Trigg v. Commonwealth
2015 Ky. LEXIS 1619
Ky.2015Background
- Police executed a warrant at 514 E. College St.; officers found crack cocaine in a suit coat pocket and other drug-related items in a bedroom; Dennis Trigg was present and arrested.
- Two suspects had told police they bought crack from Trigg, but neither identified 514 E. College St. as his residence.
- Trigg’s defense at trial: he did not live at his mother’s house (claimed other residences) and items found did not belong to him.
- At trial, officers testified (1) Trigg did not say during the search that he didn’t live there, and (2) one officer testified Trigg admitted the bedroom was his—an incriminating oral statement that had not been disclosed in discovery.
- Trigg was convicted of first-degree trafficking and possession of drug paraphernalia, sentenced to 20 years and a $500 fine, and appealed arguing (a) undisclosed incriminating statement violated RCr 7.24(1), (b) prosecution’s use of his pre-search silence violated rights/admissibility rules, and (c) the fine should be vacated for indigency.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether introduction of an incriminating oral statement not disclosed under RCr 7.24(1) violated discovery and requires reversal | Commonwealth: prosecutor did not know of the statement before trial; any error harmless | Trigg: failure to disclose prevented preparation and surprised defense; prejudicial | Court: Imputed officer knowledge to Commonwealth; nondisclosure violated RCr 7.24(1); error not harmless; conviction reversed |
| Whether testimony about Trigg’s silence during the three-hour search could be used against him | Commonwealth: pre-arrest silence admissible absent explicit invocation of Fifth Amendment (relies on Salinas) | Trigg: use of silence as evidence violated Fifth Amendment and evidentiary rules | Court: avoided constitutional ruling; held silence was not admissible as an adoptive admission under KRE 801A(b)(2) without an accusatory declarant statement; such silence cannot be used as admission |
| Whether courts may use officers’ observations about demeanor/appearance during the search | Commonwealth: demeanor/appearance testimony permissible | Trigg: contested scope | Court: Observations of demeanor/appearance are admissible, but silence cannot be treated as tacit admission absent an antecedent accusatory statement |
| Whether $500 fine should be vacated because Trigg was indigent under KRS Chapter 31 | Trigg: fine barred by statute for persons declared needy/indigent | Commonwealth: error not preserved for appeal | Court: Because conviction reversed, fine vacated; clarified appellate preservation rule—fine assessment contrary to established indigency must be preserved unless apparent on the record |
Key Cases Cited
- Anderson v. Commonwealth, 864 S.W.2d 909 (Ky. 1993) (knowledge of investigating officer imputed to Commonwealth for discovery purposes)
- Chestnut v. Commonwealth, 250 S.W.3d 288 (Ky. 2008) (undisclosed incriminating oral statement can fatally undermine defense; reversible error)
- Grant v. Commonwealth, 244 S.W.3d 39 (Ky. 2008) (failure to disclose recorded incriminating evidence impeded decision whether to testify; reversible error)
- Ballard v. Commonwealth, 743 S.W.2d 21 (Ky. 1988) (due process violation where investigating officer knew of exculpatory report not disclosed)
- Akers v. Commonwealth, 172 S.W.3d 414 (Ky. 2005) (discusses prejudice when nondisclosure affects counsel’s trial strategy)
- Green v. Commonwealth, 815 S.W.2d 398 (Ky. 1991) (prosecutorial comment on post-arrest silence impermissible)
- Salinas v. Texas, 133 S. Ct. 2174 (U.S. 2013) (plurality/fragmented opinion on use of prearrest silence; court here declined to rely on it as controlling)
- Buford v. Commonwealth, 197 S.W.3d 66 (Ky. 2006) (conditions for adoptive admissions by silence; silence alone insufficient)
- Spicer v. Commonwealth, 442 S.W.3d 26 (Ky. 2014) (preservation requirement for challenging assessment of costs/fines against claimed indigent)