BRUCE MEADE v. COMMONWEALTH OF KENTUCKY
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RENDERED:
December 30, 2004; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-001870-MR
BRUCE MEADE
APPELLANT
APPEAL FROM PIKE CIRCUIT COURT
HONORABLE STEVEN D. COMBS, JUDGE
ACTION NO. 02-CR-00268
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
JOHNSON, KNOPF, AND SCHRODER, JUDGES.
JOHNSON, JUDGE:
Bruce Meade has appealed from a final judgment
and sentence of ten years’ imprisonment entered by the Pike
Circuit Court on August 19, 2003, following a jury’s verdict
finding Meade guilty on one count of trafficking in a controlled
substance in the first degree.1
Having concluded that the
prosecutor’s closing arguments in the guilt and penalty phases
of the trial were not improper, we affirm.
On December 11, 2002, a Pike County grand jury
1
Kentucky Revised Statutes (KRS) 218A.1412.
indicted Meade on one count of trafficking in a controlled
substance in the first degree.
Meade entered a plea of not
guilty to the charge and the case proceeded to a jury trial,
held on June 30, 2003, and July 1, 2003, in the Pike Circuit
Court.
The Commonwealth presented evidence that on March 18,
2002, Meade sold Oxycontin to Shirley Neely, a paid confidential
informant2 for the Kentucky State Police (KSP).
Neely had
contacted Meade earlier that day and arranged a meeting to
purchase Oxycontin.
The drug transaction occurred in the
presence of Randy Hunter, an undercover Drug Enforcement Officer
for the KSP, under the pretense that Neely was purchasing the
drugs for Hunter.
The drug transaction was videotaped and
audiotaped.
Meade disputes the facts surrounding the initial
contact between Neely and him regarding this drug transaction.
However, it is undisputed that after the initial contact, Meade
approached Neely as she sat in an undercover police car with
Hunter at the L & M Mart in Pike County, Kentucky, on March 18,
2002.
The videotape and audiotape played at trial revealed that
during the drug transaction, Neely gave Meade $1,200.00 in cash
to purchase 20, 60 milligram tablets of Oxycontin.
2
Meade left
Neely testified that in December 2001, she contacted the KSP and offered to
become a paid confidential informant, which led to her involvement in this
particular transaction with Meade. Neely was addicted to Oxycontin at the
time and decided, for pay, to help get drug dealers off the street.
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with the cash and a second meeting occurred shortly thereafter
at a different location where Meade passed a substance, later
determined to be Oxycontin, to Neely through the window of the
car.
However, Meade only gave Neely four 40-milligram Oxycontin
tablets and two 20-milligram Oxycontin tablets and returned to
Neely all but $300.00 of the money he had received from Neely at
the earlier meeting.
It is undisputed that Meade was the person shown on
the videotape and heard on the audiotape of the drug
transaction.
The only issue at trial was whether Neely
entrapped Meade.
Meade claimed that in March 2002, Neely was
seeking favorable treatment from the police concerning a thenpending misdemeanor shoplifting charge;3 and that in order to
gain this favorable treatment from the police, she forced him to
be a part of the March 18, 2002, drug transaction.
Meade testified that Neely had been a customer at the
junkyard where he had previously worked, but that he did not
know Neely personally before she came to his house on March 17,
2002, the day before the drug transaction.
Meade claimed Neely
came to his house on March 17, 2002, and dropped off a quantity
of Oxycontin and threatened his life if he refused to agree to
meet her the next day at a designated location, pretend to go
3
In exchange for her work as an informant in this case, Neely received oneyear probation on the shoplifting charge and $200.00 as payment for her time
and expenses.
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get the drugs from someone other than her, and reappear 30 to 45
minutes later and pretend to sell the drugs to her.
He
testified that he complied with this alleged bizarre demand only
out of fear for his life and that of his family.
Meade further testified that he did not sell
Oxycontin, have a prescription for it, or use it himself, and
that he did not profit from the drug transaction of March 18,
2002, because Neely came to his house on March 19, 2002, and
took back the $300.00 that she had paid him.4
However, from the
videotape and the audiotape, Meade could be heard offering to
get Neely more narcotics, describing the difference between
various types of drugs, and stating his preference.
Meade
testified that he only provided this information because Neely
had previously told him what to say.
Meade testified that he
did not alert law enforcement regarding this alleged threat by
Neely because he was afraid and he did not know if the police
would arrest Neely.
Neely testified that she did see Meade on March 17,
2002, at the L & M Mart, where she purchased Oxycontin for
herself, but that she did not go to his house on March 17, 2002.
Rather, Neely testified that she and Meade made the arrangements
for the March 18, 2002, drug transaction earlier on March 18,
2002, before the meeting with Officer Hunter.
4
Neely testified
There was no proof that the KSP ever recovered the $300.00 received by
Meade.
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that she had known Meade for approximately two years before the
March 18, 2002, drug transaction and that she had been to his
house at least 100 times to purchase Oxycontin before March 18,
2002.
The jury returned a verdict finding Meade guilty of
trafficking in a controlled substance in the first degree and
recommended that Meade be sentenced to ten years’ imprisonment
for his conviction, the maximum sentence.
The trial court
entered a final judgment and order of imprisonment on August 19,
2003, sentencing Meade to ten years’ imprisonment in accordance
with the jury’s recommendation.
This appeal followed.
Meade contends that the prosecutor made improper
closing arguments during both the guilt phase and the penalty
phase of the trial.
Meade relies on United States v. Francis,5
for his contention that he is entitled to a new trial because
the prosecutor expressed a personal belief to the jury that
Meade lied at trial, but failed to give examples of the
discrepancies in Meade’s testimony and other evidence.
Specifically, Meade challenges the following
statements made by the prosecutor during her closing argument in
the guilt phase of the trial:
5
170 F.3d 546, 551-52 (6th Cir. 1999)(noting that it was improper for the
prosecutor to call the defendant a liar in her closing arguments, without
basing the attacks on evidence adduced at trial, and finding that the
prosecutor should have given examples of discrepancies in the defendant’s
testimony and then drawn the conclusion that he lied).
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Really, the only issue for you to examine
and debate is whether or not this was a case
of entrapment or whether or not this is just
a cock and bull story that he has created
here at trial. . . I think you saw the true
Bruce Meade on the video when he didn’t know
he was being observed. Ladies and
Gentleman, I submit to you that was no
charade. That was no man in fear for his
life, believing that this woman was going to
come to his home and kill him if he didn’t
pull off this convincing charade. That’s
just craziness. . . . You have the
opportunity now, through your verdict, to
shut down one aspect, to close off one
avenue of the transfer of this Oxycontin,
through Bruce Meade. . . . The best he can
do is come up with this crazy entrapment
defense to try to claim that this wasn’t
something he would have otherwise done, that
this woman threatened his life and made him
pretend to be selling these drugs to her.
Ladies and Gentlemen, that just doesn’t hold
water. It just doesn’t make sense.
Meade also challenges the following statements made by
the prosecutor during her closing argument in the penalty phase
of the trial:
The first thing I think you need to think
about is what Bruce Meade did here in this
courtroom today, through his testimony
earlier today, as well as his testimony just
a couple minutes ago. The man has come in
here and told an absolute whopper. One of
the biggest lies imaginable, he has come in
and is somewhat indignant that you all
didn’t fall for it. He comes in here and
rather than an impassioned plea for mercy,
he sits down and tells you again about this
lie. He tells this same story all over
again to try to get you to give him the
minimum sentencing. You can hold that lie
against him.
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Meade notes that judging the credibility of a witness
lies within the province of the jury,6 and he contends the
prosecutor invaded the jury’s territory by calling him a liar.
When this Court evaluates a claim of prosecutorial misconduct,
we “must focus on the overall fairness of the trial, and not the
culpability of the prosecutor,”7 in determining whether the
prosecutor’s conduct “was of such an ‘egregious nature’” as to
deny the defendant his “constitutional right of due process of
law”.8
As our Supreme Court noted in Barnes v. Commonwealth,9
prosecutorial misconduct in a closing argument will result in
reversal only under the following circumstances:
[I]f the misconduct is “flagrant” or if each of the
following three conditions is satisfied:
(1)
Proof of defendant’s guilt is not overwhelming;
(2)
Defense counsel objected; and
(3)
The trial court failed to cure the error with a
sufficient admonishment to the jury.10
Initially, we note that no objection was made to
6
Commonwealth v. Benham, Ky., 816 S.W.2d 186, 187 (1991).
7
Slaughter v. Commonwealth, Ky., 744 S.W.2d 407, 411-12 (1987).
8
Id. at 411 (citing Donnelly v. DeChristoforo, 416 U.S. 637, 94 S.Ct. 1868,
40 L.Ed.2d 431 (1974)).
9
Ky., 91 S.W.3d 564 (2002).
10
Id. at 568 (citing United States v. Carroll, 26 F.3d 1380, 1390 (6th Cir.
1994)).
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the prosecutor’s closing statements during the guilt phase of
the trial and there was no contemporaneous objection made to the
prosecutor’s closing statements during the penalty phase of the
trial.
Meade’s attorney raised his only objection to the
prosecutor’s closing arguments after the trial court dismissed
the jury and revoked Meade’s bond pending formal sentencing, by
stating:
I do have a motion. I would move-- it’s a
belated objection. I would move for a
mistrial due to the Commonwealth’s
characterization of my client’s testimony as
lies that occurred in the penalty phase. I
am not sure whether it occurred at closing
arguments in the guilt phase. I would have
to review the tape on that. . . .
This motion was denied.
For an objection to be timely, it must be promptly
interposed.11
Specifically, “an objection to improper statements
made during closing arguments must be contemporaneous. . . .
The trial court should be given the opportunity to consider
whether an admonition would cure the error.”12
Thus, Meade’s
failure to raise an objection to the prosecutor’s argument until
after the case was submitted to the jury was improper and this
issue was not preserved for appellate review.
11
Kentucky Rules of Criminal Procedure (RCr) 9.22; Bowers v. Commonwealth,
Ky., 555 S.W.2d 241, 243 (1977).
12
Weaver v. Commonwealth, Ky., 955 S.W.2d 722, 728 (1997).
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Meade seeks review of this unpreserved error pursuant
to RCr 10.26, under the palpable error standard of review.13
Since the three conditions set out in Barnes were not satisfied,
we must determine if any misconduct was flagrant, and review the
prosecutor’s statements for palpable error under the test set
out in Young v. Commonwealth.14
“A palpable error is one which
affects the substantial rights of a party and relief may be
granted for palpable errors only upon a determination that a
manifest injustice has resulted from the error.
This means,
upon consideration of the whole case, the reviewing court must
conclude that a substantial possibility exists that the result
would have been different in order to grant relief.”15
The Supreme Court in Young stated that the factors to
be considered in determining palpable error, include: (1)
“examination of both the amount of punishment fixed by the
verdict and the weight of evidence supporting that punishment”;
(2) “whether the Commonwealth’s statements are supported by
13
RCr 10.26 provides:
A palpable error which affects the substantial
rights of a party may be considered by the court on
motion for a new trial or by an appellate court on
appeal, even though insufficiently raised or
preserved for review, and appropriate relief may be
granted upon a determination that manifest injustice
has resulted from the error.
14
Ky., 25 S.W.3d 66 (2000).
15
Partin v. Commonwealth, Ky., 918 S.W.2d 219, 224 (1996)(citing Jackson v.
Commonwealth, Ky.App., 717 S.W.2d 511, 513 (1986)).
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facts in the record”; (3) “whether the allegedly improper
statements appeared to rebut arguments raised by defense
counsel”; and (4) “these closing arguments, ‘as a whole,’ and .
. . the wide latitude . . . allowed parties during closing
arguments.”16
Meade testified during both the guilt phase and
penalty phase of the trial and told the jury that he was a
victim of entrapment.
The Commonwealth’s evidence included a
videotape and audiotape of the drug transaction and testimony of
both the informant and the undercover officer who witnessed the
transaction.
The Commonwealth provided testimony that Neely had
bought Oxycontin from Meade several times prior to this
particular sale.
Further, contrary to the Meade’s testimony,
Meade’s girlfriend, Tina Elsza, testified at trial that Neely
had been to Meade’s home on a few occasions.
This evidence
provided the prosecutor with sufficient facts of record to
support the statements she made in her closing arguments that
Meade had been untruthful to the jury.
Thus, we conclude that
the prosecutor in her closing arguments sufficiently provided
the jury with the basis for her contention that Meade had lied.
A prosecutor may comment on the credibility of the
defendant, like any other witness, if he or she takes the
16
Young, 25 S.W.3d at 74-75.
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stand,17 and “may comment on tactics, . . . evidence, and . . .
as to the falsity of a defense position.”18
The statements made
by the prosecutor in both of her closing arguments challenged
Meade’s claim that he had been entrapped, and her arguments were
consistent with the evidence presented by the Commonwealth.
Further, since Meade again asserted the entrapment defense
during the penalty phase when asking for a light sentence, the
prosecutor was entitled to argue that Meade’s mitigating
evidence was entitled to little weight.19
In reviewing the
closing arguments as a whole, we conclude that there was no
prosecutorial misconduct.
For the foregoing reasons, the judgment of the Pike
Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Euva D. May
Frankfort, Kentucky
Gregory D. Stumbo
Attorney General
Natalie Lewellen
Assistant Attorney General
Frankfort, Kentucky
17
Tamme v. Commonwealth, Ky., 973 S.W.2d 13, 39 (1998).
18
Slaughter, 744 S.W.2d at 412.
19
Tamme, 973 S.W.2d at 39.
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