IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. RENDERED : SEPTEMBER 18, 2008 NOT TO BE PUBLISHED
upxoum (9ourf of IfI i 2007-SC-000147-MR
Z, RUSSELL LEE JONES
ON APPEAL FROM HARLAN CIRCUIT COURT V. HONORABLE RON JOHNSON, JUDGE NO. 06-CR-00094
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Russell Lee Jones' appeals as a matter of right from a November 20, 2006
Judgment of the Harlan Circuit Court convicting him of trafficking in a controlled
substance (1 St Degree) and being a persistent felony offender (PFO) (2 nd Degree). The
Commonwealth alleged that on January 11, 2006, in Harlan County, Kentucky, Jones
sold two halves of a 40 milligram Oxycodone tablet to a confidential informant during a
controlled drug buy. Following his trial, the jury returned a guilty verdict as to both
charges and the trial court subsequently sentenced Jones to a total of twenty years
imprisonment . On appeal, Jones contends that the trial court erred by (1) failing to
grant his motion for a new trial after discovering that he had not been arraigned as to
'Although both Jones and the Commonwealth have styled this appeal as being brought by "Russel Lee Jones," the appellant's name as reflected in the trial record and throughout the appellant's brief is spelled "Russell ." Thus, in order to be consistent, we are using the same spelling as seen in the trial record . either charge ; (2) denying his request for a new lawyer or for the opportunity to hire a
new lawyer; (3) admitting the confidential informant's pretrial identification of Jones from
an unduly suggestive photo array; (4) instructing the jury on theories that were not
supported by evidence and that violated his right to a unanimous verdict; and (5)
allowing the Commonwealth to impeach one of his witnesses on a collateral matter.
Although the trial court never formally arraigned Jones on these charges and
Jones informed the trial court of this fact prior to trial, because Jones was fully prepared
to defend against the charges, he was not prejudiced by his lack of arraignment .
Consequently, a new trial is not warranted on that basis. Jones's other claims of error
are either not preserved for appellate review or do not constitute grounds for a reversal .
Thus, we affirm Jones's November 20, 2006 Judgment and Sentence .
RELEVANT FACTS
Prior to the confidential informant's interaction with Russell Jones, she had been
participating in controlled drug buys supervised by Detective Keith Saylor of the
Kentucky State Police for approximately six months. On the morning of January 11,
2006, the informant called Clyde Daniels in order to purchase drugs. The informant
then met with Detective Saylor, at which point he searched her person and her vehicle,
equipped her with a recording device, and gave her $60 to purchase the drugs. The
informant testified at trial that after meeting with Detective Saylor, she began driving
toward Cawood, Kentucky, to meet Daniels . The two eventually met at a convenience
store in Cawood. According to the confidential informant's testimony, Daniels told her
to park her car, get into his truck, and then he would find a pill for her. As they both sat
in Daniels's truck, however, Russell Jones approached the vehicle and asked them what they needed. Daniels replied that the informant needed "a 40 ." Jones then got
into Daniels's truck and the three drove away from the store in order to complete the
sale. Once they reached an underpass away from town, Jones sold the informant two
halves of a 40 milligram Oxycodone tablet for $60 . Following the sale, the informant
and Daniels took Jones back to the convenience store. Daniels testified at trial that
after dropping Jones off at the store, he and the informant drove to a secluded area
where they both ingested Oxycodone . However, the informant testified that it was only
Daniels who finished "shooting up" before he returned her to her car, which was parked
at the convenience store . Approximately an hour after she had left Detective Saylor,
the confidential informant returned to their meeting point, produced two halves of
Oxycodone, and told Saylor that Russell Jones had sold her the drugs. She also gave
Detective Saylor a description of Jones, stating that he was older, had long gray hair,
and had a cross-like tattoo on the left side of his face .
Three months later, on April 4, 2006, Detective Saylor asked the confidential
informant to come to the Kentucky State Police (KSP) post in order to look at a photo
array. Detective Saylor used the informant's previous descriptions of people from
whom she bought drugs, partial names the informant had given him, and his own
knowledge of people who he believed were involved in dealing drugs in Harlan County
to compile a stack of over twenty photographs of potential suspects . When the
informant arrived at the KSP post, Saylor presented the confidential informant with the
photo array. The informant recognized approximately seventeen of the individuals in
the photographs as drug dealers . Specifically, the informant identified Jones as being
the man from whom she had bought Oxycodone on January 11, 2006, and recalled that Clyde Daniels was also involved in the drug transaction that day. Following an
indictment by the Harlan County Grand Jury on May 15, 2006, an arrest warrant was
issued for Jones on May 16, 2006. The next day, Jones was arrested in Cawood,
Kentucky.
On the morning of June 7, 2006, Jones's jury trial began. Jones's defense at
trial was that he was not the same "Russell" who sold the informant Oxycodone . Jones
called as a witness on his behalf Clyde Daniels, who testified in court that he had met
Jones for the first time when they were in jail together awaiting trial and that a different
man had sold the informant drugs on January 11, 2006. Despite this defense, on the
afternoon of June 7, 2006, the jury found Jones guilty of both the drug trafficking charge
and the PFO charge . Later that same day, the jury recommended that Jones be
sentenced to ten years for the trafficking charge enhanced to twenty years by virtue of
Jones's PFO status . On November 20, 2006, the Harlan Circuit Court entered
Judgment and Sentence, imposing the twenty-year sentence as recommended by the
jury. This appeal followed .
ANALYSIS
I . Because Jones Did Not Suffer Prejudice From His Lack of Arraignment, the Trial Court's Failure to Formally Arraign Him Does Not Constitute Grounds for Vacating Jones's Convictions .
On June 7, 2006, after both the Commonwealth and the defense announced that
they were ready to proceed on the trafficking and the PFO charges, Jones and his
counsel began discussing Jones's belief that he had never been arraigned on the two
charges for which he was about to be tried. Ultimately, Jones asked the trial judge if he
could speak . The trial judge responded that Jones should speak through his attorney, at which point Jones replied, "she won't speak for me ." Jones's trial counsel then
stated that her client wanted her to make a motion to dismiss because he claimed he
had never been arraigned on the charges . Jones's counsel also told the court that she
had informed Jones that because Kentucky was a notice state and he had been served
with an indictment and was aware of the charges, the failure to arraign was not
prejudicial and she could not in good faith make a motion to dismiss on that ground .
Jones then requested new counsel or a continuance for the opportunity to hire new
counsel .
At that point, after reviewing Jones's case file, the trial judge noted that pursuant
to the trial court's June 2, 2006 Arraignment Order, Jones had been arraigned on May
26, 2006, and had entered a plea of not guilty to the trafficking and PFO charges. After
recognizing that Jones had also been granted a motion for a speedy trial in this case,
the trial court stated that it was not willing to grant Jones's request for a continuance .
Despite the trial court's record, Jones continued to assert that he had not been
arraigned and that his motion for a speedy trial was filed in regards to a separate
burglary charge (06-CR-00040) and not in the case of his trafficking and PFO charges
(06-CR-00094) . Believing that the record accurately reflected what had occurred on
May 26, 2006, the trial court denied Jones's motion for new counsel and his motion to
dismiss, and proceeded with trial under the belief that Jones had previously been
arraigned on both charges and that Jones had requested a speedy disposition of both
charges .
Following his guilty verdict, Jones filed a pro se motion to dismiss and to set
aside the verdict, alleging that he was never arraigned on the trafficking or the PFO charges. On June 22, 2006, the trial court denied this motion. On September 26,
2006, after retaining new counsel, Jones filed another motion to set aside his conviction
and set the case for a new trial. In this motion, Jones explained that although he had
appeared before the court on May 26, 2006, the trial court, rather than performing his
scheduled arraignment on the trafficking and PFO charges, addressed the two pro se
motions he presented before the court on that day. One of those pro se motions was a motion for a speedy trial, which Jones again contended was filed in relation to a prior
burglary charge (06-CR-00040) and not to the trafficking or PFO charges (06-CR-
00094) .
The trial court held an evidentiary hearing on November 16, 2006 on Jones's
motion to set aside his conviction . Prior to this hearing, the trial court reviewed the
videotape from May 26, 2006, 2 and learned that it had, in fact, failed to arraign Jones
on the trafficking and PFO charges. In explaining to the parties his review of the record,
the trial judge noted that in addition to Jones's two pro se motions that were presented
to the court on May 26, 2006, Jones's original trial counsel had submitted a motion to
withdraw, and Jones's subsequently appointed counsel was in-and-out of the courtroom
because of her prior obligations in district court . Regarding Jones's pro se motion for a
speedy trial, the court stated that it had understood that motion to apply to both of
Jones's cases, 06-CR-00040 (the burglary charge) and 06-CR-00094 (the trafficking
charge and PFO charge), and that it set both cases for trial at the accelerated date of
2 Although Jones was granted leave to supplement the record with the court's videotape of May 26, 2006, the Harlan Circuit Court was unable to locate this tape. Thus, the videotape of Jones's appearance before the Harlan Circuit Court on May 26, 2006, is not part of the record in this appeal. June 7, 2006 because of that motion . The trial court reasoned that due to the
numerous motions and the confusing circumstances present on May 26, 2006, it failed
to arraign Jones on the trafficking and PFO charges . Despite this failure to arraign, at
the conclusion of the November 16 hearing, the trial court ruled that since Jones had
notice of both charges and his counsel was prepared to defend against both charges on
June 7, Jones was not prejudiced by the lack of arraignment. Thus, the trial court
denied Jones's motion to set aside his conviction .
Jones now argues on appeal that because he did not waive his right to
arraignment, but rather raised the issue before the court prior to trial, the trial court's
failure to arraign him on the current charges entitles him to a new trial . Despite Jones's
timely objection to his lack of arraignment, the fact remains that Jones was not
prejudiced by the trial court's failure . Thus, because Jones's lack of arraignment did
not affect his awareness of the charges or his readiness to defend against them, he is
not entitled to a new trial.
A trial court's failure to formally arraign a defendant was recently addressed in
Hutson v. Commonwealth, 171 S .W.3d 743 (Ky. App. 2005). In that case, Hutson was
found guilty of first-degree sodomy after properly being arraigned on that charge . Id . at
744. However, when the court proceeded to the penalty phase of Hutson's trial, Hutson
and his counsel learned for the first time that Hutson was also being charged as a
second-degree persistent felony offender (PFO) . Id . At that time, Hutson's counsel
objected to going forward and notified the court that Hutson had never been arraigned
on the PFO charge . Id. The trial court overruled Hutson's objection and went forward
with the penalty phase . On appeal, the Court of Appeals cited to several other jurisdictions in holding that "an arraignment and the taking of a plea are essential
requirements of a valid conviction, except where defendant waives these requirements
or refuses to enter a plea." Id. The court ultimately found that since Hutson voiced a
timely objection to his lack of arraignment, he had not waived his right to arraignment
and was entitled to a new trial. Id. at 745 . Although the court never discussed the need
for a defendant to show how he was prejudiced by a lack of arraignment, the fact is that
Hutson was certainly prejudiced by the trial court's failure in his case: Hutson was
neither aware of the PFO charge nor prepared to defend against it. Thus, even though
the Court of Appeals in Hutson . supra , did not specifically require defendants alleging a
lack of arraignment to also show prejudice, the fact remains that Hutson's lack of notice
and inability to defend against the charges were an implicit basis for the ruling .
In Terry v. Commonwealth , 253 S.W .3d 466 (Ky. 2008), this Court applied the
rule set forth in Hutson and held that because Terry had never been formally arraigned
on his criminal mischief charges and because he had informed the trial court of this fact
prior to trial, his criminal mischief charges should be vacated. Although this Court did
not discuss a specific prejudice requirement, the facts indicate that Terry was unaware
of the criminal mischief charges, which had been added to a superseding indictment
just weeks before his trial . Id . a t 469. Thus, as in Hutson , supra , the facts in Terry
demonstrate that typically a reversal is granted due to a lack of arraignment where the
defendant has been prejudiced by the failure to arraign .
Other jurisdictions confronting this issue also require defendants alleging a lack
AAthhough Terry does not specifically discuss prejudice as it relates to defendants alleging a lack of arraignment, it does hold that defendants alleging that they were not rearraigned on a superseding indictment must show prejudice before being entitled to a reversal . 253 S .W.3d at 476-477 . 8 of arraignment to show prejudice before being entitled to a new trial. The United States
Supreme Court has held that a formal arraignment is not necessary "so long as it
appears that the accused has had sufficient notice of the accusation and an adequate
opportunity to defend himself in the prosecution ." Garland v. Washington , 232 U .S .
642, 645, 34 S. Ct. 456, 457, 58 L . Ed. 772 (1914) . In addition, numerous federal
circuit courts and state courts have agreed that unless a defendant can show that he
was prejudiced by a lack of arraignment or that it affected his substantial rights, a failure
to arraign does not constitute grounds for a reversal . U.S. v. Lalonde, 509 F .3d 750,
758 (6th Cir. 2007) (holding that even if Lalonde had properly preserved his lack of
arraignment for appellate review, the failure to arraign does not justify reversal because
Lalonde's substantial rights were not affected); U .S. v. Mancias , 350 F.3d 800 (8 th Cir.
2003) ; U .S. v. Coffman, 567 F .2d 960 (10th Cir. 1977); U.S . v. Rogers , 469 F .2d 1317
(5th Cir. 1972); U .S. v. Clark, 407 F .2d 1336 (4th Cir. 1969) ; Seaton v. State, 478 N .E.2d
51, 54 (Ind . 1985); State v. Cadorette, 175 Vt. 268, 271-272, 826 A.2d 101 (2003);
State v. Leenhouts , 185 P .3d 132, 134 (Ariz. 2008) ; State v. O.P ., 13 P.3d 1111, 1112-
1113 (Wash. Ct . App. 2000).
In agreeing with these courts, we clarify the holdings in Hutson , supra, and Terry,
supra, and specifically conclude that a defendant seeking relief due to a lack of
arraignment must show that such failure caused him prejudice . Prejudice exists if the
failure to arraign prevented the defendant from having proper notice of the charges and
an adequate opportunity to defend against them. In this case, despite Jones's lack of
arraignment, he had notice of the charges being brought against him and was fully
prepared to defend against them the morning of trial. Jones's counsel announced ready to proceed before the trial began, thoroughly cross-examined the
Commonwealth's witnesses, subpoenaed and called witnesses on behalf of Jones, and
made appropriate opening and closing arguments . Because Jones was not prejudiced
by the trial court's failure to arraign, he is not entitled to a new trial .
11. The Trial Court Did Not Err When It Denied Jones's Request for A New Lawyer.
Jones also argues that the trial court erred when it did not grant his request for a
new lawyer. Jones contends that because his trial counsel refused to make a motion to
dismiss on the ground that he had never been arraigned, she violated her duty of loyalty
and duty to avoid conflicts of interests as required by Strickland v. Washington, 466
U .S . 668, 688, 104 S. Ct. 2052, 2065, 80 L. Ed . 2d 674 (1984). We disagree . This
Court has held that without "adequate reasons or a clear abuse by counsel," a
defendant is not entitled to the appointment of new counsel . Fultz v. Commonwealth,
398 S .W.2d 881, 882 (Ky. 1966). Adequate reasons include a
(1) complete breakdown of communications between counsel and defendant, (2) conflict of interest, and (3) legitimate interests of the defendant [that] are being prejudiced. Baker v. Commonwealth, 574 S .W .2d 325, 327 (Ky. App. 1978) .
First and foremost, the record indicates that during their discussion prior to trial,
Jones's counsel informed Jones that she could not in good faith make a motion to
dismiss because Jones had prior notice of the charges being brought against him.
Despite also notifying the court that she could not make this motion in good faith,
Jones's counsel nonetheless then explained to the trial court Jones's contention that he
had never been arraigned on the current charges. Even though the trial court
erroneously found that Jones had been arraigned, his counsel adequately represented
Jones's interests and raised his motion to dismiss despite her own belief that it was
10 without merit . This conduct by Jones's counsel does not amount to a clear abuse and
the facts surrounding her representation of Jones do not support any other adequate
reason for why she should have been dismissed . Thus, the trial court did not err by
denying Jones's motion for new counsel .
Ill. The Trial Court Acted Within Its Discretion in Determining that the Photo Array Was Not Unduly Suggestive And Did Not Err By Admitting the Confidential Informant's Pretrial Identification.
Prior to trial, the confidential informant identified Jones's picture from a photo
array presented to her by Detective Saylor. In addition to recognizing nearly seventeen
individuals as people from whom she had bought drugs, the confidential informant
identified Jones specifically as the man from whom she purchased Oxycodone on
January 11, 2006. In a pretrial motion, Jones objected to the admission of the
confidential informant's out-of-court identification, arguing that the photo array was
clearly suggestive . The trial court held a suppression hearing on the morning of trial .
After considering the testimony of KSP Trooper Brian Green and Detective Saylor, the
court determined that the identification procedure was not unduly suggestive and
denied Jones's suppression motion. Jones argues on appeal not only that the trial
court erred by failing to suppress the pretrial identification, but also, that the trial court
improperly forced the defendant to bear the burden of proof during the suppression
hearing and that the trial court erred by not making the requisite finding of facts .
Although the trial court did not err with respect to its ultimate finding of admissibility of
the pretrial identification, we agree with Jones that the trial court did not follow the
proper procedure in reaching that conclusion .
Prior to the presentation of evidence in the suppression hearing, the trial judge inquired of the parties who had the burden of proof . After both attorneys paused and
glanced at each other, Jones's attorney stated that she did . Jones then proceeded to
call both Brian Green and Detective Saylor and question them about the photo array
and the witness's identification . The Commonwealth cross-examined both witnesses
following their direct examination . Jones is correct that in a suppression hearing
involving a pretrial identification, the proper procedure is for the Commonwealth to call
witnesses and show that the circumstances surrounding the identification are
reasonable and justify its admission . Abramson, Kentucky Practice : Criminal Practice
and Procedure , Vol. 8 § 20 :3 (2007-2008) . The defendant can then cross-examine the
witnesses in order to show that the photo array was unduly suggestive . Id. In this case,
however, the trial court allowed the defendant to call and question witnesses first and
the Commonwealth to follow with cross-examination . As noted above, this is not the
proper way to conduct a suppression hearing . However, since Jones thoroughly
questioned both officers about the details of the photo array and the identification, we
cannot say that this improper procedure amounts to reversible error. Furthermore,
since Jones did not object to this procedural irregularity at trial, this Court would have to
find palpable error under RCr 10.26 in order to grant Jones the relief he requests .
Because this improper procedure did not affect Jones's substantial rights and did not
rise to the level of manifest injustice needed to constitute palpable error, Jones is not
entitled to relief on this basis. See RCr 10 .26 .
Jones also contends that the trial court erred by not making the requisite findings
of facts in its suppression ruling . Although the trial court made an ultimate finding that
the photo array was not unduly suggestive so as to give rise to a very substantial
12 likelihood of misidentification, Jones is correct that it failed to outline specific factual
findings justifying its conclusion as required by RCr 9.78 . However, following the trial
court's order on this issue, Jones never sought additional findings of fact from the trial
court as outlined in CR 52 .04 . If an appellant fails to request more detailed findings of
fact from the trial court, the appellate court will not consider his claim of error on appeal.
Vinson v. Sorrell , 136 S.W.3d 465, 471 (Ky. 2004). Thus, because Jones did not ask
the trial court for more detailed findings of fact to support its ruling, we will not address
this particular claim of error on appeal.
Lastly, Jones claims that the trial court erred when it failed to suppress the
confidential informant's, pre-trial identification for being unduly suggestive. On appellate
review, this Court will accept the trial court's findings of fact during a suppression
hearing if they are supported by substantial evidence . Commonwealth v. Banks, 68
S.W.3d 347, 349 (Ky. 2001) . We then review the trial court's ultimate decision on the
admissibility of the identification evidence under the abuse of discretion standard . King
v. Commonwealth , 142 S .W.3d 645, 649 (Ky. 2004). "The test for abuse of discretion is
whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by
sound legal principles." Commonwealth v. English , 993 S .W.2d 941, 945 (Ky. 1999) .
The Sixth Circuit has held that if a pretrial identification procedure is "so
`impermissibly suggestive as to give rise to a very substantial likelihood of irreparable
misidentification,"' then the witness's identification testimony violates the defendant's
constitutional right to due process and should be excluded at trial . Thigpen v. Cory, 804
F.2d 893, 895 (6t" Cir. 1986), cert. denied sub nom. Foltz v. Thigpen , 482 U .S. 918, 107
S . Ct. 3196, 96 L. Ed . 2d 683 (1987), quoting Simmons v. U .S . , 390 U .S. 377, 384, 88
13 S. Ct. 967, 971, 19 L. Ed. 2d 1247 (1968). Determining whether the defendant's due
process rights were violated requires the trial court to engage in a two-step process:
First, the court examines the pre-identification encounters to determine whether they were unduly suggestive . If so, the identification may still be admissible if under the totality of the circumstances the identification was reliable even though the [identification] procedure was suggestive . Dillingham v. Commonwealth , 995 S.W.2d 377, 383 (Ky. 1999), (internal citations and quotations omitted) .
In Jones's case, after the trial court held that the identification procedure was not so
suggestive as to give rise to a very substantial likelihood of irreparable misidentification,
it did not need to reach the second step of the analysis . See King , 142 S .W.3d at 649
(stating that if the identification procedure is not unduly suggestive, "the analysis ends
and the identification testimony is allowed") . After reviewing the suppression hearing,
we conclude that even though trial court did not outline its specific findings of fact, there
was substantial evidence in the record supporting its determination that the
identification procedure was not unduly suggestive.
During the suppression hearing, Detective Saylor testified that the photographs
shown to the confidential informant did not contain any writing on them and had no
identifying information other than the suspect's picture. Each photo represented a
different individual and there were no identical pictures in the array. Saylor stated that
after giving the informant over twenty of these photographs, he simply asked her if she
remembered having dealings with any of them. He testified that no one prompted the
informant and she identified nearly seventeen of the suspects entirely on her own.
When she got to Jones's photograph, she identified him as "Russell Jones," recalled
that Jones had sold her Oxycodone, and that Clyde Daniels had been with them when
14 the sale occurred . Although the majority of the photos were compiled using the
informant's prior descriptions of suspects and Saylor's knowledge of individuals he
believed sold drugs in Harlan County, Saylor testified that he also included in the array
pictures of people who he did not believe had had dealings with the informant, and she
excluded those pictures from her identifications. Detective Saylor, however, did not
testify regarding whether he took measures to ensure that the other photographs were
substantially similar to that of Jones's, and unfortunately, the photo array was neither
entered into evidence nor made part of the record .
Detective Saylor's testimony establishes that the photo array was not necessarily
compiled for the sole purpose of identifying Russell Jones, but rather, so that the
informant could identify the different people from whom she had been buying drugs
over the course of her involvement with the Kentucky State Police . Even though it is
possible that no efforts were made to ensure that the other suspects in the array had
the same characteristics as Jones, the fact remains that over twenty photos were
presented to the informant, including some pictures of people Saylor knew not to be
drug dealers; the informant identified Russell Jones by name; and she recalled the
details of the transaction when he sold her Oxycodone. Therefore, we find that based
on the testimony of Detective Saylor, it was not arbitrary or unreasonable for the trial
court to conclude that the photo array was neutral and that the confidential informant
could testify at trial. However, even if this Court assumes that the compiled
photographs were suggestive, since under the totality of circumstances the confidential
informant's identification was nonetheless reliable, her identification testimony would
still be admissible at trial. See Dillingham , 995 S.W.2d at 383.
15 In Savage v. Commonwealth, 920 S.W .2d 512, 513 (Ky. 1995), this Court
adopted the five factors used to determine the reliability of the identification as set forth
in Neil v. Biggers , 409 U .S. 188, 199-200, 93 S. Ct. 375, 382, 34 L. Ed . 2d 401 (1972) .
Those factors are:
"the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation ." Neil, 409 U .S. at 199-200, 93 S . Ct. at 382 .
In Jones's case, the confidential informant met Jones in a convenience store parking lot
in the middle of the day, rode in a car with Jones and Daniels to a secluded location,
and purchased drugs from Jones . Following her encounter with Jones, she accurately
described him to Detective Saylor, correctly noting that he was older, had long gray
hair, and had a tattoo on the left-side of his face . Although Detective Saylor presented
the photo array to the informant approximately three months after the controlled drug
buy, she was nonetheless certain in her identification of Jones, as was evident by her
ability to recall the exact drug transaction and the presence of Clyde Daniel . Therefore,
even if the photo array in this case had been suggestive, the confidential informant's
testimony was still admissible because based on the above enumerated factors, her
identification of Jones was reliable.
IV. Because Jones Did Not Object to the Tendered Jury Instructions At Trial, He Is Barred From Claiming That the Evidence Was Insufficient To Support A Particular Instruction On Appeal And, In Any Event, There was No Palpable Error .
Following the presentation of the evidence, the trial court instructed the jury as
follows with regard to the trafficking charge:
You will find the Defendant guilty of First-Degree Trafficking in a 16 Controlled Substance under this Instruction if, and only if, you believe from the evidence beyond a reasonable doubt all of the following: A . That in this county on or about the 11 th day of January, 2006, and before the finding of the indictment herein, he sold, transferred, distributed or dispensed two (2) one-half (1/2) Oxycodone tablets to an informant ; AND B . That in so doing, he knew the substance being sold was oxycodone, and controlled substance .
Jones now claims that the trial court erred in instructing the jury on the theories of
"transfer," "distribute," and "dispense" because the Commonwealth's evidence only
supported a finding that he "sold" a controlled substance . Because Jones did not object
to the tendered jury instructions at trial, Kentucky's Rules of Criminal Procedure prevent
him from raising this issue on appeal . RCr 9.54(2) states :
No party may assign as error the giving or the failure to give an instruction unless the party's position has been fairly and adequately presented to the trial judge by an offered instruction or by motion, or unless the party makes objection before the court instructs the jury, stating specifically the matter to which the party objects and the ground or grounds of the objection .
This Court has long held that pursuant to RCr 9.54, if a defendant does not raise his
specific jury instruction claim of error to the trial court, he is precluded from doing so on
appeal. Commonwealth v. Wolford, 4 S .W .3d 534, 535 (Ky. 1999); Commonwealth v.
Collins , 821 S .W.2d 488, 492 (Ky. 1991) ; Commonwealth v. Duke , 750 S.W .2d 432,
433 (Ky. 1988); Hopper v. Commonwealth , 516 S.W .2d 855, 857 (Ky. 1974) . Because
this Court will not now disrupt this long-standing procedural rule, we decline to address
the merits of Jones's claim regarding the jury instructions as a preserved issue.
Jones also requests review of this unpreserved claim of error under the palpable
error standard of RCr 10 .26 . For an unpreserved error to be deemed palpable, it must
17 be obvious and clear from the record, affect the defendant's substantial rights, and
result in manifest injustice . Manifest injustice exists where the defendant can show the
"probability of a different result [absent the error] 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) . In Jones's case, the trial court's inclusion of the words
"transferred, distributed, or dispensed" in the jury instructions, even if erroneous, was
neither an obvious error clear from the record nor an error that resulted in manifest
injustice .
The Commonwealth presented ample proof in this case of Jones's role in
trafficking in a controlled substance. Such proof included the audio tape of the drug
transaction, where Jones's voice is recognizable and where he identifies himself as
"Russell"; the confidential informant's identification of Jones prior to trial and during trial
as the person from whom she received the Oxycodone ; and Detective Saylor's
testimony regarding his interactions with the informant and Jones . Thus, even if the
other means of trafficking had not been included in the instructions, there is not a
probability that a different result would have been reached and no evidence to suggest
that Jones's entitlement to due process was threatened . Because there was ample
proof that Jones sold Oxycodone, no palpable error resulted and Jones is not entitled to
a new trial on this basis .
V. The Trial Court Did Not Err In Permitting the Commonwealth to Impeach Daniels With His Prior Inconsistent Statements .
During trial, Clyde Daniels testified as a witness for the defense. In particular,
Daniels stated that the man who sold the informant drugs on January 11, 2006, was a
heavy-set man with slicked-back hair in his 60's, who answered to the name "Russell ."
18 Daniels testified that although he had seen Russell Jones previously in and around
Cawood, Jones was not the man who sold the informant drugs . Indeed, Daniels stated
that he had met Jones for the first time two weeks previously in the Harlan County Jail .
When cross-examined by the Commonwealth, Daniels stated that although he was in
the convenience store parking lot when the informant bought the drugs, he did not
actually see the drug exchange. The Commonwealth then asked Daniels if he had
previously told the informant that he could get her "a 40 ." Daniels replied that he had
said that, but that the informant actually bought the pill herself. Next, the
Commonwealth asked Daniels if after the drug exchange, he had told the informant that
"Jonsie" could get her anything she wanted . Daniels replied that he did not recall
making that statement. In order to impeach this testimony, the Commonwealth then
requested to play the remaining portion of the audiotape, which the trial court allowed .
The audiotape revealed that after Daniels and the informant had dropped Jones off at
his car, Daniels had told the informant that "Jonsie can get you anything you want,"
"Russell always got them on him," and "I've known Russell for a long time ." In addition,
regarding Daniels's claim that he did not see the drug exchange, the audiotape included
Daniels telling the informant that "I figured I could help you out," "Tell anybody I sent
you down to buy something, and' they'll sell it to you," "If I get something that somebody
else is wanting, I can get it for them," and "I'm glad I could help you."
Although he did not object at trial, Jones now claims that the trial court
committed palpable error in allowing the Commonwealth to impeach Daniels on a
matter not material to the merits of the case, i.e., whether Daniels himself was involved
in the drug transaction . Despite Jones's allegation of palpable error, we agree with the
19 Commonwealth that the trial court did not abuse its discretion when it allowed the
admission of Daniels's prior inconsistent statements .
In Jett v. Commonwealth, 436 S.W .2d 788, 792 (Ky. 1969), this Court held that
prior inconsistent statements can be introduced as substantive evidence in order to
impeach a witness who testifies at trial. However, one of the prerequisites to the
admission of these out-of-court statements is that "the statement must be material and
relevant to the issues of the case." Nugent v. Commonwealth, 639 S .W .2d 761, 765
(Ky. 1982). In Jones's case, Daniels's statements that related to Jones and to
Daniels's prior knowledge of Jones were certainly relevant to the merits of this case.
These prior inconsistent statements refuted Jones's defense that he was not present at
the scene of the crime and that the two had only recently met.
Daniels's prior statements suggesting that he was involved in the drug sale are
also relevant to this case because they relate to Daniels's credibility and the
truthfulness of his testimony . This Court has held that "[t]he credibility of a witness'
relevant testimony is always at issue, and the trial court may not exclude evidence that
impeaches credibility even though such testimony would be inadmissible to prove a
substantive issue in the case ." Sanborn v. Commonwealth, 754 S .W.2d 534, 545 (Ky.
1988), overruled on other grounds by Hudson v. Commonwealth, 202 S.W .3d 17 (Ky.
2006) . Daniels credibility was particularly relevant in this case because other than
Jones, he was the only defense witness who testified that Jones was not present during
the drug buy. Daniels's prior contradictory statements about even his own involvement
in the sale are still relevant to his credibility as a witness and to Jones's claims of
innocence . Thus, since Daniels's credibility and his full account of what occurred on
20 January 11, 2006, were material to this case, the trial court did not abuse its discretion
in admitting Daniels's prior inconsistent statements .
CONCLUSION
Although the trial court failed to arraign Jones on the trafficking and PFO
charges, Jones had ample notice of the charges and an adequate opportunity to
prepare his defense . Thus, because Jones suffered no prejudice from the trial court's
failure, his lack of arraignment is not grounds for reversal . Furthermore, Jones's other
claims of error are either without merit or not properly preserved for appellate review.
Therefore, the November 20, 2006 Judgment of the Harlan Circuit Court convicting
Jones of trafficking in a controlled substance (1 St Degree) and being a persistent felony
offender (PFO) (2nd Degree) is affirmed
All sitting . All concur.
COUNSEL FOR APPELLANT :
Euva D. May Assistant Public Advocate Appellate Division Department of Public Advocacy 100 Fair Oaks Lane, Suite 302 Frankfort, KY 40601
COUNSEL FOR APPELLEE:
Jack Conway Attorney General
David Bryan Abner Assistant Attorney General Office of Criminal Appeals Office of the Attorney General 1024 Capital Center Drive Frankfort, KY 40601