IMPORTANT NOTICE
NOT TO BE PUBLISHED OPINION
· THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."
PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR,USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY.COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, ·.
RENDERED AFTER JANUARY 1, 2003, MAY BE CITED ~OR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY· ADDRESS THE ISSUE ;
BEFORE THE COURT. OPINIONS CITED FOR CONS.IDERATION BY THE COURT .SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL·BE TENDERED ALO.NG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE .
ACTION.
....
RENDERED: SEPfEMBER 28, 2017 NOT TO BE PUBLISHED
201fr-SC-000119-MR
MICHAEL TAYLOR APPELLANT
ON APPEAL FROM ADAIR CIRCUIT COURT v. HONORABLE JUDY DENISE VANCE, JUDGE ·NO. 14-CR-00051 AND NO. 14-CR-00052
I
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF .THE COURT AFFIRMING
A circuit courtju:ry convicted Michael Taylor of two counts of first-degree Trafficking in a 1 Controlled Sub~tance and of being a first-degree Persistent
Felony Offender, recommending the maximum 5-years' imprisonment on each
I
trafficking conviction enhanced by PFO I status to 20 years' imprisonment on each count to be served consecutively. The trial court s.entenced Taylor to 20 . years' imprisonment on each count to be served concurrently and rendered a· judgment accordingly. Taylor appeals from that judgment as a .matter of right, raising six issues.I
1 Ky. Const. § 110(2)(b).
I. ANALYSIS.
A. Stan.dard of Review.
For preserved issues, determining the proper standard of review requires
a determination of the alleged trial court error.. "We review a circuit court's decision to .dismiss [o.r to. deny dismissal ofj an indictment for an abuse of discretion. "2 Evidentiary rulings are 8.1.so reviewed for abuse of discretion. 3 "The test for abuse of discr~tion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles. "4 When reviewing a challenge regarding the racial composition of a jury panel, this Court applies the Supreme Court's test in Driren v. Missouris, as stated by this Court in Mash v. Commonwealth6.
For unpreserved issues, thi.s Court will only overturn the trial court's ruling if "palpable error" exists in that ruling. 7 Palpable error requires a showing that the alleged error affected the "substantial rights" of a defendant, where relief may be granted "upon a determination that manifest injustice has resulted from the error."8 To find that "manifest injustice has resulted from the error," this Court must conclude that the error so seriously affected the '
2Commonwealth v. Grider, 390 S.W.3d 803, 817 (Ky. App. 2012) ·(citing Commonwealth v. Baker, 11 S.W.3d 585, 590 (Ky. App. 2000))..
3 McDaniel v. Commonwealth, 4iS S.W.3d 643, 655 (Ky. 2013); Partin v .. . Commonwealth, 918 S.W.2d 219, 222 (Ky. 1996). 4 Goodyear Tire & RUbber Co. v. Thompson, 11S.W.3d575, 581 (Ky. 2000). s 439 U.S. 357, 364 (1979) .. 6 376 S.W.3d 548, 5.52 (Ky. 2012). 7 Kentucky Rule of Criminal Procedure (RCr) 10.26. a Id.
2
.,
3
fairness, integrity, or public reputation of the proceeding as _to be "shocking or jurisprudentially intolerable. "9
-B. Alleged Dis.covery Violations.
Taylor argues that the trial court erred when it denied Taylor's multiple
motions to dismiss the indietment. We review a trial court's rulings on motions to dismiss an indictment for abuse of discretion. IO Taylor made these motions because of the Commonwealth's alleged failure to produce discovery· timely. According t~ the record, this issue centers on the production of a police report relating to a charge brought by the Commonwealth against the confidential
informant .
used by the Commonwealth in two controlled buys that form the .
basis for the charges against Taylor in the case at ha:nd.
Part of Taylor's defense included. impeaching the credibilify of this confidential i:r,i.formant. Taylor began making discovery motions for the production of exculpatory information on January 5, 2015. On November 17, 2015, Taylor argued that by checking the court records, he became aware of a . crimina:1 charge brought against the confidential informant on September 3, 2015, the existence of which the Commonwealth had failed to inform Taylor. Additionally, Taylor averred that the grand jury-- dismissed the criminal charge against the informant, and Taylor argued that the dismissal could have ~ occurred because of the Commonwealth's favorable treatment of the confidential informant to reward her service to the Commonwealth. Taylor
9 Martin v. Commonwealth, 207 S.W.3d 1, 4 (Ky. 2006). 10 Grider, 39<;> S.W.3d at 817.
4
requested the Commonwealth produce information· regarding this charge against the informant and how it came to be dismissed.
On December 30, 2015, Taylor filed a prose motion to dismiss the indictment because of the Commonwealth's failure to produce the requested informa~ion concerning the informant: He argu.ed that he had not received the ·requested information with trial beginning on January 5, 2016. On December · 31, 2015, the Commonwealth produced over 192 pages of documents of potentially exculpatory material to Taylor, the Commonwealth reporting that it received those.docum~nts on December 23, 2015. Taylor's counsel, who was out-of-town for the New Year's holiday, did not actually receive the 192-page production until January 4, 2016, one day beforethe trial was set to begin.
On January 5, 2016, the day trial began, Taylor renewed his motion to . . .
.dismiss the indictment for discovery violations. In considering options in light· .of the motion, the trial court identified two potential remedies other than . dismissal-to postpone the trial or to exclude part of the Commonwealth's
evidence. Taylor maintained that .
dismissal of the indictment was the only .
acceptable remedy because a continuance to give Taylor an opportunity to review the 192 pages of documents would violate his right to a speedy trial, and · he did not want any material evidence excluded. Because Taylor rejected all potential remedies short of outright dismissal as suggested by the. trial court and because the trial court found that any prejudice suffered because of the Commonwealth's delayed production did ·not warrant dismissal, the trial court
5
denied Taylor's motion to dismiss for discovery violations, and. Taylor's c~se proceeded to trial. Accordingly, this issue is preserved for appellate review.
As a preliminary matter, rio Brady1 1 violation occurred in this case. The Commonwealth did not fail to turn over potentially exculpatory evidence; rather, Taylor argues that the Commonwealth did not timely turn over this potential evidence.
Taylor persistently argues that the Commonwealth's dilatory production violates RCr 7.24, the rule goverh~ng "Discovery and Inspectjon." No subsection of this rule explicitly states that the prosecution must "timely" produce exculpatory material, but RCr 7.24(4) suggests an obligation of the prosecution to do so.12 Additionally, Roberts v. Commonwealth imposes atimelir;iess obligation.J3 So the Commonwealth does have an obligation to timely turn over potentially exculpatory material. But RCr 7 .24 clearly grants discretion to the . trial court to fashion appropriate relief for dilatory responses, as~uming the defense makes a sufficient showing of a .failure to tum over potentially exc-y.lpatory evidence. and if relief is warranted.14 To warrant a disI!lissal of an indictment, "Generally, a defendant must de~onstrate a flagrant abuse of the grand jury process that resulted .in both
11 Brady v. Maryland, 373 U.S ..83 (1963) (hqlding denial of due process for· prosecutor's withholding of evidence). 12RCr 7.24(4) ("It is not a defense against untimely disclosure of evidence .... ") (emphasis ~dded). 13896 S.W.2d 4, 6-7 (Ky. 19.95) ("[I]t is imperative that the Commonwealth provide full and timely discovery pursuant to RCr 7.24 .... "). 14 RCr 7.24(4)-(9), (U).
6
actual prejudice and deprived the grand jury ofautonomous and unbiased judgment."15 "There are certain circumsta~ces where trial judges are permitted to dismiss criminal indictments .... These include ... prosecutorial misconduct that prejudices the defendant .... "16 Even assuming Taylor made a sufficient showing to warrant some sort of relief for late production of exculpatory materials, we conclude that.the trial
court's ruling here did not amount to an abuse of di.scretion. Recall that Taylor . .
·refused _to entertain ahy other form of relief besides a dismissal of his . -
indictment. The trial court discussed the possibility of excluding certain material evidence or granting a continuance 1n lieu of the extreme remedy of a dismissal of the indictment. The. trial court reasonably determined that any ,prejudice Taylor potentially suffered did not warrant a dismissal-Taylor still had the opportunity to cross examine, and did cross examine at trial, the confidential infon:i:ia:p.t about her criminal history. So we find no error in the trial court's reasonable denial of Taylor's motion to dismiss the indictment for discovery violation~ and thus affirm the trial court's ruling on this issue.
C. Alleged Improper Character Evidence.
Taylor argues "that the trial court abused its discretion by overruling his
objection to the alleged improper bolstering ·of the confidential inform_ant's credibility before ·an attack on that credibilicy occurred at trial ·and that this
.·ls Commonwealth v. Hill, 228 S:W.3d 15, 17 (Ky. App. 2007) (citing Bank _v. Nova Scotia v. United States, 487 U.S. 250, 25.7-60 (1988)). · 16 Commonwealth ·v. Bi.shop, 245 S.W.3d 733, 735 (Ky. 2008).
7
abuse of discretion amounted to reversible error.17 During the Commonwealth's direct examination of one of the detectives involved in the controlled .buys, the Commonwealth asked why the detective did not search the motel room where the buys were going to occur bef~re Taylor arrived at the Scene. As·part of his answer, the detective stated that he, "felt like [the confidential informant] was trustworthy and credible an~ that [thisinformant] had made.many buys in the ·past." Taylor objected to this testimony, and the trial court overruled the objection. But Taylor did not move to strike the testimony. Though questionably preserved, we will treat this issue as preserved for purposes of our review.
On cross-examination of the detective, Taylor· attacked the honesty of the confidential informant and suggested improper motives for the confidential .informap.t's actions. During the Commonwealth's re-direct of the detective, the Commonwealth asked whether the detective fo.und the confidential informant credible, reliable, and trustworthy,_ to which the detective answered in. the affirmative. This line of questioning does not appear to have drawn an objection from Taylor.
Both parties agree that,. as a· matter of law, the prosecution ·cannot bolst~r·a witness's credibility before that credibility is attacked. 18 Both parties also agree that it is improper for one witness to testify that ano~her witness is ·
There is question as to the preservation of this issue. But regardless of the standard 17 of review we use, the conclusion is the same-:-:-no reyersible error is present. · 1s Kentucky Rule of Evidence (KRE) 608.
8
telling the truth; in other words, it is improper· for one witness to vouch for the credibility of another witness. 19 Taylor argues that the trial court's de:O:ial of Taylor's objection to the detective's statements during direct examination regarding the confidential informant's trustworthiness and credibility
amounted to an abuse of discretion arid reversible error.
Even where testimony is' introduced in error, "... this Court may still
determine that the error is harmless pursuant to RCr 9.24 and the standards
set forth in· Winstead v. Commonwealth2D."21 "A non-constitutional evidentia:ry ' .
error .. .is harmless if the reviewing court can say with fair assurance that the
judgment was not substantially swayed by the error."22 Errors have also been found to be harmless in light of other strong evidence, as there is no possibility · the error substantially swayed the jury.23 "When rehabilitation evidence is
. a~mitted befdre- credibility is attacked, any error is harmle~s as long as ' .
credibility is, in fact, later impeached. "2 4 Regarding this exact type of error, the court in Fairrow v. Commonwealth25 stated, "Nor are we satisfied that the admission ·or improper evidence of the character of a mere witness affected
i9 Stringer v. Commonwealth, 956 S.W.2d 883, 888 (Ky .. 1997); Newkirk v.
Commonwealth, 937 S.W.2d 690; 696 (Ky. 1996); Hall v. Commonwealth, 862 S.W.2d 321 (Ky. 1993). .
20 283 S.W.3d 678 (Ky. 2009).
21 Harris v. Commonwealth, 384 S.W.3d 117, 122 (Ky. 2012).
22 Id. at 125 (dtin·g Winstead v. Commonwealth, 283 S.W.3d 678, 688-89 (Ky. 2009)).
23 Wiley v. Commonwealth, 348 S.W.3d 570, 579 (Ky. 2010); Hunt v. Commonwealth, 304 S.W.3d 15, 35 (Ky. 2009); Winstead, 283 S.W.3d at 689. .
24 Reed v. Commonwealth, 738 S.W.2d 818, 821 (Ky. 1987) (citing Summitt v.
Commonwealth, 550 S.W.2d 548, 550 (Ky. 1977)).
2s 175 S.W.Jd 601 (Ky. 2005). .
9
Appellant's substantial rights and constituted manifest injustice so as to require reversal as.palpable error."26 Th~ cases most analo.gous to the case at.hand are Commonwealth v.
Wright27 and Fairrow v. Commonwealth2B. In Wright, an officer made numerous statements during his testimony ·as to the credibility of a confidential informant.29 The court found no error in the admission of the officer's . testimony.30 In Fairrow, the Commonwealth actually elicited testimony from an·
officer as to the credibility of a confidential informant, \ .
directly asking the officer
to testify on this matter.3 1 Holding that this did not amount to reversible error,. the Court stated, "Nor are we satisfied t4at the admission of improper evidence of the character of a mere witness affected Appellant's (defendant's) substantial rights and constituted manifest injustice so as to require reversal as palpable error. "32 Fairrow and. Wright support our conclusion that, while allowing the testimony may _have amounted to an error, it did not.amount to reversible error because of this case's analogous factual circumstances to Fairrow and Wright. Additionally, the defendant did attack the confidential informant's credibility on cross-examination, the exact scenario Reed held to be harmless. We affirm the triai court in all respects on this issue.
26 Id. at 606. 21 467 S.W.3d 238, 247-48 (Ky. 2015). 2s 175 S.W.3d 601, 605-07 (Ky. 2005). 29 Wright, 467 S.W.3d a~ 247-48. 30 Id . . 31 Fairrow, 175 S.W.3d at 605. 32 Id. at 607.
10
D. Alleged KRS 532.055 Vioiation.
· Taylor alleges palpable error occurred when the Common~ealth's witness
· mentioned an amended charge in violation of KRS 532.055(2)(a)(2) and Blane v . .Commonwealth3 3. The circuit clerk testified ·about Taylor's prior convictions. During his testimony, the clerk testified that one of Taylor's convi~tions
included. facilitation to first-degree assault, which was amended from first- degree assault."This issue is u:dpreserved, sq we review this issue for palpable error.
KRS 532.055(2)(a)(2) states, "Evidence may be offered by the Commonwealth relevant .to sentencing including: The nature of prior offenses
for which he was convicted."3 4 "KRS 532;055(2)(a) permits the introduction of . .
prior convictions of the defendant, not prior charges subsequently
dismissed. "35 "For purposes of the penalty phase, criminal charges that have I .
subsequently been amended are th.e functional equivalent of dismissed charges, which we have established to be impermissible as. evidence iri a · sentencing hearing. "36 While the clerk's testimony regarding amended offenses was improper, it did not rise to the level of palpable error. A simple inadvertent mention of an
33 364 S.W.3d 140, 152-53 (Ky. 2012). 34 KRS 532.055(2)(a)(2). 3s Robinson v. Commonwealth, 926 S.W.2d 853, 854 (Ky. 1996). 36 Blane v. Commonwealth, 364 S.W.3d 140, 152-53 (Ky. 2012) (citing Chavies v. Commonwealth, 354 S.W.3d 103, 115 (Ky. 2011) (abrogated on other groun,ds by Roe v. Commonwealth, 493 S.W,3d 814 (Ky. 2015)).
11
indictment with amended charges does not amount. to palpable error.37 If "the
amended offenses were never pointed out to the jury by the t~ial judge, the . .
Commonwealth, or the Commonwealth's witne~s ... we cannot find that the
erroneous introduction of prior amended ... charges seriously affected the fairness of the proceeding. "38 This Court found palpable error in Blane when "the Commonwealth not only elicited the testimony from the deputy circuit cl~rk regarding the ·original charges, but it also emphasized t~e prior amended charges in its closing argument to the jury."39 In a situation where a defendant
receives a "jury's recommendation of the maximum sentence on each of the . .
underlying charges ... prejudi~e. can be presumed," but "the facts prese~ted in [the] case" must still be taken into account.40
While the error here was not as innocent as the error in Chavies, and even though prejudice can be presumed in this case, the error in this case does not approach the standard of palpable error set forth in Blane. Here, the clerk simply mistakenly testified about Taylor's amended charge. Although prejudice can be presumed, the Commonwealth did not elicit that testimony, nor did it emphasize Taylor's amended charge to the jury at any point, as the · Commonwealth did in Blane. So even though we are to presume prejudice, because the factual circumstanc~s of this case significantly differ from Blane, .
37 Chavies, 354 S.W.3d at.115-16. ,38Jd. 39 Blane~ 364 S.W.3d. at 153. 40 Id. at 152-53·.
12
looking at the totality of the circumstances,· no palpable error occurred, and we . affirm the trial court on this issue. ·
E. Alleged Improper Cross Exam~nation Questioning.
Taylor alleges palpable error when the Commonwealth inquired as to the
identification of the offense for which Taylor was on parole. Taylor called his parole officer in as a witness. T~:i.ylor inquired as· to .the nature and extent of the
parole officer's supervision over Taylor, in addition to eliciting favorable ..
character testimony. Before cross examination, the Qommonwealth requested a
bench 'conference. The Commonwealth told the trial court that it believed Taylor .opened the door for inquiry to questioning about the specific crime of which Taylor was convicted that resulted in his being on parole. Taylor objected . only to any inquiry "regarding how much time Taylor had on the shelf," not to an inquiry into Taylor's ~pecific charges. The Commonwealth then asked Taylor if it could inquire as to what Taylor was on parole for, and it appears from the
record that Taylor nodded in agreement. Therefore, the trial court allowed the . .
Commonwealth to ask the parole officer.for what ·offenses the defendant was on
parole. This issue is thus unpresei-Ved.
This Court deems this issue to have been waived by Taylor. This Court in West v. Commonwealth acknowledged the waiver rule stated in Salisbury v. Commonwealth:
When a defendant's attorney is aware of an issue and elects to raise no objection, the attorney's failure to object may constitute a waiver of an error having constitutional implications. The defendant's counsel cann?t.deliberatdy forego making an objection
13
to a curable trial defect when he is aware of the basis for an objection."41
After "[o]bserving that the record failed to reveal the reason for counsel's failure· to object, whether tactical, deliberate, or inadvertent ... the Court held that palpable error had not been "demonstrated. "42 In this case, waiver of this issue is clear. Taylor did not make any objection to the Commonwealth's· inquiry into the ·nature of the offense for which Taylor was on parole; in fact, the record suggests that Taylor agreed that this question could be asked. ~ven if Taylor did not actually agree that this que~tion could be asked, both parti~s conferred with the trial court during a · bench conference to discuss the. potential issue, giving Taylor ample knowledge of the potential issue and time to make an objec~on. We conclude this issue was waived and that no palpable errqr exists; thus we affirm _the trial court.
F. Alleged ·Improper Sentencing.
Taylor alleges the trial court abused its discretion when it denied Taylor's
motions .attacking the use of his 2007 conviction to obtain the first-degree felony offender status. Taylor argues here a violation of KRS 532.080(10).
KRS 532.080(10)(a) prohibits the application of the persistent felony offender statute "to a person convicted of a criminal offense if t}le penalty for that offeri.se was increased from a misdemeanor to a felony, or from a lower felony classification to a higher felony classification because the conviction
41West v. Commonwealth, 780 S.W.2d 600, ·602 (Ky. 1989) (quoting Salisbury v. Commonwealth, 556 S.W.2d 922, 927 (Ky. App. 1977)). 42 fd. at 602-03. · constituted a second or subsequent violation of that offense." KRS 532.080(10)(b)(2) states that (IO)(a) "shall not prohibit the application of this section to a person convicted of...[a]ny other felony offense if the penalty was not enhanced to a higher level because the Commonwealth elected to prosecute the person as a first-time violator of that offense."
Although the Commonwealth indicted· 'I'aylor for a second-offense trafficking in a controlled substance, first-degree, which would have violated·· KRS 532.0BO(IO)(a), the Commonwealth amended this indietment before trial· and elected to try Taylor as a first-time violator of the offense, invoking KRS 532.080(10)(b)(2)'s statutory protection. The jury ultimately found Taylor guilty under instructions for a first-time offense. Accortjingly, no violation of KRS 532.0BO(IO)(a) occurred. · .
Taylor's claim that the Commonwealth did not meet its burden of proof has no merit. The record shows ample testimony supporting the jury's verdict of conviction. So we affirm the ruling of the trial court on this issue.
G. Fair Cross-Section Claim.
Taylor essentially challenges the rac!al composition of the jury that tried
him, alleging that the African A.:rnerican population was underrepresented. Over the course of the proceedings, he requested a fair ·cross-section of the community in several motions, all of which the trial. court denied. Taylor, who is African American, claimed that out of 75 persons who reported in the·venire, only one was African American and one was Mexican American. in denying Tayior's.motions, the trial court responded that the venire'was drawn rando.mly
14
(
15
and that she could not control who was in the venire. We will treat this issue as preserved for our review .
. This Court reviews fair ~ross-section claims according to the defendant's burden to show the following:
To succeed on a· challenge to the racial composition.of the jury panel, a defendant must show: (1) that the group alleged to be excluded is a "distinctive" group in the community' (2) that the representation of ~his group in v~nires from which juries are . selected is not fair and reasonable in relation to the number ·of such persons in the community, and (3) that this undeJ"representation is due to systematic exclusion of the group in the jury-selection process. 43 ·
Taylor satisfies the firs~ prong.of this test-there is no question that the group · alleged to be excluded, Afrjcan Americans, is a distinctive group in the community. According to Taylor, African Americans only comprise 3% of the population of Adair County. But this very~fact supports the Commonwealth's point that Taylor's.argument fails under the second prong of the Mash test.
· Taylor himself states, "If 75 persons were in ajuiy panel, at least 2.25 jurors should be African American." The, record shows the impaneling of one
African .
American. Statistically, Taylor is .correct. But a venire consisting of one
less Africaz:i Am~rican than statistically indicated is not unfair, nor unreasonable. · Taylor argues· the impossibility ofproving the third pro"ng ~ecause the Commonwealth of Kentucky does not collect the information TaylOr would need to meet his burden of-proving the third prong. But Taylor has not shown.
.43 Mash, 376 S.W.3d at 552 (citing Duren, 439 U.S. at 364).
16
. exhaustfon in seeking out other ways of proving the third prong. And because Taylor fails the second prong; we do not reach the third one.
Because Taylor fails the second prong of the Mash test, we affirm the
trial court's denial of Taylor's challenge to the racial composition of the jury.
~ . \ .
. II. CONCLUSION
Finding no merit to any of the issues raised on this appeal, we affirm the judgment.
·All sitting. All concur.
COUNSEL FOR APPELLANT:
Kathleen Kallaher Schmidt Assistant Public Advocate
COUNSEL FOR APPELLEE:
Andy Beshear Attorney General of Kentucky
Gregory C. Fllchs Assistant Attorney General