ERVIN PENCE v. COMMONWEALTH OF KENTUCKY

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Court of Appeals of Kentucky.

ERVIN PENCE v. COMMONWEALTH OF KENTUCKY

NO. 2009-CA-000996-MR

Decided: July 23, 2010

JUDGE. BRIEF FOR APPELLANT:  Gene Lewter Department of Public Advocacy Frankfort, Kentucky BRIEF FOR APPELLEE:  Jack Conway Attorney General of Kentucky Michael J. Marsch Assistant Attorney General Frankfort, Kentucky

NOT TO BE PUBLISHED

AFFIRMING

S;  LAMBERT,Double SENIOR

Appellant, Ervin Pence, was convicted in the Perry Circuit

Court of second-degree trafficking in a controlled substance and for being a

second-degree persistent felony offender.   He was sentenced to eight years' imprisonment and appeals to this Court as a matter of right.   Finding no error, we affirm.

On December 27, 2007, Detectives James Grigsby and Keith Napier, narcotics officers with Operation UNITE, arranged a controlled drug buy between confidential informant Steven Turner and Appellant.   Prior to the transaction, Detective Grigsby searched Turner, provided him with $30 for the purchase, and equipped him with a concealed audio/video recording device.   Upon arriving at Appellant's residence, Turner purchased three hydrocodone tablets for $30.   Turner then returned to where the detectives were waiting and turned over the drugs and recording device.

On August 15, 2008, a Perry County Grand Jury indicted Appellant for second-degree trafficking in a controlled substance and for being a second-degree persistent felony offender.   At the March 2009 trial, Detectives Grigsby and Napier, as well as Turner, all testified to the transaction.   In addition, the video created by the concealed recording device was played twice for the jury -once during Detective Grigsby's testimony and again during Turner's testimony, with Turner narrating a portion of the video.   At the close of the Commonwealth's case-in-chief, the trial court denied Appellant's motion for a directed verdict.   Appellant presented no evidence or testimony.   The jury subsequently found Appellant guilty of trafficking and recommended an eight year sentence by virtue of the PFO II charge.   The trial court entered judgment accordingly.   This appeal ensued.

On appeal, Appellant contends that he was denied due process of law by the Commonwealth's use of bolstering tactics to enhance Turner's credibility.   Appellant takes issue not only with Detective Napier's testimony concerning Turner's reliability as a confidential informant but also with the repeated playing of the video for the jury.

Appellant concedes that the issues are unpreserved for appeal but requests this Court to review such for palpable error.  RCr 10.26 provides:

A palpable error which affects the substantial rights of a party may be considered by the court on motion for a new trial or 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.

As explained in Brewer v. Commonwealth, 206 S.W.3d 343, 349 (Ky.2006):

For an error to be palpable, it must be “easily perceptible, plain, obvious and readily noticeable.”  [Burns v. Level, 957 S.W.2d 218, 222 (Ky.1997) (citing Black's Law Dictionary (6th ed.1995)) ].   A palpable error “must involve prejudice more egregious than that occurring in reversible error [.]”  [Ernst v. Commonwealth, 160 S.W.3d 744, 758 (Ky.2005).]   A palpable error must be so grave in nature that if it were uncorrected, it would seriously affect the fairness of the proceedings.  [Id.] Thus, what a palpable error analysis “boils down to” is whether the reviewing court believes there is a “substantial possibility” that the result in the case would have been different without the error.  [Schoenbachler v. Commonwealth, 95 S.W.3d 830, 836 (Ky.2003) (quoting Abernathy v. Commonwealth, 439 S.W.2d 949, 952 (Ky.1969)).]   If not, the error cannot be palpable.

Appellant first asserts that the trial court erred by permitting the Commonwealth to introduce improper character evidence when Detective Napier testified that Turner did a “good job.”   Specifically, Appellant takes issue with the following exchange:

Commonwealth:  In your experience is Steven Turner, I don't know exactly how to ask the question, I guess, sort of an average cooperating witness as far as who he knows or what he does or does he stand out in some way?

Det. Napier:  He, I think that he was a, as far as cooperating witnesses go, he did a, what I would consider a good job.   There were never any issues with him.

Commonwealth:  What kind of issues might there ․ ?

Det. Napier:  I never had any problems with my money being short or wrong or missing or my, the amount of evidence returned to me after a transaction not matching what it showed he purchased on video or audio recordings.   In that way.

“Generally, ‘a witness's credibility may not be bolstered until it has been attacked.’ ”  Harp v. Commonwealth, 266 S.W.3d 813, 824 (Ky.2008) (quoting Miller ex rel. Monticello Baking Co. v. Marymount Med. Ctr., 125 S.W.3d 274, 283 (Ky.2004)).  KRE 608, which permits the admission of character evidence to attack or support a witness's credibility, provides in pertinent part that:

(a) Opinion and reputation evidence of character.   The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations:  (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.

(b) Specific instances of conduct.   Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' credibility, ․ may not be proved by extrinsic evidence.   They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness:  (1) concerning the witness' character for truthfulness or untruthfulness․

Herein, there is no question that Appellant attacked Turner's credibility.   First, during opening arguments when defense counsel stated:

So what are we going to have from the Commonwealth in their attempt to prove beyond a reasonable doubt that [Appellant] did something?   Steve Scott Turner.   This person is going to come forward.   This is a person that is paid money to do things.   Given money and told to do stuff.   I think there is going to be testimony that he's involved with drugs.   That he is friends with people that do drugs, sell drugs.   Maybe even does drugs himself.   That he's paid $100 to go out and purchase pills that may cost $10 or less.   That he's left alone comes back and kinda tells [the police officers] what happened.   And may or may not be picked up in the video․  I think it's going to be clear that the evidence is that Steve Turner isn't a very credible person.

Defense counsel again attacked Turner's credibility during the cross-examination of Detectives Grigsby and Napier.

We would point out that KRE 608 could not initially apply to Detective Napier's testimony because Turner had not yet testified and was not a witness within the purview of KRE 608.   See Fairrow v. Commonwealth, 175 S.W.3d 601, 606 (Ky.2005) (citing United States v. Hernandez, 873 F.2d 925, 929 (6th Cir.1989)).   However, the Kentucky Supreme Court has held when rehabilitation evidence is admitted before credibility is attacked, any error is harmless as long as credibility is, in fact, later impeached.  Reed v. Commonwealth, 738 S.W.2d 818, 821 (Ky.1987) (citing Summitt v. Commonwealth, 550 S.W.2d 548, 550 (Ky.1977)).

In Fairrow v. Commonwealth, a police officer testified about the reliability of a confidential informant for the purpose of bolstering her credibility.   Specifically, the officer testified that the informant's work always resulted in successful “buys” that led to convictions.   On appeal, the Court noted that KRE 608 “leaves no room for proof of anything other than the specific trait of character that is pertinent to credibility, namely truthfulness or untruthfulness, a restriction that has been part of Kentucky's law for at least half a century.”  175 S.W.3d at 606 (quoting Robert G. Lawson, The Kentucky Evidence Handbook, § 4.20[3], at 302-03 (3d ed.1993)).   The Court further explained:

While a character for “truthfulness” might arguably be inferred from a character for “reliability” under some circumstances, Lantrip was not referring to Royal's truthfulness as a witness but to her “reliability” as an informant, i.e., in the context of the primary meaning of “reliable,” viz:  “dependable.”   Webster's Third New International Dictionary of the English Language Unabridged 1917 (1993).   In other words, he was referring to the fact that her work as a confidential informant always resulted in successful “buys” that led to convictions.   The evidence was offered to prove that she had accomplished two more successful “buys” from Appellant for which he should be convicted.

Fairrow, 175 S.W.3d at 606.   Although the Court concluded that the admission of the officer's testimony was erroneous, the issue was not preserved for review and such did not rise to the level of palpable error requiring reversal under RCr 10.26.  Id. at 607.

Unlike in Fairrow, however, Detective Napier did not comment on whether Turner's work resulted in convictions.   Rather, Detective Napier testified that he had not experienced any problems with Turner such as “money being short” or “a transaction not matching up.”   We are of the opinion that this was evidence of Turner's truthfulness.   As such, because Detective Napier's testimony focused on Turner's character for truthfulness (instead of reliability), the evidence was proper rehabilitation of Turner's credibility under KRE 608 despite having been erroneously admitted out of order.   See Fairrow, 175 S.W.3d at 606.   Thus, no error, palpable or otherwise, occurred.

Appellant next argues that Turner's credibility was improperly bolstered by the repeated playing of the audio/video recording of the controlled buy.   At trial, defense counsel objected to the repeated playing of the recording but did not object to the content of the recording.   However, on appeal, Appellant argues that the recording contained inadmissible hearsay introduced solely for the purpose of corroborating Turner's in-court testimony.   As he concedes the issue is not properly reserved for review, Appellant claims that the error is palpable under RCr 10.26.   We disagree.

We would note that the recording was played twice.   First during the testimony of Detective Grigsby, who explained how he prepped the recording by stating the date, time and location of the controlled buy, as well as that he had given Turner $30 with recorded serial numbers to make the purchase.   At the end of the recording, Grigsby reported that Turner had returned from the controlled buy and had given him three pills.   In addition, Turner confirms that he bought the pills from Appellant.   The recording was played a second time during Turner's testimony, for the purpose of providing a narration of what the jury was seeing during the portion of the video when the Detectives were not present.

In Winstead v. Commonwealth, 283 S.W.3d 678, 688 (Ky.2009), the Kentucky Supreme Court noted,

Kentucky Rule of Evidence 801A(a)(2) provides that a witness's out-of-court prior consistent statement is not admissible unless “offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive.”   Under this rule and KRE 802 (the rule against hearsay), a witness's out-of-court prior consistent statement is not admissible merely to corroborate the witness's in-court testimony.

However, in Norton v. Commonwealth, 890 S.W.2d 632, 635 (Ky.App.1994), a panel of this Court determined that recordings of a drug buy “[did] not constitute hearsay;  instead, they were evidence of the event itself, introduced for a non-hearsay purpose.”

Contrary to Appellant's characterization, we simply cannot find that twice playing the recording was “a bombardment of bolstering evidence.”   Rather, it was played during the detective's testimony to allow him to explain the process to the jury and again during Turner's testimony to narrate the video of the buy itself.   We certainly do not believe that there is “substantial possibility” that the result in the case would have been different had the recording not been played.  Brewer, 206 S.W.3d at 349.   As such, Appellant's claim does not rise to the level of palpable error warranting reversal.  Id.

The judgment and sentence of the Perry Circuit Court are affirmed.

ALL CONCUR.

BEFORE:  DIXON AND VANMETER, JUDGE  Double