Opinion
111,046.
09-18-2015
STATE of Kansas, Appellee, v. David Darrel WILLIAMS, Appellant.
Johnathan M. Grube, of Kansas Appellate Defender Office, for appellant. Thomas J. Drees, county attorney, and Derek Schmidt, attorney general, for appellee.
Johnathan M. Grube, of Kansas Appellate Defender Office, for appellant.
Thomas J. Drees, county attorney, and Derek Schmidt, attorney general, for appellee.
Before PIERRON, P.J., BRUNS and SCHROEDER, JJ.
MEMORANDUM OPINION
PER CURIAM.
David Darrel Williams appeals his conviction of distribution of methamphetamine. He contends that the district court violated his Sixth Amendment right to confrontation when it admitted a recording of a drug transaction involving an undercover agent. Specifically, Williams argues that three words uttered by a confidential informant who was with an undercover agent at the time of the drug sale were testimonial in nature and inadmissible under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). For the reasons set forth in this opinion, we disagree. Further, even if the words uttered by the informant were testimonial in nature, we find that any error in admitting them into evidence was harmless. Thus, we affirm.
Facts
Around 7 p.m. on September 13, 2012, Michael Lind—a Senior Special Agent with the Kansas Bureau of Investigation (KBI)—and a confidential informant drove in Lind's unmarked vehicle to meet Williams to conduct a controlled drug buy. The informant—with whom Agent Lind had worked with on prior cases—told police that Williams was selling drugs. The informant contacted Williams and arranged a meeting in the 1700 block of Douglas Drive in Hays.
At the time of the drug transaction, Agent Lind—who was wearing a body wire—was in the drivers' seat while the informant was seated in the front-passenger's seat. Detective Scott Braun of the Ellis County Sheriff's Department was in a different vehicle down the street listening to and recording the conversation in Agent Lind's vehicle. Detective Braun later testified that he knew Williams from having previous contact with him and recognized his voice. In fact, Detective Braun requested that a photograph of Williams be texted to his cell phone during the drug transaction. Following the drug buy, Agent Lind identified the man in the photograph as the man who had sold him drugs.
Although the recording of the transaction is difficult to discern, the informant allegedly said “Hello Dave” when Williams got into the back passenger seat of the vehicle. Moreover, when Williams asked, “Want to buy a line or what?”, the informant responded by saying “Meth.” Agent Lind would later testify at trial that “a line” typically means a line of methamphetamine weighing about 1 gram.
At Williams' request, Agent Lind made a u-turn to park near a streetlight to shed more light into the vehicle. Williams then removed a small plastic bag from his pocket containing a white substance that Agent Lind believed to be about a gram of methamphetamine based on his experience with several dozen—if not several hundred—controlled drug buys during his law enforcement career. After Williams placed the bag on the center console of the vehicle, Agent Lind picked up the bag and examined it before giving Williams $120 to complete the purchase. While the parties were conversing, Williams told them that he previously had 14 grams but that he only had 1 gram left. Agent Lind then dropped Williams off at the same location where he had got into the vehicle. The entire transaction lasted approximately 4 minutes.
After Williams exited the vehicle, Agent Lind conducted a field test on the substance and placed it into a sealed evidence bag. A forensic chemist at the KBI lab in Great Bend later tested the contents of the bag and prepared a report confirming that the substance Williams sold to Agent Lind was indeed methamphetamine weighing 0.82 grams. Thereafter, Williams was arrested, and the State charged him with one count of distribution of methamphetamine.
The district court conducted a jury trial on July 26, 2013. During the trial, Agent Lind, Detective Braun, and a forensic chemist from the KBI testified for the State. Although the State subpoenaed the informant to testify, she did not appear at trial. Moreover, Williams chose not to call any witnesses in his defense.
During Agent Lind's testimony, the audio recording of the drug transaction was admitted into evidence and played to the jury over Williams' objection. Specifically, Williams objected to three words spoken by the informant during the 4–minute conversation. First, Williams objected to the words “Hello Dave,” which were evidently spoken as he was getting into Agent Lind's vehicle. Second, Williams objected to the informant responding “Meth” when he asked if they “Want[ed] to by a line or what?” once inside the vehicle. The district court overruled Williams' objection, finding that these words were not testimonial in nature. It further found that the statements were admissible under the hearsay exception found to K.S.A. 60–460(i)(2), involving statements made while the declarant is participating in a plan to commit a crime or civil wrong.
After deliberation, the jury found Williams guilty of distribution of methamphetamine. Following the trial, Williams unsuccessfully moved for a new trial. Subsequently, on August 20, 2013, the district court sentenced Williams to serve 49 months in the custody of the Secretary of Corrections along with 24 months' postrelease supervision. Thereafter, Williams timely appealed to this court.
Analysis
Admission of Recording
On appeal, Williams contends that the district court's admission of three words uttered by the informant on the recording of the drug transaction violated his rights under the Sixth Amendment to the United States Constitution, which guarantees that “the accused shall ... be confronted with the witnesses against him.” U.S. Const., Amend VI. It should be noted that although Williams argued before the district court that the statements were inadmissible hearsay, he has since abandoned the argument by not raising it in his appeal. State v. Boleyn, 297 Kan. 610, 633, 303 P.3d 680 (2013). In response to Williams' Sixth Amendment challenge, the State contends that the three words were not testimonial in nature and, as such, their admission did not violate the Confrontation Clause.
We exercise unlimited review over issues pertaining to the Confrontation Clause of the Sixth Amendment to the United States Constitution. See State v. Belone, 295 Kan. 499, Syl. ¶ 1, 285 P.3d 378 (2012). In doing so, our first task is to determine if the challenged words uttered by the informant during the drug transaction were testimonial. See State v. Benson, 295 Kan. 1061, 1063, 287 P.3d 927 (2012). “If a statement is found to be testimonial, it must be excluded unless a court finds that the declarant is unavailable as a witness and that the defendant had a prior opportunity to cross-examine the declarant.” State v. Miller, 284 Kan. 682, Syl. ¶ 7, 163 P.3d 267 (2007). On the other hand, if a statement is not testimonial, then the defendant's rights under the Confrontation Clause are not at issue. Miller, 284 Kan. 682, Syl. ¶ 7, 163 P.3d 267 ; see also Bullcoming v. New Mexico, 564 U.S. ––––, 131 S.Ct. 2705, 2713, 180 L.Ed.2d 610 (2011) (citing Crawford v. Washington, 541 U.S. 36, 59, 124 S.Ct. 1354, 158 L.Ed.2d 177 [2004] ).
In the present case, Williams only challenges the district court's decision to admit the portion of the recording in which the informant greets him by saying “Hello, Dave” and her responding “Meth” when Williams asked if she and Agent Lind wanted “to buy a line or what?” We do not find these words to be testimonial in nature under the circumstances presented. As the district court noted, there is no evidence that the informant knew the drug transaction was being recorded. Likewise, the informant was not responding to questions from Agent Lind nor was she in custody at the time.
Furthermore, there is nothing in the record—nor is it argued—that a prosecutor granted the informant immunity in exchange for her help in the purchase of drugs from Williams. See State v. Ralston, 43 Kan.App.2d 353, 361–62, 225 P.3d 741 (2010), rev. denied 291 Kan. 916 (2011); see also Marrone, Unauthorized Immunity Agreements: Honesty Is the Best Policy, 82 J.K.B.A. 24 (Nov ./Dec.2013) (stating that only prosecutors may grant immunity). Without the grant of immunity, the informant's actions potentially exposed her to criminal liability as a coconspirator in the purchase of illegal drugs. See State v. Toler, 246 Kan. 269, 276, 787 P.2d 711 (1990) (“Although the confidential informant was not named in the affidavit here, he did implicate himself in the criminal conduct by participating as a coconspirator in the purchase of illegal drugs and thus subjecting himself to criminal liability.”). In fact, as the Kansas Supreme Court recognized in State v. Betancourt, 301 Kan. 282, 300–01, 342 P.3d 916 (2015), that the United States Supreme Court made a “categorical and unqualified declaration in Crawford that ‘statements in furtherance of a conspiracy’ are not testimonial.” Thus, we conclude the challenged words uttered by the informant during the drug transaction were not testimonial.
In addition, the Kansas Supreme Court has compiled a list of questions based on the facts from several post-Crawford cases to aid courts in determining whether a statement is testimonial:
“ ‘(1) Would an objective witness reasonably believe such a statement would later be available for use in the prosecution of a crime?
“ ‘(2) Was the statement made to a law enforcement officer or to another government official?
“ ‘(3) Was proof of facts potentially relevant to a later prosecution of a crime the primary purpose of the interview when viewed from an objective totality of the circumstances, including circumstances of whether
(a) the declarant was speaking about events as they were actually happening, instead of describing past events;
(b) the statement was made while the declarant was in immediate danger, i.e., during an ongoing emergency;
(c) the statement was made in order to resolve an emergency or simply to learn what had happened in the past; and
(d) the interview was part of a governmental investigation?; and
“ ‘(4) Was the level of formality of the statement sufficient to make it inherently testimonial; e.g., was the statement made in response to questions, was the statement recorded, was the declarant removed from third parties, or was the interview conducted in a formal setting such as in a governmental building?’ “ Benson, 295 Kan. at 1064, 287 P.3d 927 (quoting Brown, 285 Kan. at 291, 173 P.3d 612 ).
The first question—which asks whether an objective witness would reasonably believe that his or her statement would later be used in the prosecution—was derived from the U.S. Supreme Court's decision in Crawford. See Brown, 285 Kan. at 290, 173 P.3d 612. The testimonial statements at issue in Crawford were given in response to direct questions from police during a custodial interrogation at a police station. Here, however, the informant's statements were not made during a custodial interrogation, were not made to Agent Lind, and were not made in response to Agent Lind's questions. See State v. Bridges, 297 Kan. 989, 1002, 306 P.3d 244 (2013). On the other hand, an objective person who is helping an undercover officer buy drugs might reasonably expect that any statements made during the transaction would be used in a later prosecution. See United States v. Cromer, 389 F.3d 662, 675 (6th Cir.2004). Thus, the answer to the first question is unclear.
The answers to the remaining questions are much clearer. The challenged words were not made to a law enforcement officer or to another government official. Rather, “Hello Dave” was a greeting directed at Williams and “Meth” was said in response to Williams' asking whether Agent Lind and the informant wanted “to buy a line or what?” Regarding the third question, there was no interview of the informant. Finally, regarding the fourth question, although the words uttered by the informant were recorded, they were not made in a formal setting, were not made in response to questions from law enforcement officers, were not made in a setting removed from third parties, and did not occur in a government building.
Williams relies heavily on State v. Adams, 35 Kan.App.2d 439, 131 P.3d 556 (2006)rev'd on other grounds 283 Kan. 365, 153 P.3d 512 (2007), in which a confidential informant and a detective worked together to try and catch the defendant in the act of selling drugs. The informant called Adams from his phone in a motel room while the police listened in on and recorded the conversation from an adjoining room. The detective later testified that he heard the informant ask Adams for “a bill” and said that he was “stuck like Chuck, at the motel room and that he couldn't leave.” The informant told the detective that “a bill” meant $100 worth of crack cocaine and that Adams would be at the motel in about 10 minutes. 35 Kan.App.2d at 441, 131 P.3d 556.
After speaking with Adams again a short while later, the informant told the detective that Adams was waiting outside in his car. Before anything else happened, police arrested Adams in his vehicle where they also found drugs packaged for sale. The police also found drug paraphernalia and drugs at Adams' home. Along with several other charges, the State charged Adams with attempted sale of cocaine based on the telephone conversation he had with the informant and his subsequent arrival at the motel. At trial, the detective told the judge that he believed the informant was now dead and, as such, was unavailable to testify. The district court then permitted the detective to testify about the informant's conversations with Adams. Ultimately, the jury convicted Adams on all counts. 35 Kan.App.2d at 442, 445, 131 P.3d 556.
On appeal, a panel of this court affirmed all of Adams' convictions except for the attempted sale of cocaine. 35 Kan.App.2d at 441, 131 P.3d 556. In reversing that conviction, the panel found that the statements made by the informant to Adams were testimonial in nature and that the error in admitting them was not harmless. As such, the panel concluded that the detective's testimony regarding the informant's conversation with Adams violated Crawford. 35 Kan.App.2d at 444, 131 P.3d 556.
Other courts, however, have found statements made by a confidential informant to a defendant to be nontestimonial. For example, in United States v. Hendricks, 395 F.3d 173 (3d Cir.2005), the Third Circuit Court of Appeals held that statements made by a confidential informant on recordings of conversations with the defendant were nontestimonial. 395 F.3d at 184. In coming to this conclusion, the Third Circuit relied heavily on Crawford 's favorable citation to Bourjaily v. United States, 483 U.S. 171, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987), a case in which the United States Supreme Court rejected a claimed violation of the Confrontation Clause relating to a conversation between a defendant and a confidential informant. See Crawford, 541 U.S. at 58 (citing Bourjaily as an example of when nontestimonial statements can be properly admitted even though the defendant did not have a prior opportunity for cross-examination).
In Hendricks, the federal government sought to introduce recordings of face-to-face conversations between a confidential informant and various defendants regarding a large-scale illegal drug trade. Specifically, the prosecution stated that it was seeking to introduce the statements made by the informant in order to place the statements made by defendants on the recording into context for the jury rather than for the truth of the matter asserted. Nevertheless, the trial court suppressed the evidence. In reversing the suppression, the Third Circuit agreed that the informant's statements placed the statements made by the defendants into perspective and made them intelligible to the jury. 395 F.3d at 184.
After listening to the recording in the present case, we find the three challenged words uttered by the informant are more akin to the statements made in Hendricks than to the statements made in the Adams case. Unlike Adams, the informant in this case was present in Agent Lind's vehicle to help facilitate the drug sale between Agent Lind and Williams. Moreover, the three challenged words on the recording were not offered to identify the defendant or to identify the substance he was selling. Indeed, the record reflects that the State proved the identity of the seller and the identity of the substance sold by other means. Specifically, both Agent Lind and Detective Braun testified that the person who sold the drugs was Williams. Likewise, a KBI forensic analysis established that the substance sold by Williams was methamphetamine as Agent Lind had suspected based on his experience in drug enforcement. Thus, similar to Hendricks, the challenged statements made by the confidential informant in this case simply put the statements made by Williams into perspective and made them intelligible for the jury.
Finally, even if the informant's words were deemed to be testimonial in nature, we find any such error to be harmless because the challenged words did not affect William's rights nor did it impact the outcome of the trial. See State v. Ward, 292 Kan. 541, 565, 256 P.3d 801 (2011), cert. denied ––– U.S. ––––, 132 S.Ct. 1594, 182 L.Ed.2d 205 (2012). Based on our review of the entire record, we are persuaded “beyond a reasonable doubt that the error complained of will not or did not affect the outcome of the trial in light of the entire record, i.e., proves there is no reasonable possibility that the error affected the verdict.”292 Kan. at 569, 256 P.3d 801 ; see also Belone, 295 Kan. 499, Syl. ¶ 1, 285 P.3d 378.
A review of the record reveals substantial evidence other than the three words uttered by the informant to establish Williams' identity as well as the fact that the substance he sold to Agent Lind was methamphetamine. Detective Braun—who had previous contact with Williams—testified that he recognized his voice while listening to the drug transaction. Moreover, the detective was able to have a photograph of Williams texted to his cell phone during the transaction. Then, after the drug buy was complete, Agent Lind looked at the photograph and confirmed that it was the man who had sold him the methamphetamine.
Likewise, Agent Lind testified based on his substantial experience in the area of drug enforcement that he believed the substance sold to him by Williams was methamphetamine. Furthermore, the substance was sent to the KBI's lab in Great Bend, and a forensic analysis confirmed that the substance sold was indeed methamphetamine. Therefore, we conclude that even if it was error to admit the three challenged words from the recording into evidence, any such error was harmless beyond a reasonable doubt.
Criminal History
Williams also contends that the district court violated his Sixth and Fourteenth Amendment rights under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), by using his prior convictions to increase his sentence without requiring the State to prove them beyond a reasonable doubt. He acknowledges, however, that the Kansas Supreme Court previously resolved this issue in State v. Ivory, 273 Kan. 44, 41 P.3d 781 (2002). We are duty bound to follow precedent established by our Supreme Court unless there is an indication that it is departing from the precedent. See State v. Hall, 298 Kan. 978, 983, 319 P.3d 506 (2014). A review of Ivory 's progeny does not suggest any such departure. See State v. Castleberry, 301 Kan. 170, 191, 339 P.3d 795 (2014) ; State v. McCune, 299 Kan. 1216, 1234–35, 330 P.3d 1107, cert. denied ––– U.S. ––––, 135 S.Ct. 457, 190 L.Ed.2d 344 (2014) ; State v. Smith–Parker, 301 Kan. 132, 135, 340 P.3d 485 (2014). Accordingly, we find no merit in this argument.
Affirmed.