Opinion
NO. 2011-CA-001990-MR
02-01-2013
WALTER EDWARD PAYNE APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Gene Lewter Department of Public Advocacy Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky David W. Barr Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM MASON CIRCUIT COURT
HONORABLE STOCKTON B. WOOD, JUDGE
ACTION NO. 10-CR-00151
OPINION
AFFIRMING
BEFORE: COMBS, LAMBERT, AND NICKELL, JUDGES. COMBS, JUDGE: Walter Edward Payne was convicted of trafficking in a controlled substance (cocaine) in the first degree following a jury trial conducted on September 7, 2011. In accordance with the jury's recommendation, the Mason Circuit Court sentenced him to serve five-years' imprisonment. Payne appeals, contending that the trial court erred: (1) by failing to grant his motion for a directed verdict; (2) by permitting the Commonwealth to present certain testimony against him; and (3) by failing to instruct the jury on the lesser-included offense of possession. After our review, we affirm the conviction.
On April 1, 2010, agents of the Buffalo Trace Gateway Narcotic Task Force set up a controlled purchase of crack cocaine. The agents worked with a confidential informant, Larry Galliher, who arranged the purchase from James Smith. According to the testimony of the confidential informant, Smith organized a delivery of cocaine to Smith's home where it was available for resale. The delivery was made by Payne, the appellant. The confidential informant testified that he did not know Payne before the transaction but that he observed Payne transfer crack cocaine to Smith. He indicated that Smith repeatedly referred to him as "Walter."
After the transaction was complete and while he was driving away from Smith's home, the confidential informant provided the agents with Payne's automobile license plate number. With this information, agents tracked down the name and address of the vehicle's owner, Daniel Brad Morton. Payne was found at Morton's residence the following day. A set of scales bearing a residue of cocaine was also recovered from the residence.
Payne was indicted on September 24, 2010. At his trial in February 2011, the confidential informant testified for the prosecution. Although the informant identified Payne in court as the supplier of the cocaine, the jury could not reach a verdict.
A retrial was scheduled for September 2011, but by that time the confidential informant could not be located. Despite objection by the defense, the court permitted a video replay of the informant's prior testimony. Payne denied that a drug transaction had occurred, but the jury convicted him of trafficking. This appeal followed.
On appeal, Payne contends that the trial court erred by failing to grant his motion for a directed verdict; by permitting the Commonwealth to introduce certain evidence against him; and by failing to instruct the jury on the lesser-included offense of possession. We address each of these arguments.
First, Payne argues that the trial court erred when it denied his motion for a directed verdict. He correctly asserts that the Commonwealth must present evidence of substance to support a conviction and that it bears the burden of proving each element of the alleged offense beyond a reasonable doubt. Commonwealth v. Benham, 816 S.W.2d 186 (Ky. 1991). A directed verdict is appropriate when the evidence (viewed most favorably to the Commonwealth) would not permit a rational juror to believe that the defendant was guilty beyond a reasonable doubt. Beaumont v. Commonwealth, 295 S.W.3d 60 (Ky. 2009).
Payne contends that at his retrial, the Commonwealth failed to prove that he was the subject of identification by a confidential informant. He claims that the video replay of the informant's testimony did not include a video shot of the individual identified by the informant as "Walter," "Mr. Walter," and "the defendant." Payne argues that without his actual appearance in a frame of the video, "there was actually no identification of [Payne] in the present trial." Brief at 7. He argues that without this identification evidence, the case against him was not adequately proven and that he was entitled to a directed verdict.
"As in any criminal prosecution, the Commonwealth [is] obliged . . . to prove that a crime occurred and that the defendant was the perpetrator." Malone v. Commonwealth, 364 S.W.3d 121, 129 (Ky. 2012). In this case, we are persuaded that the identity of the perpetrator was adequately proven.
It is true that Payne's likeness does not appear in the video recording of the informant's testimony. However, the informant referred to him plainly by more than one name and indicated without hesitation that he observed Payne deliver cocaine to Smith. The informant also provided agents with the license plate number of the vehicle allegedly driven by Payne. Payne was later observed by agents at the residence of the vehicle owner where a set of scales bearing a residue of cocaine was found. Under the circumstances of this case, it was not unreasonable for the jury to infer from the evidence that Payne was, in fact, the individual who supplied cocaine to Smith for resale to the confidential informant.
Viewed in the light most favorable to the Commonwealth, the identification evidence disputed by Payne (together with the circumstantial evidence offered in support of it) is sufficient to support the conclusion of a reasonable juror that Payne was guilty of trafficking in cocaine. Consequently, the trial court did not err by refusing to direct a verdict.
Next, Payne contends that the trial court abused its discretion by permitting the Commonwealth to introduce into evidence testimony concerning the set of digital scales (bearing a residue of cocaine) seized from the home where Payne had been residing at the time of the transaction. Under the abuse-of-discretion standard of review for evidentiary issues, we must determine whether the trial court did indeed abuse its discretion. Clutter v. Commonwealth, 364 S.W.3d 135 (Ky. 2012). We conclude that the trial court did not abuse its discretion by admitting the challenged testimony.
During a bench conference, Payne objected to the testimony that the Commonwealth anticipated would be offered by an agent of the narcotics task force. Agent Tim Fegan was expected to testify at Payne's retrial that on the day following the alleged drug transaction, a set of digital scales and an enormous amount of baking soda (which is used in the manufacture of crack cocaine) were recovered from the home where Payne had been residing. Agent Fegan was also expected to testify that a residue of cocaine was found on the digital scales. Payne argued that this testimony would likely confuse the jury and that it was unduly prejudicial. The trial court overruled the objection and permitted Agent Fegan's testimony.
Kentucky Rule(s) of Evidence 403 provides that relevant evidence may be excluded "if its probative value is substantially outweighed by the danger of undue prejudice, confusion of the issues, or misleading the jury. . . ." The evidence that Payne had at his disposal (at or near the time of the alleged transaction), the digital scales used in the processing of crack cocaine for resale, is particularly relevant to prove that he was involved in the trafficking of a controlled substance. Under the circumstances, the trial court did not abuse its discretion by concluding that the evidence was not unduly prejudicial. Nor did the court err by concluding that the probative value of the evidence was not outweighed by the risk that its introduction would confuse the jury. We cannot agree that there was anything in the challenged testimony that would have tended to confuse or to mislead the jury.
Finally, Payne contends that the trial court erred by failing to instruct the jury on the lesser-included offense of possession of a controlled substance. We disagree.
The trial court must instruct the jury on the law of the case. Kentucky Rule(s) of Criminal Procedure (RCr) 9.54. "The jury instructions must be complete and the defendant has a right to have every issue of fact raised by the evidence and material to his defense submitted to the jury of property instructions." Hudson v. Commonwealth, 202 S.W.3d 17, 19 (2006) (citing Hayes v. Commonwealth, 870 S.W.2d 786, 788)(Ky. 1993) (emphasis added). A lesser-included offense is, in essence, a defense against a higher charge. Slaven v. Commonwealth, 962 S.W.2d 845 (Ky. 1997).
An instruction on a lesser-included offense is required only if, considering the totality of the evidence, the jury could have a reasonable doubt as to the defendant's guilt of the greater offense, and yet believe beyond a reasonable doubt that he is guilty of the lesser offense.Baker v. Commonwealth, 103 S.W.3d 90, 94 (Ky.2003) (citing Clifford v. Commonwealth, 7 S.W.3d 371, 377-78 (Ky. 1999)).
A lesser-included instruction is required "when a guilty verdict as to the alternative crime would amount to a defense of the charged crime, i.e., when being guilty of both crimes is mutually exclusive." Hudson v. Commonwealth, 202 S.W.3d 17, 22 (2006). A trial court's rulings on instructions are reviewed under an abuse of discretion standard. Ratliff v. Commonwealth, 194 S.W.3d 258 (Ky. 2006) (citing Johnson v. Commonwealth, 134 S.W.3d 563 (Ky. 2004)).
In this case, the confidential informant testified that he observed Payne transfer cocaine to Smith. Smith then sold the cocaine to the informant. Agent Fegan testified that a residue of cocaine was discovered on a set of digital scales at the residence where Smith was found the following day. Digital scales are a tool of the trafficking trade. This evidence formed the basis of the trial court's instruction on the trafficking charge. Because the evidence indicated that Payne transferred the cocaine to a third party, possession of the cocaine was not a fact necessary for proving the offense of trafficking.
Possession and trafficking were not mutually exclusive or alternative charges on the evidence before the jury. Consequently, possession could not be considered a lesser-included offense under the facts of this case, and Payne was not entitled to an instruction on possession on the premise that it is a lesser-included offense of trafficking.
We affirm the judgment of the Mason Circuit Court.
ALL CONCUR. BRIEF FOR APPELLANT: Gene Lewter
Department of Public Advocacy
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
David W. Barr
Assistant Attorney General
Frankfort, Kentucky