Earl K. Johnson v. Commonwealth of Kentucky
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Opinion
RENDERED: JUNE 20, 2025 TO BE PUBLISHED
Supreme Court of Kentucky 2023-SC-0124-MR
EARL K. JOHNSON APPELLANT
ON APPEAL FROM LOGAN CIRCUIT COURT V. HONORABLE JOE W. HENDRICKS, JR., JUDGE NO. 19-CR-00158
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION OF THE COURT BY JUSTICE THOMPSON
AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
Earl K. Johnson was convicted after a jury trial on four counts of
complicity to traffic in a controlled substance (methamphetamine); one count of
engaging in organized crime, criminal syndicate; and one count of complicity to
murder regarding the shooting death of Bob Wetton. 1 After the jury determined
Johnson was a persistent felony offender in the first degree (PFO-1), the Logan
Circuit Court sentenced him in accordance with the jury’s recommendation to
a total sentence of life in prison.
Johnson appeals to this Court as a matter of right. He argues various
trial errors. The most serious error Johnson raises is that he was denied his
constitutional right to confrontation pursuant the 6th Amendment of the
1 We refer to Bob and his wife, Pam Wetton, by their first names to avoid
confusion. We refer to them collectively as the Wettons. United States Constitution and Section 11 of the Kentucky Constitution when
a key witness, Pam Wetton (Bob’s widow), was allowed to testify remotely for
her convenience due to health concerns. As Pam’s remote testimony violated
Johnson’s right to confrontation and was not harmless beyond a reasonable
doubt as to his trafficking convictions, we reverse those convictions and
sentences and remand. We affirm Johnson’s convictions and sentences for
engaging in organized crime, criminal syndicate, and complicity to murder as
Pam’s remote testimony was harmless beyond a reasonable doubt as to those
convictions, due to the overwhelming evidence regarding his guilt as presented
by other witnesses’ testimony and conclude any other trial errors do not
require reversal of these convictions and sentences.
I. FACTUAL AND LEGAL BACKGROUND
On August 26, 2015, Bob was murdered. The previous month, Bob was
arrested in Arizona for methamphetamine trafficking. The prosecution alleged
that Bob was transporting the methamphetamine in his possession back to
Johnson (also known as “Tooter”) as part of a fourth “drug run” Bob had taken
with his wife Pam, in which they traveled from Kentucky to Arizona to obtain
methamphetamine at Johnson’s direction.
After Bob’s murder, Johnson was arrested on related charges and
incarcerated in Logan County. Before Johnson could be arraigned, he was
extradited to face charges in Arizona related to the drug trafficking involving
the Wettons.
2 On May 17, 2019, a Logan County grand jury indicted Johnson on: four
counts of conspiracy to first-degree trafficking, first offense (for the four times
the Wettons traveled to Arizona to purchase methamphetamines for Johnson,
on or about April 30, 2015, June 3, 2015, June 18, 2015, and July 8, 2015);
engaging in organized crime, criminal syndicate (involving Johnson, Bob, Pam,
Shawn McDevitt, and Joshua Gerst); murder (Bob); conspiracy to murder
(Bob); and being a PFO-1. That same day, the grand jury also indicted
Johnson’s girlfriend, Carolyn Kinder, for complicity to commit murder and
PFO-1.
Johnson’s Logan County, Kentucky case remained stagnant as Johnson
was serving a sentence in Arizona. On April 22, 2021, Johnson filed Form 1, of
the Interstate Agreement on Detainers in which he gave notice of the untried
indictment, requested disposition of the charges and speedy trial, and
requested final disposition (thus waiving his right to object to extradition).
Johnson subsequently appeared in the Logan Circuit Court on July 27, 2021,
and waived formal arraignment on the indicted charges.
Kinder was tried in March 2021 for conspiracy to commit the murder of
Bob. The jury found her guilty, and she received a twelve-year sentence.
On July 29, 2022, the grand jury indicted Johnson on a superseding
indictment which provided alternate counts. It returned no true bills on the
four charges of conspiracy to trafficking, instead finding true bills on four
alternative counts of complicity to first-degree trafficking. The grand jury
returned a no true bill for the murder charge and the conspiracy to murder
3 charge, instead finding a true bill for the charge of complicity to murder. The
other charges remained the same.
A third person, Kristen Leann Day, was also indicted on related charges:
engaging in organized crime, criminal syndicate; complicity to murder; and
PFO-2. On January 3, 2023, she pled guilty to the amended charge of criminal
facilitation of murder, with the other charges dismissed, pursuant to a plea
agreement. Immediately after Johnson’s conviction, Day received a five-year
sentence, probated, which was entered on January 25, 2023.
On January 12, 2023, the trial court granted the Commonwealth’s
request to amend Johnson’s superseding indictment to have his trafficking
charges amended to complicity to trafficking in controlled substances, first
offense, for two grams or more of methamphetamine, and to amend the
underlying criminal history supporting the PFO-1 charge.
Johnson’s trial began on January 17, 2023. Kinder declined to testify in
Johnson’s trial as her appeal was pending.
Pam testified via Zoom. She explained that she and Bob began using
cocaine around 2005 and then later started using methamphetamine. Pam
retired in 2009 and shortly thereafter Bob received disability. For two or three
years, they regularly purchased methamphetamine from Johnson a gram at a
time, two or three times a week.
Pam explained that later, when she and Bob were having money
problems, they agreed to transport methamphetamine for Johnson from
Arizona to Kentucky. They did this four times in 2015, the first time
4 accompanied by Johnson and the three other times with just the two of them
as Johnson told them he thought an older couple traveling together would be
less suspicious. She testified that she was only peripherally involved in this
drug running as Bob and Johnson handled most of the coordination of the
details of these trips; Bob handled the money and getting the drugs to
Johnson.
Pam explained that each time, Johnson provided a vehicle for them to
use, gave them money to purchase the methamphetamine in an ammunition
box, paid them money for their expenses, arranged for his contact to pick them
up after they called Johnson and told them they had arrived, and paid them
afterwards for the job. Several different vehicles were used for these trips,
including a Chevy Impala, a Jeep, and a Hyundai Santa Fe. The person that
met them varied, but the basic method they followed did not.
Pam testified that on their first solo trip in the spring of 2015, they
picked up a package which weighed somewhere between three and five pounds,
were given $1,200 to cover their expenses, and money in an ammunition box to
cover the purchase of the drugs. They drove to Arizona, contacted Johnson,
and Johnson’s contact then came to where they were staying and brought
them to his house. The man weighed the money and then gave them the
methamphetamine, which they then stored in the ammunition box. After
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RENDERED: JUNE 20, 2025 TO BE PUBLISHED
Supreme Court of Kentucky 2023-SC-0124-MR
EARL K. JOHNSON APPELLANT
ON APPEAL FROM LOGAN CIRCUIT COURT V. HONORABLE JOE W. HENDRICKS, JR., JUDGE NO. 19-CR-00158
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION OF THE COURT BY JUSTICE THOMPSON
AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
Earl K. Johnson was convicted after a jury trial on four counts of
complicity to traffic in a controlled substance (methamphetamine); one count of
engaging in organized crime, criminal syndicate; and one count of complicity to
murder regarding the shooting death of Bob Wetton. 1 After the jury determined
Johnson was a persistent felony offender in the first degree (PFO-1), the Logan
Circuit Court sentenced him in accordance with the jury’s recommendation to
a total sentence of life in prison.
Johnson appeals to this Court as a matter of right. He argues various
trial errors. The most serious error Johnson raises is that he was denied his
constitutional right to confrontation pursuant the 6th Amendment of the
1 We refer to Bob and his wife, Pam Wetton, by their first names to avoid
confusion. We refer to them collectively as the Wettons. United States Constitution and Section 11 of the Kentucky Constitution when
a key witness, Pam Wetton (Bob’s widow), was allowed to testify remotely for
her convenience due to health concerns. As Pam’s remote testimony violated
Johnson’s right to confrontation and was not harmless beyond a reasonable
doubt as to his trafficking convictions, we reverse those convictions and
sentences and remand. We affirm Johnson’s convictions and sentences for
engaging in organized crime, criminal syndicate, and complicity to murder as
Pam’s remote testimony was harmless beyond a reasonable doubt as to those
convictions, due to the overwhelming evidence regarding his guilt as presented
by other witnesses’ testimony and conclude any other trial errors do not
require reversal of these convictions and sentences.
I. FACTUAL AND LEGAL BACKGROUND
On August 26, 2015, Bob was murdered. The previous month, Bob was
arrested in Arizona for methamphetamine trafficking. The prosecution alleged
that Bob was transporting the methamphetamine in his possession back to
Johnson (also known as “Tooter”) as part of a fourth “drug run” Bob had taken
with his wife Pam, in which they traveled from Kentucky to Arizona to obtain
methamphetamine at Johnson’s direction.
After Bob’s murder, Johnson was arrested on related charges and
incarcerated in Logan County. Before Johnson could be arraigned, he was
extradited to face charges in Arizona related to the drug trafficking involving
the Wettons.
2 On May 17, 2019, a Logan County grand jury indicted Johnson on: four
counts of conspiracy to first-degree trafficking, first offense (for the four times
the Wettons traveled to Arizona to purchase methamphetamines for Johnson,
on or about April 30, 2015, June 3, 2015, June 18, 2015, and July 8, 2015);
engaging in organized crime, criminal syndicate (involving Johnson, Bob, Pam,
Shawn McDevitt, and Joshua Gerst); murder (Bob); conspiracy to murder
(Bob); and being a PFO-1. That same day, the grand jury also indicted
Johnson’s girlfriend, Carolyn Kinder, for complicity to commit murder and
PFO-1.
Johnson’s Logan County, Kentucky case remained stagnant as Johnson
was serving a sentence in Arizona. On April 22, 2021, Johnson filed Form 1, of
the Interstate Agreement on Detainers in which he gave notice of the untried
indictment, requested disposition of the charges and speedy trial, and
requested final disposition (thus waiving his right to object to extradition).
Johnson subsequently appeared in the Logan Circuit Court on July 27, 2021,
and waived formal arraignment on the indicted charges.
Kinder was tried in March 2021 for conspiracy to commit the murder of
Bob. The jury found her guilty, and she received a twelve-year sentence.
On July 29, 2022, the grand jury indicted Johnson on a superseding
indictment which provided alternate counts. It returned no true bills on the
four charges of conspiracy to trafficking, instead finding true bills on four
alternative counts of complicity to first-degree trafficking. The grand jury
returned a no true bill for the murder charge and the conspiracy to murder
3 charge, instead finding a true bill for the charge of complicity to murder. The
other charges remained the same.
A third person, Kristen Leann Day, was also indicted on related charges:
engaging in organized crime, criminal syndicate; complicity to murder; and
PFO-2. On January 3, 2023, she pled guilty to the amended charge of criminal
facilitation of murder, with the other charges dismissed, pursuant to a plea
agreement. Immediately after Johnson’s conviction, Day received a five-year
sentence, probated, which was entered on January 25, 2023.
On January 12, 2023, the trial court granted the Commonwealth’s
request to amend Johnson’s superseding indictment to have his trafficking
charges amended to complicity to trafficking in controlled substances, first
offense, for two grams or more of methamphetamine, and to amend the
underlying criminal history supporting the PFO-1 charge.
Johnson’s trial began on January 17, 2023. Kinder declined to testify in
Johnson’s trial as her appeal was pending.
Pam testified via Zoom. She explained that she and Bob began using
cocaine around 2005 and then later started using methamphetamine. Pam
retired in 2009 and shortly thereafter Bob received disability. For two or three
years, they regularly purchased methamphetamine from Johnson a gram at a
time, two or three times a week.
Pam explained that later, when she and Bob were having money
problems, they agreed to transport methamphetamine for Johnson from
Arizona to Kentucky. They did this four times in 2015, the first time
4 accompanied by Johnson and the three other times with just the two of them
as Johnson told them he thought an older couple traveling together would be
less suspicious. She testified that she was only peripherally involved in this
drug running as Bob and Johnson handled most of the coordination of the
details of these trips; Bob handled the money and getting the drugs to
Johnson.
Pam explained that each time, Johnson provided a vehicle for them to
use, gave them money to purchase the methamphetamine in an ammunition
box, paid them money for their expenses, arranged for his contact to pick them
up after they called Johnson and told them they had arrived, and paid them
afterwards for the job. Several different vehicles were used for these trips,
including a Chevy Impala, a Jeep, and a Hyundai Santa Fe. The person that
met them varied, but the basic method they followed did not.
Pam testified that on their first solo trip in the spring of 2015, they
picked up a package which weighed somewhere between three and five pounds,
were given $1,200 to cover their expenses, and money in an ammunition box to
cover the purchase of the drugs. They drove to Arizona, contacted Johnson,
and Johnson’s contact then came to where they were staying and brought
them to his house. The man weighed the money and then gave them the
methamphetamine, which they then stored in the ammunition box. After
returning to Kentucky with the drugs, Johnson paid them. Pam was unsure of
the exact amount, as Bob handled those details, but estimated it was between
$3,000-$5,000.
5 On the Wettons’ second solo trip, which may have been in June 2015,
Pam explained the cash to purchase the drugs was packed the same way and
they met the same people. Pam believed they purchased eight pounds of
methamphetamine and were paid a few thousand dollars. The same general
procedure was followed again.
On the Wettons’ final trip to Arizona in July 2015, Pam testified they
took a large amount of cash with them which was bundled in rubber bands
and kept in the ammunition box. They bought twenty pounds of
methamphetamine but were pulled over by the police, who found the
methamphetamine pursuant to a search.
Pam explained they were arrested and eventually cooperated, implicating
Johnson. This included Pam agreeing to testify against Johnson. In accordance
with the urging of law enforcement, Bob contacted Johnson and requested that
Johnson wire him money to address car problems. Johnson sent the money.
After about a week in jail, they were able to get a relative to post bond and fly
home in early August. While both Pam and Bob repeatedly tried to reach
Johnson, he would not respond, and Pam was not sure if Bob ever reached
him.
On August 26, 2015, at about 4 pm, Pam testified she went to Wal-Mart
for groceries, leaving Bob working on a motorcycle in their front yard. Pam was
gone about an hour and a half and did not see Bob when she came in but did
not think anything of it. She started to wonder where Bob was when it started
to get dark outside.
6 Pam went looking for Bob and eventually found him dead under a sheet
in their tobacco barn. Pam saw blood around Bob’s head and called 911 at
7:08 p.m.
Bob had been shot in the head, with the coroner suspecting that he had
been shot elsewhere as there was not much blood where his body was
discovered. The coroner reported his death as a homicide. There was no
physical evidence specifically linking Bob’s death to any suspects.
The police were able to confirm Pam’s presence at Wal-Mart and believed
Bob was killed sometime between two and seven p.m. The police were already
aware of Pam’s and Bob’s legal trouble in Arizona.
Pam confirmed to the police that she and Bob had been making drug
runs to Arizona for Johnson. She showed them text messages that Bob had
sent to Johnson asking him for money while they were incarcerated in Arizona.
The police had Johnson come in for an interview early the next day.
During the interview, Johnson revealed he already knew about Bob’s death;
Johnson claimed to have heard about Bob’s death from his son Jeremiah
Johnson. Johnson described Bob as his friend and admitted knowing he had
been arrested in Arizona for dope. Johnson stated he had not seen Bob
recently, but in texts Bob had asked for money. Johnson provided an account
of his whereabouts on the day of the murder which included alibi witnesses. He
explained Day, Taylor Wilson, and his girlfriend Kinder, were in his home and
he went out with them, and he mowed Anna Hightower’s yard.
7 Two days later, the police obtained search warrants for Johnson’s home
and vehicles. When the police stopped him in his vehicle with Kinder, they
found multiple cell phones, $3,000 cash, and drugs on Kinder’s person. They
arrested Kinder.
Johnson returned to his home with police. They found more cell phones,
ammunition boxes, drug paraphernalia, and residual amounts of
methamphetamine. He was arrested. Police searched Johnson’s Jeep but were
not able to locate his other vehicle, a Santa Fe.
Larry Talley testified he had known Johnson for over ten years. Talley
recounted seeing Johnson at a mutual friend’s home in early 2017, and when
Talley brought up the subject of Bob’s death with Johnson, Johnson said he
took care of it. As incentive for his testimony, Talley admitted he was hoping he
would receive long-term treatment instead of jail time on unrelated pending
charges.
In September 2015, Kinder was incarcerated in the Logan County
Detention Center while awaiting trial on her drug charges. Several inmates
shared a cell with Kinder, including Amber Deberry, Angela Hampton, Debra
Spangerberger, and Gloria Castile. Kinder made various statements to her
cellmates or in front of them, which both incriminated her and implicated
Johnson in Bob’s murder. These inmates subsequently came forward and
reported Kinder’s statements and then testified against her.
In Johnson’s trial, the Commonwealth moved for a ruling on whether
Kinder’s statements were admissible and received a favorable ruling. These
8 inmates subsequently testified against Johnson. The propriety of this ruling
was not challenged on appeal.
Deberry testified Kinder told her and several other women that she and
someone named “Tooter” were supposed to go mow Hightower’s yard, but
someone got shot. Deberry described Kinder as jumping from topic to topic.
Deberry also recounted that Kinder talked about how someone had gotten in
trouble in Arizona and had snitched on someone.
Hampton heard Kinder speaking on the phone and heard her describing
a murder committed by “her and her old man” that resulted from a drug deal
gone bad and that a body had been left in a barn. Hampton also heard Kinder
say she had sold the car used and needed to get it back because there was
evidence in it.
Spangerberger testified that Kinder told her that Kinder and “Tooter” had
picked up a guy, asking if he would come and mow a yard with them and then
shot him in the head. She said Johnson shot him “point blank” in the head and
they took his body to a barn and left it. Kinder also told Spangerberger that
someone had snitched, and Johnson wanted to take him out. Spangerberger
also heard Kinder on the phone worrying about a truck several times because
that was where someone was shot.
Castile testified that Kinder was frightened. She heard Kinder talk about
how she was in for methamphetamine but was going to be in “big trouble.”
Kinder kept repeating “there was blood everywhere.” Castile testified that
Kinder also told her that the “big boys” from Arizona paid her and Johnson in
9 drugs and money to kill a snitch. Kinder said Johnson drove the snitch out on
a dirt road in a Mercedes, pulled into a barn, and shot him in the head. Castile
also recounted hearing Kinder on the phone worrying about a truck.
Pursuant to a warrant for cell phone records relating to Kinder’s phone,
police were able to establish with an accuracy of 400 to 5,000 meters, that
Kinder’s phone was within a four-minute drive to Pam’s and Bob’s property at
4:50 p.m. on the day of Bob’s death but could not establish her phone was at
their property.
Day testified she grew up in Logan County and her mother used to date
Johnson. Day called Johnson “Daddy” and thought of him as a father figure
because he would do things for her like give her money and let her live with
him. She testified she lived with him when she was twenty-six years old and
would sell methamphetamine for him in exchange for a cut of the money. Later,
Day became aware that Johnson was at the center of a drug distribution web
stretching over Logan, Todd, Butler, and Warren Counties. She explained that
once Johnson began getting drugs from Arizona, the quantity of drugs he was
distributing greatly increased.
Day testified she made one trip to Arizona with Johnson, Pam, Bob,
Marty Stokes and Kelly Taylor so Johnson could meet up with his “main guy”
in the methamphetamine operation. After he left to meet up with a couple of
people, Johnson returned with an ammunition box full of drugs. Day also
explained she knew that Pam and Bob would be making more trips to Arizona
after this to bring drugs to Kentucky.
10 Day testified that for Pam’s and Bob’s last trip, Johnson “crowdsourced”
$80,000 to send to Arizona with them. She also explained she helped Johnson
wire money to Bob for car trouble.
Day explained that after Johnson learned Pam and Bob had been
arrested, he became very nervous and told her, “A rat has to die.” That same
day, Johnson told Day that she would be his alibi.
On August 26, 2015, Johnson told Day that he was taking money over to
Billy Hightower when he mowed Anna Hightower’s lawn and Billy would handle
something for him. Day testified she knew then that Bob would be killed that
day and was not surprised when Bob ended up dead.
Day testified that after Johnson returned from mowing Hightower’s yard,
he took Day and Wilson with him to Bowling Green and Richardsville. When
they returned, Johnson received a phone call and told Day that Billy had
“handled it” and that they needed to get all the drugs out of the house and
leave. Day testified that Johnson instructed her that if the police asked about
his whereabouts that day, she was to tell them that he had mowed Hightower’s
lawn and then went to Bowling Green with her. She explained she told the
police the truth when she was questioned because Johnson made sure she was
with him and could tell the police about it later.
After cross-examination questioning of her changed story, the trial court
permitted the prosecution on redirect to ask Day about her various types of
relationships with Johnson. Day testified that she also had a sexual
relationship with Johnson, which began when she was twenty-six, and that she
11 exchanged sex for methamphetamine. This relationship continued until around
the time Bob died. Day explained her relationship with Johnson was
complicated and she felt the need to be loyal to him.
Bobby Elamon testified that while he was incarcerated with Johnson,
Johnson asked him to pass on a message to Day when Elamon and Johnson
would be transported together for a court appearance. Elamon told Day not to
take a deal or say anything in their case because he had information that
might help them. Day testified she interpreted this message as a threat that
she needed to remain loyal.
Prosecution witness Ricky Plunk, Day’s cousin, described Johnson’s
relationship with Day as “weird” and he assumed Johnson and Day were
having sex. Plunk sometimes bought methamphetamine from Johnson, but
preferred to get it from Day because it was cheaper from her.
Plunk testified he was asked about picking up drugs from Arizona but
did not take the request seriously. Plunk recounted Day told him he could be
rich if he would just make two trips. Plunk testified that Johnson asked him to
make methamphetamine, but Plunk declined.
Plunk overheard Johnson talking about sending someone money through
Western Union for car troubles. He also heard Johnson offer to pay Kenneth
Hankins to “kill that motherf***er.” Plunk did not know Pam and Bob, but his
mother did. Plunk testified that around the time of Bob’s death, Plunk heard
Johnson tell Day to get her story straight.
12 Hankins testified that he had known Johnson most of his life, had
shared drugs with Johnson, and had been staying on Johnson’s couch when
Bob was killed. Hankins remembered Johnson would keep pounds of
methamphetamine in his house at any given time; some would be inside the
house, and some would be hidden in the property around the house. However,
Hankins never saw anything close to twenty pounds of methamphetamine.
Hankins recounted making a trip out west for Johnson. Hankins and
Stokes drove out to California but were unable to find a connection there, so
Johnson directed them to go to Phoenix. They were only able to get four or five
ounces of drugs on that trip, which Hankins described as a “test run.”
Hankins testified he heard that Pam and Bob started taking trips to
Arizona for Johnson, heard that their last trip had gone wrong, knew they got
arrested, and heard Johnson was concerned they were cooperating with the
police. Hankins also recounted that Johnson told Hankins that the guys in
Phoenix gave him a call and instructed him to take care of “loose ends” or they
would come to Kentucky and take care of everyone.
Hankins stated he was incarcerated at the time of Bob’s death and did
not know what happened to him. Hankins admitted he had been offered
immunity for his role in trafficking with Johnson and an offer of probation on a
new case he had accrued.
Stokes testified he had known Johnson for a few decades. Stokes
previously lived in Arizona and connected Johnson to people to get
methamphetamine in that area. Stokes testified he believed that Johnson was
13 purchasing twenty pounds or more at each visit at $3,500 to $4,000 per
pound. Stokes explained that he did not know Bob, but was aware Johnson
had someone else to make trips for him and that person was named Bob.
Stokes testified that he was paid $5,000 per trip for calling someone in
advance to meet up with Johnson or whomever he sent to buy the drugs. There
was a problem on the second trip Stokes helped arrange as the people Johnson
sent were arrested, so Stokes did not get paid.
Stokes testified that Johnson told him the people arrested got out on a
$1,500 bond. Stokes found that amount suspicious because he had been in
trouble for methamphetamine in Arizona before. Stokes explained he told
Johnson to cut ties with Bob. Stokes admitted he had been granted immunity
from prosecution in exchange for his testimony against Johnson.
Regarding the day of the murder, Hightower confirmed that Johnson
mowed her yard that day at around the time Johnson said he did. Hightower
testified that her father-in-law Billy was incarcerated when Johnson mowed
her lawn. Jail records confirmed this also.
Day and Wilson generally confirmed Johnson’s account of his location on
the day of the murder. However, Day also claimed she saw Johnson take
money out of one of his hiding places to give to Hightower’s father-in-law Billy
while Johnson was there to mow so that Billy could “handle something for
him.” Day assumed Johnson was referring to Bob. Day recounted that when
Johnson got back, she saw Johnson covered in grass. Johnson told her that
“Billy handled it.”
14 Day testified that Johnson later received a phone call and made them
leave. Wilson confirmed being told to leave but thought it was related to a drug
run. Wilson did not recall anything Johnson did that day which made her think
anything unusual was going on that day.
On January 25, 2023, the jury found Johnson guilty on each count for
which he was tried: four counts of complicity to traffic in a controlled
substance (methamphetamine), first degree, Kentucky Revised Statutes (KRS)
218A.1412(1)(b) 2; one count of engaging in organized crime, criminal syndicate,
KRS 506.120 3, with the syndicate being for the purposes of illegal trafficking in
controlled substances; and complicity to murder, KRS 507.020 and KRS
502.020.
The jury recommended that Johnson initially receive sentences of ten
years on each of the complicity to traffic counts, which were enhanced to
twenty years based on his PFO-1 status, twenty years on the engaging in
organized crime criminal gang syndicate, enhanced to fifty years, and a life
sentence for complicity to murder. The jury recommended that the trafficking
and organized crime sentence be served consecutively for a total of seventy
2 Since 2011, KRS 218A.1412(1)(b) has only required trafficking two or more
grams of methamphetamine. 2011 Kentucky Laws Ch. 2 § 9 (HB 463). The testimony regarding Johnson’s complicity to trafficking involved pounds of methamphetamine. To put this in perspective, there are approximately 453 and one-half grams in a pound. 3 Johnson was tried under the prior version of KRS 506.120(3)(e). It required
five participants to establish a “criminal syndicate.” 2018 Kentucky Laws Ch. 202 § 3 (HB 169) amended KRS 506.120. Among its changes were rebranding this crime as “criminal gang syndicate,” and lowering the required number of participants to three. KRS 506.120(3) (eff. April 26, 2018).
15 years. The trial court sentenced Johnson in accordance with these
recommendations, making the twenty years on each of the trafficking counts
concurrent to each other but consecutive to the fifty years on the organized
crime, criminal syndicate conviction for a total of seventy years, and made that
concurrent to his life sentence on complicity to murder. Johnson subsequently
was returned to Arizona to complete his outstanding sentence there. When
Johnson is released from incarceration in Arizona, he will be returned to
Kentucky to serve his sentence in this case.
II. ISSUES
Johnson argues that the trial court erred by: (1) permitting Pam to testify
via Zoom in violation of Johnson’s right to confrontation; (2) admitting
testimony relating to other crimes and bad acts in violation of Kentucky Rules
of Evidence (KRE) 404; (3) permitting hearsay statements from his deceased
son in violation of Johnson’s right to confrontation; and (4) denying his motion
for a mistrial when the Commonwealth played a portion of Johnson’s police
interview that revealed he was a convicted felon. He also argues, (5), that these
errors amount to cumulative error.
A. Did Pam’s Testimony via Zoom Require Reversal for Violating the Confrontation Clause?—Preserved
Although Johnson acknowledges that we have generally interpreted
Section 11 of the Kentucky Constitution coextensively with the Sixth
Amendment to the United States Constitution regarding the Confrontation
Clause, he argues that we should interpret our Confrontation Clause to provide
a more extensive right as it requires a “face to face” confrontation. Johnson, 16 therefore, seeks to have us interpret Section 11 as prohibiting Zoom testimony
of a material witness.
Johnson further argues that the Commonwealth cannot satisfy the
standards excusing confrontation set out in Maryland v. Craig, 497 U.S. 836
(1990), because the Commonwealth failed to establish there was an important
public policy at stake as well as necessity, as the failure to make Pam travel for
court was more attributable to ideas of convenience (travel would be difficult or
uncomfortable due to her medical conditions), rather than necessity. Johnson
also argues that it cannot be harmless error beyond a reasonable doubt to have
permitted Pam’s Zoom testimony because this trial differs significantly from
Kinder’s trial. Johnson explains that there were jail snitches to Kinder’s
admissions tying the murder to her, and Johnson was also being tried for
multiple counts of complicity to trafficking in controlled substances, and
organized crime, charges for which Pam’s testimony about her and Bob’s
actions was the primary evidence.
1. Underlying Facts and Court Ruling
On June 14, 2022, the Commonwealth filed a motion requesting that
Pam be allowed to testify by two-way video conferencing, arguing “the public
has an interest in making sure that crucial evidence regarding a murder and
drug trafficking is heard by the jury and that the health of the witness should
not be a bar or obstacle to the presentation of said evidence.” The
Commonwealth submitted a letter from a physician’s assistant regarding this
request. It read:
17 The above-named individual is currently under my care. She tells me that there has been another request for her to travel for an ongoing court case. She is concerned about the request because of the physical toll of travel. She does have severe arthritis in both of her knees and is not able to walk very far without significant pain. She also has coronary artery disease and paroxysmal atrial fibrillation. She does get short of breath with exertion. Ms. Wetton is willing to make the court appearance through teleconference. I agree that travel would be difficult for her and kindly request that she be granted the opportunity to provide information remotely.
Johnson immediately objected to the Commonwealth’s motion to permit
Pam to appear by two-way videoconferencing, specifically citing the Sixth
Amendment and Section 11 in arguing that they “do not allow witness
testimony where the witness does not have to face the accused face-to-face.” He
argued permitting Pam to testify remotely would deny him due process of law:
[I]n that the jury will not be able to judge the demeanor, facial expressions, body language or other nonverbal indications of the emotions the witness is feeling while testifying, or other clues as to the veracity of their testimony, to the extent that the jury will not be able to view the entire testimony of the witness as a whole.
Johnson further argued: “If the witness is allowed to testify in this
manner, then it will be impossible to tell if someone is on the other side of the
camera coaching the witness, feeding them answers to questions, or otherwise
providing impermissible feedback.”
Johnson specifically objected to the application of Craig, arguing
“Kentucky has codified the only public policy it believes necessary to trigger the
Craig exception in KRS 421.350” to allow video testimony of a child victim who
is less than twelve years of age where there is a “substantial probability that
the child would be unable to reasonably communicate because of serious
emotional distress produced by the defendant’s presence.” He also argued that 18 the Kentucky Rules of Criminal Procedure (RCr) 7.10 et. seq. “contemplate this
very scenario, and allow for depositions to be taken while still protecting the
rights of the Defendant” and objected to the Commonwealth’s failure to even
consider deposing Pam and instead proposing using remote testimony that
would deny Johnson one of his fundamental constitutional rights.
On December 1, 2022, the trial court held a hearing on this issue. The
Commonwealth told the trial court that Pam’s health issues had not improved
since the letter was filed and noted that Pam was currently unable to drive,
needed cataract surgery, and was only able to walk minimal distances. The
Commonwealth argued that based on her physical condition, Pam was unable
to travel. The Commonwealth offered to have Pam participate in this hearing by
phone but did not call her as a witness as to her physical condition, and the
trial court declined to try to reach her.
Johnson explained that a potential appropriate option would be to take
Pam’s video deposition in Nebraska, with Johnson and his attorney present, so
that Johnson would have his right to confrontation satisfied. Johnson noted
that the Commonwealth had not requested a deposition.
While Johnson acknowledged that Pam could have difficulty traveling, he
disagreed that Pam was completely unable to travel or that her physical
difficulties could trump his right to confrontation. He argued that it was his
position that Pam needed to personally appear to testify.
The Commonwealth raised the concern that when it came to the jury
judging Pam’s credibility that a recorded video deposition was not an
19 improvement over live testimony via Zoom. The Commonwealth also argued
that it was good public policy to not require unnecessary public expenditures.
On December 19, 2022, the trial court orally granted the
Commonwealth’s motion that Pam be permitted to provide her testimony
remotely. The trial court explained it would require that there be a laptop
showing Johnson, so that Pam and Johnson could see each other, and opined
this would satisfy Johnson’s confrontation rights. The trial court never issued a
written order. The trial proceeded in January with Pam testifying via Zoom.
Nine months after Johnson was convicted, the Court of Appeals issued
an opinion resolving Kinder’s direct appeal and affirmed her conviction and
sentence. Kinder v. Commonwealth, 2021-CA-0978-MR, 2023 WL 7392540 (Ky.
App. Nov. 9, 2023) (unpublished). The Court of Appeals agreed with Kinder that
the trial court permitting Pam to testify remotely via Zoom in Kinder’s trial
violated Kinder’s right to confrontation. Id. at *2-3. However, the Court of
Appeals concluded such violation was harmless beyond a reasonable doubt
where the remaining evidence overwhelmingly established Kinder’s guilt. Id. at
*3.
2. The Confrontation Clause and the Craig Test
Among the rights that criminal defendants have, is the right to
confrontation. The Sixth Amendment to the United States Constitution says in
relevant part: “In all criminal prosecutions, the accused shall enjoy the right . .
. to be confronted with the witnesses against him[.]” Similarly, Section 11 of the
20 Kentucky Constitution provides: “In all criminal prosecutions the accused has
the right . . . to meet the witnesses face to face[.]”
In Craig, 497 U.S. at 840, the United States Supreme Court had “to
decide whether the Confrontation Clause of the Sixth Amendment categorically
prohibits a child witness in a child abuse case from testifying against a
defendant at trial, outside the defendant’s physical presence, by one-way
closed circuit television.” The Court ultimately ruled that it did not, explaining
as follows:
[W]e conclude that where necessary to protect a child witness from trauma that would be caused by testifying in the physical presence of the defendant, at least where such trauma would impair the child's ability to communicate, the Confrontation Clause does not prohibit use of a procedure that, despite the absence of face-to-face confrontation, ensures the reliability of the evidence by subjecting it to rigorous adversarial testing and thereby preserves the essence of effective confrontation. Because there is no dispute that the child witnesses in this case testified under oath, were subject to full cross-examination, and were able to be observed by the judge, jury, and defendant as they testified, we conclude that, to the extent that a proper finding of necessity has been made, the admission of such testimony would be consonant with the Confrontation Clause.
Id. at 857.
The reach of the Craig decision was broader than just pertaining to
protecting child victims. As the United States Supreme Court explained: “[A]
defendant’s right to confront accusatory witnesses may be satisfied absent a
physical, face-to-face confrontation at trial only where denial of such
confrontation is necessary to further an important public policy and only where
21 the reliability of the testimony is otherwise assured.” Id. at 850 (emphasis
added).
As to the “necessary” prong, while serious illness may be sufficient to
satisfy this prong, “[t]here is also a general consensus among courts that mere
convenience, efficiency, and cost-saving are not sufficiently important public
necessities to justify depriving a defendant of face-to-face confrontation.” 4
In United States v. Yates, 438 F.3d 1307, 1314-18 (11th Cir. 2006), the
Court determined there was no necessity to allow remote testimony even
though the witnesses were in Australia, explaining that they could have been
deposed there pursuant to the Federal Rules of Criminal Procedure (Fed. R.
Crim. P.) 15. A narrow interpretation of Craig would never permit remote
testimony when a video deposition could have been conducted. 5
Kentucky provides for admission of depositions in criminal trials
pursuant to Kentucky Rules of Criminal Procedure. Depositions are permitted
to be taken
[i]f it appears that a prospective witness may be unable to attend or is or may be prevented from attending a trial or hearing or is or may become a nonresident of the Commonwealth, that the witness’s testimony is material and that it is necessary to take the witness’s deposition in order to prevent a failure of justice[.]
RCr 7.10(1). The Commonwealth could have properly deposed Pam under this
rule and the trial court should have issued a ruling requiring that the
4 Elements of the Confrontation Clause, 8 Handbook of Fed. Evid. § 808:1 (9th
ed.) (emphasis added). 5 See Ayyan Zubair, Note, Confrontation After Covid, 110 Calif. L. Rev. 1689,
1710-11 (2022) (advocating such an interpretation).
22 Commonwealth depose Pam rather than granting its motion to permit her
remote testimony.
3. The Craig test as applied in Kentucky under Section 11
We originally considered Craig in determining whether “TV testimony” by
child witnesses was permissible pursuant to KRS 421.350 and was otherwise
constitutionally permissible. See, e.g., George v. Commonwealth, 885 S.W.2d
938, 940-41 (Ky. 1994).
Although we have questioned the continuing validity of Craig, as its
analytical foundation was based upon the balancing test set forth in Ohio v.
Roberts, 448 U.S. 56 (1980), which was overruled by Crawford v. Washington,
541 U.S. 36, 54 (2004)), we still apply its framework to any alleged
confrontation errors. Faughn v. Commonwealth, 694 S.W.3d 339, 346 (Ky.
2024) (relying on analysis in Campbell v. Commonwealth, 671 S.W.3d 153, 159-
60 (Ky. 2023), and Spalding v. Commonwealth, 671 S.W.3d 693, 697 (Ky.
2023)). 6
Neither convenience nor expense are authorized grounds for allowing
remote testimony as we have repeatedly held. In Faughn, 694 S.W.3d at 347,
the trial court permitted remote testimony by a lab technician in Pennsylvania
about results of blood analysis in order to save the Commonwealth the cost of
travel expenses, and by a University of Kentucky professor, Ward, about
6 See generally Marc C. McAllister, The Disguised Witness and Crawford’s
Uneasy Tension with Craig: Bringing Uniformity to the Supreme Court's Confrontation Jurisprudence, 58 Drake L. Rev. 481, 507-514 (2010) (discussing the tension between Craig and Crawford).
23 toxicology due to his class schedule. We soundly rejected these justifications
for denying the defendant the right to confrontation:
The reasons proffered by the Commonwealth to explain why their witnesses needed to testify remotely fall well short of public policies that could outweigh Faughn’s constitutional right to confront those witnesses. While we applaud the Commonwealth for their commitment to the financial well-being of Kentucky’s prosecutorial system, a savings of ten to fifteen-thousand dollars cannot outweigh a defendant's constitutional rights. Similarly, while we can appreciate Ward’s reluctance to cancel his classes and of the Commonwealth's efforts to accommodate Ward and his students, the relatively minor inconvenience to Ward does not in any way approach the gravity needed to deprive Faughn of his right to confront Ward in person. See Campbell, 671 S.W.3d at 161 (“Thus, by allowing [Commonwealth's witness] to testify via Zoom as a convenience to him, the trial court erred[ ]”). As noted by Faughn, if Ward wishes to engage in the business of testifying as an expert witness, he should be prepared to forego other obligations in pursuit of that endeavor. Accordingly, the circuit court erred in allowing the Pennsylvania lab employee and Ward to testify remotely.
Id.
In Spalding, 671 S.W.3d at 698, the trial court permitted remote
testimony by three chain of custody witnesses who had moved, with later
justification provided by the fact that one witness had a commitment at the
state fair, another witness had Covid, and no additional reason ever being
provided for the third witness’s absence. We again soundly rejected such
justifications as being sufficient to overcome the defendant’s right to
confrontation:
While a witness sick with Covid could arguably be a compelling need justifying remote testimony under the Craig standard, the trial court made no such finding, and this was not mentioned during either discussion of remote testimony. The first time Covid was mentioned was during the Commonwealth’s opening argument and the record is not clear whether Spalding had been informed of 24 this before the jury was. Had this been discussed with Spalding prior to the commencement of the trial, the trial court could have advised Spalding whether he wished to continue the trial so the ailing witness could be physically present and thereby waive his right to a speedy trial or carry on with the trial with the witness testifying remotely. As for Lt. Brad Riley, the witness tied up with the Kentucky State Fair, this hardly needs further comment from this Court. As important as the state fair is, it in no way rises to the level of necessity as contemplated by Craig. And no rationale has been offered by the Commonwealth for Trooper Downs’s absence, either at trial or in its briefs before this Court. The trial court abused its discretion when it allowed these witnesses to testify remotely.
In Campbell, 671 S.W.3d at 161, the trial court permitted remote
testimony by a doctor who was located 100 miles away and was scheduled to
work at a hospital that day, and only received a subpoena the day before,
regarding the extent of the victim’s injuries. We rejected such a basis for
depriving the defendant of the right to confrontation, explaining: “There was no
showing of necessity, other than convenience to the doctor, or balancing of a
victim's interests that justified the surrender of the Defendant’s constitutional
rights of confrontation. Thus, by allowing Dr. Tucker to testify via Zoom as a
convenience to him, the trial court erred.” Id.
We decline Johnson’s invitation to interpret Section 11 of the Kentucky
Constitution to provide greater protections than the Sixth Amendment to the
United States Constitution. Our Court declared in See v. Commonwealth, 746
S.W.2d 401, 402 (Ky. 1988), that “[t]he difference in language [between the
Sixth Amendment and Section 11] is not significant and both amendments are
simply designed to require that a defendant in a criminal case is entitled to a
25 confrontation with his accusers” and declined to interpret Section 11 more
broadly than the Sixth Amendment. The dissent argued that the Section 11
Confrontation Clause should be construed more broadly than the Sixth
Amendment’s, because Section 11 provides “the right to confront witnesses
face to face.” See, 746 S.W.2d at 404 (Stephens, C.J., dissenting).
Our recent cases further confirm our commitment to apply the Sixth
Amendment and Section 11 as providing identical protection. In Spalding and
Faughn, the defendants relied upon both the Sixth Amendment and Section 11
in arguing that their confrontation rights were violated by the remote testimony
of witnesses. In Spalding, we recognized that we were “the final authority on
the Kentucky Constitution” but noted our previous holding “that the
protections afforded defendants by the Confrontation Clause of Section 11 and
the Sixth Amendment are coextensive” and ultimately concluded that it was
“not necessary, at this point, to uncouple ourselves from Craig[.]” Spalding, 671
S.W.3d at 697. In Faughn, we engaged in one discussion in which it was clear
we were treating a defendant’s right to confrontation under the United States
Constitution and the Kentucky Constitution the same, explaining: “Pursuant to
Craig, a defendant’s right of confrontation is balanced against the competing
public policy interests set forth by the Commonwealth.” Faughn, 694 S.W.3d at
347. Based on our precedent, we continue to interpret our Confrontation
Clause as equal to that in the Sixth Amendment and will apply the Craig test.
26 4. Did Pam’s Remote Testimony Satisfy the Craig Test?
The justification for Pam giving remote testimony was a letter provided by
a physician’s assistant. However, this letter did not establish that traveling
would endanger Pam’s health. Instead, the physician’s assistant stated: “I
agree that travel would be difficult for her[.]” Per Craig, such a statement is
simply insufficient to establish that remote examination is “necessary.”
We further observe that there is no indication that the physician’s
assistant had any notion that the court appearance Pam was asking to be
excused from attending involved a murder trial in which she was a key witness.
A physical condition that could warrant a remote appearance in a civil case (to
which the Confrontation Clause does not apply) is very different matter.
The Commonwealth’s update to the trial court regarding Pam’s physical
difficulties after that letter was filed did not establish that she was unable to
travel. Pam’s inability to drive or walk much, and her need for cataract surgery
did not show that she could not travel by plane or travel with someone driving
her. At best, the Commonwealth established that it would be inconvenient,
uncomfortable, or expensive to procure Pam’s attendance at the trial. These
justifications are insufficient to override Johnson’s right to confrontation.
Accordingly, we conclude that the “necessary” prong of the Craig test was not
satisfied. As both the “necessary” prong and the “reliability” prong must be
satisfied, a violation of one is sufficient to conclude that the trial court erred in
granting the Commonwealth’s motion to have Pam testify remotely.
27 Johnson did, however, also raise concerns before the trial court about
the “reliability” prong. He stated that it would be impossible to tell if Pam was
being coached if she provided her testimony remotely. The trial court did
nothing to address his legitimate concern.
Reliability concerns must be carefully considered and addressed. As to
the prototypical statutory exception for confrontation—the “TV testimony” by
child victims, which pursuant to KRS 421.350(2) takes place in the courthouse
in the presence of the prosecution and defense attorneys and is broadcast in
the courtroom—there is no particular question that such testimony would be
as reliable as if given before the defendant because the environment where the
child is testifying is strictly controlled.
In contrast, it seems doubtful that courts can guarantee that remote
testimony as currently conducted through Zoom and similar platforms will be
free of outside influence 7. Yet, all too often, the defendant is expected to trust
that such remote testimony will be as reliable as it would be if given in court.
We further note that continuing technological advancements can exacerbate
such problems. While not a concern here, of utmost importance is ensuring
that the person testifying is indeed the witness, and technological trickery is
not being used to allow another person to testify in the witness’s place.
The right to confrontation is an important safeguard for a fair and
reliable trial process and permitting remote testimony should be the last resort.
7 Zubair, supra, at 1706.
28 If a witness cannot travel, taking that witness’s deposition where the witness is
located, with the defendant in attendance, should be pursued first before any
consideration is given to whether remote testimony (through Zoom or other
means) may be permissible in extraordinary circumstances when a deposition
cannot be conducted.
Going forward, we hold that when the Commonwealth seeks permission
to allow a witness to testify remotely, the trial court should first consider
whether such witness can properly be deposed or whether a delay in the trial
would allow for the witness’s attendance. In the very limited circumstances in
which the trial court concludes that remote testimony is necessary as the only
viable option, the trial court must ensure the reliability of such remote
testimony. This includes verifying the witness’s identity and that no one “off
screen” is unduly influencing the witness.
5. Standard for Reversal for a Violation of the Confrontation Clause.
Once a Confrontation Clause violation is established, that is not the end
of our inquiry, because “finding a confrontation clause error is not, in itself,
sufficient to justify reversal.” Faughn, 694 S.W.3d at 347. Instead, we proceed
to considering ‘whether there is a reasonable possibility that the evidence
complained of might have contributed to the conviction’ . . . or put otherwise,
that error was harmless beyond a reasonable doubt.” Talbott v. Commonwealth,
968 S.W.2d 76, 84 (Ky. 1998) (quoting Chapman v. California, 386 U.S. 18, 23-
24 (1967)).
29 As explained in Coy v. Iowa, 487 U.S. 1012, 1021-22 (1988): “An
assessment of harmlessness cannot include consideration of whether the
witness’ testimony would have been unchanged, or the jury’s assessment
unaltered, had there been confrontation; such an inquiry would obviously
involve pure speculation, and harmlessness must therefore be determined on
the basis of the remaining evidence.” See Faughn, 694 S.W.3d at 347;
Campbell, 671 S.W.3d at 161–62; Spalding, 671 S.W.3d at 698 (also quoting
from Talbott, 968 S.W.2d. at 84 and Coy, 487 U.S. at 1021-22).
In Campbell, we concluded that the doctor who was testifying remotely
regarding the extent of the victim’s injuries was a key witness on establishing
“an essential element of the Commonwealth’s case” and therefore we could not
be confident that such remote testimony was harmless beyond a reasonable
doubt “because there [was] a reasonable possibility his testimony contributed
to the guilty verdict[.]” 671 S.W.3d at 162-63. In contrast, in Spalding
(regarding remote testimony by three chain of custody witnesses) and Faughn
(regarding remote testimony by a lab technician about the results of a blood
analysis and a professor about toxicology) we ultimately concluded that the
objectionable remote testimony was harmless beyond a reasonable doubt as
those witnesses’ testimony was unnecessary or cumulative, and thus was not
needed to establish the defendants’ guilt. Spalding, 671 S.W.3d at 699;
Faughn, 694 S.W.3d at 348.
We caution that it is wholly unacceptable for a trial court to permit
remote testimony where it arguably does not satisfy the “necessary” prong of
30 the Craig test on the basis that a reviewing court is likely to later deem such
error harmless beyond a reasonable doubt. Instead, trial courts must
judiciously safeguard defendants’ constitutional right to confrontation and err
on the side of prohibiting remote testimony.
6. Was Pam’s Testimony Harmless Beyond a Reasonable Doubt?
In considering the evidence in this case, Pam was a vital witness when it
came to Johnson’s convictions of the four counts of complicity to traffic in a
controlled substance.
The jury instructions clarify how pivotal Pam’s testimony was to the
complicity to trafficking charges. Each charge was specific to the Wettons’
actions and the first three counts were virtually identical save for the date:
A. That in this county on or about [date], and before the finding of the Indictment herein, Bob and Pam Wetton possessed a quantify of two (2) grams or more of methamphetamine; AND
B. That Bob and Pam Wetton knew the substance so possessed was methamphetamine; AND
C. That Bob and Pam Wetton possessed said methamphetamine with the intent to distribute the same to the Defendant, or his agent; AND
D. That prior to the methamphetamine being possessed by Bob and Pam Wetton, the Defendant had engaged in a conspiracy with Bob and Pam Wetton to traffic in a quantify of two (2) grams or more of methamphetamine; AND
E. That the Defendant did so with the intention of promoting or facilitating the offense of trafficking in methamphetamine.
The fourth count eliminated the “in this county” language from A, and instead,
in D, placed the “Defendant in Logan County Kentucky.”
31 There was certainly evidence supporting convictions on these counts
besides Pam’s testimony, especially as to the first trafficking charge which
related to the first trip as Day testified she was one of several people to go on
this trip. We also do not discount the testimony other witnesses provided
regarding Johnson’s general involvement in the drug trade and how Bob’s last
trip went awry.
However, just having other evidence to support the guilty verdicts does
not satisfy the relevant standard. Pam’s first-hand accounts were powerful key
evidence about how each of these four trips worked. Her testimony included
how Johnson provided them with money, the arrangements he made for them
to contact the dealers in Arizona, the amount of methamphetamine that they
obtained in Arizona and did or planned to bring back to Johnson, and their
actions during these trips to obtain the drugs. This testimony was of vital
importance to establishing their actions as was needed to satisfy the jury
instructions.
We cannot say that including Pam’s testimony, which violated Johnson’s
right to confrontation, was harmless beyond a reasonable doubt as to all of
these counts because there was a reasonable possibility that Pam’s testimony
contributed to the guilty verdict on each of the trafficking counts. Accordingly,
Johnson’s convictions and sentences on these four counts must be reversed.
The fact that we conclude there was insufficient evidence to establish
complicity to traffic involving Pam and Bob on the specific occasions named
without Pam’s testimony does not mean that Johnson could not be convicted of
32 engaging in organized crime, criminal syndicate for trafficking. We observe that
the Commonwealth did not have to prove that Johnson actually trafficked in
methamphetamine to convict him of engaging in organized crime. Hill v.
Commonwealth, 125 S.W.3d 221, 233 (Ky. 2004), overruled on other grounds by
Grady v. Commonwealth, 325 S.W.3d 333, 341–42 (Ky. 2010). Instead, the
Commonwealth only had to establish that Johnson “established, maintained or
facilitated drug trafficking activities[.]” Edmonds v. Commonwealth, 906 S.W.2d
343, 347 (Ky. 1995). The jury could believe there was an ongoing scheme in
this manner between the dates named without being certain of the exact details
of who was involved and how it all occurred.
This crime required proof that five people (including Johnson) were
“persons . . . collaborating to promote or engage in . . . [i]llegal trafficking in
controlled substances” to convict Johnson. KRS 506.120(3)(e) (eff. June 25,
2009, to April 25, 2018). 8 “The collaboration in the statute means simply
collaborating in the scheme, and it is not necessary for the Commonwealth to
show that each participant collaborating in the scheme collaborated with or
even was aware of the collaboration of the other participants.” Commonwealth
v. Phillips, 655 S.W.2d 6, 9 (Ky. 1983).
While the indictment named Pam and Bob specifically as two of the five
people engaged in trafficking activities with Johnson, the jury instructions did
not specifically name them. Instead, it required:
8 As discussed, supra, this statute was amended in 2018 by HB 169 and now
requires only three participants. KRS 506.120(4)(e).
33 A. That in this county between April 30, 2015, and July 8, 2015, and before the finding of the Indictment herein, the Defendant participated with a group of five (5) or more persons, including the Defendant, collaborating to promote or engage in Trafficking in Methamphetamine on a continuing basis, AND
B. That when he did so, it was his intent to establish or maintain that group, or to facilitate any activities of that group constituting Trafficking in Methamphetamine.
Pam’s testimony was not needed to establish the charge of organized crime,
criminal syndicate because even without her testimony, there was sufficient
evidence from other witnesses that there were at least five people participating.
Day testified that Johnson, Day, Pam, Bob, Stokes, and Taylor all planned to
and did go to Arizona so that Johnson could traffic in methamphetamine. She
also testified regarding his “crowd funding” of the last trip. Stokes testified that
he arranged for Johnson or his people to meet up with people he knew in
Arizona so Johnson could traffic in methamphetamine at least two times (thus
identifying other unnamed people who were part of the scheme as the Arizona
connection to obtaining the methamphetamine). Other people testified that
they knew Bob was involved in trafficking methamphetamine for Johnson.
There was also evidence that Johnson had copiously large amounts of
methamphetamine in his possession at various times as a result of these
trafficking activities. Therefore, as to the organized crime charges, we conclude
that the failure to exclude Pam’s testimony was harmless beyond a reasonable
doubt.
Similarly, as to the complicity to murder, there was more than sufficient
evidence that Johnson was involved in methamphetamine trafficking based on
34 Day’s and Stokes’s testimony and based on people observing him with large
amounts of methamphetamine. There was also ample evidence that Johnson
had been working with Bob to get drugs from Arizona, Johnson wanted Bob
dead for ratting him out regarding a drug deal that had gone bad, and Johnson
had in fact been involved in Bob’s murder, either directly, with Kinder, or
through a third party, and that Johnson’s Arizona associates had pressured
him to “take care of it.” While Pam may have had some suspicions that
Johnson was involved in Bob’s death, it was other witnesses who provided
testimony about Johnson’s and Kinder’s activities.
Pam was not a key witness when it came to establishing Johnson’s guilt
for this crime as she had no direct evidence as to his involvement in Bob’s
murder. Therefore, we determine that Pam’s testimony regarding the complicity
to murder charge was harmless beyond a reasonable doubt when it came to a
violation of Johnson’s confrontation rights regarding this crime.
B. Did a KRE 404 Violation Occur which was Prejudicial?—Unpreserved
Johnson raises two claims arguing violations of KRE 404. The first is
regarding testimony by Plunk, that Johnson asked Plunk to make
methamphetamine for him, an uncharged crime. The second is regarding
testimony by Day, that Johnson and Day had an inappropriate sexual
relationship.
Regarding the problematic testimony by Plunk and Day, Johnson argues
that he preserved these matters through contemporaneous objections. Johnson
35 further argues that the Commonwealth erred in failing to provide sufficient
notice of its intent to use such evidence pursuant to KRE 404(c).
However, Johnson did not make any objections to Plunk’s or Day’s
testimony based on KRE 404(b) or based on a lack of notice pursuant to KRE
404(c). Johnson made objections to Plunk’s and Day’s anticipated testimony on
other grounds, but never referenced KRE 404 or characterized such testimony
as being improper character evidence. Johnson failed to preserve at trial that
any errors occurred pursuant to KRE 404. Therefore, we engage in palpable
error review.
Pursuant to RCr 10.26: “A palpable error which affects the substantial
rights of a party may be considered . . . by an appellate court on appeal, even
though insufficiently raised or preserved for review, and appropriate relief may
be granted upon a determination that manifest injustice has resulted from the
error.”
In considering what is sufficient to establish manifest injustice, “the
required showing is probability of a different result or error so fundamental as
to threaten a defendant's entitlement to due process of law.” Martin v.
Commonwealth, 207 S.W.3d 1, 3 (Ky. 2006). “[I]f upon a consideration of the
whole case this court does not believe there is a substantial possibility that the
result would have been any different, the irregularity will be held
nonprejudicial.” Schoenbachler v. Commonwealth, 95 S.W.3d 830, 836 (Ky.
2003) (quoting Abernathy v. Commonwealth, 439 S.W.2d 949, 952 (Ky. 1969),
36 overruled on other grounds by Blake v. Commonwealth, 646 S.W.2d. 718 (Ky.
1983)).
We observe that on October 17, 2022, the Commonwealth did provide
prior notice, pursuant to KRE 404(c), of its intent to introduce evidence that:
(1) Johnson engaged in drug trafficking operations in Kentucky and Arizona
prior to the Wettons’ involvement; and (2) Johnson had previously solicited
Hankins to kill Bob. Evidence as to these prior bad acts was admitted at trial.
There was also extensive testimony, even without Pam’s remote testimony, as
to Johnson’s ongoing involvement in the drug trade, which included both
evidence that which was specific to the trafficking and organized crime charges,
and evidence of the other bad acts of drug dealing.
KRE 404(b) provides:
Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible:
(1) If offered for some other purpose, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident; or
(2) If 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.
In evaluating whether the other bad acts evidence is admissible, the trial court
should use the following test:
(1) Is the other bad act evidence relevant for some purpose other than to prove the criminal disposition of the accused? (2) Is evidence of the other bad act sufficiently probative of its 37 commission by the accused to warrant its introduction into evidence? (3) Does the potential for prejudice from the use of other bad act evidence substantially outweigh its probative value?
Howard v. Commonwealth, 595 S.W.3d 462, 475–76 (Ky. 2020).
We conclude that the brief testimony regarding Johnson asking Plunk if
he would manufacture methamphetamine for Johnson simply cannot rise to
the level of manifest injustice. Such testimony was brief and did not differ very
much from other admitted testimony about prior uncharged drug related acts.
While the accusations related to Johnson’s sexual relationship with Day
could be seen as inappropriate given their pseudo parent-child relationship,
and was only mildly relevant as to her motivations, a consensual relationship
with an unrelated adult who was well past her majority had a low prejudicial
value for influencing the jury regarding whether Johnson was guilty of
complicity to Bob’s murder. Additionally, the trial court admonished the jury
that such testimony was only to be used for the “limited purpose of explaining,
if it does, why [Day’s] statements to the police were different than her testimony
to this jury.”
Given the volume of evidence regarding Johnson’s motivation to have
Bob killed, and the statements witnesses testified he made regarding his plan
to have Bob killed and his acknowledgment of taking care of it, the jury was
presented with a strong basis to convict Johnson as complicit in Bob’s murder.
Day’s testimony about her intimate relationship with Johnson was presented
for the limited purpose of explaining her earlier motivations in protecting
Johnson. It could not have any meaningful impact in influencing the jury’s
38 guilty verdict on the complicity to murder charge. Under these circumstances,
Johnson cannot establish palpable error occurred regarding such testimony
about his sexual relationship with Day.
C. Was there a Confrontation Clause Violation Regarding the Introduction of Hearsay Statements from Johnson’s Deceased Son?—Unpreserved
Johnson argues that allowing Detective Bibb to testify about the
statements that his son, Jeremiah, made to Detective Bibb constituted
inadmissible hearsay, violated the Confrontation Clause, and “overwhelmingly”
prejudiced Johnson.
Detective Bibb testified that when he interviewed Jeremiah four years
after Bob’s death, Jeremiah could not confirm that Johnson learned of Bob’s
death from him. The impact of such testimony was lessened by the fact that
Detective Bibb admitted during cross-examination that Jeremiah explained he
believed his mother told Johnson about Bob’s death after seeing the news on
Facebook.
We agree that Jeremiah’s statements were hearsay which did not qualify
for any exception to make them admissible, and their use violated the
Confrontation Clause. However, even a Confrontation Clause error must be
palpable to require reversal where it is unpreserved. See Beard v.
Commonwealth, 581 S.W.3d 537, 541 (Ky. 2019); Peters v. Commonwealth, 345
S.W.3d 838, 843 (Ky. 2011). Given all the other testimony connecting Johnson
to the murder, we cannot say that some inconsistency about who may have
told Johnson about Bob’s death before Johnson was interviewed by the police
resulted in palpable error. 39 D. Did the Trial Court Abuse its Discretion when it Failed to Grant Johnson’s Motion for Mistrial After the Jury Heard Johnson Admitting He was a Convicted Felon?—Preserved
Johnson argues he should have been granted a mistrial rather than just
an admonishment when it came to the erroneous admission of a portion of his
recorded police interview in which he admitted he was a convicted felon.
Johnson emphasizes that the parties had agreed this portion of the interview
would not be played. The Commonwealth admits this was an error but claims
that playing this portion of Johnson’s interview was an accident and was
appropriately addressed through an admonishment.
Johnson argues that the trial court was incorrect in its reasoning that
the jury learning of a prior conviction was no more prejudicial than the activity
the jury had already heard about, because the Commonwealth’s witnesses to
that point “all had self-interested deals with the Commonwealth that could
reasonably call their credibility into serious question with the jury” and the
jury learning that he “did not just have a personal struggle with indulging in
drug usage but an actual conviction could not be cured by the court’s
admonition” as “the bell could not be un-rung.”
While it was undoubtedly an error for this portion of Johnson’s interview
to be played for the jury, as evidence of a prior conviction violated KRE 404(b)
as a prior bad act that was not properly admissible, that does not mean that
the only remedy was to declare a mistrial. Trial courts have broad discretion in
deciding whether an admonition or mistrial is warranted for such errors, and
40 we review such decisions for abuse of discretion. St. Clair v. Commonwealth,
455 S.W.3d 869, 892 (Ky. 2015).
A mistrial is an extreme remedy which “is reserved for unique
circumstances in which the prejudice is so great that a trial cannot continue
fairly for both parties.” Commonwealth v. Padgett, 563 S.W.3d 639, 646 (Ky.
2018). When an admonition is given, we presumed that the jury has followed it,
“curing any error that occurred.” Lewis v. Commonwealth, 642 S.W.3d 640,
645 (Ky. 2022). That presumption “is overcome only when there is an
overwhelming likelihood that the jury will be incapable of following the
admonition and the impermissible testimony would be devastating to the
appellant.” St. Clair, 455 S.W.3d at 892.
“Breaches of KRE 404(b)’s rule against the admission of prior bad acts as
character evidence are generally subject to admonitory cures.” Lewis, 642
S.W.3d at 643. This includes a disclosure that a non-testifying defendant is a
convicted felon. In Graves v. Commonwealth, 17 S.W.3d 858, 865 (Ky. 2000),
we generally observed that “[t]his type of evidentiary error [a witness stating
that the defendant is a convicted felon] is easily cured by an admonition to the
jury to disregard the testimony.”
In Lewis, the trial court read the defendant’s indictment to the jury that
indicated the defendant had a previous conviction for first-degree trafficking in
a controlled substance. The defendant promptly objected and requested a
mistrial. Instead, the trial court admonished the jury. We concluded that the
trial court reasonably acted within its discretion in admonishing the jury,
41 which is presumed to be curative, and the defendant failed to establish this
error was gravely prejudicial that it required a mistrial instead. 642 S.W.3d. at
643-45. Similarly, in Torrence v. Commonwealth, 269 S.W.3d 842, 844-45 (Ky.
2008), we concluded that the Commonwealth’s closing statement stating that
the defendant was a felon was cured by admonition and harmless given the
evidence against the defendant.
The disclosure of Johnson’s status as a convicted felon was unfortunate.
However, this error was cured by a proper admonition and was harmless given
the evidence presented against him. We are satisfied that Johnson’s prior
acknowledgment that he had a drug problem, and the extensive testimony
regarding his criminal activities related to a drug enterprise, did not make it
particularly prejudicial for the jury to learn that he had a prior conviction. We
are satisfied that the trial court’s admonition was sufficient to cure this error
and that a mistrial was not thereby warranted.
E. Does Cumulative Error Require Reversal?
Johnson argues that the errors he raises are not harmless and require
reversal cumulatively because there was no physical evidence linking him to
the murder of Bob, his rights under the Confrontation Clause were repeatedly
violated, the jury heard improper evidence of his bad acts, the jury was aware
of his status as a convicted felon, and he received the maximum sentence.
The cumulative error doctrine provides that “multiple errors, although
harmless individually, may be deemed reversible if their cumulative effect is to
render the trial fundamentally unfair.” Brown v. Commonwealth, 313 S.W.3d
42 577, 631 (Ky. 2010). However, errors are cumulative only when they border at
least on being prejudicial. Id. While a criminal defendant “is guaranteed a fair
trial[,]” such a defendant is not guaranteed “a perfect trial, free of any and all
errors.” McDonald v. Commonwealth, 554 S.W.2d 84, 86 (Ky. 1977). Although
errors did occur, whether considered individually or cumulatively, they did not
render his trial fundamentally unfair.
III. CONCLUSION
We affirm in part and reverse in part the judgment of the Logan Circuit
Court, and remand for further proceedings consistent with this opinion. The
trial court erred in allowing a key prosecution witness, Pam, to testify remotely
based on mere inconvenience in contravention of Johnson’s Confrontation
Clause rights pursuant to the Sixth Amendment and Section 11. This error was
not harmless beyond a reasonable doubt when it came to Johnson’s four
convictions for complicity to traffic a controlled substance. We otherwise affirm
Johnson’s convictions and sentences.
All sitting. All concur.
43 COUNSEL FOR APPELLANT:
Molly Mattingly Kayla D. Deatherage Assistant Public Advocates
COUNSEL FOR APPELLEE:
Russell Coleman Attorney General of Kentucky
Jenny L. Sanders Assistant Attorney General
Related
Cite This Page — Counsel Stack
Earl K. Johnson v. Commonwealth of Kentucky, Counsel Stack Legal Research, https://law.counselstack.com/opinion/earl-k-johnson-v-commonwealth-of-kentucky-ky-2025.