Opinion
2012-SC-000595-MR
04-17-2014
LORENZO A. BARNES APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
COUNSEL FOR APPELLANT: Louis W. Rom COUNSEL FOR APPELLEE: Jack Conway, Attorney General of Kentucky Bryan Darwin Morrow Assistant Attorney General
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NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD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 OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION.
NOT TO BE PUBLISHED
ON APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE THOMAS L. CLARK, JUDGE
NO. 11-CR-00711-001
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Lorenzo Barnes appeals as of right from a Judgment of the Fayette Circuit Court convicting him of both first-degree trafficking in a controlled substance and tampering with physical evidence. He was sentenced as a second-degree persistent felon to respective fifteen and five year terms of imprisonment, those terms to be served consecutively for a total maximum sentence of twenty years in prison. Following a two-day jury trial, Barnes was found guilty of possessing with the intent to distribute some fifty pills . containing schedule II prescription pain medication—some oxycodone and some hydrocodone. He was also found guilty of tampering with—by trying to ingest—further evidence of hydrocodone possession. Barnes contends that there was insufficient evidence to find him guilty of either charge, and he further contends that for several reasons he is entitled to a new trial. These alleged trial errors include (1) the trial court's denial of Barnes's motion to suppress evidence seized during the course of Barnes's arrest; (2) the trial court's improperly limiting Barnes's attempt to impeach a prosecution witness; (3) the admission of a police officer's testimony commenting on the truthfulness of a witness; (4) the admission of another officer's expert testimony regarding the practices of drug dealers; (5) the prosecutor's improper characterization of Barnes as a drug dealer and her improper exhortation of the jury; and (6) the denial of Barnes's right to testify. Convinced that Barnes's convictions are based on sufficient evidence and that his trial was free of reversible error, we affirm the trial court's Judgment.
RELEVANT FACTS
According to the proof at trial, in mid-April 2011 Kentucky State Police (KSP) narcotics officers caught one Derrick Moore, an eighteen-year-old resident of Georgetown, Kentucky, trying to sell a prescription pill. In exchange for not being charged with an offense, Moore agreed to cooperate with the KSP. He confessed to two investigating officers that he had been selling pills—thirty milligram Percocets primarily—supplied by a person he knew as Lorenzo, a black male who sometimes drove a burgundy Chevy Tahoe with large chrome rims. Lorenzo would give him, "front" him, a quantity of pills, between thirty and one hundred usually, and Moore would sell them to consumers. When he had sold the batch he would return the proceeds to Lorenzo, less a percentage—roughly 25%—Moore kept as his share, and Lorenzo would "front" him a new supply of pills. At the time of his arrest, Moore was due to make such an exchange with Lorenzo, and he agreed to set up a meeting with Lorenzo at which, it was hoped, the officers could catch him in the act.
"Percocet" is a trade name for oxycodone.
Moore and the officers all testified, that on April 18, 2011, in a phone call the officers overheard and recorded and which was played for the jury, Moore and Lorenzo arranged to meet later that night at the usual place: the Waffle House in Lexington near the Winchester Road exit from 1-75. Lorenzo advised Moore that he, Lorenzo, "had thirty," a statement Moore understood to mean that Lorenzo would be bringing a new supply of thirty pills. The arranged meeting did not occur. Moore and the officers (all in separate vehicles) waited at the assigned place, but Lorenzo did not appear. When Moore called him to find out what had happened, Lorenzo told him to try again in a day or two.
Moore and the officers tried again on April 21. At about noon that day, Moore made another recorded call to Lorenzo, and Lorenzo again directed him to the Waffle House. Again Moore drove to the Waffle House, with the officers following in unmarked vehicles, but shortly after they had taken up positions there, Lorenzo called Moore and changed the meeting place to the Rite Aid nearby on Winchester Road. The officers, meanwhile, hoping to maintain Moore's cover, had sought the assistance of a state trooper on duty in a marked police car to make the stop of Lorenzo's vehicle should it arrive. A few minutes after Moore and the officers had taken up positions at the Rite Aid, a burgundy Tahoe with large chrome rims driven by a black male pulled into the Rite Aid lot and parked in front of the store. Moore, who was on the phone with one of the officers, said, "That's him." Almost immediately, the uniformed trooper pulled up behind and beside the Tahoe.
The trooper testified that he had gotten out of his vehicle and was approaching the driver's side of the Tahoe when a female exited that vehicle's passenger's side and walked rapidly toward the entrance to the Rite Aid. At about the same time, a black male, Barnes, exited the driver's side of the Tahoe. The trooper stopped him and frisked him. The trooper testified that he found no weapons, but that in the course of the frisk he immediately recognized by feel that a bulge in Barnes's pocket was a large wad of currency. He seized the currency—what proved to be more than $6,700, including more than 180 twenty-dollar bills—and had Barnes sit on the curb to await the investigating officers.
One of those officers testified that he had pulled his car directly in front of the Tahoe, to prevent any escape, and had seen the female, later identified as Desiree Robinson, Barnes's girlfriend, exit the Tahoe and hurry toward the Rite Aid. He caught up with her just inside the door, stopped her, and brought her back outside. According to the officer, she angrily protested being stopped and kept her arms folded tightly across her chest. She several times denied having drugs in her possession and consented when the officer asked if he could search her. Not wanting to conduct the search of a female suspect himself, the officer sought assistance from the Lexington Metro Police Department (LMPD), and before long a female officer arrived at the scene. She confirmed, she testified, Robinson's consent to the search, was told by Robinson that something was concealed under her arm inside her bra, and removed from there a plastic bag containing what proved to be forty-three pills containing oxycodone (thirty-milligram Percocets) and nine pills containing hydrocodone.
Robinson told the LMPD officer who conducted the search and the investigating KSP officers that the pills were hers and that Barnes knew nothing about them. At trial, however, she testified that when she and Barnes had arrived at the Rite Aid and the KSP cruiser had pulled up behind them, Barnes had handed her the bag of pills to conceal and had told her to get out of the car and go into the store. She complied, she testified, and later told the officers that the pills were hers, only to protect Barnes.
During the wait for the female officer who was to perform the search of Robinson, Barnes had been handcuffed and detained in the back of the KSP cruiser. Once the pills were found, the other KSP officer—not the one who had stopped Robinson—read Barnes his Miranda rights and questioned him. In a somewhat disjointed statement, Barnes at first admitted having come to the Rite Aid to meet someone who owed him money, but then denied having come there to supply someone with pills and claimed instead that he and Robinson came to the Rite Aid merely to get something to drink. When asked if the pills taken from Robinson were his, he replied that he did not know, that it depended on what kind they were. Told that the pills included Percocets, Barnes continued to say, "I don't know; I don't know what she had on her."
The other KSP officer, meanwhile, conducted a search of the Tahoe. He found no other drugs, but did find four cell phones. When the officers used their phone to call the number the informant Moore had called earlier that day to set up the meeting with Lorenzo, one of the phones in the Tahoe rang and displayed as the incoming call the phone number of the officers' phone. A forensic analyst later examined the phones, and he testified that three of the phones were functional; that two of those phones were so called drop phones or throw phones—pre-paid phones impossible to trace to a registrant or owner; that on one of the phones someone had stored contact information for "Derrick," Moore's first name, under which had been stored the phone number Moore testified was his; and that on two of the phones were records of calls and text messages to and from Moore's phone number from the times on April 18 and April 21 when Moore and the officers had contacted Lorenzo.
The KSP officers testified that not long after Barnes had given his statement and the phones had been seized, Barnes and Robinson were formally arrested and secured in the back of a LMPD transport vehicle. Noises coming from the vehicle prompted the driver to open the detention area, and the KSP officers found Barnes with what looked like particles and crumbs of a crushed pill or pills on his lips and around his mouth. They found similar particles and crumbs on the floor of Barnes's side of the holding area. Photographs depicting Barnes's face and the floor of the vehicle were shown to the jury. Barnes claimed initially that his lips were chapped; then he admitted that he had crushed and eaten a pill, but claimed that the pill was merely a Tylenol; then finally, according to one of the officers, he admitted that the pill was a Lortab, a trade name for hydrocodone. Lab analysis later confirmed the presence of hydrocodone in the particles found in the transport vehicle.
The Commonwealth's final witness was a KSP sergeant and instructor, an officer with fifteen years of KSP experience, six years of which had been spent as a narcotics detective. The sergeant was not involved in the investigation of Barnes's case, but he testified as an expert to explain in general terms some of the practices commonly employed by persons engaged in the illicit sale of prescription pills. He testified that mid-level suppliers often "front" pills to street-level dealers on consignment; that cell phones are the principal means by which suppliers and dealers communicate; that pre-paid phones are often used because they cannot be traced; and that suppliers will often enlist someone else to carry their pills and frequently use a woman for that purpose since male police officers tend to be reluctant to search a female. He also testified that drug dealers tend to accumulate large amounts of cash, often in smaller denominations, such as twenties; to carry more than just a few pills at a time; and to carry their pills in non-prescription containers. A case, such as this one, with all of these factors present, the sergeant testified, would strongly suggest to him trafficking as opposed to the mere possession of pills for personal use.
Barnes did not testify, but his defense was essentially a denial that he had anything to do with the pills seized from Robinson. His argument emphasized the fact that no transaction with informant Moore had taken place at the Rite Aid, and through cross-examination he attempted to suggest that Moore and Robinson, hoping to avoid or to mitigate punishment for their own offenses, had falsely accused him. To that end Barnes presented testimony by two witnesses who claimed that Moore was reputed to be dishonest. With respect to the tampering charge, Barnes sought to suggest that he may have possessed the crushed Lortab legitimately.
As noted at the outset, the jury rejected Barnes's defenses and found him guilty of both first-degree trafficking and tampering with physical evidence. Barnes contends that neither conviction is supported by sufficient evidence and that the trial court thus erred by denying his motion for a directed verdict. We begin our analysis with this claim.
ANALYSIS
I. The Trial Court Did Not Err by Denying Barnes's Motion For a Directed Verdict.
A. There Was Sufficient Evidence of Trafficking.
As Barnes concedes, a directed verdict is required if, but only if, construed favorably to the Commonwealth the evidence would not permit a reasonable juror to believe beyond a reasonable doubt that the defendant is guilty. Jackson v. Commonwealth, 392 S.W.3d 907 (Ky. 2013) (citing Commonwealth v. Benham, 816 S.W.2d 186 (Ky. 1991)). In pertinent part, Kentucky Revised Statute (KRS) 218A.1412 provides that "[a] person is guilty of trafficking in a controlled substance in the first degree when he or she knowingly and unlawfully traffics in: . . . [t]en (10) or more dosage units of a controlled substance that is classified in Schedules I or II and is a narcotic drug." To "traffic" for the purposes of this statute means, among other things, to "possess with intent to manufacture, distribute, dispense, or sell a controlled substance." KRS 218A.010(49). To "possess," finally, means, in this context, to "own" an item or to have "dominion and control" over it. Pate v. Commonwealth, 134 S.W.3d 593, 598-99 (Ky. 2004). The control need not be exclusive. Id.
Barnes does not dispute that the pills taken from Robinson were Schedule II narcotics or that more than ten dosage units were involved. Otherwise, construing the evidence favorably to the Commonwealth, a rational juror could have been convinced beyond a reasonable doubt that it was Barnes who owned the pills taken from Robinson and that, as she testified, he gave them to her merely to hold when he saw the KSP cruiser pull up behind him, with the understanding that they remained his to do with as he chose. Barnes, in other words, could reasonably have been found to possess the pills.
A reasonable juror could also have been convinced beyond a reasonable doubt that Barnes did not simply happen to show up at the Rite Aid, but that he arrived there in response to phone conversations with informant Moore—phone conversations evidenced on the phones found in Barnes's vehicle—with the intent, as testified to by Moore and as reflected in the recorded phone conversations, of selling the pills in his possession to Moore. A rational juror could thus have been convinced beyond a reasonable doubt that Barnes possessed with the intent to sell a sufficiently large quantity of schedule II narcotics to be guilty of first-degree trafficking. The trial court correctly so held.
B. There Was Sufficient Evidence of Tampering.
The trial court likewise correctly denied Barnes's motion to dismiss the tampering charge. Under KRS 524.100, "[a] person is guilty of tampering with physical evidence when, believing that an official proceeding is pending or may be instituted, he . . . [d]estroys, mutilates, conceals, removes or alters physical evidence which he believes is about to be produced or used in the official proceeding with the intent to impair its verity or availability in the official proceeding." This Court has previously held that the ingestion of drug evidence can constitute tampering with that evidence. Phillips v. Commonwealth, 17 S.W.3d 870 (Ky. 2000); and see Williams v. Commonwealth, 336 S.W.3d 42 (Ky. 2011) (tampering conviction based on arrestee's attempt while being transported to the police station to eat cocaine). That result is not undermined, as Barnes would have it, by our holding in Mullins v. Commonwealth, 350 S.W.3d 434 (Ky. 2011) that tampering requires greater proof of intent than a person's merely walking away from the scene of a shooting with the gun. Tampering, we held, requires "evidence of some additional act demonstrating an intent to conceal." 350 S.W.3d at 442. Here, of course, Barnes did not merely carry the additional Lortab evidence away from the scene of his arrest. He performed the additional acts of crushing the pill or pills and attempting to eat it or them. Barnes asserts that he did so because he had a headache, not because he wanted to impair the availability of evidence, but a reasonable juror could have believed beyond a reasonable doubt that while sitting in the back of the LMPD transport vehicle, Barnes was aware of the likelihood of an official proceeding and that his acts of crushing and attempting to eat direct evidence of narcotics possession demonstrated an intent to conceal it.
II. The Trial Court Did Not Err by Denying Barnes's Suppression Motion.
Prior to trial, Barnes moved to suppress the cash and cell-phone evidence the officers seized from him at the Rite Aid. He contends now that the trial court erred when it denied that motion, because "[tjhere simply was no basis under federal or Kentucky law to detain, search, and arrest Barnes." We disagree.
In reviewing a trial court's denial of a motion to suppress, we employ a two-tiered standard. We review the court's factual findings for clear error, but we review under the de novo standard the court's application of law to those facts. McCloud v. Commonwealth, 286 S.W.3d 780 (Ky. 2009). The Commonwealth's suppression-hearing evidence of the events leading up to Barnes's arrest was essentially the same as the trial evidence summarized above, including testimony by the officer who conducted the search of Robinson that Robinson consented to the search. Robinson testified at the hearing that she did not consent, but the court found expressly that it believed the officer. Otherwise, Barnes does not challenge the Commonwealth's rendition of the facts, but he contends that "uncorroborated claims by Moore, an unreliable confidential informant," did not give the officers cause to detain and search him.
Under both the Fourth Amendment to the Federal Constitution and Section 10 of the Kentucky Constitution, police officers may, without a warrant, arrest a person who they have probable cause to believe has committed or is committing a felony. Beck v. State of Ohio, 379 U.S. 89 (1964); Williams v. Commonwealth, 147 S.W.3d 1 (Ky. 2004). For these purposes, "probable cause" has been described as a fluid, practical, nontechnical conception denoting the totality of circumstances available to an officer sufficient to warrant a reasonable, prudent officer in the belief that the person to be arrested is guilty of a felony. Minois v. Gates, 462 U.S. 213 (1983); Williams, 147 S.W.3d at 1.
In Williams, this Court held that police officers had probable cause to arrest and to search a man based on a reliable informant's tip that a black male named Jermaine, arriving at a particular apartment driving a particular automobile, would be carrying cocaine on his person. The arrival at the apartment of such a man in such a car, together with the informant's having provided accurate information in the past, justified, the Court held, the officers' belief that the man would be carrying cocaine. '
In this case, of course, the informant Moore had not previously provided accurate allegations of criminal activity, but unlike the officers in Williams the KSP officers here were not relying solely on the informant's allegations. They had heard for themselves during the monitored phone calls Lorenzo's recognition of Moore and his arranging to meet Moore in response to Moore's request for a new supply of pills. Thus, when a person exactly matching Moore's description of Lorenzo arrived at the assigned place at the assigned time, they were fully justified in believing that he was there for the assigned purpose, i.e., to collect the money Moore owed him and to supply Moore with more pills. If anything, the "cause" in these circumstances is even more "probable" than it was in Williams, and as in Williams, therefore, the officers did not violate Barnes's rights when they detained him and searched his person. See also United States v. Vongkaysone, 434 F.3d 68 (1st Cir. 2006) (holding under similar facts that officers who were present and listening when an informant arranged by telephone a drug transaction had probable cause to arrest the accurately described persons who showed up at the appointed time and place).
The subsequent search of Barnes's vehicle was also lawful under Arizona v. Gant, 556 U.S. 332 (2009), inasmuch as it was "'reasonable to believe the vehicle contained] evidence of the offense of arrest.'" Robbins v. Commonwealth, 336 S.W.3d 60, 63 (Ky. 2011) (quoting Gant, 556 U.S. at 351). And, of course, the discovery of the pills during the search of Barnes's companion, Robinson, tended to confirm the officers' belief that Barnes was involved in a felony and provided additional cause for his continued detention. The trial court did not err, in sum, when it denied Barnes's motion to suppress the cash and cell-phone evidence seized from him incident to his arrest.
III. Barnes Was Not Denied a Sufficient Opportunity to Impeach Moore.
The informant, Moore, nineteen-years-old at the time of trial, admitted during the Commonwealth's direct examination that in his "younger years" he had gotten into trouble for using and selling marijuana and had been sent to a sort of reform high-school in California. He returned to Kentucky, and for a time, he testified, he stayed "clean," but some two or three months prior to his April 2011 arrest, he had begun to use and to sell prescription pills, pills supplied to him by Barnes. He had met with Barnes and been fronted pills some four or five times, he claimed, the number of pills ranging from an initial supply of twenty-five to a supply on one occasion of about one hundred. When KSP officers arrested him, he agreed to cooperate with them, he testified, in order to "stay out of trouble."
During cross-examination, Barnes asked Moore if he had ever been involved in illegal activity other than selling pot and pills, and in particular whether he had not been involved in the pawning of stolen property. When Moore denied such involvement and Barnes attempted to question him further about it, the Commonwealth objected. At the ensuing bench conference, the Commonwealth complained that any involvement Moore may have had in pawning stolen property was collateral and irrelevant. Barnes countered by claiming that he had a witness who would testify to Moore's involvement in such pawning and asserted that he had a right to impeach Moore's credibility by questioning him about it and, if he denied his involvement, to rebut that denial with the other witness. The Commonwealth replied that under Kentucky Rule of Evidence (KRE) 608(b) the credibility of a witness is not to be attacked with extrinsic evidence of specific instances of conduct, and thus that Barnes's proposed rebuttal testimony by the other witness was not admissible. The trial court agreed. It advised Barnes that his impeachment witnesses would be limited to testifying about Moore's reputation in the community for truthfulness, and that otherwise Moore's alleged involvement with the pawning of stolen property was a collateral matter Barnes was not to pursue. Barnes then asked Moore if he had been involved in drug activity other than the pill purchases from Barnes and the prior marijuana selling, and Moore replied that in conjunction with his purchases from Barnes he had sold pills to a number of people, but he testified that he had obtained pills from no one but Barnes.
Barnes later introduced two witnesses who, he claims, were prepared to testify that Moore had pawned stolen property and had purchased drugs from someone other than Barnes, but in compliance with the trial court's ruling, they testified only that Moore had a reputation for being dishonest. Barnes now contends that, regardless of KRE 608, Kentucky law vests trial courts with "discretion to determine whether or not to permit impeachment on collateral issues when a party has opened the door to such issues by raising them in direct testimony." Commonwealth v. Prater, 324 S.W.3d 393, 399 (Ky. 2010), and that the trial court abused its discretion here by disallowing the collateral impeachment of Moore. We disagree.
In Prater, a woman was charged with reckless homicide following a vehicular collision. Blood-test evidence tended to show that at the time of the collision the woman had prescription pain medicine in her system, and in an apparent attempt to mitigate that evidence she testified during her direct examination that shortly before the accident she had undergone nasal surgery and had received prescriptions for two painkillers. The trial court permitted the Commonwealth to disprove that assertion with extrinsic evidence. Believing that disproof improper, the Court of Appeals reversed. On discretionary review, this Court noted both the somewhat tortured history of the general rule against impeachment on collateral matters by extrinsic evidence and the danger, should that rule be too rigidly applied, that a party could '"raise a collateral matter and then use the law as a shield against full contradiction of that matter.'" 324 S.W.3d at 399 (quoting Robert G. Lawson, The Kentucky Evidence Law Handbook (4th ed. 2003) § 4.05(4)). To guard against such misuse of the rule, we held, as noted above, that the trial court has discretion "to permit impeachment on collateral issues when a party has opened the door to such issues by raising them in direct testimony." Id. Concluding that the trial court had not abused that discretion, we reinstated that court's judgment.
Here, by contrast, Barnes did not seek to impeach Moore on an issue Moore raised in direct, testimony. Moore did not claim during his direct exam never to have stolen anything, or never to have pawned anything, or never to have purchased drugs from anyone but Barnes. Those were all collateral matters raised by Barnes during cross-examination, and it is precisely to prevent diversion of the trial to such marginally relevant matters that the rule against collateral impeachment is directed. Addressing a prosecutor's similar tactic in Purcell v. Commonwealth, 149 S.W.3d 382 (Ky. 2004), this Court explained that "[a] prosecutor cannot make improper inquiries about collateral matters on cross-examination and then introduce otherwise inadmissible evidence in rebuttal under the guise of impeachment." 149 S.W.3d at 397.
Absent some showing of extraordinary need for the evidence, neither can a defendant. Otherwise, collateral impeachment would effectively negate KRE 608, which, as the trial court correctly ruled, generally limits character attacks on a witness's credibility to testimony concerning his or her reputation for truthfulness. Subpart (b) of the Rule does provide, in pertinent part, that specific instances of the conduct of a witness "may . . . in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness . . . concerning the witness' character for truthfulness or untruthfulness." The Rule further provides, however, that for the purpose of attacking a witness's credibility, "[s]pecific instances of the conduct of a witness . . . may not be proved by extrinsic evidence."
The trial court abused its discretion here under neither KRE 608 nor the collateral impeachment rule, and it did not deny Barnes an adequate opportunity to impeach Moore. Barnes established that Moore's arrest for pill trafficking gave him a strong reason to cooperate with and perhaps to be biased in favor of the police and the Commonwealth; he had Moore admit to numerous violations of the law, he introduced evidence to the effect that Barnes is thought by some to be dishonest, and he was permitted during his cross- examination of Barnes to "inquire into" specific instances of conduct—pawning stolen property and purchasing drugs from someone other than Barnes, and was thus given the benefit of any doubt that those matters were "probative of truthfulness or untruthfulness." He was only precluded from introducing extrinsic evidence of those collateral matters—extrinsic evidence inadmissible, as noted, under both KRE 608 and the collateral impeachment rule.
Barnes suggests that the trial court should have made an exception to those rules, but he has failed to identify grounds for such an exception. Given the direct evidence tending to corroborate Moore's particular testimony concerning Barnes—the phone calls and Barnes's coming to the Rite Aid at the appointed time—Moore's general credibility is not as important here as an informant's general credibility might be in another case. And even supposing that friends of Barnes were willing to testify that Moore had sold drugs for other suppliers and that he had pawned stolen property, the probative value of such extrinsic matters cannot be said to have been so compelling or so crucial to Barnes's defense that the trial court should have exempted them from the ordinary rules of evidence. See United States v. Scheffer, 523 U.S. 303 (1998) (noting that the ordinary application of evidence rules is generally not inconsistent with a defendant's constitutional right to cross-examine witnesses or to present a defense); Holt v. Commonwealth, 250 S.W.3d 647 (Ky. 2008) (same). Barnes is not entitled to relief, in sum, from the trial court's correct disallowance of inadmissible collateral impeachment.
IV. The Commonwealth's Witnesses Did Not Impinge Upon the Jury's Right to Assess Credibility and to Determine Ultimate Facts.
Barnes next challenges testimony provided by two of the Commonwealth's witnesses: a police officer called to rebut Barnes's girlfriend's testimony to the effect that she had not been aware that Barnes was selling pills, and the KSP sergeant who testified as an expert regarding the modes of operation of prescription pill traffickers. Barnes concedes that he raised no objection to the testimony of either of these witnesses. Our review, therefore, is limited to that allowed under Kentucky Rule of Criminal Procedure (RCr) 10.26, the substantial error rule. Under that rule, an unpreserved error is reversible only "upon a determination that manifest injustice has resulted from the error." The required showing, this Court has explained, "is probability of a different result or error so fundamental as to threaten a defendant's entitlement to due process of law," a "defect in the proceeding [that is] shocking or jurisprudentially intolerable." Martin v. Commonwealth, 207 S.W.3d 1, 3-4 (Ky. 2006). Barnes's claims do not meet this standard.
A. The Rebuttal Witness Did Not Comment Upon Robinson's Credibility.
First, Barnes contends that the Commonwealth's rebuttal witness improperly commented on Robinson's, his girlfriend's, credibility. Robinson testified at trial that during her relationship with Barnes she had not been aware that Barnes was selling drugs. The Commonwealth then called a police detective who testified that he had been present during the prosecutor's interview of Robinson. At that interview, according to the detective, Robinson had similarly denied knowledge of Barnes's drug dealing, but then had followed that statement with the remark, "Come on now, I'm not stupid." She had accompanied the remark with a roll of her eyes, giving the detective the impression that Robinson denied having actually seen Barnes sell drugs, but that she was nevertheless aware that he had done so.
Citing Moss v. Commonwealth, 949 S.W.2d 579 (Ky. 1997), Barnes characterizes the detective's testimony as an improper comment on Robinson's credibility. In Moss, this Court addressed a claim that the prosecutor had improperly pressured a defense witness to comment on the truthfulness of another witness's testimony. That line of questioning, the Court explained, was improper: "A witness should not be required to characterize the testimony of another witness . . . as lying." 949 S.W.2d at 583. Here, however, the detective was not asked to, and did not characterize Robinson's testimony as a lie. He testified rather concerning Robinson's prior inconsistent statement, and that, of course, is a proper method of impeachment. KRE 613; KRE 801A; McAtee v. Commonwealth, 413 S.W.3d 608 (Ky. 2013).
This Court has noted that "a witness should not attempt to interpret what another witness meant by what he said." Tamme v. Commonwealth, 973 S.W.2d 13, 33-34 (Ky. 1998) (citing Adcock v. Commonwealth, 702 S.W.2d 440 (Ky. 1986)). To the extent, if any, that the detective may have crossed the line from describing for the jury what he heard and saw to telling the jury what Robinson's words and gestures meant, the testimony might be deemed improper, but that question has not been raised even on appeal, and the minor impropriety, if there was one, did not render Barnes's trial manifestly unjust. Simply put, the detective's testimony did not constitute a palpable error.
B. The Police Expert Did Not Opine on an Ultimate Fact or Urge the Jury to "Send A Message."
Barnes also alleges palpable error with respect to expert testimony proffered by a KSP sergeant. The sergeant, a fifteen-year veteran with six years as a narcotics detective, described practices commonly employed by persons trafficking in prescription pills, and he opined that several of the features present in this case—the use of cell phones to arrange the transaction, the use of pre-paid cell phones, the presence of more pills than a legitimate user would be apt to carry, the fact that the pills were not in a prescription container, the large amount of cash in small denominations that Barnes was carrying, and the fact that Barnes's female companion was carrying the pills—were all consistent with pill trafficking. Barnes concedes that many courts, this one included, have allowed expert testimony by police officers describing the drug trade. See, e.g., McCloud, 286 S.W.3d at 780 (detective could describe practices employed in the drug trade and could opine that possession of a given amount of drugs would indicate an intent to traffic); Sargent v. Commonwealth, 813 S.W.2d 801 (Ky. 1991) (experienced narcotics detectives could testify as experts in marijuana trade and could opine that the nearly fifteen pounds of marijuana seized in that case was meant for sale and not for personal use); United States v. Davis, 726 F.3d 434 (3rd Cir. 2013) (narcotics expert may testify about practices of those in the drug trade); United States v. Garcia, 447 F.3d 1327, 1335 (11th Cir. 2006) ("The operations of narcotics dealers are a proper subject for expert testimony.") (citation and internal quotation marks omitted). He contends, nevertheless, that for a couple of reasons the sergeant's testimony here undermined a fair trial.
First, Barnes objects to the sergeant's testimony relating specific facts of this case to pill trafficking. Barnes is correct, of course, that an expert may not express an opinion that the defendant is guilty. Cf. Ordway v. Commonwealth, 391 S.W.3d 762, 777 (Ky. 2013) ("We do not recognize as legitimate subjects of expert opinion, 'how guilty people typically behave' or 'how innocent people do not act."'). But as long as the expert refrains from drawing ultimate conclusions for the jury, drug-trade expert testimony is admissible, this Court has held, even if it supports a conclusion that the defendant possessed drugs intending to traffic, as opposed to possessing for personal use. McCloud, 286 S.W.3d at 780.
Here, the expert made clear that he was not involved in the investigation of this case and had no direct knowledge of its facts. His opinion—that facts such as those related to him by the prosecutor were highly suggestive of trafficking—while it certainly supported the jury's conclusion, was nevertheless limited to common practices and left for the jury the ultimate inference that Barnes, in particular, was guilty of trafficking.
Nor was the fairness of Barnes's trial undermined by the sergeant's background remarks. Near the outset of his testimony, the sergeant commented on the seriousness of the illegal trade in prescription pills, a form of drug trafficking that had grown enormously, he said, in the last ten years. He referred to a pill epidemic in Kentucky and to the so called Florida pipeline—the practice by traffickers of obtaining pills in Florida, where regulations were not as strict as they were in other places, and shipping them via 1-75 to points north, including Kentucky. Barnes contends that these background remarks had no relevance to this case and constituted an improper appeal to the jury to "send a message" to would-be drug traffickers not to traffic in our communities, the sort of appeal disapproved in such cases as Carver v. Commonwealth, 303 S.W.3d 110 (Ky. 2010) and Young v. Commonwealth, 25 S.W.3d 66 (Ky. 2000).
As those cases indicate, it is improper for the Commonwealth to suggest that a defendant should be convicted because other people have committed or might commit a crime. We are not persuaded, however, that the KSP sergeant's background remarks had that purpose or that effect. The remarks, rather, which would hardly have been news to the jury, served merely to give context to the sergeant's testimony that pill traffickers have been observed frequently to employ certain practices. The brief remarks were relevant for that purpose and assuredly did not render Barnes's trial manifestly unjust. The admission of the sergeant's testimony, in sum, did not constitute a palpable error.
V. The Prosecutor Did Not Mislead or Threaten the Jury.
In a related argument, Barnes contends that the prosecutor, too, "preyed upon the fears of the jury about the so called pill epidemic and urged the jurors to get another drug dealer off the streets." According to Barnes, the prosecutor's references to him throughout the trial as a drug dealer and her closing remark urging the jury to remove a drug dealer from the streets "were intended to mislead the jury and resulted in prejudice to [him]." The allegation of deception is utterly unfounded, and the claim of undue prejudice is meritless. Here again, Barnes raised no objection to the asserted misconduct during trial, and thus, as he concedes, he is entitled to relief only if the prosecutor's remarks rendered the trial fundamentally and manifestly unfair. Hannah v. Commonwealth, 306 S.W.3d 509 (Ky. 2010); Brewer v. Commonwealth, 206 S.W.3d 343 (Ky. 2006). They did not.
It is improper, as Barnes notes, for a prosecutor to suggest that an acquittal would be a crime, Barnes v. Commonwealth, 91 S.W.3d 564 (Ky. 2002), a sacrilege, Meland v. Commonwealth, 280 S.W.2d 145 (Ky. 1955), or a breach of civic duty, Brewer, 206 S.W.3d at 343. On the other hand, the prosecutor has wide latitude to comment upon and to draw reasonable inferences from the evidence, and to argue, based thereon, its theory of the case. McAtee, 413 S.W.3d at 608; Williams v. Commonwealth, 644 S.W.2d 335 (Ky. 1982).
The prosecutor here stayed well within bounds. Barnes was accused of dealing drugs. There was substantial evidence to support that accusation. It was not misleading, therefore, or otherwise improper for the prosecutor to refer to Barnes as a drug dealer—that was, after all, the Commonwealth's theory of the case. Cf. Slaughter v. Commonwealth, 744 S.W.2d 407, 412 (Ky. 1987) (noting that it has been held not beyond the pale for the prosecutor to refer to the defendant as "a desperado" and "a bit of evil").
Nor was it misleading or improperly prejudicial for the prosecutor, at the very end of a twenty-minute-long review of the evidence implicating Barnes in drug dealing, to conclude that Barnes "is a drug dealer," and to urge the jury to get that drug dealer "off the streets of Lexington." This was not an improper plea to send a message to other drug dealers, and it was not a threat that the community would blame the jury if it decided to acquit. It was simply the Commonwealth claiming to have proved its case and urging the jury to convict someone of a serious crime with well-known societal ramifications. The prosecutor did not impair the fairness of Barnes's trial.
VI. Barnes Was Not Denied His Right to Testify.
Finally, Barnes claims that he was denied his constitutional right to testify in his defense. After the jury had found Barnes guilty of first-degree trafficking and tampering with physical evidence and immediately after it retired to consider sentencing, the trial court, apparently as an afterthought, noted that Barnes had not testified during either the guilt or the penalty phase of the proceeding and asked Barnes to confirm that he had discussed the matter with counsel and had himself decided not to testify. There then took place the following exchange between Barnes and the court:
Barnes: I didn't have a choice. I didn't even know, seriously. I would have had to say something to defend myself [against] everything that they're making me out to be, sir. I don't feel that I should be maxed to the fullest for a charge of trafficking with drugs and tampering with physical evidence.Barnes contends that this exchange demonstrates that he did not understand his right to testify and so did not validly waive it. Even assuming, however, that Barnes's statement was a belated assertion of his right, it was not timely and does not entitle Barnes to relief.
Court: But it's your election, [your] decision not to testify, correct?
Barnes: (after looking to counsel and counsel's having made a short statement to him): Ah, yeah, yes your honor.
As Barnes correctly notes, the right of an accused to testify in his or her own defense is fundamental, grounded in the Fifth, Sixth, and Fourteenth Amendments to the federal Constitution and in Section 11 of the Kentucky Constitution. Rock v. Arkansas, 483 U.S. 44 (1987); Quarels v. Commonwealth, 142 S.W.3d 73 (Ky. 2004). In Kentucky, the right is also protected by statute. KRS 421.225. The right is personal to the defendant, and may only be relinquished by him or her. Quarels, 142 S.W.3d at 78-79. Relinquishment must be knowing and intentional. Id. While waiver of the right must be knowing and voluntary, it need not be explicit. A defendant's silence in the face of his or her attorney's decision to forgo the defendant's testimony will be deemed a waiver of the right, and absent some indication that counsel is suppressing the defendant's testimony contrary to the defendant's wishes, the court has no affirmative duty to inform the defendant of his right to testify, or to inquire whether he wishes to exercise it. Riley v. Commonwealth, 91 S.W.3d 560 (Ky. 2002). "A defendant who 'wants to testify can reject defense counsel's advice to the contrary by insisting on testifying, communicating with the trial court, or discharging counsel." Quarels, 142 S.W.3d at 79 (citation and internal quotation marks omitted).
When must the defendant speak up and assert his or her right? Obviously, a defendant will not be allowed to remain silent, avoid the perils of cross-examination, and only after that strategy fails and an adverse verdict is returned be heard to say that he or she really wished to testify. United States v. Pino-Noriega, 189 F.3d 1089, 1095 (9th Cir. 1999) ("Clearly, if the defendant says nothing until after the verdict has been read, the right [to testify] has been waived."). Because Barnes asserts only his right to testify during the guilt phase—everything he claims he wanted to explain to the jury relates to his purported innocence—the fact that the jury had already returned its guilty verdict precludes the relief he seeks. While we do not disagree with the Commonwealth's contention that Barnes's colloquy with the trial court ended in a valid waiver, the belatedness of that colloquy provides, we believe, this more fundamental reason for rejecting Barnes's claim.
Because Barnes's claim relates only to the concluded guilt phase of the trial, this case does not require us to decide whether an assertion of the right to testify after the jury has retired, as the jury had retired here to consider sentencing, but before it has made a decision might be deemed timely. We may note, however, that in Rock, 483 U.S. at 44, the Supreme Court recognized that, while fundamental, the right to testify in one's defense, "may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process." 483 U.S. at 55. Citing that line from Rock, several courts have held that a defendant's invocation of his or her right to testify generally is not timely unless asserted before the close of proof. See, e.g., United States v. Byrd, 403 F.3d 1278 (11th Cir. 2005); United States v. Peterson, 233 F.3d 101 (1st Cir. 2000); Pino-Noriega, 189 F.3d at 1089; United States v. Jones, 880 F.2d 55, 60 (8th Cir. 1989); Commonwealth v. Baldwin, 58 A.3d 754 (Penn. 2012). Under that rule, plainly, even a claim by Barnes that he wanted to testify during the penalty phase would have been too late.
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CONCLUSION
The bottom line is that Barnes was fairly and validly tried and convicted. Accusations by Barnes's associates that he possessed and sold pills, accusations corroborated by physical evidence and not least by Barnes's own words and deeds, provided sufficient evidence of drug trafficking and tampering to support the jury's guilty verdicts. The police officers had lawful grounds for arresting Barnes and for the initial search of his person and his car. The Commonwealth did not mislead or improperly cajole the jury, did not characterize a witness as lying, and did not use expert testimony to usurp the jury's role as the ultimate finder of fact. Nor was Barnes denied his rights to testify and to cross-examine the witnesses against him. There was, in sum, no error, and accordingly we hereby affirm the Judgment of the Fayette Circuit Court.
Minton, C.J.; Abramson, Cunningham, and Scott, JJ., concur. Venters, J., concurs by separate opinion in which Keller and Noble, JJ. join.
VENTERS, J., CONCURRING: I fully concur with the majority opinion, but with respect to the issue of the expert testimony about the drug trade, my concurrence is based upon the fact that the witness testified only about factual matters relating to the drug trade and did not offer an expert opinion about Barnes' intentions or his guilt. Had he been permitted to do so, his testimony would have been improper, highly prejudicial, and contrary to our recent holding in Ordway v. Commonwealth, 391 S.W.3d 762, 776 (Ky. 2013) ("[An individual's guilt] cannot be extrapolated from an opinion, that his behavior after the event comports with some standardized perception of how the 'typical' suspect behaves."). To the extent that Sargent v. Commonwealth, 813 S.W.2d 801 (Ky. 1991) would allow such an opinion it should be expressly overruled.
Keller and Noble, JJ., join. COUNSEL FOR APPELLANT: Louis W. Rom COUNSEL FOR APPELLEE: Jack Conway, Attorney General of Kentucky Bryan Darwin Morrow
Assistant Attorney General