Opinion
NO. 2016-CA-001638-MR
02-16-2018
DASHAWN JOHNSON APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Samuel N. Porter Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Jeffrey A. Cross Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM HENDERSON CIRCUIT COURT
HONORABLE KAREN LYNN WILSON, JUDGE
ACTION NO. 15-CR-00374 OPINION
AFFIRMING
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BEFORE: COMBS, JONES, AND NICKELL, JUDGES. JONES, JUDGE: Appellant, Dashawn Johnson, appeals a judgment of conviction and sentence entered by the Henderson Circuit Court sentencing him to ten years' imprisonment. Following review of the record and applicable law, we AFFIRM.
I. BACKGROUND
In January of 2016, a Henderson County Grand Jury indicted Johnson for two counts of first-degree trafficking in a controlled substance and for being a first-degree persistent felony offender ("PFO"). The indictment alleged that on two separate occasions in October of 2014, Johnson had sold less than four grams of cocaine to a confidential informant working for the Henderson Police Department. Following his arraignment, Johnson pleaded not guilty to the charges.
In May of 2016, Johnson filed a motion to recuse the Commonwealth's attorney, in which he contended that the Commonwealth's attorney was prejudiced against him. Johnson averred that in a previous case prosecuted by the same attorney, the Commonwealth had called Johnson as a witness and Johnson had refused to testify, which ultimately resulted in Johnson being held in contempt of court. Johnson believed that the Commonwealth's attorney was still holding a grudge against him for his refusal to testify and had evinced his prejudice against Johnson by offering him a plea deal for twenty-five years' imprisonment, with at least ten years served before being eligible for parole. Johnson contended that this offer was unreasonable in light of the crimes for which he had been charged. Additionally, Johnson's motion contended that the Commonwealth's attorney had previously made a misrepresentation to the circuit court concerning the availability of one of the Commonwealth's witnesses, which had caused his trial to be delayed. Following a hearing on Johnson's motion, at which the Commonwealth's attorney assured the trial court that he did not hold a grudge against Johnson, the trial court denied the motion, finding the alleged misrepresentation to be unmeritorious.
A one-day jury trial was held on June 29, 2016. Detective Brad Newman and Jeff Spence, the confidential informant who had allegedly purchased the cocaine from Johnson, testified about the circumstances surrounding the two drug deals. Detective Newman stated that in mid-October of 2014, Spence informed him that Johnson had been dealing crack cocaine. Detective Newman had Spence arrange to purchase $100 worth of cocaine from Johnson on October 17, 2014. Before Spence met up with Johnson, Detective Newman searched him and his vehicle, equipped him with an audio-video recording device, and gave him money to purchase the cocaine. Both Spence and Detective Newman testified that, while Spence had physical control of the recording device, only Detective Newman was able to start and stop the recording. Detective Newman followed Spence in a separate car to an agreed-upon location where Spence met up with Johnson. Detective Newman testified that he was on the same block as Spence and Johnson when the drug deal occurred, but that he was unable to see any exchange from his vehicle. Three to four minutes after Spence purchased the drugs from Johnson, Detective Newman and Spence reconvened and Spence gave Detective Newman the recording device and a Marlboro cigarette box containing a baggie with what appeared, and was later confirmed, to be cocaine inside. Detective Newman then placed the cigarette box in the property room and downloaded the recording that Spence had obtained. Detective Newman stated that he was unable to get a clear visual of who was selling Spence the cocaine in the video, but that there was clear audio. Because he was unable to determine to whom the voice in the video belonged, Detective Newman asked Lieutenant Nevels, who knew Johnson, to listen to the video. Lieutenant Nevels did so, and confirmed that the voice in the video was Johnson.
On October 21, 2014, Detective Newman and Spence arranged for Spence to purchase $200 worth of cocaine from Johnson. Detective Newman again searched Spence and his vehicle, equipped him with the recording device, and gave him the money with which to purchase the cocaine. Following his meet-up with Johnson, Spence provided Detective Newman with the recording device and the purchased cocaine. Detective Newman stated that in the second recording he was able to see the top part of Johnson's face and that he could clearly hear Johnson's voice throughout the entire transaction. Neither the October 17, 2014, recording nor the October 21, 2014, recording was shown to the jury.
Lieutenant Nevels was called by the Commonwealth to testify about his viewing of the October 17, 2014, recording and a conversation he had with Johnson following the two drug deals. Before Lieutenant Nevels took the stand to testify, Johnson's defense counsel requested a bench conference. During the conference, defense counsel expressed his concern that, because Lieutenant Nevels was going to testify that he had had enough contact with Johnson to recognize his voice in the October 17, 2014, recording, the jury would infer that Lieutenant Nevels knew Johnson from previous police investigations. The Commonwealth stated that it would not ask Lieutenant Nevels how he knew Johnson or if he knew Johnson in a professional or personal capacity; rather, it would establish that Lieutenant Nevels knew Johnson, had spoken with him, and was familiar with his voice and the way he spoke. The trial court instructed the Commonwealth to admonish Lieutenant Nevels that he could not indicate that he knew Johnson from previous police interactions, but could only testify that he was familiar with Johnson and the sound of his voice.
Following the bench conference, Lieutenant Nevels testified that he did know Johnson, had conversed with him, and was able to identify his voice. Lieutenant Nevels testified that Detective Newman had requested that he watch the October 17, 2014, recording and identify the speaker. He did so, and recognized the voice in the recording as belonging to Johnson. Additionally, Lieutenant Nevels testified that he had received a phone call from Johnson shortly after the drug transactions at issue took place. Lieutenant Nevels stated that he recognized Johnson's voice on the call and that Johnson had identified himself by name. During this conversation, Johnson told Lieutenant Nevels that he had "gotten desperate and thought he had messed up." Johnson stated that he thought that he had sold "dope" to one of the police department's informants and identified Spence as the person to whom he had sold the drugs. Johnson told Lieutenant Nevels that it was "all around town[,]" that Spence was working for the police department, and that he had screwed up and sold him dope. VR: 6/29/16; 1:22:00-1:23:55. Johnson then asked if there was any way he could help the police department to avoid being charged. Lieutenant Nevels stated that this conversation had not been recorded and that, while he had discussed the conversation with others, he had not made a formal report of it.
The Commonwealth called additional witnesses who established the chain of custody for the evidence and testified as to the procedures used to test the substances sold by Johnson and to verify that they were, in fact, cocaine. For Johnson's defense, both Detective Newman and Spence were recalled in an effort to question the Commonwealth's story. Ultimately, the jury found Johnson guilty on all counts and recommended a one-year sentence and three-year sentence, which were enhanced to two ten-year sentences, to run concurrently, due to the PFO. The circuit court entered a judgment of conviction on September 7, 2016, sentencing Johnson to ten years' imprisonment.
This appeal followed.
II. ANALYSIS
Johnson raises three counts of error on appeal: (1) that Lieutenant Nevels's testimony that he knew Johnson violated KRE 404(b) because it implied that Johnson had prior interactions with the police; (2) that Lieutenant Nevels's testimony that he recognized Johnson's voice in the October 17, 2014, recording violated KRE 1002; and (3) that the trial court committed reversible error in denying Johnson's motion to recuse the Commonwealth's attorney. We address each argument in turn.
Kentucky Rules of Evidence.
A. There was no violation of KRE 404(b)
Johnson contends that Lieutenant Nevels's testimony that he knew Johnson implied that Johnson had committed previous crimes. Johnson argues that the implication arising from Lieutenant Nevels's testimony violated KRE 404(b), which generally prohibits the admission of evidence showing an accused's prior crimes, wrongs, or other bad acts. As noted above, Johnson's trial counsel objected to Lieutenant Nevels's testifying that he knew Johnson before Lieutenant Nevels took the stand and the trial court allowed the testimony, provided that Lieutenant Nevels did not state how he knew Johnson. We review evidentiary rulings for an abuse of discretion. Anderson v. Commonwealth, 231 S.W.3d 117, 119 (Ky. 2007). "The test for an abuse of discretion 'is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.'" Id. (quoting Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky. 2000)).
At no point during Lieutenant Nevels's testimony did he indicate that he knew Johnson from Johnson's prior criminal activity. Lieutenant Nevels was asked if he had occasion to know Johnson prior to October 17, 2014, and if he had ever had the opportunity to talk with him. Lieutenant Nevels responded affirmatively to both questions. Johnson acknowledges that this was the extent of Lieutenant Nevels's testimony on this point. However, because the jury had been made aware of the fact that Lieutenant Nevels worked for the Henderson Police Department, Johnson contends that Lieutenant Nevels's affirmation that he had previously spoken with Johnson led the jury to a natural inference that Johnson had committed crimes in the past. In support of his argument, Johnson directs our attention to Wiley v. Commonwealth, 348 S.W.3d 570 (Ky. 2010). In Wiley, a police officer testified that he knew the defendant before their contact in connection with the current charges. The officer then testified that he saw the defendant on the street and "being familiar with [the defendant, he] went back to [his] division to kind of check for his status, maybe being wanted or anything like that." Id. at 581. The Kentucky Supreme Court found that the above-quoted portion of the police officer's testimony was a "thinly-veiled reference to [the defendant's] criminal history" and therefore violated KRE 404(b). Id. at 581.
We do not agree with Johnson that Lieutenant Nevels's testimony that he knew Johnson and had spoken with him raises the same issues as the officer's testimony in Wiley. In Wiley, the Court did not take issue with the officer's mere acknowledgement that he knew the defendant; its concern was with the officer's testimony that, when he saw the defendant walking down the street, he went back to his division to check on the defendant's criminal status because he was familiar with the defendant. An officer testifying that his familiarity with a defendant caused him to check for outstanding warrants upon seeing him does suggest that the defendant may have a criminal history. Lieutenant Nevels's acknowledging that he had spoken with Johnson before the incidents at issue makes no such suggestion. Accordingly, we cannot find that the trial court abused its discretion in allowing Lieutenant Nevels to testify that he knew Johnson before October 17, 2014.
B. There was no error under KRE 1002
Johnson's next argument, which is unpreserved, is that Lieutenant Nevels's testimony that he recognized Johnson's voice in the October 17, 2014, recording violated the best evidence rule because Lieutenant Nevels had no personal knowledge of the drug buy depicted in the recording and the recording was not introduced at trial. At Johnson's request, we review this issue under RCr 10.26 for palpable error that substantially affected Johnson's rights and resulted in manifest injustice.
Kentucky Rules of Civil Procedure.
The best evidence rule, codified in KRE 1002, provides that "to prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules, in other rules adopted by the Kentucky Supreme Court, or by statute." "Essentially, this rule requires a party to introduce the most authentic evidence which is within their power to produce." Johnson v. Commonwealth, 231 S.W.3d 800, 805 (Ky. App. 2007) (citing Marcum v. Commonwealth, 390 S.W.2d 884, 886 (Ky. 1965)).
During the Commonwealth's case-in-chief, it asked Lieutenant Nevels whether he had viewed the October 17, 2014, recording of the purported drug buy and whether he was able to identify the individual in the video. Lieutenant Nevels replied that he did watch the video and identified Johnson's voice. As noted, the actual recording was never shown to the jury. Johnson contends that allowing Lieutenant Nevels's testimony was erroneous, as it is "for the jury to determine as best it can what is revealed in the tape recording without embellishment or interpretation by a witness." Gordon v. Commonwealth, 916 S.W.2d 176, 180 (Ky. 1995).
There is no contention that the Commonwealth failed to produce either recording of the drug buys. During the sentencing portion of the trial, Johnson acknowledged that he and his counsel had viewed both recordings.
Unlike the cases cited by Johnson in support of his argument, Lieutenant Nevels's testimony did not attempt to explain or interpret what had happened in the recording. Lieutenant Nevels's testimony as it related to the video recording merely acknowledged that he had listened to the recording and recognized Johnson's voice in it. Lieutenant Nevels testified that he had personal knowledge of Johnson's voice and the way he spoke. "A nonexpert witness may express an opinion which is rationally based on the perception of the witness and helpful to a determination of a fact in issue." Clifford v. Commonwealth, 7 S.W.3d 371, 374 (Ky. 1999) (citing KRE 701). Under KRE 602, a lay opinion offered under KRE 701 is limited in scope to those matters within the personal knowledge of the testifying witness. The fact that he had no personal knowledge of the buy is irrelevant, as he did not testify to or comment on any of the events that the recording captured. Lieutenant Nevels had personal knowledge of Johnson's voice and that is what he testified to. See e.g., Morgan v. Commonwealth, 421 S.W.3d 388, 392 Ky. 2014) ("The present case does not implicate impermissible 'narrative-style testimony' or any other improper description of video or photo images from a witness' [sic] perspective. Rather, the three witnesses merely identified Morgan as the man present in the surveillance video and still photos." (internal citations omitted)).
The video recordings may have been the best evidence of the transactions that occurred on October 17th and October 24th of 2014. However, Lieutenant Nevels did not elucidate on what transactions occurred in those videos. As Johnson did not testify during the guilt portion of the trial and the video recordings did not show his face, playing the video recordings would not have aided the jury in identifying the person speaking in the recordings. Further, Lieutenant Nevels's testimony that he recognized Johnson's voice in the video was not the sole testimony leading to Johnson's conviction. Spence testified that, on both October 17, 2014, and October 21, 2014, Johnson was the person who sold him cocaine. Lieutenant Nevels testified that Johnson called him and admitted that he had sold "dope" to Spence. This testimony was properly admitted under KRE 801A(b). Accordingly, we cannot find that the trial court committed palpable error in allowing Lieutenant Nevels's testimony.
C. The trial court's denial of Johnson's motion to recuse the
Commonwealth's attorney was proper
Johnson's final argument on appeal is that the trial court erred in denying his motion to recuse the Commonwealth's attorney. Under KRS 15.733, a "prosecuting attorney may be disqualified by the court in which the proceeding is presently pending, upon a showing of actual prejudice." "Vindictiveness is not to be presumed." Clayton v. Commonwealth, 786 S.W.2d 866, 869 (Ky. 1990) (citing United States v. Goodwin, 457 U.S. 368, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982)).
Kentucky Revised Statutes. --------
Johnson contends that the Commonwealth's attorney had actual prejudice against him, which manifested itself in two separate incidents: the "unusually high" plea deal offered to him by the Commonwealth and the continuance of Johnson's trial resulting from a misrepresentation the Commonwealth made to the trial court. At the hearing on Johnson's motion to recuse the prosecutor, the Commonwealth's attorney assured the trial court that he bore no ill feelings towards Johnson and that the reason that the plea offer was higher than what normally might be expected for the offenses with which Johnson was charged was due to Johnson's lengthy criminal history. The trial court found that Johnson's contentions that the plea deal demonstrated prejudice were mere speculations. We agree.
Johnson's contention that the Commonwealth made misrepresentations to the trial court to obtain a continuance was found to be inaccurate. Johnson asserted in his motion, and continues to assert on appeal, that the Commonwealth represented to the trial court that it needed the continuance because one of the witnesses it planned to call would be testifying in Union County the same day that Johnson's trial was originally scheduled for. Johnson contended that he checked CourtNet and there were no hearings scheduled in Union County on that date. At the hearing, the trial court noted that the Commonwealth had not said that its witness would be in Union County on the previously scheduled trial date. Rather, when the Commonwealth told the court its witness would be unavailable, Johnson's defense counsel said that he thought that the witness was going to be testifying in Union County and asked if he would be able to come testify in Johnson's case when he was done. A review of the video record for the motion to continue verifies that this is correct. Accordingly, we cannot find that the trial court erred in denying Johnson's motion to disqualify the Commonwealth's attorney.
III. CONCLUSION
In light of the foregoing, the we affirm the Henderson Circuit Court's judgment of conviction and sentence.
ALL CONCUR. BRIEFS FOR APPELLANT: Samuel N. Porter
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Jeffrey A. Cross
Assistant Attorney General
Frankfort, Kentucky