consideration of the
overall trial. Id. at 351. As in Little’s case, the prosecutor’s “send a message”
remarks in Brewer were made during the penalty phase of trial, not the guilt
phase. In Cantrell v. Commonwealth, 288 S.W.3d 291, 299 (Ky. 2009), we
emphasized the importance of this distinction, noting that a “send a message”
argument at the penalty phase of trial is not inappropriate so long as it focuses
on deterrence:
16 [I]t is essentially illogical, at the sentencing phase, to say that the prosecutor cannot encourage the jury to impose a sentence that speaks to deterrence, as well as punishes the specific crime before it. Deterrence is clearly not intended for that defendant alone, but rather his sentence sends the message to all others so inclined that their crimes will be punished, and that a jury made up of local citizens will not tolerate such offenses. This is a significant part of the benefit of public trials. We continue, however, to disapprove of this argument at the guilt stage. And even at the penalty phase, the “send a message” argument shall be channeled down the narrow avenue of deterrence. Any effort by the prosecutor in his closing argument to shame jurors or attempt to put community pressure on jurors' decisions is strictly prohibited. Prosecutors may not argue that a lighter sentence will “send a message” to the community which will hold the jurors accountable or in a bad light.
Id. This Court reiterated its continued disapproval of “send a message”
arguments at the guilt stage, but held that the argument made at the penalty
stage did not amount to ordinary error: “so long as the jury is well aware that it
is sentencing the particular defendant before it - with his or her good points
and bad - on the crime for which he or she has been convicted, there is no
prejudice in the prosecutor commenting on the deterrent effect of that
sentence.” Id.
Here, a great deal of Little’s penalty phase argument was devoted to a
plea for leniency. Defense counsel emphasized Little’s lack of a prior record
and stated, “he’s certainly begging the jurors to give him some leniency in this
case and not to - 1 can’t think of a better word than ‘hammer’ - but not to give
him an extremely high sentence.” Defense counsel closed his remarks with,
“Begging the jury for leniency, thank you.” As in Brewer, the Commonwealth
here was permitted to respond to defense counsel’s plea for leniency.
17 Further, the evidence against Little was overwhelming: all five heroin
transactions were recorded, the recordings corroborated the testimony of the
confidential informant, and Little is heard on the recordings orchestrating the
transactions. The prosecutor’s “send a message” remarks were directed at
Little, “heroin traffickers in Cincinnati,” “and those people here in Kenton
County that are thinking about doing the same thing.” The message the
prosecutor asked the jury to send was, “Do not peddle your poison here in
Kenton County unless you want to pay a heavy price.” Thus, the prosecutor’s
argument was directed at Little, heroin dealers, and focused on deterrence.
Under these circumstances, we decline to hold that the prosecutor’s closing
remarks amounted to palpable error.
III. CONCLUSION.
For the foregoing reasons, we affirm the Kenton Circuit Court’s judgment
and sentence.
All sitting. All concur.
We note that Little relies on our recent decision in Lewis as support for his assertion that a “send a message” argument “may still be considered error in Kentucky.” However, Lewis involved a “send a message” argument made during the guilt phase of trial. 475 S.W.3d at 37. Therefore, its holding does not affect this Court’s ruling in Cantrell, which controls under these circumstances. 18 COUNSEL FOR APPELLANT:
Brandon Neil Jewell Assistant Public Advocate Department of Public Advocacy
COUNSEL FOR APPELLEE:
Andy Beshear Attorney General of Kentucky
Micah Brandon Roberts Assistant Attorney General