Carter v. Commonwealth
782 S.W.2d 597
Ky.
1990
Check Treatment

*1 CARTER, Appellant, Earn Claude

COMMONWEALTH of

Kentucky, Appellee.

No. 88-SC-172-MR.

Supreme Kentucky. Court of

Sept. 1989.

Rehearing Denied Feb. 1990.

As Modified Feb. *2 Namkin, Advocacy, Dept, of

Julie Public Frankfort, appellant. Gen., Cowan, Atty. Carol C.

Frederic J. Ullerich, Gen., Atty. Appel- Asst. Criminal Div., Frankfort, appellee. late LEIBSON, Justice. in the Lo-

Claude Carter was convicted possession marijua- gan Circuit Court of trafficking in He was sen- na and LSD. years imprisonment tenced to five for the conviction, impris- marijuana years and ten sen- onment for the LSD conviction. Both thirteen tences were enhanced to terms of twenty-six years, as a years, a total of first-degree persistent felony offender. in- principal appeal issues raised on admitting into evidence volve deposition of one Charles videotaped Elam, Jr., paid police informant. deposition that he encountered drugs. during quest We will Carter testimony. summarize his 3,1985, According to on November agreed go Billy one Driskell with Tennessee, Elkton, City, from Union marijuana. Kentucky, in search of some girlfriend also went on this excur- leaving pool hall trio was sion. As the Dris- Elkton encountered Carter. girlfriend go on to kell told Elam and his wait, join them in the car and that he would joined a few minutes. When car, them Carter had others in the he told some on agreed to let them have City Car- to take to Union and sell. credit Driskell, Elam in his car while ter then left theirs, pro- girlfriend followed in and his to Carter’s ceeding by different routes arrived first. house. Carter first, Driskell, a trailer alone at entered house. Five minutes located beside come told Elam to he came out and later remained girlfriend him. Elam’s trailer, Later he with- car. withdraw as counsel. When entered drew, July filed pursuant a motion sitting Elam saw on a with a couch lap. across a cabi- opened rifle containing marijuana net and told the two *3 subject deposed, not to cross- Elam was pick men that he allow them to out would No for trial was examination. bags ten to credit. estimated take on Elam Elam, on whereabouts issued whose ever pounds of

there was one hundred or more trial Before Carter’s then unknown. were marijuana in the trailer. deposition. quash moved to new counsel collecting bags of this motion was over- As were their ten of At the time trial upon the Affidavit marijuana, told that ruled Commonwealth’s Driskell Elam locate for might get “diligent to for that effort” to Elam also be able some LSD videotaped depo- purchased eight “hits” not avail. Elam’s Elam. Elam then trial did apiece. played jury. was the of LSD from Carter for five dollars sition was to put proving guilt. and Carter’s principal Elam then evidence a tote left sack and Carter’s trailer. to the The Sixth Amendment United Constitution, applicable to he made to When Elam returned Tennessee States gave Dyersburg prosecutions Police De- the Fourteenth LSD to state Amendment, drug guarantees right partment, and informed them the Carter the of him, just against transaction described. This led to Car- to confront Elam as a witness right legal ter’s arrest and the convictions now on and the to counsel. Section guaran- appeal. Kentucky’s Eleven of Constitution rights. ques- those same tees Carter First, leading up we consider the events deposi- of tion is whether the use Elam’s deposition. Elam is rights. at trial violated Carter’s tion deposition an out-of-state witness. The 30, 1986, pursuant was taken on June to problem The first is whether May motion and court order entered Elam, pres taken without the deposition videotaped authorizing deposition counsel, deprived him or his ence of Carter pursuant purposes “for all allowed to as Carter of his confront procedure.” rule of civil and/or criminal asserts, or, whether and counsel his The Commonwealth utilized KRS right, a waiver of that as the effected Kentucky’s Wit- Uniform Non-Resident hold asserts. We that Car appearance ness Act to secure Elam’s deposi to Elam at ter’s confront deposition, pursuant his to an order tion was waived. court which entered in di- was Oklahoma deposition pro- Ample notice of the was recting him on to attend. was asked vided to Carter’s counsel. Carter’s attor- deposition Sep- where he would be “come an- ney appeared at and year comes tember this when this case serving he that he nounced that was notice trial,” replied, vaguely, he to which But would withdraw as Carter’s counsel. “Honestly say, I I back hope can’t to be yet had been considered or that motion not in Oklahoma.” He conscious decision sustained. made a Waller, attorney, M. Carter’s then Louis to remain and not cross-examine not deposition, did appeared at the but Carter as at- representative capacity Waller not attend. Mr. stated in what he no doubt torney, proceeding on record that he had written his client Car- to be Carter’s best interest. believed 20, 1986, advising Carter, “You June in advance of the ter’s counsel knew well present,” deposed he had made as a wish to be would be him, no other to contact all with and therefore had am- efforts prepare then for cross-exami- ple opportunity success. Mr. Waller stated could There no evidence that properly represent not client nation. he was legal why had a reason personally, unless Carter was available attend, proof and no consultation, stay for it. unable to so he would not a difference. made intended to would have Waller “served notice” that he requested department an Carter’s counsel never continu- his informant/undercov- deposition, objected ance of the to its agent purpose helping er for the being away drug before he walked from it. persons making arrest illicit deals. properly He could not obtain a tactical ad- He to tell the what Elam was asked vantage by refusing stay. As in Rich- trip had told him about the he had made to mond v. 637 S.W.2d Kentucky De- that led to Carter’s arrest. (1982), not “denied an objected hearsay grounds. fense counsel adequate opportunity of confrontation.” objection Rieger’s overruled. tes- Waiver occurred. timony included details of what Elam had him, Rieger’s resultant told investi- Appellant argues that before the *4 gation. deposition could be utilized the Common wealth must establish a faith effort to Arguably, Rieger’s some of Lt. tes procure personal attendance of the wit timony relative to Elam had told him what 719, Page, ness. Barber v. 88 should have been disallowed. 1318, (1968). S.Ct. 20 L.Ed.2d 255 “[HJearsay hearsay is no less because procured at the police supplies officer the evidence. In using the Uniform Non-Resident Witness short, rule, such, separate there is no as Act, 421.250, KRS but the Commonwealth investigative hearsay excep- which is an could not arrange use the same act to hearsay tion to rule.” Sanborn v. presence at trial because the Common 534, Commonwealth, Ky., 754 S.W.2d wealth did not know his whereabouts at the (1988). 541 time of trial. Under KRS Background supplied po- information to a subject was not to for trial when lice officer be admissible under the present jurisdiction only by he was in the “verbal act” doctrine in circumstances reason of a court order to attend and testi nonhearsay “proper where it has a use” to Moreover, fy by deposition. police two of explain subsequently by “the action working ficers with the testi Otherwise, police officer.” Id. as with that, fied while did not know Elam’s any may only other the officer whereabouts, they knew that Elam wanted repeat hearsay to so when do conforms to a stay away Kentucky he because recognized hearsay exception. surprising afraid of Carter. is not by had vanished trial time. Nevertheless, Rieg the statements directly We with Carter it does not follow er to Elam did not name attributed that, attorney implicate According Rieger, because Carter and his Carter. Billy to confront Elam at the Elam told him that he and waived deposition, brought pounds to confront and cross- back ten packaged plastic bags examine Elam at also in and stashed it in trial was waived. 725, supra, apartment. parties 390 at Driskell’s car or Both Page, See Barber v. U.S. Nevertheless, conversation, Rieger testi 88 S.Ct. RCr 7.20 to trial, Rieger person in and Elam appro- authorizes the use of a in fied at fully priate relating deposition. Rieger circumstances to unavaila- Was cross-exam bility, specified ined and Elam could have been cross-exam therein. decision had or counsel elected to attend whether the Commonwealth made a bona ined Carter ample oppor present fide effort to have Elam at trial is where there was tunity to do so. one addressed to the sound discretion the trial court. The circumstances here do circumstances, any Rieg- if Under the not demonstrate an abuse of discretion. testimony hearsay, inadmissible it er’s objec- harmless error. Because the

After the had been shown Elam’s was testimony merely repeated Elam’s videotaped deposition, tionable the Commonwealth possibil- no Rieger City, deposition, there is “substantial called Lieutenant Union acquitted have been Department ity” Police to the stand. that Carter would Tennessee portions Rieg- working questionable Rieger testified that Elam was absent

601 testimony. Niemeyer judge’s clearly er’s decision is unreason- v. Common trial wealth, Ky., 533 S.W.2d 221 cannot present able. In circumstances we say ruling the trial court’s was an abuse of argues Carter next a violation of the rule discretion. in Brady Maryland, U.S. (1963),requiring S.Ct. 10 L.Ed.2d 215 that, next issue is after the Commonwealth, upon request, notify finding him jury returned with a verdict exculpa- the defense advance of trial of trafficking in guilty possession of both tory prosecution. evidence known to the LSD, improperly advised the the trial court pretrial Defense counsel had filed a dis- jury how to correct the verdict. While covery interrog- motion included an which explaining to them the difference these atory asking the Commonwealth what com- find and that could not pensation paid had been of its wit- both, guilty presumably the court nesses. The Commonwealth filed its an- also informed them offense question, swer which was “None.” trafficking penalty carries a stiffer than Defense counsel learned at trial that possession. argues the offense of compensation had received from the *5 impermissi- that this information have for his services as an infor- undercover bly jury guilty influenced the find him to. Kentucky mant. Former State Police Offi- the more serious offense. He claims that Fuqua cer John in return for sentencing telling jury the information dur physical information and the evi- ing guilt/innocence phase the of the trial (the LSD) recovered, dence that was statutory process violated the of a bifurcat paid Upon was between $200 $500. ed trial as forth in set the new truth-in-sen evidence, hearing this counsel moved for a statute, tencing thereby KRS mistrial or at least a week’s continuance agree process denied him due of law. We relating have time to the records provides. the statute now so payment. to Elam’s argued Defense counsel that this infor- responds But the Commonwealth exculpatory mation was evidence because the record does not reflect that the trial payment the could have been a motive for jury court the difference told the between Elam to lie. The responds penalties. When the trial court was that it did not know that Elam had been talking jury to the about their erroneous paid Fuqua until so testified. verdict, guilty double the record shows only reporter parenthetically that the court prosecution’s good faith or bad proceedings. summarized the We not faith provide relative failure to re exactly jury. clear on what was said to the quested exculpatory information is a factor only colloquy appearing We know that in a considered. Brady Maryland, be v. su parenthetical summary the court pra. after stated: highly unlikely pre It is that more course, I didn’t tell “THE COURT: Of cise information about the financial rela them that until had indicated tionship police between Elam and the could guilty him court that had found any significant have had influence on the both.” Fuqua outcome of the trial. Since Officer seeking controversy Without to resolve the payment price testified to the and the said, note, what, exactly, as to we yielded range, a continuance would have importantly, the court could have more significance. nothing further of substantial struck the verdict for the lesser offense question of whether there was a Bra sending jury step without dy violation and whether because of it a princi- Applicable jeopardy back. double necessary continuance or mistrial was is preclude one, ples do not unavailability like the of a another conviction only punishment discussed, previously addressed to for both v. judgment and discretion of the trial both. Jones Cf. (1988); Jordan Com- court. It will not be reviewed unless the 756 S.W.2d monwealth, merely “parroting” the testimo- Ky., Reiger 703 S.W.2d 870 coming Conviction for both offenses was not an ny testimony the same inconsistent verdict. The trial court could per- more from a officer would be simply have set aside verdict for the testimony of an jury suasive to a than the Therefore, lesser offense. the comment to informer. was harmless in event. majority’s disagree I also with the con- point Carter’s next of contention is clusion that the trial court did not abuse its that it was error for the court to conduct appel- discretion when it failed to sustain penalty phase the trial his ab lant’s motion for a mistrial or continuance appear sence. failed to for the sen developed after it was tencing phase, explained and has never paid fact a informer. KSP officer John night He be absence. told his father Fuqua paid knew that he was between fore that he would attend. The next morn hundred hundred dollars for the and five ing the court waited one and one-half hours appellant. evidence It was obtained explanation or some receiving also established that Elam was absence, proceeding. before Carter’s ab fifty per one hundred dollars week on a only sence can be said to have been volun regular substantially amount dif- basis—an tary. range hun- ferent from a of between two Both sides dred and hundred. Ascertainment of five during failed to adduce evidence the sen precise more information the finan- about eigh tencing phase that Carter was at least arrangement cial Elam and the between years age teen when he committed the police was relevant and material. The *6 prior crimes which were the basis for find say that Commonwealth cannot be held to him ing necessary a PFO. This is a statu it did not know about the financial relation- tory finding. element for The such Com Fuqua Fuqua ship of Elam until testified. monwealth, the defense and this Court was an officer of the Commonwealth at agree in the that this was a material error knowledge imputable to this time and his is sentencing of v. Carter. Hon Common the Commonwealth. wealth, (1984). Ky., 670 851 S.W.2d by Supreme As stated the United States Appellant’s underly- convictions for the 83, in Brady Maryland, Court v. ing are affirmed. His con- offenses PFO 1194, (1963): S.Ct. 10 L.Ed.2d 215 victions are reversed. This case is remand- evi- Suppression by the of Logan ed to the for resen- Circuit Court upon dence to an accused re- favorable tencing underlying the consist- quest process violates due where the evi- Opinion. ent with this guilt dence material either to the or to is punishment, irrespective good of STEPHENS, GANT, C.J., and prosecution. or bad of faith faith LAMBERT, LEIBSON, VANCE and [Emphasis added.] WINTERSHEIMER, JJ„ concur. appellant agree my I with brethren COMBS, J., by separate dissents right Elam at the waived his to confront opinion. ample notice deposition. His counsel had COMBS, Justice, dissenting. ample opportunity to of appellant’s I PFO conviction prepare examination but failed for cross disagree my should be reversed but counsel had appellant’s do so. While underlying offenses. brethren as as counsel his motion sought to withdraw I reverse these con- For that reason would granted and therefore he was had not been and remand for a new trial. victions Thirdly, represent appellant. obligated to of request did not a continuance his counsel affirming underlying offenses the In being to it object admissibility majority finds that the leaving. v. Com prior to See Richmond testimony by Rieger Lt. was harm- hearsay (1982). monwealth, 642 Ky., 637 S.W.2d disagree. I that Lt. less error. It is true 603 accused, provide every at fair trial egregious committed The most error prosecution must see that appellant’s trial was the denial of end the this guaranteed well as those rights of confrontation. This is of the accused as legal 11 of our and is one protected. Section constitution the Commonwealth important rights granted the most S.W.2d v. Moore pertinent that sec- portion accused. failed the Commonwealth Here tion is as follows: appel- duty owed to that vital perform prosecutions

In all criminal the accused lant. right, ...

has the to meet witnesses face....

face to de-

Appellant, Claude Earn right!

nied that failed to demon- it ever faith effort

strate that made a presence of Elam at the trial.

to obtain disregard appellant’s con- pattern A POORMAN, Appellant, Richard began rights early as two stitutional days after the was taken. that soon that the Commonwealth COMMONWEALTH admissibility the court to moved rule on the Kentucky, Appellee. deposition at trial. No. 88-SC-481-DG. separate oc- The Commonwealth on two subpoenas issued two casions batches of Supreme Kentucky. Court of trial, appear for witnesses at but never Oct. 1989. issued a The Com- Elam.1 procured monwealth Rehearing Denied Feb. deposition by utilizing the Uniform Act, Nonresident Witness never made *7 pres-

use of the same act to Elam’s assure

ence at trial. The contends Commonwealth did not know it Elam’s whereabouts 10, 1986,

the time of trial. On September January

the court continued the until case

5,1987, yet the that time Commonwealth at

failed to inform Elam that he would be Moreover, at trial. offi-

needed working the prosecution

cers although they did not know

whereabouts at time of trial knew stay away that Elam

in advance wanted Kentucky because he was afraid of Unavailability for tri- of a witness

Carter. purposes exception of the

al for traditional recognized the confrontation is not has made

unless to obtain

faith effort Page, at trial.

witness Barber 88 S.Ct. 20 L.Ed.2d obligation

It is that, only subpoenas find in we that it in its brief asserts show 1. The Commonwealth not sur- not for We are appearance as evi- Elam. Elam’s trial the record tried to assure However, was unserved subpoena”. prised it such a "unserved denced become infra. portion that will clear to no the record refers this Court reasons