Opinion
NO. 2013-CA-000635-MR
05-22-2015
JERMAINE CHRISTIAN APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Joseph Rugg Lexington, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Courtney J. Hightower Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JESSAMINE CIRCUIT COURT
HONORABLE C. HUNTER DAUGHERTY, JUDGE
ACTION NO. 12-CR-00270
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE; DIXON AND TAYLOR, JUDGES. ACREE, CHIEF JUDGE: We must decide if the Jessamine Circuit Court properly denied Jermaine Christian's motion to suppress a confidential informant's audio and video recordings depicting a controlled drug buy. We affirm.
On October 10, 2012, Christian was indicted on multiple counts of first-degree trafficking in a controlled substance. The charges stemmed from five controlled buys between Christian and Phillip Taylor, a confidential informant. While Christian's case was pending, Taylor died. In light of Taylor's death, Christian moved to suppress the audio and video recordings of the controlled buys, arguing the recordings: could not be properly authenticated; violated his Sixth Amendment right to confront a witness against him; and constituted inadmissible hearsay.
An evidentiary hearing was held on February 12, 2013. Detective Nolan Bruner, with the Nicholasville Police Department, testified that the first controlled buys occurred on July 3 and 5, 2012. According to the case reports, Sergeants Richard Prather and Todd Justice met with Taylor prior to each controlled buy, searched Taylor and his vehicle, supplied Taylor with money, and provided him with two separate recording devices. The first device only recorded audio, and the second recorded audio and video. The officers then followed Taylor to Jennifer Drive where the transactions with Christian took place. At no point did the officers lose sight of Taylor. After the transactions, the officers followed Taylor to the planned meeting location, retrieved the narcotics, searched Taylor's person and vehicle, turned off the recording devices, and de-briefed Taylor.
The remaining controlled buys occurred on July 16 and 24, 2012, and August 2, 2012. Detective Bruner was personally involved with these transactions. He testified the same pre- and post-transaction procedures, described above, were used for all three transactions, including equipping Taylor with audio and video recording devices and retrieving the devices after each controlled buy. Detective Bruner followed Taylor to and from each transaction and, except for the August 2nd transaction, never lost visual contact with Taylor. Detective Bruner testified the July 16th and 24th drug buys took place at Taylor's car. However, the August 2nd took place inside Christian's residence. Detective Bruner testified he reviewed the recordings from all five controlled buys, and found there were no interruptions or pauses in the recordings. Rachel Martin, Taylor's girlfriend, was also present during all five transactions.
The trial court denied Christian's suppression motion.
Shortly thereafter, on March 11, 2013, Christian entered into a conditional guilty plea to three counts of first-degree trafficking in a controlled substance. Christian reserved as part of his plea the right to appeal the trial court's denial of his suppression motion. The trial court sentenced him to eight years' imprisonment on each count, to be served concurrently. This appeal followed.
Our review of a trial court's decision on a motion to suppress is two-fold. First, we must determine whether the trial court's findings of fact are supported by substantial evidence. If so, then they are conclusive. Kentucky Rules of Criminal Procedure (RCr) 9.78. Second, we review de novo the trial court's application of the law to those facts. Brown v. Commonwealth, 416 S.W.3d 302, 307 (Ky. 2013).
Christian challenges the trial court's denial of his suppression motion on the same grounds raised before the trial court: authentication, confrontation clause, and hearsay. We will address the authentication issue independently, and the latter two grounds conjunctively.
Christian first argues that the trial court erred when it denied his request to suppress the audio and video recordings for lack of sufficient authentication. Christian claims that the officers involved were not privy to the actions depicted in the recordings and, without the confidential informant's testimony, the Commonwealth cannot possibly authenticate the recordings. We are convinced otherwise.
Kentucky Rules of Evidence (KRE) 901 requires, as a condition precedent to admissibility, that evidence must be authenticated to a degree "sufficient to support a finding that the matter in question is what its proponent claims" it to be. KRE 901(b). The proponent need only demonstrate a "prima facie showing of authenticity." Johnson v. Commonwealth, 134 S.W.3d 563, 566 (Ky. 2004). This is not a weighty burden. See id. ("The proponent's burden of authentication is slight."). We review a trial court's authentication decision for an abuse of discretion. Id.
We reject Christian's claim that Taylor's unavailability renders the recordings incapable of authentication. To clear the authentication threshold, the Commonwealth only needed to show that the recordings accurately reflected the events of each controlled buy. The Commonwealth demonstrated prima facie authenticity through the testimony of Detective Bruner. Detective Bruner testified that an officer kept visual contact with Taylor during all parts of each of the controlled buys except for a small portion of the August 2nd transaction. Furthermore, Detective Bruner testified extensively regarding the workings of the audio and video recording devices. An officer was present when the devices began recording and when they were turned off. Detective Bruner downloaded and reviewed all the audio and video recordings, found there to be a continuous, unbroken recording of each transaction, and concluded that the devices had not been turned off, altered, or stopped during the transactions. In light of this evidence, the trial court did not abuse its discretion when it concluded that the Commonwealth could make a prima facie showing of authentication and did not err when it denied Christian's suppression motion on this ground.
Christian next argues that the trial court committed clear error when it admitted the audio and video recordings, thereby denying his Sixth Amendment right to confront a witness against him, i.e., Taylor. Christian claims that the recordings are testimonial because they are submitted for the purpose of establishing or proving a fact. In this same vein, Christian asserts that admitting the recordings results in a "serious hearsay issue" because the recordings contain statements made by and to the confidential informant. We disagree.
Our discussion begins, as most confrontation-clause analyses do, with Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). The United States Supreme Court held in Crawford that "the Confrontation Clause of the Sixth Amendment forbids admission of all testimonial hearsay statements against a defendant at a criminal trial, unless the witness is unavailable and the defendant has had an opportunity for cross-examination." Bray v. Commonwealth, 177 S.W.3d 741, 743 (Ky. 2005), overruled on other grounds by Padgett v. Commonwealth, 312 S.W.3d 336 (Ky. 2010) (citing Crawford, 541 U.S. at 68, 124 S.Ct. at 1374). There are two crucial aspects of Crawford particularly relevant to this appeal. First, Crawford (and the Confrontation Clause) only prohibits the admission of testimonial statements. Peters v. Commonwealth, 345 S.W.3d 838, 842 (Ky. 2011). And, second, it only covers hearsay, i.e., an out-of-court statement "offered in evidence to prove the truth of the matter asserted." KRE 801(c). Restated, the Confrontation Clause bars admission of testimonial statements offered to establish the truth of the matter asserted. Crawford, 541 U.S. at 53, 124 S.Ct. at 1365 (the Confrontation Clause primarily concerns itself with testimonial hearsay).
In Turner v. Commonwealth, 248 S.W.3d 543 (Ky. 2008), the Kentucky Supreme Court addressed Crawford's application to recordings supplied by a non-testifying confidential informant. Similar to the case before us, Turner involved a tape-recorded transaction between a confidential informant and the defendant. The recording captured statements made by the confidential informant, who did not testify at trial, and the defendant. The defendant argued that, because she was not able to cross-examine the informant, the recording's admission violated her confrontation rights under Crawford. The Supreme Court rejected this argument, holding that, to the extent the informant's recorded statements supplied context for those of the defendant, they served a valid, non-hearsay purpose and thus did not violate or implicate Crawford or the Confrontation Clause. Turner, 248 S.W.3d at 546. The Supreme Court cited with approval the analysis offered by the Third Circuit in a similar case:
[I]f a Defendant or his or her coconspirator makes statements as part of a reciprocal and integrated conversation with a government informant who later becomes unavailable for trial, the Confrontation Clause does not bar the introduction of the informant's portions of the conversation as are reasonably required to place the defendant or coconspirator's nontestimonial statements into context.Id. (quoting United States v. Hendricks, 395 F.3d 173, 184 (3d Cir. 2005)).
The ruling in Turner comports with the majority of federal and state courts that have considered this issue. See, e.g., State v. Smith, 960 A.2d 993, 1011-12 (Conn. 2008) (collecting cases). We caution, however, against the carte blanche application of this rule. As noted by the Connecticut Supreme Court, "there is a fine line between properly admitting an informant's statements under [the 'context' theory] and improperly admitting statements that are truly testimonial." Id. at 1012. Courts must carefully scrutinize the purpose for which the Commonwealth is offering the non-testifying informant's recorded statements before declaring them admissible.
Turning to the case before us, we find Turner to be directly on point and controlling. Our review is hindered, however, because the actual audio and video recordings at issue were not made part of the record in the trial court, and are not available for our review. It was Christian's responsibility to lay a complete record before this Court. Chestnut v. Commonwealth, 250 S.W.3d 288, 303 (Ky. 2008). He failed to do so. When the record is incomplete, we assume the omitted record supports the trial court's decision. Id.
We surmise, generally, that the recordings contain statements by both Taylor and Christian. Christian's statements are certainly admissible as non-hearsay admissions by a party-opponent. KRE 801A(b)(1); Fisher v. Duckworth, 738 S.W.2d 810, 813-14 (Ky. 1987) (an admission by a party-opponent is classified as non-hearsay); Williams v. Illinois, --- U.S. ---, 132 S.Ct. 2221, 2228, 183 L.Ed.2d 89 (2012) ("[I]t is settled that the Confrontation Clause does not bar the admission of [non-hearsay] statements.").
With respect to Taylor's statements, the Commonwealth reiterated during the February 12, 2013 evidentiary hearing that it was not offering the audio recordings to prove the truth of Taylor's verbal assertions, but to provide the factual landscape (context) for Christian's admissions and the transactions. The trial court agreed with the Commonwealth and found the recordings to be non-testimonial hearsay. The trial court's ruling comports with Taylor, supra. See also United States v. Tolliver, 454 F.3d 660, 665-66 (7th Cir. 2006) ("Statements providing context for other admissible statements are not hearsay because they are not offered for their truth. As a result, the admission of such context evidence does not offend the Confrontation Clause because the declarant is not a witness against the accused."). Accordingly, we find the trial court committed no error when it deemed the recordings admissible, exclusive of Taylor's statements made after the drug transactions, and denied Christian's motion to suppress.
The Commonwealth conceded during the hearing that it could not, and did not intend to, introduce Taylor's statements made post-transaction. After each transaction, the officers "de-briefed" Taylor by, among other things, questioning him about what happened during the drug transactions. Accusatory statements directly elicited by law enforcement - such as Taylor's post-transaction statements - are testimonial. Davis v. Washington, 547 U.S. 813, 822, 126 S. Ct. 2266, 2274, 165 L. Ed. 2d 224 (2006). The Commonwealth properly declined to introduce, and the trial court properly declined to admit, such evidence.
Finally, the actual events depicted in the videos (excluding any audible statements) are not hearsay and therefore do not offend Crawford or the Confrontation Clause. Again, Crawford only prohibits the admission of testimonial hearsay statements. A statement, by definition, may include a person's nonverbal conduct if it is intended by the person as an assertion. KRE 801(a); Robert G. Lawson, The Kentucky Evidence Law Handbook § 8.05(3) (5th ed. 2013) (examples of assertive, nonverbal conduct include nodding one's head "yes," shaking one's head "no," and pointing to identify a person). There is nothing in the record to suggest that Taylor intended his actions during each controlled buy as nonverbal assertive conduct. We decline to strain the definition of a statement to find otherwise.
We affirm the Jessamine Circuit Court's February 12, 2013 order denying Christian's motion to suppress.
ALL CONCUR. BRIEF FOR APPELLANT: Joseph Rugg
Lexington, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Courtney J. Hightower
Assistant Attorney General
Frankfort, Kentucky