Opinion
NO. 2019-CA-000394-MR
03-13-2020
DONTE PIERRE BANKS-BROWN APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Kathleen Schmidt Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Lauren R. Lewis Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE ERNESTO M. SCORSONE, JUDGE
ACTION NO. 17-CR-00429 OPINION
AFFIRMING
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BEFORE: GOODWINE, KRAMER, AND MAZE, JUDGES. MAZE, JUDGE: Donte Pierre Banks-Brown appeals from a judgment based upon a jury verdict convicting him of two counts of trafficking in a controlled substance, possession of marijuana, possession of drug paraphernalia, and being a first-degree persistent felon for which he was sentenced to ten years' imprisonment. His sole argument for reversal centers on the unpreserved contention that he was denied a fair trial due to the introduction of irrelevant and prejudicial evidence of an uncharged drug sale and improper opinion evidence. Having reviewed Appellant's contentions under the manifest injustice standards set out in RCr 10.26, we affirm the judgment of the Fayette Circuit Court.
Kentucky Rule of Criminal Procedure.
The charges leading to Appellant's indictment and conviction stem from a narcotics enforcement officer's observation of suspected drug trafficking activity at a Marathon gas station in Lexington, Kentucky. It is that officer's testimony which forms the basis for Appellant's unpreserved claim that the admission of irrelevant and prejudicial evidence of an uncharged drug sale and the introduction of improper opinion evidence deprived him of a fair trial. One of the arresting officers, Detective Danny Page, testified at trial that on February 22, 2017, he stopped at the Marathon station around the corner from the narcotics unit office around 1:00 p.m. to buy a bottle of water. Because the narcotics unit had received both formal and informal complaints about narcotics sale, use, and overdoses in the station's parking lot, Detective Page decided to sit in his vehicle and watch for suspected narcotics use or transactions.
As he first pulled into the station, Detective Page had noticed two men sitting in a white Toyota Camry at the pump but not pumping gas. The passenger in that vehicle was on the phone and looking around at everyone coming and going into the station. Detective Page stated that when he returned to his vehicle after purchasing the water, he noted that the men had pulled around and parked at the side of the station, continuing to talk on the phone and look around as if they were waiting for someone. He then activated a surveillance camera in order to gather evidence of what he suspected was a narcotics transaction.
Shortly thereafter, a red Chrysler 300 pulled up to the pump and the passenger in that vehicle walked towards the passenger side of the Camry. The passenger got out of the Camry and both men went inside the gas station where they were no longer visible to Detective Page. Within a few minutes, the passenger from the Camry came out of the store and the Camry driver got out of the vehicle and walked toward the store, passing his passenger as he returned to the Camry. Detective Page testified that as he was walking toward the Camry, the passenger looked down at his cupped hand, opened it, and then smirked before re-entering the car. Page also testified that it was "common for drug transactions, a buyer, to buy a substance, keep it in their hand, have it cupped until they get where they're going." In a few minutes, the driver returned and re-entered the Camry at which point he and the passenger laughed and drove away. Detective Page stated that whatever the passenger had in his cupped hand appeared to be very small but admitted that it could have been keys, money, or something else in his hand.
Detective Page testified that, at that point, he pulled around in an attempt to video the people in the red Chrysler but could not see them through the darkly-tinted windows. Detective Page told the jury that it was his "belief at this point that the seller, who I believe to be the seller of narcotics, was in the Chrysler 300." Although he was unable to see into the car, Detective Page noted the temporary tag on the Chrysler before leaving the station in an unsuccessful attempt to find the Camry.
Detective Page testified that after losing sight of the Camry, he returned to the department headquarters because he was scheduled to serve an unrelated search warrant. While there, he described to fellow officers what he had observed at the station, showed them the surveillance video, and asked them what they thought about it. Detective Page testified that the officers "said it obviously looked like a narcotics transaction to them as well" and that Detective Jared Curtsinger had stated that he received a complaint concerning daily heroin sales at that Marathon station. Around 4 p.m., after executing the search warrant, the officers passed the Marathon station on their way back to the department office. Detective Curtsinger noticed a Red Chrysler at the gas pumps and pulled his vehicle into the station. Detective Page also turned into the station facing the Chrysler. As Detective Curtsinger was parking his vehicle, Appellant got out of the passenger side of the Chrysler. Detectives Cursinger and Smoot walked toward the Chrysler and smelled a strong odor of marijuana coming from the car. Those officers detained the driver and Detective Page detained Appellant at the rear of the car.
Detective Page testified that he explained to Appellant that he was being detained because of the marijuana smell coming from the car, as well as his suspicion that Appellant was involved in what appeared to be a drug transaction a few hours earlier. When Detective Page asked for permission to search him, Appellant began pulling things from his pocket, including a digital scale with white powder on it. Appellant also stated that he had bought marijuana from the men in the white Camry. A subsequent search of the red Chrysler revealed a partially burnt marijuana cigarette on the console which Appellant admitted was his. In addition, Detective Curtsinger discovered "bindle" paper containing .731 grams of "gravel" heroin and .513 grams of mixed heroin and crack cocaine in the console near the passenger seat, as well as a box of plastic baggies in the floorboard of the passenger side.
After initially denying having drugs on his person, Appellant ultimately admitted that he did and Detectives Curtsinger and Smoot searched him in the service station restroom. That search produced plastic baggies containing 5.158 and .845 grams of heroin and another baggie containing approximately 6.674 grams of crack cocaine in a "cookie" shape concealed in Appellant's pants. The detectives also found $342 in mixed bills in Appellant's possession. Detective Curtsinger testified that the size, quantity, and appearance of the heroin and cocaine indicated to him that Appellant was engaged in trafficking.
Appellant's defense was that he was a drug user not a trafficker, stating that his drug use stemmed from treatment for sickle cell anemia. Appellant testified that he was first prescribed narcotics to treat the joint pain that condition causes when he was 12 years old. While he initially used the prescribed narcotics as indicated, he began crushing and snorting them to obtain quicker relief. Appellant also stated that after the dosage on his prescribed medication was lowered, he started running out after only a week or two and began using heroin and cocaine to supplement his medications. Appellant explained that he carried a scale because he didn't want to be scammed when purchasing drugs and to monitor his usage so that he didn't overdose. Appellant testified that he had purchased the heroin and cocaine found on him from the driver of the red Chrysler and had also purchased marijuana from the men in the white Camry earlier in the day.
This appeal follows Appellant's conviction for trafficking in heroin and cocaine and for being a first-degree persistent felon, for which he was sentenced to ten years' imprisonment. Again, Appellant's complaints in this appeal center upon the unpreserved contentions that Detective Page's testimony deprived him of a fair trial.
RCr 10.26 defines palpable error as error "which affects the substantial rights of a party" and provides that such an error "may be considered by . . . an appellate court on appeal, even though insufficiently raised or preserved for review[.]" The rule also instructs that "appropriate relief may be granted upon a determination that manifest injustice has resulted from the error." The Supreme Court of Kentucky has provided guidance in applying the dictates of this rule. In Brewer v. Commonwealth, the Supreme Court explained that to constitute manifest injustice an alleged error must be "so improper, prejudicial, and egregious as to have undermined the overall fairness of the proceedings." 206 S.W.3d 343, 349 (Ky. 2006) (citing Soto v. Commonwealth, 139 S.W.3d 827, 873 (Ky. 2004)). Stated differently, "if, upon consideration of the whole case, a substantial possibility does not exist that the result would have been different, the error will be deemed nonprejudicial." Graves v. Commonwealth, 17 S.W.3d 858, 864 (Ky. 2000) (citing Jackson v. Commonwealth, 717 S.W.2d 511 (Ky. App. 1986)). Finally, in Martin v. Commonwealth, the Supreme Court clarified that "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." 207 S.W.3d 1, 3 (Ky. 2006). Martin also holds that reviewing courts must "determine whether the defect in the proceeding was shocking or jurisprudentially intolerable." Id. at 4.
To support his contention that the unpreserved errors in this case fall within that category of error, Appellant initially relies upon KRE 404(b) which generally excludes evidence of prior bad acts when used "to prove the character of a person in order to show action in conformity therewith." However, the rule also provides that such evidence may be admissible:
Kentucky Rule of Evidence. --------
(1) If offered for some other purpose, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident; orLike the Commonwealth, we are persuaded that Detective Page's testimony is precisely the type of evidence contemplated by subsection (2).
(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.
This conclusion finds support in the opinion of our Supreme Court in Webb v. Commonwealth, which notes that there may be "certain aspects of the case that are so intertwined with the other evidence that they must be admitted in order to paint an accurate picture of the events in question." 387 S.W.3d 319, 326 (Ky. 2012). In explaining that holding, the Supreme Court quoted the following analysis from Norton v. Commonwealth, 890 S.W.2d 632, 638 (Ky. App. 1994):
One of the accepted bases for the admissibility of evidence of other crimes arises when such evidence "furnishes part of the context of the crime" or is
necessary to a "full presentation" of the case, or is so intimately connected with and explanatory of the crime charged against the defendant and is so much a part of the setting of the case and its "environment" that its proof is appropriate in order "to complete the story of the crime on trial by proving its immediate context or the 'res gestae' " or the "uncharged offense is 'so linked together in point of time and circumstances with the crime charged that one cannot be fully shown without proving the other. . . .' [and is thus] part of the res gestae of the crime charged."Webb, 387 S.W.3d at 326. The Webb case concluded that "where evidence is needed to provide a full presentation of the offense, or to 'complete the story of the crime,' there is no reason to fragment the event by suppressing parts of the res gestae." Id. (citation omitted). Included in "complet[ing] the story of the crime" is the "[p]roper identification of the perpetrator[.]" Id. Laying a proper basis for such identification is a key piece of the Commonwealth's case-in-chief which the Webb Court was unable to conclude constituted unduly prejudicial evidence. Because the error in Webb was preserved, the Supreme Court ultimately determined that the trial court did not abuse its discretion in allowing witnesses to testify as to the reason they were able to identify the Appellant in that case.
Further, we find the holding in United States v. Masters, 622 F.2d 83, 86 (4th Cir. 1980), particularly relevant to the issue before us, particularly its citation to United States v. Bailey, 451 F.2d 181 (3d Cir. 1971). Bailey was charged with selling narcotics to a paid undercover informant. After detailing his purchase of narcotic drugs from Bailey, the informant testified to a transaction in which Bailey had previously sold him a balloon said to contain cocaine, but which actually was empty. Bailey predicated error on the testimony concerning the prior sale of the empty balloon, alleging that it was impermissible proof of an uncharged crime. In rejecting that contention, the court concluded:
A review of [the informant's] testimony indicates that during this particular transaction Bailey made arrangements with [the informant] to deliver the heroin which was sold later on December 8. Thus, even if the fraudulent sale involved uncharged criminal activity, testimony as to its occurrence was admissible as part of the res gestae.Id. at 183.
More recently in St. Clair v. Commonwealth, our Supreme Court reaffirmed the principles underpinning Masters:
In essence, the jury "cannot be expected to make its decision in a void without knowledge of the time, place and circumstances of the acts which form the basis of the charge," United States v. Masters, 622 F.2d 83, 86 (4th Cir. 1980) (quoting United States v. Roberts, 548 F.2d 665, 667 (6th Cir. 1977)), and thus the prosecution is allowed to prove "the 'setting' of a case," id.455 S.W.3d 869, 885 (Ky. 2015). So it is in the case before us. Rather than injecting impermissible testimony of uncharged crimes into the trial, Detective Page merely provided the context for the narcotic unit's decision to detain the red Chrysler at the pump; in other words, he provided the "setting" of the case. He testified that the officers pulled into the Marathon station because they noticed the red Chrysler was again at the pump. Absent proof of Appellant having been a passenger in the red Chrysler at the time he interacted with the men in the white Camry mere hours earlier, the jury would be left to speculate as to the officers' basis for stopping the occupants of the red Chrysler at the pump. Thus, the probative value of the testimony concerning Detective Page's prior surveillance outweighed any potential prejudice. We also note that a portion of Appellant's defense focused on his interaction with the men in the white Camry, alleging that he had purchased marijuana from them earlier in the day. We are thus persuaded that Appellant failed to show the requisite "probability of a different result or error so fundamental as to threaten [his] entitlement to due process of law." Martin, supra.
Finally, we discern no manifest injustice in Detective Page's testimony concerning his interaction with other narcotics detectives after he returned to the unit office. Detective Page testified that he informed fellow officers what he had observed at the station, showed them the surveillance video, asked them what they thought about it, and stated that the other officers "said it obviously looked like a narcotics transaction to them as well." Page also testified to Detective Curtsinger's statement to him that there had been multiple complaints concerning daily heroin sales at that Marathon station. Despite Appellant's insistence that Detective Page's testimony was either pure speculation or hearsay, we are convinced that it did not rise to the level of manifest injustice or a violation of his right to a fair trial.
On the contrary, we view Detective Page's testimony explaining his impressions of what he believed was occurring on the surveillance video as falling squarely within the parameters of KRE 701:
If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are:In United States v. Parkhurst, the court classified a detective's testimony regarding his perception of a conversation at the time it occurred as "classic Rule 701 lay-witness testimony." 865 F.3d 509, 514-15 (7th Cir. 2017). The federal court rejected Parkhurst's contention that the detective's testimony was pure speculation, stating that the detective was merely testifying about his understanding of the conversation at the time he was participating in it. "As such, this testimony need only satisfy Rule 701's requirements." Id. at 515.
(a) Rationally based on the perception of the witness;
(b) Helpful to a clear understanding of the witness' testimony or the determination of a fact in issue; and
(c) Not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.
Kentucky addressed a similar issue in Young v. Commonwealth, holding that "[a] police officer may testify about information furnished to him by an absent witness only if that information tends to explain the action that was taken by the police officer as a result of the information and the taking of that action is an issue in the case." 50 S.W.3d 148, 167 (Ky. 2001) (citations omitted). The Young case explained that such an out-of-court statement is not hearsay "because it is not offered to prove the truth of the matter asserted but to explain why the officer acted as he did." Id.
Applying these principles to Appellant's complaints regarding speculation and hearsay tainting Detective Page's testimony, we find no error, let alone palpable error. Returning to KRE 701, a lay witness may testify to his opinion so long as it is rationally based upon his own perception and is helpful to the jury in deciding a fact. Detective Page could testify to his perception that the activity he witnessed involving Appellant and the men in the white Camry was a drug transaction, which in turn led him to suspect that Appellant was trafficking in narcotics. Page's testimony as to his impressions and suspicions while participating in the drug investigation was permissible under KRE 701, and as explained in Parkhurst.
Further, Detective Page's testimony regarding his conversations with fellow officers did not constitute hearsay under Young as it was merely explanatory of the course of action he and the other officers undertook a few hours later. Any potential error in Detective Page's testimony regarding Detective Curtsinger having informed him about the complaint of daily heroin trafficking at the Marathon station could easily have been cured during cross-examination in Detective Curtsinger's testimony at trial.
In sum, none of the unpreserved errors alleged in this appeal have been shown to be "so improper, prejudicial, and egregious as to have undermined the overall fairness of the proceedings." Brewer, 206 S.W.3d at 349. Accordingly, they do not rise to the level of palpable error under RCr 10.26 and do not require setting aside the judgment in this case.
Accordingly, the judgment of the Fayette Circuit Court is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Kathleen Schmidt
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Lauren R. Lewis
Assistant Attorney General
Frankfort, Kentucky