Opinion
NO. 2015-CA-000847-MR
01-06-2017
STEVEN WAYNE CALHOUN APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Kathleen K. Schmidt Department of Public Advocacy Frankfort, Kentucky Roy D. Durham Assistant Public Advocate Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Bryan D. Morrow Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM CASEY CIRCUIT COURT
HONORABLE JUDY D. VANCE, JUDGE
ACTION NO. 13-CR-00117 OPINION
AFFIRMING
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BEFORE: KRAMER, CHIEF JUDGE; D. LAMBERT AND J. LAMBERT, JUDGES. D. LAMBERT, JUDGE: Steven Wayne Calhoun appeals his conviction following a jury trial in Casey Circuit Court. He asserts that four different errors which took place during the trial proceedings, and one occurring at sentencing, entitle him to reversal. Having reviewed the record and finding no error, we affirm.
I. FACTUAL AND PROCEDURAL HISTORY
The Casey County Grand Jury indicted Calhoun as the result of a March 19, 2012, controlled drug buy operation wherein he allegedly sold ten or more dosage units of OxyContin to a confidential informant ("C.I.") working with law enforcement. At the trial, which took place on February 25, 2015, the jury convicted Calhoun of first-degree trafficking in a controlled substance, first offense.
The trial evidence hinged heavily on the testimony of one witness, the C.I. himself. The Commonwealth relied on the C.I.'s testimony to establish the facts of the transaction. Meanwhile, the defense focused almost entirely on destroying the C.I.'s credibility.
Evidence introduced at trial tended to show the C.I. had credibility issues. The C.I. admitted in testimony to being an addict since his teenage years. He testified that he was not using in the time period around March 19, 2012, and further testified as to his belief that one pill could send him on a downward spiral. However, his application to the Kentucky State Police ("KSP") to work as a confidential informant noted that he was a regular user of OxyContin, and evidence also reflected that the C.I. had an active prescription for OxyContin. The C.I. also had a troubling criminal history, including a prior felony conviction and a recent misdemeanor conviction for passing cold checks. The C.I. testified that he had made three controlled buys as an informant: the transaction at issue in this appeal, one before it, and one after. He testified that he had only received compensation for his work as a C.I. on this occasion, a statement which, when contradicted by Detective Dennis Allen, his handler from Casey County Sheriff's Office, the C.I. backtracked. The C.I. also testified that he had charges pending against him at the time of trial. Finally, and most importantly for purposes of this appeal, his account of his dealings with Calhoun differed from the recording of the same transaction captured by the devices attached to him by law enforcement.
The following is a summary of the operative facts from Calhoun's brief, to which the Commonwealth had no substantive objection:
Calhoun had offered to sell the C.I. OxyContin pills on two occasions prior to March 19, 2012, and the third occasion, the only time which the C.I. agreed, was the controlled buy taking place that day. Originally intending the transaction to take place at the C.I.'s residence, officers searched his person (but not his residence), outfitted him with recording equipment, and instructed him to arrange for Calhoun to meet him there. To monitor the transaction, the officers parked in an unmarked vehicle at a vacant residence across the street from the C.I.'s home.
When Calhoun arrived nearly two hours later, rather than going to the C.I.'s residence, Calhoun approached the officers. By coincidence, the owner of the vacant residence happened to be a relative of Calhoun, who had asked his assistance with selling the property. Believing the officers to be potential buyers, Calhoun proceeded show the property to the officers. The officers then left without observing any contact between Calhoun and the C.I.
Calhoun then called the C.I. and instructed him to come to Calhoun's residence. The C.I. did so, and upon arriving, Calhoun requested that the C.I. put the money on a pole and retrieve a cigarette package from Calhoun's pocket, which contained several OxyContin pills. After this transaction, the C.I. returned to the officers to turn over the pills and the recording equipment. The equipment had been running for well over two hours at that point, resulting in a buy video of unusual length.
The grand jury indicted Calhoun and he proceeded to trial. On the morning of trial, Calhoun filed a motion in limine, seeking to exclude, on relevance grounds, the two hours of the video captured while the C.I. waited for Calhoun. The trial court granted that motion in an oral ruling.
In opening statements, Calhoun's counsel began immediately attacking the C.I.'s credibility. Counsel made remarks such as telling the jury they would hear things about the C.I. that would make it difficult to trust him, that he had lied to the police, and that he used his role as a confidential informant to make money. During the Commonwealth's case-in-chief, the trial court allowed the Commonwealth to present rehabilitative testimony from Det. Allen, which consisted of noting the C.I.'s reliability in other cases in the past. Calhoun objected to this testimony, arguing it amounted to an impermissible bolstering of the C.I.'s credibility.
During the C.I.'s testimony, the defense sought to play the video. Over the Commonwealth's objections, the court allowed it, however, the court also fast-forwarded through the irrelevant portions. At the end of his case-in-chief, Calhoun's defense rested without moving to enter the video into evidence.
At the close of the Commonwealth's case, and again at the close of all evidence, Calhoun moved for directed verdict. The trial court denied these motions.
At some point after the close of evidence, a woman came forward with an allegation that the Commonwealth's witnesses had violated the separation-of-witnesses directive issued by the trial court after the Commonwealth invoked Rule 615 of the Kentucky Rules of Evidence ("KRE"). Calhoun moved for a mistrial, and the trial court conducted a brief hearing, outside the presence of the jury. During the hearing, the woman testified that her sole basis for alleging the violation consisted of the fact that the witnesses who had already testified returned to the same room where witnesses who had yet to testify also waited. The Commonwealth directly asked and she specifically testified that she had not heard anyone discussing testimony. The trial court issued a finding that no violation had occurred, and denied Calhoun's motion for mistrial.
While she is identified as Calhoun's mother in Calhoun's brief to this Court, she testified at the hearing that she is his wife. --------
During closing arguments, the Commonwealth pointed out to the jury that because Calhoun had never moved to introduce the recording, it was not part of the evidence, and the members were free to disregard it. Calhoun again moved for a mistrial, characterizing the Commonwealth's remarks as inviting a nullification verdict. The trial court denied the motion.
After deliberation, the jury returned a guilty verdict.
Later, at Calhoun's sentencing hearing, the trial court made an oral pronouncement imposing restitution and court costs on Calhoun. However, the terms of this pronouncement were not included in the written terms of the final judgment and sentence imposed by the trial court. Calhoun did not object at the time, and asserts this error for the first time on appeal, requesting palpable error review pursuant to Rule 10.26 of the Kentucky Rules of Criminal Procedure ("RCr").
This appeal followed, wherein Calhoun asserts five allegations of error. He first contends that the trial court erred and violated his Due Process rights when denying his directed verdict motion. Second, Calhoun asserts that the trial court erred when it overruled his objection to Det. Allen's testimony rehabilitating the C.I.'s credibility. Third, Calhoun asserts that the trial court committed reversible error in denying his motion for mistrial regarding the alleged separation-of-witnesses violation. Fourth, Calhoun asserts that the trial court committed reversible error when denying his motion for mistrial after the Commonwealth invited the jury to ignore the recording. Finally, as noted above, Calhoun asserts an unpreserved error in the trial court's ordering of payment of restitution and court costs.
II. ANALYSIS
A. THE TRIAL COURT APPROPRIATELY DENIED CALHOUN'S
MOTION FOR DIRECTED VERDICT.
When considering a motion for a directed verdict, trial courts must examine the evidence "in light of the proof at trial and the statutory elements of the offense" and assume the truth of the entirety of the Commonwealth's evidence, drawing any fair and reasonable inferences in the Commonwealth's favor. Acosta v. Commonwealth, 391 S.W.3d 809, 816 (Ky. 2013).
Trial courts must reserve issues of weight and credibility of evidence specifically for the jury to determine. Commonwealth v. Benham, 816 S.W.2d 186 (Ky. 1991). The testimony of a single witness, even if contradicted, is sufficient to support a conviction if the finder of fact assigns greater weight to that evidence. Commonwealth v. Suttles, 80 S.W.3d 424, 426 (Ky. 2002). The Commonwealth must have produced more than a mere scintilla of evidence to prevail on a motion for directed verdict. Commonwealth v. Sawhill, 660 S.W.2d 3 (Ky. 1983).
On appeal, the test is whether, taking the evidence as a whole, it would be clearly unreasonable for a jury to find guilt. Benham at 187. However, appellate courts are forbidden from re-evaluating the evidence, or substituting their own judgment for that of the jury on the issue of credibility of witnesses. Commonwealth v. Jones, 880 S.W.2d 544 (Ky. 1994).
Calhoun speculates on appeal that the verdict must have been based on something other than the evidence, because the only evidence introduced against Calhoun is the testimony of the C.I., "a self-confessed drug addict, who gave inconsistent and unbelievable testimony." However unbelievable Calhoun might consider the C.I.'s testimony, it is not his assessment of the evidence which controls in this situation, nor is it the trial court's, or even this Court's. The Commonwealth produced more than a scintilla of evidence, in the form of the C.I.'s testimony and the corroborating testimony of the detective. The rule of Benham, Jones, and Suttles, cannot be made more clearly: the credibility and weight of evidence lies in the exclusive province of the jury.
Because Calhoun's allegation of error amounts to nothing more than a challenge to the weight of the evidence, we conclude that the trial court acted appropriately within its discretion.
B. THE TRIAL COURT DID NOT ERR IN PERMITTING THE
COMMONWEALTH TO PRESENT "BOLSTERING" EVIDENCE.
Admissibility of evidence is entirely within the discretion of the trial court. Love v. Commonwealth, 55 S.W.3d 816, 822 (Ky. 2001). Therefore, properly preserved evidentiary rulings of a trial court are reviewed for abuse of discretion. Dunlap v. Commonwealth, 435 S.W.3d 537, 553 (Ky. 2013).
"Generally, a witness may not vouch for the truthfulness of another witness." McDaniel v. Commonwealth, 415 S.W.3d 643, 653 (Ky. 2013) (citing Stringer v. Commonwealth, 956 S.W.2d 883 (Ky. 1997)). Evidence may not be offered to bolster a witness' credibility unless and until it has been attacked. Brown v. Commonwealth, 313 S.W.3d 577, 628 (Ky. 2010).
Calhoun argues that defense counsel's comments in opening statements, because such statements are not considered evidence (See Wheeler v. Commonwealth, 121 S.W.3d 173, 180 (Ky. 2003)), did not fall under KRE 608(b)'s prohibition on evidence attacking or supporting a witness' credibility with specific instances of conduct. However, the Kentucky Supreme Court has also previously held that "it is never proper in an opening statement for counsel to argue the case or to give his personal opinions or inferences from the facts he expects to prove." Tackett v. Commonwealth, 445 S.W.3d 20, 30 (Ky. 2014) (quoting Turner v. Commonwealth, 240 S.W.2d 80, 81 (Ky. 1951)). The Court also noted in Tackett that defense counsel had "in his opening statement, attacked the credibility of both [the victims], and [the first victim]'s testimony was in response to that attack," and that rehabilitative testimony offered by the victims "was permissible because [defendant] had put [their] credibility at issue" in his opening statement. Tackett at 33.
We conclude that the trial court did not abuse its discretion in finding that Calhoun had "opened the door" for the rehabilitative testimony with comments in counsel's opening statement, and that the ruling allowing the rehabilitative testimony by the officer was consistent with Tackett.
C. THE TRIAL COURT DID NOT ERR IN DENYING CALHOUN'S
MISTRIAL MOTION CONCERNING THE ALLEGED VIOLATION OF
THE SEPARATION-OF-WITNESSES ORDER.
In order for a mistrial to be proper, the record must demonstrate a manifest necessity for such extraordinary relief. Maxie v. Commonwealth, 82 S.W.3d 860 (Ky. 2002). Appellate courts have gone so far as to call a mistrial an "extreme remedy" reserved for those situations presenting "an urgent or real necessity." Cardine v. Commonwealth, 283 S.W.3d 641, 647 (Ky. 2009). When a party alleges a trial court improperly granted or denied a mistrial, appellate courts look for abuse of discretion. Maxie at 864.
The purpose of the rule requiring the separation of witnesses is "to prevent the witnesses excluded from hearing the testimony of other witnesses with the possible result that the testimony of the others might lead the witness to answer in such manner as to conform with other testimony...." Smith v. Miller, 127 S.W.3d 644, 646 (Ky. 2004). Not only must a party alleging a violation of the rule prove the actual violation, but also must show a prejudicial effect on the proceedings. "[A] violation without prejudice would not entitle a party to any relief." Id.
As noted above, the individual asserting the violation provided testimony that indicated neither element was satisfied. She specifically testified that she had not heard any witnesses discussing testimony. Absent evidence of an actual violation, it is logically impossible for a violation to have prejudiced the proceedings.
The trial court correctly concluded that the mere presence of witnesses who had already testified in the same room with witnesses who had not yet testified, without evidence of an actual violation, did not give rise to a valid basis for a mistrial. We find no error in the trial court's denial of the motion.
D. THE TRIAL COURT DID NOT ERR IN PERMITTING THE
COMMONWEALTH TO INVITE THE JURY TO DISREGARD THE
RECORDING.
Much like the motion for mistrial based on the alleged violation of the separation-of-witnesses directive, we review Calhoun's motion for mistrial on this issue for abuse of discretion.
Calhoun's argument on this issue focuses entirely on the comments made by the Commonwealth in closing statements. Calhoun challenges the following remarks in particular:
What you heard from that audio tape, I submit to you, isn't evidence anymore. It was never moved into evidence and I'm going to tell you, you don't have to consider it.Calhoun characterizes the comments as inviting the jury to return a nullification verdict and a violation of his right to present a defense, while the Commonwealth characterizes its statements as consistent with case law regarding what jurors may consider in deliberation.
The Commonwealth's characterization is accurate: a jury may only consider the evidence presented during trial, and the recording itself was not introduced into the record during the trial despite ample opportunity for the defense to do so.
Exclusion of evidence is unconstitutional if it "significantly undermine[s] fundamental elements of the accused's defense." U.S. v. Scheffer, 523 U.S. 303, 304 (1998). However, the trial court did not interfere with Calhoun's right to present a defense here.
Calhoun's entire defense rested on the credibility of the C.I., and Calhoun employed multiple methods of attack on the C.I.'s credibility. Calhoun elicited testimony about the C.I.'s criminal history, which revealed his felony conviction and his cold check conviction. Calhoun elicited testimony that the C.I. may have been biased or have an incentive to offer false testimony, by asking about any pending charges against him and whether he was paid for his part in the transaction. Calhoun highlighted inconsistencies in the C.I.'s testimony. The trial court even permitted the defense to play a portion of the recording during its cross examination of the C.I., even after the defense successfully moved for the exclusion of a portion of it. The trial court's denial of the mistrial motion did not significantly undermine his ability to present evidence in his defense.
Moreover, this Court has previously noted the wide latitude given to parties in crafting their closing arguments. Rodgers v. Commonwealth, 314 S.W.3d 745, 747 (Ky. App. 2010) ("In general, they may comment liberally and extensively on the evidence that was presented.") The Commonwealth's remarks suggested that the jury should not (as opposed to could not) consider the tape itself, which, by Calhoun's own admission, was never moved into evidence. This was consistent with case law, and the admonition found in the jury instructions. The trial court acted within its discretion in finding the Commonwealth's closing arguments were not improper.
E. THE TRIAL COURT'S ORAL DECLARATIONS AT CALHOUN'S
SENTENCING DID NOT PRESENT PALPABLE ERROR.
The trial court appointed Calhoun a public defender at his arraignment, which necessarily requires a finding that Calhoun was indigent. KRS 23A.205 prohibits the imposition of fines and court costs on individuals falling under the statute's definition of "poor person." Maynes v. Commonwealth, 361 S.W.3d 922, 933 (Ky. 2012). At his sentencing hearing, the trial court made an oral pronouncement that imposed court costs and restitution on Calhoun; however, the subsequent written judgment did not reflect these oral rulings. Calhoun requests palpable error review pursuant to RCr 10.26.
The Commonwealth argues that this is a moot issue, and the lack of language imposing such costs in the written final judgment and sentence means the trial court never imposed them. The Commonwealth concludes that the trial court, therefore, committed no error. We agree.
This Court succinctly stated the longstanding rule of law in the Commonwealth regarding oral rulings in Kindred Nursing Ctrs. Ltd. P'ship v. Sloan, 329 S.W.3d 347 (Ky. App. 2010):
We remind the circuit court that it speaks only through written orders entered upon the official record. Thus any findings of fact and conclusions of law made orally by the circuit court... cannot be considered by this Court on appeal unless specifically incorporated into a written and properly entered order.Id. at 349 (internal citations omitted). See Brock v. Commonwealth, 407 S.W.3d 536, 538 (Ky. 2013) ("An oral pronouncement is not a judgment until it is reduced to writing.")
Given that the trial court's written judgment did not impose the costs, fees, and restitution about which Calhoun complains, we conclude that the trial court made no such imposition. We, therefore, further conclude that the trial court committed no error, palpable or otherwise.
III. CONCLUSION
Having reviewed the record and finding no error, we hereby affirm the final judgment and sentence of the Casey Circuit Court.
ALL CONCUR. BRIEF FOR APPELLANT: Kathleen K. Schmidt
Department of Public Advocacy
Frankfort, Kentucky Roy D. Durham
Assistant Public Advocate
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Bryan D. Morrow
Assistant Attorney General
Frankfort, Kentucky