Opinion
NO. 2018-CA-000868-MR
05-22-2020
WILLIE L. WHITE APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Erin Hoffman Yang Assistant Public Advocate Department of Public Advocacy Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Christopher Henry Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM KENTON CIRCUIT COURT
HONORABLE PATRICIA M. SUMME, JUDGE
ACTION NO. 17-CR-00341 OPINION
AFFIRMING
** ** ** ** **
BEFORE: DIXON, KRAMER, AND TAYLOR, JUDGES. TAYLOR, JUDGE: Willie L. White brings this appeal from a June 4, 2018, Judgment and Sentence on Verdict of the Jury entered by the Kenton Circuit Court adjudicating White guilty of first-degree trafficking in a controlled substance, guilty of being a first-degree persistent felony offender (PFO I), and sentencing him to a total of fifteen-years' imprisonment. We affirm.
In January of 2017, White sold heroin to a confidential informant (CI). The CI participated in four controlled buys and purchased a cumulative total of two or more grams of heroin from White. White was subsequently indicted in April of 2017 upon first-degree trafficking in a controlled substance (two grams or more of heroin) and PFO I. Following a jury trial on May 1, 2018, White was found guilty of the indicted offenses and was subsequently sentenced to fifteen-years' imprisonment. This appeal follows.
White contends the trial court erred by admitting certain trial testimony in violation of Kentucky Rules of Evidence (KRE) 404. More specifically, White asserts the following testimony was admitted in violation of KRE 404(b): (1) testimony from the detective involved in the controlled buys, that White had previously been investigated for drug trafficking, and (2) testimony from the CI that White threatened to harm him or his family if he testified against White at trial.
KRE 404 provides, in relevant part:
(b) Other crimes, wrongs, or acts. 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. It may, however, be admissible:
(1) If offered for some other purpose, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident; or
(2) If so inextricably intertwined with other evidence essential to the case that separation of the two (2) could not be accomplished without serious adverse effect on the offering party.
Under KRE 404(b), evidence of other crimes, wrongs, or acts is generally inadmissible to demonstrate "a defendant's propensity to commit crimes in order to show that he or she committed the charged crime." Robert G. Lawson, THE KENTUCKY EVIDENCE LAW HANDBOOK, § 2.30(1)(a) (5th ed. 2013). However, evidence of other crimes, wrongs, or acts is admissible to prove "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident" or if the evidence is "so inextricably intertwined with other evidence essential to the case that separation . . . could not be accomplished without serious adverse effect on the offering party." KRE 404(b). And, the trial court's ruling upon the admissibility of such evidence is reviewed for abuse of discretion. See Anderson v. Commonwealth, 231 S.W.3d 117, 119 (Ky. 2007).
Prior to trial, the Commonwealth filed a Notice Pursuant to KRE 404(b). Therein, the Commonwealth provided notice it intended to introduce evidence that White had been the subject of a previous drug investigation and that White had threatened the CI about testifying against him at trial. A hearing was conducted on April 30, 2018, and the trial court ruled that the prior investigation would be admissible on a limited basis and that the threats would also be admissible but admonished the Commonwealth to "step softly." We shall initially address the detective's testimony about the prior investigation and then the CI's testimony concerning the threats.
The court ruled on the motion regarding the prior investigation at the hearing on April 30, 2018, but did not enter a written order. Video Record, April 30, 2018; 9:20. The trial court ruled during the trial that testimony about the threats was admissible. Video Record, May 1, 2018; 11:25-26.
At trial, the detective involved in the controlled buys testified for the Commonwealth that he was familiar with White from a previous drug investigation. This information was essential to demonstrate how White became the focus of the investigation and particularly how the CI identified the man he knew as "Manny" to be White. The detective testified the CI stated Manny's house had been the subject of a previous drug raid. Based on that information, the detective testified he was able to pull photographs and video of the previous drug investigation depicting White, whereupon the CI was then able to identify Manny as White.
Although KRE 404(b) prohibits evidence of other crimes, wrongs, or acts to prove action in conformity therewith, such evidence "may be admissible to show the defendant's identity as the person who committed the crime or to identify uncharged crimes committed by the defendant." 9 Leslie Abramson, KENTUCKY PRACTICE AND PROCEDURE § 27:159.70 (5th ed. 2019); see also Burke v. Commonwealth, 506 S.W.3d 307, 319 (Ky. 2016). In this case, the detective's testimony about the previous drug investigation was utilized to identify Manny as White. As the detective's testimony was used to identify White, we cannot say the trial court abused its discretion by admitting such testimony.
Regarding the threats, the CI testified that White threatened him on two occasions. During the Commonwealth's redirect of the CI, he testified that White told him to get out of town and not to show up for the trial or bad things would happen to him or his family.
Again, KRE 404(b)(1) prohibits introduction of prior bad acts to prove character or action in conformity therewith. See Graves v. Commonwealth, 384 S.W.3d 144, 147-48 (Ky. 2012). However, there is an exception for evidence of threats made to induce a witness not to testify at trial. Matthews v. Commonwealth, 371 S.W.3d 743, 749 (Ky. App. 2011) (citation omitted). More specifically, "[a]ny attempt to suppress a witness' testimony by the accused, whether by persuasion, bribery, or threat, or to induce a witness not to appear at the trial or to swear falsely, or to interfere with the process of the court is evidence tending to show guilt." Id. at 749; see also Foley v. Commonwealth, 942 S.W.2d 876, 887 (Ky. 1996). As the CI's testimony regarding the threats is admissible pursuant to KRE 404(b)(1), we do not believe the trial court abused its discretion by admitting same.
White also asserts the trial court erred by allowing the introduction of the CI's testimony that White's residence had been the subject of a drug raid. This testimony was not addressed in the pretrial motion or at the hearing before trial. Rather, this testimony was elicited from the CI upon cross-examination. Defense counsel was apparently attempting to further its theory that the CI had previously worked for White and the exchange of money that occurred during the drug transactions was payment for work rather than for drugs. In furtherance of this theory, defense counsel asked the CI how he knew where White lived. Defense counsel then specifically asked the CI why he did not buy the drugs from White at his residence. The CI responded that it was because White's house had been the subject of a drug raid.
Where defense counsel asks a question of the witness and the answer to the question is responsive, defense counsel is prohibited from objecting. More specifically, "[o]ne who asks questions which call for an answer has waived any objection to the answer if it is responsive." Sheets v. Commonwealth, 495 S.W.3d 654, 669 (Ky. 2016) (citation omitted). And, parties are "[g]enerally . . . estopped from asserting an invited error on appeal." Quisenberry v. Commonwealth, 336 S.W.3d 19, 37 (Ky. 2011). As such, we view this contention or error to also be without merit.
White also argues the trial court erred by failing to instruct the jury upon a lesser included offense. More specifically, White contends that in addition to the instruction upon trafficking in a controlled substance, two or more grams of heroin (a Class C felony for a first offense), the jury should have also been instructed upon the lesser included offense of trafficking in a controlled substance, less than two grams of heroin (a Class D felony for a first offense). Kentucky Revised Statutes (KRS) 218A.1412.
KRS 218A.1412 provides, in relevant part:
This is the version of Kentucky Revised Statutes 218A.1412 as it existed when Willie L. White was indicted on April 13, 2017. The statute was subsequently amended effective June 29, 2017. --------
(1) A person is guilty of trafficking in a controlled substance in the first degree when he or she knowingly and unlawfully traffics in:
. . . .
(b) Two grams or more of heroin, fentanyl, or methamphetamine;
. . . .
(e) Any quantity of a controlled substance specified in paragraph (a), (b), (c) of this subsection in an amount less than the amounts specified in those paragraphs.
(2)The amounts specified in subsection (1) of this section may occur in a single transaction or may occur in a series of transactions over a period of time not to exceed ninety (90) days that cumulatively result in the quantities specified in this section.
(3)(a) Any person who violates the provisions of subsection (1)(a), (b), (c), or (d) of this section shall be guilty of a Class C felony for the first offense and a Class B felony for the second or subsequent offense.
(b) Any person who violates the provisions of subsection (1)(e) of this section:
1. Shall be guilty of a Class D felony for the first offense . . . .
White's argument focuses upon the jury believing that one of the four controlled buys did not occur. The question of whether there existed sufficient evidence to justify an instruction upon trafficking in a controlled substance of less than two grams is a question of law that we review de novo. Lackey v. Commonwealth, 468 S.W.3d 348, 355 (Ky. 2015) (citations omitted). And, our review of the trial court's duty to instruct upon the whole law of the case is for an abuse of discretion. Id.
It is well-established that in a criminal case, the trial court has a duty to instruct the jury upon the whole law of the case. Brown v. Commonwealth, 313 S.W.3d 577, 626 (Ky. 2010) (citation omitted); Kentucky Rules of Criminal Procedure (RCr) 9.54. Therefore, the jury must be instructed upon "every state of the case deducible from or supported to any extent by the testimony." Brown, 313 S.W.3d at 626 (citing Thomas v. Commonwealth, 170 S.W.3d 343, 348-49 (Ky. 2005)) (citation omitted). However, this does not mean that "speculative theories" should be presented to the jury "merely because the testimony includes some basis for the speculation." Lackey, 468 S.W.3d at 355 (citations omitted). Rather, an instruction upon a lesser included offense is only required where "the evidence would permit the jury to rationally find the defendant not guilty of the primary offense, but guilty of the lesser offense." Id. at 355 (citing Brown, 313 S.W.3d 577). And, where the defense presents a theory of complete denial of committing either offense, there is no basis for the court to instruct upon the lesser included offense. Parker v. Commonwealth, 952 S.W.2d 209, 211 (Ky. 1997). In other words, "[i]f the jury had believed that defense, [the defendant] would have been exonerated." Id. at 211.
In the case sub judice, the evidence presented to the jury upon all four controlled buy drug transactions involving the CI and White were very similar. All four transactions (1) involved the same parties, the CI and White, (2) were recorded on video in a similar fashion, (3) involved texts between the CI and White arranging each transaction, and (4) resulted in the CI returning from each transaction with heroin. There was absolutely no evidence to indicate White was not involved in any one of the four controlled buy transactions. As such, there was no evidentiary basis for the jury to rationally believe that White was not involved in one of the four transactions and, thus, sold under two grams of heroin. Therefore, we conclude White's argument on this issue is without merit.
For the foregoing reasons, the Judgment and Sentence on Verdict of the Jury of the Kenton Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Erin Hoffman Yang
Assistant Public Advocate
Department of Public Advocacy
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Christopher Henry
Assistant Attorney General
Frankfort, Kentucky