Debbie CHILDERS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
No. 2009-SC-000297-MR.
Supreme Court of Kentucky.
Dec. 16, 2010.
As Modified on Denial of Rehearing March 24, 2011.
332 S.W.3d 64
Jack Conway, Attorney General, Heather Michelle Fryman, Assistant Attorney General, Office of the Attorney General, Office of Criminal Appeals, Frankfort, KY, Counsel for Appellee.
Opinion of the Court by Justice ABRAMSON.
Debbie Childers appeals from an April 14, 2009, Judgment of the Lawrence Circuit Court convicting her of complicity to trafficking in a controlled substance in the first degree. Finding Childers to be a second-degree persistent felony offender (PFO 2), the jury enhanced her sentence from ten to twenty years imprisonment; and the trial court sentenced her accordingly. Childers raises three issues on appeal: (1) the trial court erred when it ruled she could not invoke Kentucky Rules of Evidence (KRE) 608(b) to inquire into the nature of confidential informant Thomas Osborne‘s prior felony convictions; (2)
RELEVANT FACTS
On September 3, 2008, Detectives Justin Wireman and Neil Adams of Operation UNITE anti-drug task force were working with a confidential informant, Thomas Osborne, to make drug buys in Louisa, Kentucky. Osborne testified that on September 3rd he called Childers to “see if she could get anything (drugs).” Childers told Osborne she could get him “Oxycodone 15s” for twenty dollars apiece. Osborne and Childers made arrangements to immediately meet at a local car wash. On the way to the car wash, the detectives searched Osborne and equipped him with a wire, a recording device and $100 of photographed buy money. Because this preparation took longer than anticipated, Osborne made a second call to Childers to assure her he was on his way. In a taped conversation with the police at the police station, Childers admitted she was the one who talked with Osborne on the phone, made the arrangements and drove herself, Chad Johnson, a participant in the drug transaction, and others to the car wash.
Osborne testified that at the car wash he gave Childers the $100 of buy money and, upon receiving the money, Childers asked him “if there was a hundred dollars there.” Testimony by Detective Wireman and Osborne and the buy tape reveal Childers then handed something to Johnson. Osborne testified that Childers handed the pills to Johnson, who then gave them to Osborne. The defense argued it is not possible to discern from the tape exactly what Childers handed to Johnson and that it was actually a handful of coins. After the transaction, the police recovered from Childers the $100 buy money and, from Osborne, the five pills he received from Johnson. The Kentucky State Police Laboratory confirmed the pills were Oxycodone.
Childers was charged with complicity to first-degree trafficking in a controlled substance and being a second-degree PFO. At the close of the Commonwealth‘s case, Childers moved for a directed verdict based on insufficiency of the evidence. The trial court denied the motion. Childers did not present any evidence but did renew her motion for a directed verdict. The trial court again denied the motion. The jury found Childers guilty of complicity to trafficking in a controlled substance in the first degree. She received ten years for the complicity conviction, which was enhanced to twenty years because of the second-degree PFO. Childers brings this appeal as a matter of right.
ANALYSIS
I. The Trial Court Did Not Abuse its Discretion by Refusing Inquiry into the Nature of Osborne‘s Prior Felony Convictions.
Detective Wireman, the Commonwealth‘s first witness, testified about obtaining Osborne‘s assistance with Operation UNITE and about his role in the September 3rd drug buy. On cross-examination, Childers sought to discredit Os-
Defense Counsel: You also did a Personal History and Conduct of Confidential Witness [form for Thomas Osborne], correct?
Detective Wireman: Yes, sir.
Defense Counsel: And it revealed that he had previously been convicted of several felonies, correct?
Detective Wireman: I don‘t have it in front of me. I believe he did have a felony [inaudible].
Commonwealth‘s Attorney: Objection.
Judge: Overruled.
Defense Counsel: And do these felonies involve crimes of dishonesty?
Detective Wireman: I can‘t remember what he was actually charged with on any of them.
Commonwealth‘s Attorney: Your Honor, can we approach?
At this point, a bench conference ensued, during which the Commonwealth‘s Attorney argued that defense counsel could ask whether Osborne was a prior convicted felon but could not inquire further. Defense counsel countered he should be allowed to inquire further if the crimes were crimes of dishonesty because they would reflect on Osborne‘s credibility. The trial court agreed with the Commonwealth and ruled that defense counsel could do no more than establish that Osborne was a convicted felon. Defense counsel preserved the issue for appeal by obtaining Detective Wireman‘s testimony by avowal.
This Court reviews a trial court‘s decision regarding the admissibility of evidence for abuse of discretion. Clark v. Commonwealth, 223 S.W.3d 90, 95 (Ky. 2007). A trial court abuses its discretion when its decision is arbitrary, unreasonable, unfair or unsupported by sound legal principles. Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
We conclude that the trial court did not abuse its discretion when it disallowed Childers‘s inquiries into the nature of Osborne‘s convictions. Childers concedes such inquiry is not permitted under
Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness’ credibility, other than conviction of crime as provided in Rule 609, 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, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.
However,
For the purpose of reflecting upon the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted if elicited from the witness or established by public record if denied by the witness, but only if the crime was punishable by death or imprisonment for one (1) year or more under the law under which the witness was convicted. The identity of the crime upon which conviction was based may not be disclosed upon cross-examination unless the witness has denied the existence of the conviction. However, a witness against whom a conviction is admitted under this provision may
choose to disclose the identity of the crime upon which the conviction is based.
Childers argues
We begin our analysis by noting that the interplay between Rules 608 and 6091 is complex. See United States v. Cudlitz, 72 F.3d 992, 995 (1st Cir. 1996) (“The rules governing this subject—cross-examining a criminal defendant about prior wrongs—are among the most complex and confusing in the entire law of evidence.“); DONALD H. ZIEGLER, HARMONIZING RULES 609 AND 608(B) OF THE FEDERAL RULES OF EVIDENCE, 2003 Utah L.Rev. 635 (2003). As there is little Kentucky law on this question, we write today to clarify and settle the issue.
This question was touched upon previously in Fields v. Commonwealth, 274 S.W.3d 375 (Ky. 2008), wherein this Court held that the trial court did not abuse its discretion when it refused to allow the defendant to cross-examine two of the Commonwealth‘s witnesses about their misdemeanor convictions. Fields, 274 S.W.3d at 399, 400. On appeal, the defendant admitted
nesses they were admissible under
A majority of the federal Circuit Courts make a distinction between specific instances of conduct that lead to a criminal conviction and those in which there has been no conviction. The former are governed exclusively by Rule 609, the latter by Rule 608. That is, Rule 608 applies only to specific acts of conduct that have not resulted in a criminal conviction. United States v. Osazuwa, 564 F.3d 1169, 1173 (9th Cir. 2009) (“Rule 608 applies only to specific instances of conduct that were not the basis of a criminal conviction. Evidence relating to a conviction ... is treated solely under Rule 609.” (emphasis added)); United States v. Lightfoot, 483 F.3d 876, 881 (8th Cir. 2007) (“Rule 608(b) ... confers upon district courts discretion to permit witness-credibility questioning on specific bad acts not resulting in a
Support for this construction of Rules 608(b) and 609 can also be found in the legislative history of the Federal Rules of Evidence. The Advisory Committee Note (ACN) provides, “Particular instances of conduct, though not the subject of criminal conviction, may be inquired into on cross-examination....”
We also take note of several secondary sources that support this interpretation of Rules 608 and 609. While in no way binding on this Court, these sources are illustrative. The leading treatise FEDERAL PRACTICE AND PROCEDURE explicitly and repeatedly states that evidence of criminal convictions is governed solely by Rule 609.
Rule 608 does not regulate the admissibility of criminal conviction evidence, which is the subject of Rule 609 ... Subdivision (b) [of Rule 608] specifically exempts from its coverage evidence of specific instances of witness conduct in the form of criminal convictions. The admissibility of such evidence is determined by Rule 609 ... Of course, the first sentence of subdivision (b) [of Rule 608] specifically states that the admission of such evidence [convictions] is determined under Rule 609, not Rule 608.
The approach taken by these federal courts is also in keeping with sound public policy and core principles of the Kentucky Rules of Evidence. Our rules of evidence acknowledge the importance of evidence relevant to a witness‘s credibility but also recognize the need to protect a witness, especially a defendant who takes the stand, from having all of his or her prior criminal acts detailed for the jury. As our rules are currently interpreted, evidence of other crimes, wrongs, or acts is admissible only for specific enumerated purposes, such as proof of opportunity, plan, or accident and, in a criminal case, are admissible only when the prosecution gives the defendant pretrial notice of its intention to offer such evidence at trial.
Thus, Kentucky trial judges routinely inform the jury not to consider the felony conviction for any purpose other than whatever bearing it may have on the person‘s truthfulness as a witness and the weight to be given his testimony. Where the witness is the defendant, the jury is specifically admonished not to consider the prior conviction as evidence of the defendant‘s guilt in the pending case. This admonition underscores a fundamental principle that the dissent fails to acknowledge, i.e., the fact of a felony conviction is, in and of itself, powerful evidence that reflects on truthfulness.
If the facts and details underlying criminal convictions were to be admissible under
Because
While it may seem harsh to bar inquiry into an act bearing on a witness‘s truthfulness simply because it resulted in a conviction, as noted, the fact of a conviction can
be more prejudicial than the fact or allegation of a criminal act that never resulted in a conviction. See, e.g., Osazuwa, 564 F.3d at 1174. The Kentucky Rules of Evidence manage this prejudice by providing careful controls for when and how a conviction may be admitted. We will not undermine these safeguards by permitting evidence of prior criminal acts to come in through the “back door” of
In the present case, Childers sought to impeach Osborne by cross-examining Detective Wireman on the nature of Osborne‘s previous convictions. The trial court correctly sustained the Commonwealth‘s Attorney‘s objection to the introduction of this evidence because this evidence is not admissible under
II. The Commonwealth‘s Attorney‘s Comments on the Drug Buy Tape Were Permissible and Detective Wireman‘s Impermissible Interpretation of the Tape Did Not Rise to the Level of Palpable Error.
Appellant argues that both the Commonwealth‘s Attorney and Detective Wireman impermissibly interpreted the drug buy tape. In her opening statement, the prosecutor told the jury that on the tape it would hear Childers ask Osborne, “Is that a hundred?” referring to the buy money. She then told the jury, “[Y]ou have to listen for that ... you have to listen closely to hear Debbie say ... ‘Is that a hundred?‘” During direct examination of Detective Wireman, the Commonwealth‘s Attorney played the drug buy tape for the jury and then asked Detective Wireman if he had heard what Childers said on the tape. Detective Wireman responded, “She took one hundred dollars from Thomas and she said, ‘Is that a hundred?’ ” During closing arguments, the prosecutor played the video again and told the jury it would hear Childers say, “Is that a hundred?”
Although the Commonwealth‘s Attorney‘s comments about the tape were proper comments on the evidence, Detective Wireman impermissibly interpreted the drug buy tape. However, reversal is not
required because this unpreserved error did not bear upon Childers‘s substantial rights or create a manifest injustice as required to satisfy our palpable error standard.
A. The Commonwealth‘s Comments on the Drug Buy Tape Were Proper Comments on the Evidence.
We will reverse for prosecutorial misconduct to which the defendant did not object if the misconduct rendered the trial fundamentally unfair. Brown v. Commonwealth, 313 S.W.3d 577, 627 (Ky. 2010); Slaughter v. Commonwealth, 744 S.W.2d 407, 412 (Ky. 1987). While the prosecutor has a duty to confine his or her argument to the facts in evidence, Carretenders, Inc. v. Commonwealth, 821 S.W.2d 83, 89 (Ky. 1991), the prosecutor is entitled to draw reasonable inferences from the evidence, make reasonable comment upon the evidence and make a reasonable argument in response to matters brought up by the defendant, Hunt v. Commonwealth, 466 S.W.2d 957, 959 (Ky. 1971). See also Wheeler v. Commonwealth, 121 S.W.3d 173, 180 (Ky. 2003). Further, a prosecutor is given wide latitude in making arguments to the jury, Williams v. Commonwealth, 644 S.W.2d 335, 338 (Ky. 1982), and may “appeal to the jury with all of the power, force, and persuasiveness which his learning, skill, and experience enable him to command,” Housman v. Commonwealth, 128 Ky. 818, 110 S.W. 236 (1908).
In the present case, there was no prosecutorial misconduct as the Commonwealth‘s Attorney did no more than make
B. Detective Wireman Impermissibly Interpreted the Drug Buy Tape.
As for Detective Wireman‘s comments, the law on this issue is quite clear. While a witness is permitted to testify from recollection about events captured on tape, he may not interpret what is on the tape. Gordon v. Commonwealth, 916 S.W.2d 176, 179-80 (Ky. 1995) (“As with any participant in a conversation, the informant witness was entitled to testify as to his recollection of what was said ... [I]t is apparent that the witness purported to interpret the tape recording rather than testify from his recollection. This was in error.“). When a witness interprets what is on a tape he impermissibly invades the province of the jury, which is vested with the responsibility and duty of making determinations of fact based on the evidence. Cuzick v. Commonwealth, 276 S.W.3d 260, 265-66 (Ky. 2009); Gordon, 916 S.W.2d at 180 (“It is for the jury to determine as best it can what is revealed in the tape recording without embellishment or interpretation by a witness.“).
The trial court erred by allowing Detective Wireman to interpret the videotape. Though Detective Wireman was present at the drug buy, he was sitting in a car at a distance and could not hear firsthand what Childers said to Osborne. As such, his testimony was not from personal recollection. It was in response to the Commonwealth‘s Attorney‘s question as to what Detective Wireman heard Childers say on the tape and, thus, was improper interpretation of the tape. See, e.g., Gordon, 916 S.W.2d at 180 (finding the witness did not testify from recollection but interpreted the tape in error when, after the tape was played, the witness was asked what he said on the tape and he answered, “I said, alright, I sure thank you, Maurice.“).
While it was improper for Detective Wireman to interpret the tape, Childers did not object to him doing so, and we find the unpreserved error was not sufficient to warrant a reversal. Under
In the present case, the tape itself was played for the jury several times during trial and was admitted into evidence, thus allowing the jurors numerous opportunities on their own to hear and evaluate the tape. The defense counsel pointed out in his opening statement that he had listened to the tape and never had heard “anything about a hundred. I listened to it and listened to it, but that‘s for you all to make a fact finding.” Osborne testified from recollection as to all the events on the tape and the jury had sufficient opportunity to observe him, determine his credibility, and decide what weight to give his testimony. Further, there was sufficient additional evidence to support the conviction. The testimony of both detectives, Osborne, and a recorded statement by Childers showed Childers took both phone calls from Osborne, discussed with him the availability and sale of drugs, located the drugs for Osborne, arranged the transaction, drove to the meeting place, and took the $100
III. There was Sufficient Evidence for a Conviction of Complicity to Trafficking in a Controlled Substance in the First Degree.
At the close of the Commonwealth‘s case, Childers moved for a directed verdict based on insufficiency of the evidence and the court denied the motion. Childers did not present any evidence but did renew her motion for a directed verdict, which the court again denied. The jury found Childers guilty of complicity to trafficking in a controlled substance in the first degree. Childers‘s final argument on appeal is that there was insufficient evidence to support her conviction. We disagree.
On a motion for directed verdict, the trial court must draw all fair and reasonable inferences from the evidence in favor of the Commonwealth. Commonwealth v. Benham, 816 S.W.2d 186, 187-88 (Ky. 1991). In other words, the trial court must assume the Commonwealth‘s evidence is true, while leaving to the jury determinations as to the credibility and weight to be given such evidence. Id. A directed verdict should not be given if the evidence is sufficient to induce a reasonable juror to believe beyond a reasonable doubt the defendant is guilty. Id. There must be evidence of substance, and the trial court is expressly authorized to direct a verdict for the defendant if the prosecution produces no more than a “mere scintilla of evidence.” Id. On appellate review, we determine whether, under the evidence as a whole, it was clearly unreasonable for the jury to have found the defendant guilty. Fairrow v. Commonwealth, 175 S.W.3d 601, 609 (Ky. 2005) (citing Commonwealth v. Sawhill, 660 S.W.2d 3 (Ky. 1983)).
Under the jury instructions, for the jury to find Childers guilty of complicity to trafficking in a controlled substance in the first degree, they had to believe beyond a reasonable doubt that Chad Johnson sold Oxycodone, a Schedule II controlled substance, to Osborne and that Childers “intentionally solicited, commanded, or engaged in a conspiracy with” Johnson for the purpose of trafficking in a controlled substance. See also
Based on the record as a whole, it was not clearly unreasonable for the jury to find Childers guilty of complicity to trafficking in a controlled substance in the first degree. The jury could have found the elements of the charge sufficiently satisfied by the proof that Childers took both phone calls from Osborne; discussed with him the availability and sale of the drugs, including type, quantity and price; located the Oxycodone for Osborne; arranged the sale; drove herself and Johnson, who allegedly had the drugs, to the meeting place in order for the buy to occur; and took the $100 buy money from Osborne. Further, the forensic examination confirmed that the pills were Oxycodone, a Schedule II controlled substance. The evidence was sufficient to support the jury‘s verdict, and the trial court did not err in refusing to direct a verdict in favor of Childers.
CONCLUSION
The trial court did not err in denying Childers‘s inquiry into the nature of Osborne‘s prior felony convictions while cross-examining Detective Wireman. Such evidence is not admissible under
MINTON, C.J.; CUNNINGHAM, and NOBLE, JJ., concur. VENTERS, J., dissents by separate opinion in which SCHRODER and SCOTT, JJ., join.
VENTERS, J., dissenting.
We respectfully disagree with the Majority‘s conclusion that cross-examination of a witness under
The majority accepts the notion, derived from federal cases, that “the interplay between Rules 608 and 609 is complex.” The majority then echoes the complicated analysis of similar Federal Rules of Evidence used by some federal courts. However, there is no complex “interplay” between
The interpretation of the corresponding Federal Rules of Evidence by the federal courts and adopted by the majority opinion leads to the following absurd result. Under the majority‘s ruling, a witness who has committed a theft may be cross-examined under
The source of the majority‘s misconstruction of
Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness’ credibility, other than conviction of a crime as provided in rule 609, may not be proved by extrinsic evidence.
By its plain meaning, the first sentence of
“They [“specific instances of witness conduct“] may, however, in the discre-
tion 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, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.”8
The second sentence is the heart of
The majority, again citing the reasoning of various federal cases, supposes that its interpretation of
tion. In response, we note again that inquiry allowed by
The majority worries further that we not permit
Because it perceives the greater injustice to follow the disclosure of specific conduct from which a felony conviction arose, the majority sees
Certainly, as the majority fears, circumstances exist when the coupling of an unidentified felony conviction with the acknowledgement under cross-examination of the specific conduct from which the conviction arose, creates an unfairly prejudicial bias for or against a party. In such instances,
In Woolum v. Hillman, 329 S.W.3d 283, 287 (Ky. 2010), we found such a bright line rule on impeachment of a witness to be incompatible with
Finally, we note that while both of the articles of legal scholarship cited in the majority opinion acknowledge that most federal circuit courts (but not all) have adopted an interpretation of the rules consistent with the majority opinion, both articles strongly criticize the interpretation.
This reading of the rules [the same reading of rules adopted by the majority] obviously produces a foolish result. No good reason supports allowing extensive inquiry into an elaborate real estate hoax and the witness‘s part in it as long as it was never prosecuted as a crime, but limiting examination of the prosecuted swindle to the fact of conviction of mail fraud or some lesser, bargained-for crime to which the defendant may have been allowed to plead guilty.
H. Richard Uviller, Credence, Character, and the Rules of Evidence: Seeing Through the Liar‘s Tale, 42 Duke L.J. 776, 804 (1993). Uviller goes on to note:
A wiser construction would be that Rule 608(b) is unaffected by Rule 609, and that the fact that the witness‘s dishonest conduct resulted in a criminal conviction does not diminish the right of the opposing party to cross-examine the witness about the conduct itself. In this reading, Rule 608(b) is taken as a provision concerned only with the admissibility of extrinsic evidence; it provides that proof of specific instances of dishonest conduct may be adduced only from the mouth of the impeached witness himself.
In this context, the troublesome words of Rule 608(b), “other than conviction of crime as provided in rule 609,” would not be read to limit the license to conduct that does not underlie a criminal conviction, but rather to exempt proof of the fact of prior conviction from the ban on extrinsic evidence. This reading also accords with the Advisory Committee Note.
Id. at 806 (footnotes omitted). The “wiser construction” that Professor Uviller suggests is precisely the same interpretation of the rules that we outlined above.
The second article cited by the majority agrees with Professor Uviller‘s assessment, although its author, New York Law School Professor Donald Ziegler, shares the majority‘s concern for the prejudicial effect of 608(b) impeachment. After describing what he calls “chaos” among the federal courts trying to resolve the interaction between Rule 608(b) and Rule 609(a) and proposing substantial amendments to the Rules, he writes:
[C]ourts generally should permit impeachment with the same sort of misconduct under both rules. The reason is the one stressed above; namely, that it is the misconduct that is probative and prejudicial, not whether the misconduct resulted in a conviction. Complete consistency plainly is not possible. The scope of misconduct admissible under Rule 608(b) necessarily exceeds that of Rule 609(a) because Rule 609(a) is limited to misconduct that resulted in a criminal conviction. Rule 608(b) encompasses not only conduct resulting in a criminal conviction but also criminal conduct not resulting in a conviction and some noncriminal conduct that bears on credibility. Nonetheless, there is substantial overlap. Prior misconduct that is criminal in nature should be equally admissible under both rules.
Donald H. Ziegler, Harmonizing Rules 609 and 608(b) of the Federal Rules of Evidence, 2003 Utah L.Rev. 635 (2003) (footnote omitted). The majority finds unjustifiable comfort in the fact that its opinion mimics the result attained by a majority of federal courts interpreting analogous provisions of the Federal Rules of Evidence. However, the Kentucky Rules of Evidence are the product of the Kentucky Supreme Court and the Kentucky General Assembly, aided by eminent Kentucky lawyers and legal scholars. In the interpretation of state law, we owe no deference to the views the federal judges of various
SCHRODER and SCOTT, JJ., join.