Walker v. Commonwealth

jurisdiсtion grant when does WALKER, Appellant, George here, and, adversarial

claim becomes was the case seeks reimbursement. Such v. Priest- Priestley v. in Lee v. Porter1 Kentucky, COMMONWEALTH cases, the district In each of those ley.2 Appellee. juris- supervisory court was held to have involved, respect to the estates diction with No. 2000-SC-0407-MR. adversarial, the claim becаme but when Kentucky. Supreme Court jurisdiction recognized. was circuit court approval from Lee v. Priestley quoted with 23, 2001. Aug.

Porter as follows: confers exclu- though

Even KRS 387.210 court jurisdiction upon the district

sive require account- appoint, remove and provides further

ing of committees and the circuit court from such appeal appears failure to act there to be

acts or involving power

no to entertain actions fiduciary mismanagement,

such a where deception

fraud or is involved. Neither ‍‌‌‌‌​‌​‌‌‌​‌​​​‌​‌​‌​‌​​​​​‌‌​‌‌‌​​‌‌​‌​‌​‌‌‌​​‌‍appear any authоrity to sur-

does there damages.

charge accounts or assess at relief last

Since the case bar seeks the upon mismanagement

mentioned based committee, then the

of the estate to com-

appellant had alternative but circuit court

mence this action without stat-

since the district

utory power judgment render

sought.3 majority

I unable to harmonize the am our deci-

holding the instant case with Lee v. Priestley Priestley

sions in Accordingly, I

Porter. dissent. (1980). 3. Ky., 597. Ky.App., 1. 598 S.W.2d 465 2. 949 S.W.2d 594 III, Attorney

A.B. Chandler General of Jr., Kentucky, Floyd, Samuel J. Assistant General, Appellate Divi- Attorney Criminal sion, General, Attorney Office of the Frankfort, appellee. for THE OPINION OF COURT JOHNSTONE, Justice. first-

George Walker was convicted of in a degree trafficking controlled sub- evidence, stance, physical tampering with persistent felоny of- second-degree years’ to ten fender. He was sentenced imprisonment on both tampering charges. The sentences consecutively, were ordered to run for twenty years. appeals to this total of He affirm. right. Court as a matter of arrest leading The events to Walker’s Minter begin with the arrest of one Robert driving posses- for without a license and arrest, Upon crack Minter sion of cocaine. agreed police investigating assist the suspected trafficking in drug Madison avoiding prosecu- for County exchange tape equipping tion. After Minter with bill, po- twenty recorder and dollar lice sent him to the residence of one Fred- purchase die Brooks to crack cocaine. рolice had Brooks’ residence as a surveillance for number weeks possible crack house. house and

Minter entered the Brooks’ baggy for a of crack paid Walker $20.00 buy supplied police cocaine. This probable cause to obtain a necessary warrant for Brooks’ residence. search warrant, to the search Brooks’ Pursuant day. searched the next residence was warrant, police executing the While and another individual discovered Walker Advocate, plastic Holt, attempting in a to flush a Public bathroom Emily Assistant contents of packet Frank- down the toilet. The Department Advocacy, of Public fort, positive for cocaine. packet field testеd appellant. tive, for the witness. prepare order trafficking charge was Rather, the evidence was trial court ruled that buy. on the undercover based discovering him in only to show Walker’s was based on admissible away packet to flush the continuance. Walker trying the bathroom sell and denied of court erred during the search that the trial argues of сrack cocaine first to introduce Brooks’ residence. ‍‌‌‌‌​‌​‌‌‌​‌​​​‌​‌​‌​‌​​​​​‌‌​‌‌‌​​‌‌​‌​‌​‌‌‌​​‌‍allowing the Commonwealth buy. controlled evidence of the trial, exclude moved to Prior to Walker illegal that he had sold an any evidence OTHER CRIMES day the search war- OF

substance the before EVIDENCE response In rant executed. was trial court argues that the Walker motion, that it stated the Cоmmonwealth of the excluded the evidence should have not introduce the evidence. would 404(b), which buy under KRE controlled position this reiterated Commonwealth part: provides pertinent to discover response to Walker’s motion crimes, Evi- or acts. wrongs, Other of the confidential informant identity crimes, wrongs, or acts is of other dence (Minter), purchased cocaine allegedly who prove the character not admissible to main- The Commonwealth from Walker. to show action person order prosecuted being tained that Walker was however, may, It conformity therewith. during on evidence obtained solely based be admissible: and that revelation of the Cl’s the search (1) purpose, If offеred for some other identity necessary. The Common- was motive, opportunity, proof wealth twice more reaffirmed that it would intent.... buy at not use evidence of the controlled trial, reversing position before Walker’s the evidence The trial court admitted days six trial. before that it was buy grounds the controlled on traf- intent to admissible to show Walker’s explained at a As Commonwealth ie., cocaine, to sell. Fur- fic in his intent issue, hearing it decided to pre-trial on ther, jury the trial court admonished identity disclose Minter’s and introduce ev- con- buy only could be that the controlled an buy idence of the controlled because of to traf- proof of sidered as Walker’s pro- involving unfortunate turn of events was jury fic if the first found Walker Miller, witness, had spective one Ruth who appeal, On of the cocaine. plea agreement entered into a the evidence Walker police. part agreement, Miller As prove buy inadmissible to controlled was agreed testify against Specifi- Walker. intent was an element intent because cally, her was to be that Walker indicted. was the offense for which Walker day on the selling crack cocaine had been words, is that In other recanted, But she failed of the search. prove used to an bad act cannot be sentencing, appear for and could not issue in the case. We ultimate disap- Miller’s defection and found. to re- pearance сaused the Commonwealth under Lawson notes that Professor introduce the con- evaluate its need to 404(b), crimes evidence of other trolled evidence. only prove intent should be admitted dispute. Robert genuine intent is in objected the when grounds on Law Kentucky Evidence Lawson, was inadmissible G. evidence (3d ed.1993). Handbook, 2.25, Of 404(b). p. § Additionally, course, dispute, a trial continuance, even when in the alterna- for a moved must still determine that the evidence is prove

relevant to the intent to commit the presence” “mere de [the] Because crime Id. the evidence of intent and the[ fense raises issues ] subject KRE 403. to exclusion under admission of ... bad knowledge, solely act not relevant to a [is] given in this Under the instruсtions inference, propensity therefore [is] case, first-degree guilty to find Walker 404(b). proper under Rule cocaine, jury had to be- (1) 1322, 1323. beyond lieve a reasonable doubt that: cocaine; possessed case, In this the Commonwealth (2)he possessed the cocaine with intent to prove sepa- to intent to sell as required person. did not sell it to another This rate element of the crime testify put and on almost no defense. probably enough place alone was Rather, strategy on the defense based its in dispute. mental state issue Walker’s discrediting the wit- Commonwealth’s presence” “mere defense that at- in order to doubt nesses create reasonable intent to possessiоn tacked both the and possession as to both and intent to sell. charge cer- sell elements open- in This is reflected defense counsel’s tainly placed the issue of intent sell and in ing closing argument statement and Now, whether the dispute. we examine Walker’s motion for a directed verdict of evidence is relevant acquittal. intent to sell. issue of relevant, the controlled To be the suffi believe this attack on probable that evidence must make it more ciency placed of the evidence the issue of in his intended to sell the cocaine dispute. intent to sell into As revealed The possession. See KRE 401. number closing argument, Walker’s defense basi sale evidence is holding of cases mеrely present was that he was cally of Evi relevant under the Federal Rules not be convicted based the scene could See, is legion. dence to show intent to sell by association. The theory guilt on Thomas, v. 58 F.3d e.g., United States presence” of whether a “mere (8th cases; Cir.1995), collecting 1318 Unit creates a material issue as to the defense (9th Adrian, F.2d 486 v. 978 ed States defendant’s mental state is addressed Cir.1992); Hadfield, v. 918 United States Thomas, v. 58 F.3d 1318 United States (1st denied, Cir.1990), 500 987 cert. F.2d (8th Cir.1995). noting After that the issue 2062, 936, 114 466 111 L.Ed.2d U.S. S.Ct. impression within the cir was one of first cases; (1991), v. collecting United States cuit, the Thomas Court answered (6th Cir.1990), Robison, F.2d 365 cert. 904 affirmative: denied, 946, 360, 111 112 S.Ct. 498 U.S. the issue of When a defendant raises (1990); States Har L.Ed.2d 323 United state, pres- (10th by Cir.1990), mental whether a “mere ris, United F.2d 770 903 Cir.1986), (11th specifically Hicks, chal- ence” defense 446 States v. 798 F.2d denied, 1035, 107 lenges gov- the mental element of S.Ct. rt. 479 U.S. ce (1987); 886, general case or means of L.Ed.2d 839 and United ernment’s Cir.1978), (5th Beechum, government F.2d 898 denial that forces States v. ease, denied, 920, 440 U.S. 99 S.Ct. prove every element of its rt. ce The Beec- 59 L.Ed.2d 472 act evidence is admissible because bad well stated the reason hum Court mental state is a material issue. receiving peace, FRE ‍‌‌‌‌​‌​‌‌‌​‌​​​‌​‌​‌​‌​​​​​‌‌​‌‌‌​​‌‌​‌​‌​‌‌‌​​‌‍breach evidence is admissible 404(b): goods. stolen charge burglary tools possession The the defen- the issue addressed is

Where and in- proof of both required to commit the offense dant’s intent attempted crime. The tent to commit charged, relevancy of the extrinsic proof of entering required breaking and in- offense derives from the defendant’s the market. to break into their intent state of dulging himself the same in the clearly at issue intent was perpetration of both the mind Nonetheless, the Marshall Court case. charged offenses. extrinsic reversed: defendant reasoning is that because the of- unlawful intent the extrinsic

had this evidence of say we can best fense, lawful likely it is less that he had that it indicates that the past records is present intent in the offense. morally capable men appellants were at various burglarizing Griffith’s Market Beechum, 582 F.2d at 911. lives, they in their but not that times We hold likewise. The evidence necessarily night intended to do it the buy tended to make more the specific Their intent on question. рrobable that Walker intended to sell the of the current crimes must night in possession. his in from circumstances which inferred particular time they were found at Finally, we address Walker’s past from rec- place, and and not their Commonwealth, Ky., 482 that Marshall ords. (1972), in requires S.W.2d 765 reversal this words, In the Marshall Court other easily distinguishable case. Marshall is probative value of thе concluded that the from the case at bar. scant in relation other-crime evidence was Marshall, In the defendants were con- prejudice. potential to its for undue possession and burglary victed of of tools introduced in Mar- The other crimes attempted breaking entering and con- some of shall were diverse and at least attempted an at a nection with break-in (more than far removed time them were Lexington grocery store. Id. at 765. The from the crimes eighteen years) prior trial court admitted evidence of determined, the As the Marshall Court crimes the defendants as evidence of merely served to of crimes evidence grocery their to break into the light and was paint the dеfendants a bad store, they “to were the kind of show to com- propensity of their simply evidence thing, characters who would do such a case. mit a crime. Not so the instant having a hardy, were not honest citizens buy of the controlled relat- of the market at The evidence casual social visit back directly ed morning.” A.M. on a cold Id. at 766. 2:30 jury the coсaine the found crime consisted of intention to evidence Further, conduct, to be of.1

proof disorderly of convictions for drunkenness, in- tempered prejudice the the trial court property, stolen receiving jury by giving the deadly weapon, bur- herent the evidence carrying a concealed Thus, the admonishment. larceny, appropriatе an glary, breaking, ‍‌‌‌‌​‌​‌‌‌​‌​​​‌​‌​‌​‌​​​​​‌‌​‌‌‌​​‌‌​‌​‌​‌‌‌​​‌‍grand storehouse cocaine, possessed the the the Walker 1. We note that whether any relationship the other evidence had not at issue here. case, i.e., whether element to the issue in the 538 admissibility of Minter’s prejudice in the introduc- based on the tes-

danger of undue timony alleged credibility. evidence of the controlled and its lack of tion the But, proba- already held that Minter’s substantially outweigh did not we have Therefore, tive value of the evidence. we admissible. testimony was trial not abuse its credibility hold court did of witness is left to control-buy evi- admitting weigh. discretion Baker v. Common- jury 404(b) (1998). 54, wealth, KRE or KRE 403. dence under S.W.2d

There was no error.

REASONABLE NOTICE argues that the Commonwealth IRRELEVANT EVIDENCE provide notice under failed to reasonable Next, great that a deal of 404(c) intent to use the con- concerning evidence the circumstances Again, trolled as evidence at trial. we surrounding the search of Freddie Brooks’ concerning quanti- and evidence house 404(c) provide serves “to the ac ty drugs, drug paraphernalia, and the opportunity challenge with an cused erronеously use of admitted admissibility through of this evidence in- challenged him. The evidence against motion in limine and to deal with reliabili cludes: ty prejudice problems at trial.” Tam (cid:127) Testimony concerning stake- Commonwealth, Ky.,

me v. out and search of Freddie Brooks’ (1998), denied, 1153, 119 cert. 525 U.S. including of the num- home 1056, 143 L.Ed.2d 61 Wheth S.Ct. entering leaving people ber seen pre-trial giv er notiсe has been reasonable the house. case-by-case on a basis. en is decided (cid:127) Testimony that Freddie Brooks’ was Lawson, Kentucky Evi Robert G. pipe po- lighting found a crack when (3d Handbook, 2.25, p. § dence Law lice executed the search warrant. ed.1993). (cid:127) that officers found Testimony case, being In this in addition to able to paraphernalia drug drugs tes- challenge admissibility the of Minter’s Freddie Brooks’ house throughout 404(b) timony grounds, on KRE limine videotape showing and a the same evi- Min- defense counsel was able to dence. hearing. the ter himself at (cid:127) Expert testimony concerning other allegation of an existence of a Cl and i.e., house, drugs with was not unknown to illegal sale charged was not with which Walkеr defense, any surprise. which minimized possession of. in light this case and Based on the facts of (cid:127) to “Freddie Numerous references rule, hold that the purpose we emporium and distribu- drug Brooks’ court did not abuse its discretion trial tion center.” that was reasonable no- finding days six the above argues that appeal, tice. On Walker have not relevant and should evidence was DIRECTED VERDICT However, there was no excluded. been it was in- objection to the evidence when ev- argues there insufficient pre- the issue is not traf- troduced. first-degree to convict him of idence Nonetheless, that argues him a directed served. ficking, which entitled palpable under RCr 10.26 the error was acquittal. argument This is verdict of grounds disagree. is fоr reversal. ing charge. 401 defines relevant error, any, palpable. if is not any having any evidence as “evidence ten- ‍‌‌‌‌​‌​‌‌‌​‌​​​‌​‌​‌​‌​​​​​‌‌​‌‌‌​​‌‌​‌​‌​‌‌‌​​‌‍dency any to make the existence of fact that consequence is of the determination PROSECUTORIAL MISCONDUCT probable proba- of the action more or less last is likewise not ble than it would without evidence.” preserved. Again he argues palpable er- I agree Appellant argues with when he Again, ror. we rampant drug use in Freddie Brooks’ that the Commonwealth house does not tend to make the existence Attorney made numerous and inflammato- of the fact that Walker crack co- flushed ry attacks on defense counsel and defense caine down the toilet or that he wаs tam- strategy during closing Upon argument. pering any probable with evidence more argument, review of the we do not believe than without the evidence. prosecutor went beyond the rea- plethora No doubt this of evidence was sonable latitude given to counsel during presented in an jury, effort to inflame the closing argument. Lynem See v. Com- guilt by and cоnvict Walker of association. monwealth, Ky., 144-45 house,” hanging He was out in a “crack There was error. drug therefore he must be a dealer. The above, For the reasons set forth relevance of this evidence to the judgment of the Madison Circuit Court is of whether Walker intended to sell the hereby affirmed. crack cocaine he flushed down the toilet, оr tampering whether he was LAMBERT, C.J., COOPER, GRAVES,. evidence is lost on me. Even if the evi- KELLER, WINTERSHEIMER, JJ., relevant, dence is it still should not have concur. been admissible because 403 allows the exclusion of even “if relevant evidence STUMBO, J., by separate dissents probative value substantially out- opinion. weighed by danger preju- of undue STUMBO, Justice, dissenting. dice.” Respectfully, I must dissent. I take is- I majority believe the might agree even sue with majority opinion’s finding that that the admission of such evidence consti- palpable error exists from the inclusion tuted an abuse of discretion the trial of an enormous amount of irrelevant evi- However, judge. pre- issue is dence. I believe the evidence was exces- majority served and therefore the does not sive, irrelevant, massively prejudicial, I address at all. believe the fact that and as a result would hold that its admissi- preserved the error was not is the true bility at trial injus- constituted a manifest evidence, irrelevancy here. Without this tice. the Commonwealth would be left with evi- majority recounts,

As the there standing flushing dence of Walker over a myriad presented toilet, chаracterizing from which the later recov- Freddie empori- Therefore, Brooks’ house as a “drug ered crack cocaine. I believe addition, um and distribution center.” In may the verdict have been different but Commonwealth introduced Abernathy the inclusion of this evidence. Commonwealth, regarding other found in the house v. S.W.2d result, the time of Walker’s As a I would hold the trial arrest — bearing which had no palpable on Walker’s traffick- committed error admit- ting testimony regarding the irrelevant transactions in the Brooks’

drug-dealing

household, I issue on and would hear this

its merits. ONE, KENTUCKY,

BANK

N.A., Appellant, MURPHY, Appellee.

Sharlene

No. 2000-SC-0229-DG.

Supreme Kentucky. Court

Aug. 2001.

Case Details

Case Name: Walker v. Commonwealth

Court Name: Kentucky Supreme Court

Date Published: Aug 23, 2001

Citation: 52 S.W.3d 533

Docket Number: 2000-SC-0407-MR

Court Abbreviation: Ky.