Opinion
NO. 2012-CA-000190-MR
02-28-2014
KIT PRESCOTT APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Brandon Neil Jewell Emily Holt Rhorer Assistant Public Advocate Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Courtney J. Hightower Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM HARDIN CIRCUIT COURT
HONORABLE KEN M. HOWARD, JUDGE
ACTION NO.10-CR-00443
OPINION
AFFIRMING IN PART
AND VACATING IN PART
BEFORE: ACREE, CHIEF JUDGE; DIXON AND THOMPSON, JUDGES. ACREE, CHIEF JUDGE: Kit Prescott appeals from a January 30, 2012 judgment and sentencing order of the Hardin Circuit Court. He alleges that a number of procedural and trial errors mandate reversal of his convictions of trafficking and possession of controlled substances and being a persistent felony offender (PFO) in the first degree. We affirm the judgment of conviction, but vacate that portion of the sentence which assesses court costs against Prescott and remand for further proceedings.
I. Background
In 2010, Army investigators of the Civil Investigation Command (CID) learned that Private Stephen Percival had been purchasing cocaine and firearms in Radcliffe, Kentucky. They contacted Detective Rex Allaman of the Hardin County Sheriff's Department and began a coordinated investigation. The two investigative units set up controlled buys using Percival as a confidential informant. They equipped Percival with an audio and video recording device. On three occasions in 2010, he entered the apartment of a drug dealer he knew as Six and purchased a quantity of powder cocaine. During the last transaction, Percival and Six also discussed the possibility that Six would sell firearms to Percival or others, but the sale was never executed.
Six was later identified as the defendant, Kit Prescott. Prescott denies that he is Six or that he is guilty of the offenses for which he was convicted.
On the basis of the controlled buys, Detective Allaman sought and was granted a no-knock warrant to search Six's apartment. Detective Allaman's affidavit in support of the warrant request was purportedly placed in the record, but it is now missing.
"In order to justify a no-knock entry, the police must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence." Adcock v. Commonwealth, 967 S.W.2d 6, 9 (Ky. 1998) (quoting Richards v. Wisconsin, 520 U.S. 385, 394, 117 S.Ct. 1416, 1421-1422, 137 L.Ed.2d 615 (1997)).
The warrant was executed while the apartment was unoccupied. Police uncovered significant quantities of drugs and evidence of trafficking, in addition to two firearms.
Prescott was indicted on a number of offenses and appointed representation by the Department of Public Advocacy (DPA). On several occasions, he filed pretrial motions by which he sought to represent himself, but on each occasion he decided to maintain his appointed counsel after consulting the circuit judge.
Trial was conducted in November 2012. At the close of his case, Prescott requested permission to make his own closing statement to the jury. The circuit judge conducted a Faretta hearing and granted his request. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). The jury returned a verdict of guilty on the following charges: first-degree possession of a controlled substance; first-degree trafficking in a controlled substance, first offense, less than four grams of cocaine; two counts of first-degree trafficking in a controlled substance, first offense, more than four grams of cocaine; and first-degree PFO. Prescott was sentenced to a total of ten years' imprisonment and ordered to pay $190 in court costs and fees.
On appeal, Prescott asserts the judgment should be reversed on four grounds. He first claims the warrant was invalid because Detective Allaman's affidavit failed to establish probable cause. On that basis, he believes the evidence discovered in the search of the apartment should have been suppressed. Prescott also protests that the circuit court permitted the jury to hear evidence concerning the prospective sale of firearms. He next claims he should not have been permitted to make his own closing statement. Finally, Prescott argues that he should not have been ordered to pay court costs because he is a poor person. We will consider each argument in turn.
II. Discussion
a. Validity of the search warrant
Prescott claims Detective Allaman's affidavit contained no information regarding the credibility of the confidential informant and contained misleading information because the detective represented that he had conducted certain investigatory tasks which had actually been conducted by other investigators. He believes it should be deemed invalid because it did not establish probable cause.
The test for probable cause is whether, under the totality of the circumstances, a fair probability exists that contraband or evidence of a crime will be found in a particular place. When reviewing the issuance of a search warrant, we must give great deference to the warrant-issuing judge's findings of probable cause and must not reverse unless the court arbitrarily exercised its discretion.Beckam v. Commonwealth, 284 S.W.3d 547, 549 (Ky. App. 2009) (citations omitted). When the affidavit includes information given by a confidential informant, evidence of the "informant's veracity, reliability, and basis of knowledge are all relevant considerations in the totality of the circumstances analysis[.]" Lovett v. Commonwealth, 103 S.W.3d 72, 77 (Ky. 2003) (citation and quotations omitted).
The affidavit upon which the warrant was issued is no longer in the record. The only information we have concerning the contents of the affidavit comes from the warrant itself and the circuit judge's direct references to the affidavit during the suppression hearing. Both clearly indicate that the warrant was sought because an informant conducted three controlled buys of cocaine at the apartment, under the direction of law enforcement officers. We must assume, as the Commonwealth urges, that the remaining contents of the affidavit which are not in the record support the circuit court's ruling.
It is a rule on universal application in this and all other appellate courts that where all the evidence is not brought up on appeal, every fact necessary to support the finding or judgment of the lower court must be assumed to have been in favor of the successful party.Commonwealth Dept. of Highways v. Richardson, 424 S.W.2d 601, 603 (Ky. 1967) (citation and internal quotation marks omitted). In any event, the dispute in this case lies not with the contents of the affidavit, but with whether the factual representations contained in the affidavit provided sufficient probable cause to justify issuance of the search warrant.
Given the circumstances, we cannot say the warrant was issued without probable cause. The presumption that the contents of the missing affidavit support the circuit court's ruling weighs heavily in favor of affirming the denial of Prescott's motion to suppress.
Even if we were to accept as true the appellant's representation that the affidavit lacked any indicia of Percival's reliability, it would not be fatal to the circuit court's finding of probable cause. The affidavit was not based on a tip given by the confidential informant, but on the fruits of a series of controlled buys conducted by the informant under the supervision of law enforcement personnel. Furthermore, "the mere fact that [the detective's] affidavit did not contain recitations as to the informant's veracity, reliability, and basis of knowledge is not conclusive that the warrant was issued without probable cause." Lovett v. Commonwealth, 103 S.W.3d at 78.
Detective Allaman's sworn statement that two law enforcement groups jointly conducted three controlled buys of cocaine in the apartment is sufficient to establish a fair probability that a crime was committed therein. The circuit judge concluded the affidavit was not misleading because Detective Allaman's statements made it clear that the representations made therein were based on his participation in a controlled buy which was conducted jointly by the Army CID and the Hardin County Sheriff's Office. Absent evidence to the contrary, we cannot conclude the finding was erroneous.
We affirm on this issue.
b. Testimony of firearms transactions
Prescott next argues the circuit court erroneously permitted the jury to hear evidence that Percival had sought to purchase firearms from Six, in violation of KRE 402, KRE 403, and KRE 404(b). He has identified three instances in which the circuit court permitted entry of evidence concerning a potential sale of guns which was purportedly irrelevant to the charges against him and unduly prejudicial to his defense.
Kentucky Rules of Evidence.
Prescott was not tried for any offenses related to the sale of firearms. In a pretrial ruling, the circuit court prohibited evidence of the possible firearms transaction except where it arose in the course of the sale of cocaine and no later than the date of the final controlled buy on October 28, 2010.
As a general matter, evidence which is not relevant is not admissible. KRE 402. Even relevant "evidence may be excluded if its probative value is substantially outweighed by the danger of undue prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence." KRE 403. "Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith[,]" although such evidence may be admissible for other purposes. KRE 404(b).
Violation of these rules, however, does not automatically render a verdict invalid. A judge's admonition instructing the jury not to consider certain evidence, or to consider it only for a limited purpose, may cure an evidentiary error. Johnson v. Commonwealth, 105 S.W.3d 430, 441 (Ky. 2003). Rulings made under KRE 402-404(b) are also subject to harmless error analysis. Winstead v. Commonwealth, 283 S.W.3d 678, 688-89 (Ky. 2009) ("A non-constitutional evidentiary error may be deemed harmless . . . if the reviewing court can say with fair assurance that the judgment was not substantially swayed by the error.")
For purposes of our discussion, we will assume that the evidence to which Prescott objects was admitted erroneously. Nevertheless, we are not persuaded that its admission warrants reversal.
The first two references to the sale of guns were harmless error, if error at all. Detective Allaman made two very brief references to having received information from CID that Percival may have been purchasing firearms. The statements did not directly link Prescott to these sales. They constituted only a minute fraction of the detective's testimony, and they were too brief to sway the jury's decision.
Furthermore, it is unlikely the jury's decision was affected by anything other than a belief that Prescott had sold cocaine to Percival. Percival identified Prescott as Six and testified that Prescott had sold him cocaine during the three controlled buys. The prosecution also presented the video recording of the transactions.
The next item of evidence to which Prescott objects is the video recording. The video included a discussion between Prescott and Percival about guns the defendant was offering for sale; it also showed evidence of a drug transaction. Following presentation of the recording to the jury, the circuit court issued the admonition that Prescott was not charged with any crime concerning the sale of guns and that the evidence could be considered only for purposes of identifying the person shown selling drugs to Percival on the video.
A jury is presumed to follow an admonition to disregard evidence and the admonition thus cures any error. There are only two circumstances in which the presumptive efficacy of an admonition falters: (1) when there is an overwhelming probability that the jury will be unable to follow the court's admonition and there is a strong likelihood that the effect of the inadmissible evidence would be devastating to the defendant . . . ; or (2) when the question was asked without a factual basis and was inflammatory or highly prejudicial.Johnson, 105 S.W.3d at 441 (citations and quotations omitted).
The presentation of this portion of the video was necessary to the Commonwealth's case because it depicted a drug transaction, thereby constituting proof that Prescott had committed the crimes with which he was charged; it was therefore not presented without a factual basis. The circuit court's admonition was sufficient to prevent the jury from considering evidence of the gun transaction as affecting their consideration of the offenses for which Prescott was charged, and Prescott has not identified any reason to believe otherwise.
In fact, there is reason to believe the jury was not influenced at all by any of the three references to gun sales. In addition to the offenses for which Prescott was convicted, instructions were also presented on two firearm-enhanced charges of trafficking in controlled substances, but the jury did not find Prescott guilty of any crime enhanced by the possession or use of a gun. KRS 218A.992. Obviously, the evidence concerning the gun transactions did not color the jury's perception of Prescott, and the jurors were not confused or misled by the minimal evidence concerning potential gun sales. Prescott suffered no harm as the result of its admission, and we will not reverse on this basis.
Kentucky Revised Statutes.
c. Prescott's closing statement
Following the close of the defendant's proof, Prescott requested the court's permission to present his own closing argument to the jury. The circuit judge advised Prescott that it was in his best interest to rely on the training and experience of his appointed attorneys, but the defendant persisted in his desire to make his own closing statement.
The circuit court conducted a Faretta hearing, in the course of which it ascertained that Prescott had received a high school education and had considerable experience appearing in court on criminal charges, including having filed pro se motions. The judge also warned Prescott that despite his lack of legal training, he would be held to the same legal standards which applied to attorneys. The judge cautioned that it was possible for Prescott to make mistakes in his closing argument so grave that the court would be forced to end the closing argument prematurely; Prescott stated that he understood this risk and wanted to proceed anyway. The court found Prescott's waiver of the right to counsel was knowing, intelligent, and voluntary, and permitted him to deliver his own closing argument.
Prior to delivering the closing statement, Prescott was able to review his prepared remarks with his attorneys and to seek their advice and input. Prescott was also permitted to consult his attorneys during his closing argument, and he took advantage of their expertise several times.
Prescott now argues the circuit court erroneously granted his request to proceed with hybrid counsel during the closing argument. He claims the Faretta colloquy was inadequate because it failed to notify him of the nature of the charges against him and the accompanying sentences. He also claims his waiver of the right to counsel was erroneously granted because it was untimely.
When a defendant makes "an unequivocal request to proceed pro se or with hybrid representation . . . a Faretta hearing is required." St. Clair v. Commonwealth, 319 S.W.3d 300, 311 (Ky. 2010). As Prescott notes, Faretta requires that the defendant "be made aware of the dangers and disadvantages of self-representation, so that the record will establish that 'he knows what he is doing and his choice is made with eyes open.'" Faretta v. California, 422 U.S. 806, 835, 95 S. Ct. 2525, 2541, 45 L. Ed. 2d 562 (1975) (quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 63 S.Ct. 236, 242, 87 L.Ed. 268). However, "Faretta did not require any specific form or magic words for there to be a knowing and voluntary choice to proceed pro se." Depp v. Commonwealth, 278 S.W.3d 615, 617 (Ky. 2009).
The colloquy conducted by the circuit court was adequate to ensure that Prescott's decision to deliver the closing argument was made knowingly, intelligently, and voluntarily. Prescott's protest that the circuit court failed to advise him of the convictions he faced and the sentences that accompanied them is not convincing. At various stages of the criminal proceedings, Prescott was advised of the charges against him and the possible penalties; he was present throughout the trial and for the court's discussion of the jury instructions. It was not necessary for the circuit judge to cover that information again during the Faretta hearing. Rather, the task of the trial judge was to ensure that Prescott understood the risks specific to his decision to deliver the closing argument, and the judge did so.
Prescott's argument that his motion should have been denied as untimely is likewise unpersuasive. While a trial court is required to entertain a motion for self-representation only when it is timely made, Prescott has identified no authority which prohibits a court from entertaining a motion that occurs after a jury has been empanelled. See Deno v. Commonwealth, 177 S.W.3d 753, 759 (Ky. 2005). In fact, there is authority to the contrary. "The trial court may, of course, grant an untimely request but that is a decision lying within its sound discretion." Soto v. Commonwealth, 139 S.W.3d 827, 857 (Ky. 2004) (citation omitted).
The circuit court's Faretta hearing was adequate to protect Prescott from the dangers of hybrid representation.
d. Court costs
Prescott last argues the circuit court erroneously ordered payment of $190 costs and fees without first finding he was not a poor person. KRS 23A.205; KRS 453.190(2). He concedes that the issue is unpreserved and requests that we review it for palpable error pursuant to RCr 10.26.
Kentucky Rules of Criminal Procedure.
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A defendant must pay court costs "unless the court finds that the defendant is a poor person as defined by KRS 453.190(2) and that he or she is unable to pay court costs and will be unable to pay the court costs in the foreseeable future." KRS 23A.205(2). A poor person "is unable to pay the costs and fees of the proceeding in which he is involved without depriving himself or his dependents of the necessities of life, including food, shelter, or clothing." KRS 453.190(2).
One may be needy, as defined by KRS 31.110(1), and therefore entitled to DPA representation, but nevertheless not a poor person for purposes of assessing court costs. Maynes v. Commonwealth, 361 S.W.3d 922, 929 (Ky. 2012).
The circuit court imposed court costs upon Prescott without ascertaining whether he is a poor person and without addressing his ability to pay. This constitutes palpable error. Smith v. Commonwealth, 361 S.W.3d 908, 921 (Ky. 2012). We vacate Prescott's sentence only to the extent that it obligates him to pay court costs and remand to the circuit court so it may determine whether he is a poor person as defined by KRS 453.190(2) and whether he is unable to pay court costs now or in the foreseeable future. KRS 23A.205.
III. Conclusions
We affirm Prescott's sentences for possession and trafficking of controlled substances and first-degree PFO, but we vacate the assessment of court costs and remand for additional proceedings.
ALL CONCUR. BRIEFS FOR APPELLANT: Brandon Neil Jewell
Emily Holt Rhorer
Assistant Public Advocate
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Courtney J. Hightower
Assistant Attorney General
Frankfort, Kentucky