Opinion
NO. 2012-CA-001775-MR
06-06-2014
JOSHUA GREGORY TAYLOR APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Erin Hoffman Yang Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General Matthew R. Krygiel Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE ERNESTO M. SCORSONE, JUDGE
ACTION NO. 11-CR-00489
OPINION
AFFIRMING
BEFORE: CLAYTON, JONES, AND TAYLOR, JUDGES. JONES, JUDGE: This matter is on appeal following Appellant Joshua Taylor's conviction for three counts of first degree trafficking in a controlled substance, first offense, enhanced by first degree persistent felony offender and one count of tampering with physical evidence for which Taylor was sentenced to fifteen years' imprisonment by the Fayette Circuit Court. For the reasons more fully explained below, we AFFIRM.
I. PROCEDURAL & FACTUAL BACKGROUND
This case arises out of a series of three controlled drug buys between Taylor and a confidential informant (the Informant). The buys took place on February 1, 2011, February 17, 2011, and March 9, 2011. Detective Dawn Dunn was in charge of overseeing the buys. Taylor was arrested after the third buy.
Following Taylor's arrest, a Fayette County Grand Jury issued an indictment charging Taylor with: three counts of trafficking in a controlled substance in the first degree in violation of KRS 218A.1412; tampering with physical evidence in violation of KRS 524.100; operating on a suspended or revoked operator's license in violation of KRS 186.620(2); and persistent felony offender in the first degree in violation of KRS 532.080.
The charge related to operating on a suspended/revoked license was dismissed on the Commonwealth's motion prior to trial.
The case was tried before a jury on April 25, 2012. At the trial, Detective Dunn testified that the Informant was paid in exchange for assisting law enforcement. She testified that on February 1, 2011, she met with the Informant and arranged for him to place a recorded call to Taylor for the purpose of arranging a drug buy later that evening. The recording of this call was played for the jury. While certain parts of the tape are difficult to discern, Taylor can be heard referring to "60." Dunn testified that in her experience, "60" is a reference to .6 grams of crack cocaine. After a second call, the Informant and Taylor agreed to meet at a local Thornton's gas station.
Dunn searched the Informant (with the exception of his "crotch" area), wired him with a recording devise, and supplied him with cash to buy the drugs. She then waited in an unmarked car at the gas station and recorded the events on video. The Informant approached Taylor, gave him the money, and returned with a napkin that contained crack, which he delivered to Dunn.
Dunn testified that she coordinated another buy between the Informant and Taylor on February 17, 2011. On that evening, the Informant called and asked Taylor to again meet him so that he could purchase drugs. The Informant told Taylor during this conversation: "alright, look, I am already high." Taylor agreed to meet the Informant and the events unfolded as before.
On March 9, 2011, Detective Dunn testified that she coordinated what was to be a "take down buy" meaning that she planned to arrest Taylor. The Informant called Taylor and the two planned a meeting at a Marathon gas station. Detective Dunn instructed the Informant to wait inside the store. When Taylor pulled into the parking lot, officers moved in to arrest him. Officer Keith Ford testified at trial that as he approached Taylor, he observed him put something to his mouth and begin "chomping with purpose." Detective Ford ordered Taylor to open his mouth and then used his finger to sweep out the residue, which subsequently tested positive for cocaine base. Taylor was arrested without further incident.
The main issue on appeal concerns Detective Dunn's testimony regarding the Informant's statement that he was "already high" during the March 17, 2011, telephone call to Taylor. The recording was played for the jury. During Detective Dunn's direct examination, the Commonwealth questioned her as follows: "now [the Informant] stated that he was high. Would the police work with someone that was under the influence?" Dunn responded that she would not. The Commonwealth then went on to ask: "Based on your training and experience, why would someone say that [meaning why would someone say he was high, if it was not true]?" Dunn responded, "to try to get him [the seller] to get there quicker, so if he [the seller] thinks he [the buyer] is high, so he can get up his high up a little bit higher, I guess."
Taylor's counsel did not object to this line of questioning. On appeal, however, Taylor asserts that it was palpable error to allow Dunn to answer this line of questioning because it impermissibly bolstered the Informant's later testimony at trial.
II. STANDARD OF REVIEW
Because Taylor's counsel did not object to the testimony at trial, the alleged error is unpreserved. Such an error is subject to Kentucky Rule of Criminal Procedure (RCr) 10.26. It is reversible only if the defendant can establish that the error was palpable. A palpable error is one that is: 1) clearly contrary to existing law; 2) substantial (meaning that it probably--not just possibly--affected the result or denied the defendant due process; and 3) so sufficiently egregious that leaving it uncorrected would constitute a manifest injustice. See Commonwealth v. Jones, 283 S.W.3d 665 (Ky. 2009).
III. ANALYSIS
It is well established that a witness may not vouch for the truthfulness of another witness. Stringer v. Commonwealth, 956 S.W.2d 883, 888 (Ky.1997) (citing Hall v. Commonwealth, 862 S.W.2d 321, 323 (Ky.1993). Moreover, "[g]enerally, 'a witness's credibility may not be bolstered until it has been attacked.'" Harp v. Commonwealth, 266 S.W.3d 813, 824 (Ky. 2008) (quoting Miller ex rel. Monticello Baking Co. v. Marymount Med. Ctr., 125 S.W.3d 274, 283 (Ky.2004)). KRE 608, which permits the admission of character evidence to attack or support a witness's credibility, provides in pertinent part that:
(a) Opinion and reputation evidence of character. The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.
(b) Specific instances of conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' credibility, ... may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness: (1) concerning the witness' character for truthfulness or untruthfulness. . . .
We do not believe that Dunn's testimony either directly or indirectly bolstered the Informant. The Commonwealth first asked Dunn whether she would work with someone that she knew was high at the time. She responded that she would not do so. This does not bolster the Informant. She offered no opinion on the Informant's truthfulness or lack thereof with respect to his testimony that he was not high. Rather, Dunn spoke regarding her standards and practices as a police officer conducting an undercover drug operation. The testimony was relevant to the jury's assessment of the trustworthiness of Dunn's conduct and the integrity of her overall investigation. We do not find anything about this line of questioning to be improper.
Next, the Commonwealth inquired of Dunn why in her professional experience a prospective buyer of drugs would tell the seller he was already high. Dunn testified that she believed a buyer would say this so that the seller would get to the deal faster. We find this testimony akin to Dunn's testimony regarding her interpretation that "60" meant .6 grams of crack cocaine. It was information that the jury could use to as background with respect to the taped conversation and was based on Dunn's professional experience regarding drug activity. Once again, we do not believe the testimony bolstered the Informant's credibility or his reliability.
Taylor cites Fairrow v. Commonwealth, 175 S.W.3d 601 (Ky. 2005), to support his argument that Dunn's testimony impermissibly bolstered the Informant. In Fairrow, a police officer testified about the reliability of a confidential informant for the purpose of bolstering her credibility. Specifically, the officer testified that the informant's work always resulted in successful "buys" that led to convictions. On appeal, the Court noted that KRE 608 "leaves no room for proof of anything other than the specific trait of character that is pertinent to credibility, namely truthfulness or untruthfulness, a restriction that has been part of Kentucky's law for at least half a century." 175 S.W.3d at 606 (quoting Robert G. Lawson, The Kentucky Evidence Handbook, § 4.20[3], at 302-03 (3d ed.1993)).
Relying on Fairrow, Taylor contends that "the questions about the Informant's drug use by the Commonwealth and the answers given by Dunn 'implied what the Commonwealth could not ask outright'--that [the Informant] was both reliable and effective." As explained above, we do not agree. The answers Dunn gave were not specific to the Informant and we do not believe that they explicitly or implicitly bolstered either his reliability or truthfulness.
For the sake of argument, even if we did believe that Dunn's testimony was improper because it implicitly bolstered the informant's reliability, we must be mindful of the proof necessary to demonstrate palpable error. "[T]he fact that a jury may have been able to infer that a witness was, at most, indirectly vouching for the credibility of another witness is simply not the stuff from which palpable errors are made." Harp v. Commonwealth, 266 S.W.3d 813, 824 (Ky. 2008). This is especially true in a case like the present where there is overwhelming evidence of guilt. Taylor was the subject of three controlled drug buys. The phone calls between the Informant and Taylor were recorded and the transactions were videotaped. After the first two buys, the Informant turned over crack cocaine that he purchased from Taylor. Police witnessed the buys. Finally, and perhaps most damning, is that on the third buy police caught Taylor trying to swallow cocaine before ever meeting with the Informant. Even if the jury had believed that the Informant was high during the second buy, we do not appreciate how this fact would have changed the outcome of Taylor's case in light of the mountain of evidence against him.
IV. CONCLUSION
For the reasons set forth above, we find no palpable error. We affirm the Fayette Circuit Court.
ALL CONCUR. BRIEF FOR APPELLANT: Erin Hoffman Yang
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General
Matthew R. Krygiel
Assistant Attorney General
Frankfort, Kentucky