DERRICK HELM V. COMMONWEALTH OF KENTUCKY
Annotate this Case
Download PDF
IMPORTANT NOTICE,
NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."
PURSUANT TO THE RULES OF CIVIL PROCEDURE
PROMULGATED BY THE SUPREME COURT, CR 76 .28(4)(C),
THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS BINDING PRECEDENT IN ANY OTHER
CASE IN ANY COURT OF THIS STATE; HOWEVER,
UNPUBLISHED KENTUCKY APPELLATE DECISIONS,
RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR
CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED
OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE
BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION
BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED
DECISION IN THE FILED DOCUMENT AND A COPY OF THE
ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE
DOCUMENT TO THE COURT AND ALL PARTIES TO THE
ACTION.
RENDERED : DECEMBER 16, 2010
NOT TO BE PUBLISHED
,,7UyrrMr (~vurf of ~irufurk
2010-SC-000082-MR
F
DERRICK HELM
V
APPELLANT
ON APPEAL FROM LINCOLN CIRCUIT COURT
HONORABLE JEFFREY T. BURDETTE, JUDGE
NO . 08-CR-00064-002
COMMONWEALTH OF KENTUCKY
APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Appellant, Derrick Helm, stands convicted of Complicity to Trafficking in a
Controlled Substance, First Degree, First Offense, and Persistent Felony
Offender in the Second Degree . For these crimes, Appellant was sentenced to
twenty years' imprisonment . He now appeals to this Court as a matter of right
pursuant to the Kentucky Constitution . Ky. Const . § 110(2)(b) .
I. Background
On March 6, 2008, 1 the Kentucky State Police, with the help of a
cooperating witness, Brian Thomas Rice, set up a controlled buy in Lincoln
County, Kentucky, so as to collect evidence implicating Appellant in the sale of
1 There was a previous attempt to conduct a controlled buy between Appellant and
the cooperating witness on March 3, 2008 . However, Appellant never followed
through with the sale .
contraband. At the instruction of the police, Rice contacted Appellant, and
informed him that he and a friend wanted to buy a "bill." 2 Appellant told Rice
to rendezvous with him in Stanford, Kentucky, near a local motorcycle shop.
Shortly after arriving at the meeting point, a vehicle pulled into the
parking lot, but the driver, however, was not Appellant. Recognizing the driver,
the cooperating witness immediately approached and inquired "Where's
Derrick?" In response, the driver stated "he sent me up here ." The cooperating
witness then exchanged his one-hundred dollars for a bag of cocaine.
Subsequently, a grand jury indicted Appellant for Complicity to
Trafficking in a Controlled Substance, First Degree, First Offense. Appellant
pled not guilty, and the matter proceeded to trial on October 26, 2009.
Prior to trial, the Commonwealth moved the trial court to allow the
introduction of certain KRE 404(b) testimony from the cooperating witness
regarding prior drug transactions between himself and Appellant. Specifically,
the Commonwealth asked that the cooperating witness be allowed to testify
that he lived with and bought cocaine from Appellant for approximately three
months prior to the March 6th transaction. The Commonwealth asserted that
these prior acts tended to prove, inter alia, motive, opportunity, intent,
knowledge and absence of mistake. The trial court granted the
Commonwealth's motion over Appellant's objection.
During trial, the Commonwealth peremptorily struck juror 155-the lone
remaining black juror. In response, Appellant challenged the Commonwealth's
2 The term "bill" is slang for one hundred-dollars worth of cocaine.
strike pursuant to Batson v. Kentucky, 476 U.S . 79 (1986), but was overruled
after the trial court found that the Commonwealth recited sufficient raceneutral reasons supporting the peremptory strike.
Appellant now contends that the trial court committed reversible error in
both its rulings regarding the 404(b) evidence and the Batson challenge .
Finding no error, we affirm.
II. Analysis
A. KRE 404(b)
Appellant contends that the trial court abused its discretion and violated
KRE 404(b) by admitting evidence of prior cocaine purchases between himself
and the cooperating witness. Attempting to distinguish our decision in Walker
v. Commonwealth, Appellant argues that because the cooperating witness
testified "very vaguely and generally to occasions that he obtained cocaine from
the Defendant," the testimony should have been excluded.
See Walker v.
Commonwealth, 52 S .W.3d 533 (Ky. 2001) . He further contends that this
evidence "could only have been intended to expose the character of [Appellant]
on prior occasions and to show that on [the date in question] he acted in
conformity therewith," and thus was in violation of KRE 404(b) . Furthermore,
Appellant asserts that the testimony's undue prejudice substantially
outweighed its probative value .
The Commonwealth responds by noting that Appellant placed his intent
directly in issue in his opening statement and thus argues that this case falls
within the confines of our decision in Walker. The Commonwealth further
avers that the testimony was necessary, inter alia, to explain to the jury that
Appellant had knowledge of the transaction-specifically, knowledge regarding
the use of the word "bill" to refer to cocaine and that the two used the word in
their previous transactions. Thus, as posited by the Commonwealth, because
KRE 404(b) permits the introduction of evidence of prior acts to show
"knowledge," the previous cocaine transactions were properly admitted .
Moreover, the Commonwealth asserts that the prior acts were relevant to prove
intent, as Appellant placed the issue in genuine dispute.
KRE 404(b) provides in pertinent part:
Evidence of other crimes, wrongs, or acts is not admissible to prove
the character of a person in order to show action in conformity
therewith. It may, however, be admissible:
(1) If offered for some other purpose, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident;
We have long interpreted this rule as "exclusionary in nature," and as such
have cautioned trial courts that "any exceptions to the general rule that
evidence of prior acts is inadmissible should be `closely watched and strictly
enforced because of [its] dangerous quality and prejudicial consequences ."'
Clark v. Commonwealth, 223 S.W .3d 90, 96 (Ky. 2007) (quoting O'Brryan v.
Commonwealth, 634 S.W.2d 153, 156 (Ky.1982)) . However, a trial court
applying this rule has the discretion to admit other instances of misconduct so
long as (1) the evidence is relevant, (2) the evidence is probative of an issue
other than propensity or conformity (3) the evidence's prejudice does not
substantially outweigh its probative value . Muncy v . Commonwealth, 132
S.W.3d 845, 847 (Ky. 2004) (quoting Parker v. Commonwealth, 952 S .W.2d 209,
213 (Ky. 1997)) .
In addition to this three-pronged inquiry, when a party attempts to admit
404(b) evidence for purposes of intent, as here, we require a fourth inquiry and
thus question whether the issue of intent is in genuine dispute . Walker, 52
S .W.3d at 536 (citing Robert G. Lawson, The Kentucky Evidence Law Handbook,
§ 2 .25, p. 98 (3d ed 1993)) .
With these four questions in mind, we turn to the case at bar, and
address whether the trial court abused its discretion by admitting the
testimony.
1 . Genuine Issue of Intent
As stated above, before a party may introduce prior acts so as to prove
intent, the issue must be in genuine dispute . In Walker v. Commonwealth, this
Court questioned whether the Commonwealth could introduce a prior drug
transaction-which occurred one day before events giving rise to the crimes
charged-to prove intent in that case. 52 S.W.3d 533. In answering in the
affirmative, we concluded: "[The appellant's] `mere presence' defense that
attacked both the possession and intent to sell elements of the trafficking
charge certainly placed the issue of intent to sell in dispute ." Id .
We based our decision in Walker on the notion that
"When a defendant raises the issue of mental state, whether by a
`mere presence' defense that specifically challenges the mental
element of the government's case or by means of a general denial
that forces the government to prove every element of its case, prior
bad acts evidence is admissible because mental state is a material
issue ."
Id. (quoting United States v. Thomas, 58 F.3d 1318 (8th Cir. 1995))
(emphasis added) . With this premise in mind, we now address whether
Appellant's intent was in genuine dispute in this case so as to merit the
introduction of the prior acts.
Here, Appellant specifically asserted in opening statements that he had
nothing to do with the transaction, i.e., he asserted a general denial .3
Moreover, Appellant later testified that he had no idea that the cooperating
witness was referring to cocaine when he used the term "bill," and believed the
cooperating witness was referring to money Appellant owed for mechanic work.
Thus, Appellant testified that he did not intend to sell drugs when he conversed
with the cooperating witness, and that he had no knowledge that the
conversation encompassed a specific cocaine sale . Under the facts .of this case,
3
Although not dispositive, we are mindful that KRS 502 .020 required the
Commonwealth, much as in Walker, to prove Appellant's intent. KRS 502 .020
provides, in part,
1) A person is guilty of an offense committed by another person when,
with the intention of promoting or facilitating the commission of the
offense, he :
(a) Solicits, commands, or engages in a conspiracy with such other
person to commit the offense . . . .
we hold that Appellant indeed placed his intent and knowledge in genuine
dispute . Thus, we find no error in this regard .
2 . Relevancy
Having determined that Appellant placed his intent and knowledge in
genuine dispute, we must now determine whether the prior acts were relevant
to the issues of intent or knowledge--essentially whether the prior acts are
relevant to prove something other than propensity or conformity. KRE 404(b) .
Evidence is relevant if it has "any tendency to make the existence of any fact
that is of consequence to the determination of the action more probable or less
probable than it would be without the evidence." KRE 401 .
In Walker, we held that the prior drug transaction was relevant because
it "tended to make it more probable that [the appellant] intended to sell the
drugs in his possession ." Walker, 52 S .W .3d at 537 ; see also United States v.
Beechum, 582 F.2d 898, 911 (5th Cir. 1978) . We again hold that prior acts
such as those in this case, in light of the charges alleged, are relevant as
showing "that because the defendant had unlawful intent in the [the first drug
sale], it is less likely that he had lawful intent in [this drug sale] ." Walker, 52
S.W.3d at 537 (quoting Beechum, 582 F.2d at 3911) . Furthermore, we believe
that the prior acts testimony in this case tended to prove that Appellant had
knowledge that the cooperating witness wanted to set up a drug buy when he
used the term "bill" in the conversation as a result of the prior course of
dealings-particularly because the cooperating witness testified that the two
used the word to mean cocaine during their prior transactions. Thus, we
conclude that the prior acts testimony was relevant to intent and knowledge
issues outside 404(b)'s prohibition on propensity and conformity .
3 . Probative Value and Undue Prej,duice
Notwithstanding the above 404(b) analysis, when evidence is properly
admitted to prove something other than propensity or conformity and the
evidence is relevant to that end, a court still must evaluate the acts and
determine whether its admission is so unduly prejudicial such that the
probative value is substantially outweighed . KRE 403. Where the undue
prejudice substantially outweighs the evidence's probative value, it should be
excluded. Id.
is Probative Value
The probative value of evidence "relates to whether there is sufficient
evidence that the `other crime, wrong, or act' actually occurred." Davis v.
Commonwealth, 147 S.W.3d 709 (Ky. 2004) . We opined in Davis that
probativeness "is resolved under KRE 104(b) . . . by admitting the evidence if
the jury could reasonably conclude that the act occurred and that the
defendant was the actor." Id. at 725 (citing Bell v. Commonwealth, 875 S .W.2d
882, 889-91 (Ky. 1994)) ; see also Huddleston v. United States, 485 U .S . 681,
689 (1988) ; Parker v. Commonwealth, 952 S .W .2d 209, 214 (1997) . See also
Robert G. Lawson, The Kentucky Evidence Law Handbook, § 2 .25, p. 131 (4th
ed . 2003) (construing Parker v. Commonwealth as standing for the proposition
that "other crimes evidence is sufficiently probative to be admitted if the trial
judge believes the jury could reasonably infer that the prior bad acts occurred
and that [the defendant] committed such acts .") . Thus, in this case, we must
answer whether a "jury could reasonably conclude that the act occurred and
that the defendant was the actor." Davis, 147 S.W.3d at 725.
Here, Appellant argues that the cooperating witness's testimony was
vague, general, and without sufficient corroborative evidence so as to be
reliable . As a result of the allegedly unreliable nature of the testimony,
Appellant avers that there is insufficient evidence to support its probative
value .
The Commonwealth responds by noting that this Court has held
uncorroborated testimony sufficient to support a conviction . Hodge v.
Commonwealth, 17 S .W.3d 824, 841. (Ky. 2000) . Therefore, as posited by the
Commonwealth, since a conviction may be upheld based solely on
uncorroborated testimony, "an even stronger argument exists that the jury may
reasonably conclude from [the cooperating witness's] testimony that the prior
drug sales took place." We agree with the Commonwealth.
Recently, this Court upheld a conviction that largely relied on the
eyewitness testimony of a cooperating witness. Mullins v. Commonwealth, No.
2009-SC-000566-MR, 2010 WL 4156766 * 5 (Ky . Oct. 21, 2010) . There, the
appellant argued that because the Commonwealth's evidence included
recordings that were indiscernible and because the cooperating witness was
unreliable, the conviction should not stand. Id. However, we rejected that
argument and held:
[A]ssuming, arguendo, that the jury may not have
been able to convict Appellant solely on the strength of the
video tapes due to their poor quality, that does not negate
the fact that the Commonwealth offered the jury a
participating eyewitness.
[V]iewing these facts in a light most favorable to the
Commonwealth, we conclude that a reasonable trier of fact
could have found Appellant guilty beyond a reasonable
doubt based on the eyewitness testimony in this case.
Id. (citing Baker v. Commonwealth, 234 S .W.3d 389 (Ky. App . 2007) ; People v.
Calabria, 816 N.E .2d 1257 (N.Y . 2004); State v. Davis, 848 So .2d 557 (La.
2003)) . Thus, having ruled that a jury could base a verdict solely on the
eyewitness testimony and since a guilty verdict requires a finding of beyond a
reasonable doubt, we must conclude that a trial court does not abuse its
discretion in determining that uncorroborated eyewitness testimony is enough
to support the lower evidentiary standard required to prove prior acts, i .e .,
evidence upon which the jury could reasonably conclude that the act occurred
and that the defendant was the actor . Therefore, given the eyewitness
testimony at hand, we hold that there was sufficient evidence to support the
prior acts evidence in this case.
4
Far from establishing a carte blanche rule that eyewitness testimony will always be
sufficient to support prior acts, we pause to note that such a determination rests in
the trial court. Thus, it is conceivable that a trial court might exclude prior acts
where it is supported by uncorroborated eyewitness testimony. Such a
determination rests in the sound judgment of the trial court and will be reviewed on
appeal only for an abuse of discretion .
ii. Preiudicial Effects
Having concluded that the evidence was supported by sufficient evidence
so as to be probative of Appellant's knowledge and intent, we must balance
that probativeness against the undue prejudice as directed by KRE 403 which
provides in pertinent part, "[a]lthough relevant, evidence may be excluded if its
probative value is substantially outweighed by the danger of undue prejudice
We recognize that virtually all evidence submitted by the Commonwealth
for the purposes of implicating a defendant is prejudicial to some degree . Ford
Motor Co. v. Fulkerson, 812 S .W .2d 119 (Ky. 1991) ; Brown v. Commonwealth,
313 S.W.3d 577, 606 (Ky. 2010) . Yet, before evidence may be excluded under
KRE 403, the prejudice must be undue and it must substantially outweigh the
evidence's probative value. KRE 403 . Undue or unfair prejudice as used in
403 is not to be equated with testimony simply adverse to the opposing party.
Dollar v. Long Mfg., N. C., Inc., 561 F.2d 613, 618 (5th Cir.1977) .
In this case, the cooperating witness, responding to direct examination
by the Commonwealth, made several statements regarding prior drug
transactions involving Appellant, to wit:
Q: [Alt the beginning of `08, January, February, leading up
to this event, what contact, if any, did you have with
[Appellant] at that time?
A: Well, I had stayed with him several nights, and was
buying drugs from him.
Q : So you were buying drugs from him at this time?
A: Yes
Q: Did you receive your 2007 tax refund check at this time?
A: Yes .
Q: What did you do with it?
A: Spent it on cocaine .
Q: And who did you spend it with?
A : [Appellant]
After this exchange, the trial court admonished the jury not use the above
testimony as "evidence of defendant's guilt in this case," and instructed them
not to use it except so far as the evidence "may show, if it does show, the
defendant's identity with this case, or his knowledge about this case, or his
intent in this case ." Then, after the admonishment, the Commonwealth
continued to question the cooperating witness regarding the events leading up
to and surrounding the March 6 transaction.
Q : What did you ask for?
A: I asked for a, what we called a bill, which is a hundred
dollars worth.
Q: And is that a common denomination of purchasing
cocaine?
A: Pretty much, yes
Q: Is that a term in language you had used with [Appellant]
in the past?
A: Yes .
Q : What happened on March 6, 2008?
A : Pretty much the same thing, talk to him on the phone---I
tried to call him and he called back and set up a deal for a
bill . . . .
With this testimony in mind, we now question whether the trial court abused
its discretion in determing that the probative value was not substantially
outweighed by the undue prejudice.
We begin our analysis by reiterating the maxim that testimony regarding
prior bad acts should be "closely watched" and that 404(b), as an exclusionary
rule, should be "strictly enforced" because of the "dangerous quality and
prejudicial consequences" of this sort of evidence . Clark v. Commonwealth, 223
S .W.3d 90, 96 (Ky. 2007) . Indeed, at first blush, and within a vacuum, the
testimony above, standing alone, probably would have merited exclusion .
However, given the fact that Appellant made a general denial, directly placing
his intent in genuine dispute, and because he denied knowledge that the term
"bill" referred to a cocaine transaction, we are persuaded in the opposite
direction .
The prior transactions which took place mere months 5 before the one at
hand clarified and probed the cryptic language used by Appellant and the
s Appellant also argues that the prior acts in this case were too "remote in time" to
the March 6 transaction and thus avers that our holding in Walker should not
apply. However, Walker does not go so far as to create a carte blanche rule that
prior acts must have taken place within a certain period of time before they may be
properly admitted. In any event, as pointed out by the Commonwealth, other
courts have permitted the admission of prior acts evidence where the time between
the prior acts and the charged crime was even greater than that here. See, e.g.,
cooperating witness---the jury was entitled to know that the word "bill" was
code for cocaine, the basis for which the cooperating witness deciphered the
term, and further that Appellant had knowledge of its coded meaning.
Moreover, the testimony regarding the prior drug buys tended to disprove
Appellant's general argument that he did not know that the cooperating
witness sought to buy drugs when he conversed with him on March 6; and
furthermore, Appellant's assertions that the conversation encompassed
mechanic work. Thus, while we recognize that the prior acts in this case-being of such a similar nature to that which Appellant stood accused-were
prejudicial, we cannot conclude that such prejudice substantially outweighed
the probative value. Therefore, we hold that the trial court did not abuse its
discretion by admitting the prior acts evidence in this case .6
8. Batson
Finally, we turn to Appellant's assertion that the trial court erred by
overruling his Batson challenge to the Commonwealth's peremtory strike of
juror 155 . Finding no error, we affirm the trial court's ruling.
United States v. Robinson, 904 F.2d 365, 368 (6th Cir. 1990) (admitting prior sales
five months before indicted offense) ; United States v. Thomas, 58 F.3d 1318, 1320
(8th Cir. 1995) (admitting prior acts covering four month period) ; United States v.
Wiley, 29 F.3d 345, 351 (8th Cir. 1994) (admitting prior possession of cocaine base
6
twenty months earlier) .
Our decision today is particularly influenced by the fact that the trial court gave the
jury an adequate admonition, instructing them on how to use the testimony
regarding Appellant's prior acts. It is a long standing and lofty rule that juries are
presumed to follow judicial instructions and that an admonition will cure an
evidentiary error. Johnson v. Commonwealth, 105 S.W.3d 430, 441 (Ky. 2003) .
Moreover, as is specifically pertinent in a KRE 403 analysis, an admonition reduces
the prejudicial impact of evidence regarding uncharged acts . Young v.
Commonwealth, 25 S.W.3d 66, 73 (Ky. 2000) .
When a defendant objects to the use of a peremptory, strike under the
auspices of Batson, 476 U .S. 79, the defendant must first make a prima facie
showing that the peremptory challenge is on the basis of race. Commonwealth
v. Snodgrass, 831 S .W.2d 176, 178 (Ky. 1992) . Once the requisite showing has
been made, the burden shifts to the prosecutor to articulate a race-neutral
explanation for making the peremptory challenge . Id. Ultimately, the trial
court must decide whether the defendant has carried the burden of proving
purposeful discrimination. Id. Such a decision is entitled to "great deference"
on appeal and will only be disturbed where the trial court is clearly erroneous .
Gray v. Commonwealth, 203 S .W.3d 679, 690-91 (Ky. 2006) ; Washington v.
Commonwealth, 34 S .W.3d 376 (Ky. 2000) .
In this case, the record reveals that the trial court did not determine
whether Appellant established a prima facie showing that the peremptory
challenge was based on race . Instead, the trial court jumped to the question of
whether the Commonwealth had sufficient race-neutral reasons for the
peremptory challenge . However, as discussed below, we conclude that the
Commonwealth properly asserted a race neutral reason for the strike and thus
consider the issue of whether Appellant established a prima facie case moot.
Therefore, we confine our analysis to whether the trial court was clearly
erroneous in ruling that the Commonwealth had sufficient race-neutral
reasons for the peremptory strike. See Snodgrass, 831 S.W.2d at 179 (citing
Hernandez v. New York, 500 U.S. 352, 359 (1991)) .
In this case, the Commonwealth provided the following race-neutral
reasons to the trial court, explaining why it employed a peremptory strike
against juror 155 :
During voir dire she indicated she was very uncomfortable
serving on the jury. She said there is a distant family
relationship [with the defendant] . She also indicated that
the mother, who is going to testify, was her childhood friend.
And it wouldn't matter what color she was I would strike
somebody from the jury pool that was a close childhood
friend of one of the witnesses going to testify.
In response to the race-neutral reasons put forward by the Commonwealth,
defense counsel asserted, as he does in this appeal, that since the trial court
rejected the abovementioned reasons when it considered a for cause challenge
against the same juror, the court should again reject those reasons for
purposes of the Batson issue. The trial court rejected that position, and so do
we .
When a defendant attacks a peremptory challenge under the auspices of
Batson, and after a prima facie case of purposeful discrimination
is made, all
that is required of the Commonwealth is to articulate a reason that is race
neutral on its face. Commonwealth v._ Coker, 241 S.W.3d 305, 307 (Ky . 2007) .
Absent a discriminatory intent inherent in the prosecutor's explanation, the
reason offered "will be deemed race neutral ." Gray v. Commonwealth, 203
S .W.3d 679, 690-91 (Ky . 2006) (citing Hernandez, 500 U .S. 352) . And as is
pertinent to this case, the Commonwealth's explanation for the strike "need not
rise to the level justifying exercise of a challenge for cause . . . . " Gamble v.
Commonwealth, 68 S.W .3d .367, 371 (Ky . 2002) .
Having reviewed the Commonwealth's race-neutral reasons in this case,
we cannot say that the trial court was clearly erroneous in accepting them as
sufficient justification for a race-neutral peremptory challenge. We reiterate
today that the race-neutral. reason requirement in Batson does not mandate a
party assert reasons equal to those in a for-cause challenge.
III. Conclusion
For the aforementioned reasons, we affirm the Lincoln Circuit Court in
all respects.
All sitting. All concur.
COUNSEL FOR APPELLANT:
Justin Thomas Genco
305 West Third Street
P.O . Box 164
Stanford, KY 40484
COUNSEL FOR APPELLEE:
Jack Conway
Attorney General of Kentucky
John Paul Varo
Assistant Attorney General
Office of Criminal Appeals
Office of the Attorney General
1024 Capital Center Drive, Suite 200
Frankfort, KY 40601
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.