DONALD E. HOWARD V. COMMONWEALTH OF KENTUCKY
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2009-SC-000408-MR
DONALD E. HOWARD
APPELLANT
ON APPEAL FROM CARROLL CIRCUIT COURT
HONORABLE STEPHEN L. BATES, JUDGE
NOS . 08-CR-00095, 08-CR-00118, AND 09-CR-00031
COMMONWEALTH OF KENTUCKY
APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING IN PART AND REVERSING IN PART, AND REMANDING
Appellant, Donald E. Howard, appeals as a matter of right' from a
judgment entered upon a jury verdict convicting him of four counts of firstdegree trafficking in a controlled substance . Pursuant to the jury's
recommendation, he was sentenced to a total of twenty years' imprisonment .
In his appeal, Howard contends that the trial court erred: (1) by denying
his request to review the Kentucky All-Schedule Prescription Electronic
Reporting (KASPER) 2 records of four witnesses testifying on behalf of the
Commonwealth ; and (2) by allowing the Commonwealth to introduce improper,
' Ky. Const. ยง 110(2)(b) .
2 KASPER was created pursuant to KRS 218 .A202 to track the dispensation of certain
prescribed medications .
irrelevant, and prejudicial testimony which, although unpreserved, resulted in
palpable error.
Because we determine that palpable error occurred as a result of the
introduction of six instances of testimony referring to other, uncharged
instances of Howard's drug dealing, and there is a substantial possibility that
this evidence may have resulted in a different verdict on the three drug
trafficking charges, we reverse those three convictions and remand for a new
trial upon those counts.3 We affirm, however, the remaining conviction .4 We
further conclude that the denial of Howard's request for the KASPER records
was correct, albeit for a reason different than expressed by the trial court.
I . FACTUAL AND PROCEDURAL BACKGROUND
In seeking assistance for his illegal drug investigation duties, Detective
Dave Roberts of the Kentucky State Police enlisted Steve Hanlon to serve as an
informant making controlled purchases from drug traffickers . One of the initial
targets of the investigation was Natasha King, who is a niece, by marriage, to
Howard . On August 1, 2008, Steve purchased twenty Opana5 pills from King
for $800 .00 . The transaction was observed and recorded by Detective Roberts .
King later testified at Howard's trial that the pills she sold on that occasion had
been provided to her by Howard .
3 These convictions we reverse are those obtained in Carroll Circuit Court Case Nos .
08-CR-00095 and 09-CR-00031 .
4 The conviction we affirm is that obtained in Carroll Circuit Court Case No . 08-CR00118 .
5 Opana is a brand name for the narcotic pain relief drug oxymorphone .
Two similar controlled buys were made from King on August 7, 2008 . In
the first transaction, Steve purchased sixteen Oxycontin pills from King for
$800.00 . In the second controlled buy, Steve's wife, Brooke Hanlon, purchased
six Oxycontin pills from King for $480 .00 . King testified at Howard's trial that
the pills she sold to the Hanlons on that date had been provided to her by
Howard .
The transactions were monitored and recorded by Detective Roberts.
Based upon the foregoing drug transactions, King was indicted and a
warrant for her arrest was issued. Confronted with prosecution as a drug
trafficker, King agreed to act as an informant and make a controlled purchase
from Howard. On November 26, 2008 she did so, purchasing one Opana pill
from Howard for $40.00 . Detective Roberts monitored and recorded the
transaction.
Based upon the four instances described above in which Howard
allegedly transferred drugs to King, three indictments were returned against
Howard, charging him with a total of four counts of first-degree trafficking in a
controlled substance . The cases were consolidated and tried jointly . The jury
returned guilty verdicts on all four counts, and fixed the sentence for each
crime at ten years' imprisonment, with the recommendation that the sentences
be served consecutively . Recognizing the twenty-year cap established by KRS
532 .080 and KRS 532 .110, the trial court directed two of the sentences be
served consecutively, 6 for a total of twenty years. The remaining ten-year
6
The sentences imposed for the two charges listed in Case No .09-CR-00031 were
ordered to be served consecutively .
sentences were ordered to be served concurrently with the twenty-year
sentence. This appeal followed .
II . THE TRIAL COURT PROPERLY DENIED HOWARD'S MOTION TO
ACCESS THE KASPER RECORDS OF FOUR COMMONWEALTH WITNESSES
Before the case proceeded to trial, Howard requested the trial court to
issue an order allowing him to review KASPER reports of four of the
Commonwealth's trial witnesses : Steve Hanlon, Brooke Hanlon, Natasha King,
and Donald Simons . 7 Citing the privacy rights of those witnesses, the trial
court denied the request. Howard contends that the trial court erred by
denying him access to the KASPER records of those witnesses.
We recently addressed the right of a criminal defendant to access
KASPER records in Commonwealth, Cabinet for Health and Family Services v.
Bartlett, 311 S .W.3d 224 (Ky. 2010) . Bartlett set forth the following principles
and procedures relating to this right:
It is well established that a criminal defendant has a constitutional
right to discover exculpatory documents, even if those documents
are confidential or if their disclosure is prohibited by rule or
statute . The U.S . Supreme Court has held that a criminal
defendant's Sixth Amendment right to confront witnesses prevails
over the government's interest . in keeping juvenile records
confidential . It has also held that a defendant's due process right
to present a defense prevails over evidentiary rules and privileges .
And a criminal defendant's right to compulsory process prevails
over a statute prohibiting persons from testifying at trial.
In addition, the U .S . Supreme Court has held that a defendant's
right to discover exculpatory evidence in the government's
7 Donald Simons testified at trial that he received ninety 80 milligram Oxycodone pills
from the Veterans Administration on a monthly basis; that he sold his pills through
Howard from about June 2007 until after December 2008 ; that Howard picked up
pills from him on August 7, 2008 ; and that a $1,000 .00 cash deposit made into his
bank account on August 8, 2008, came from the proceeds of pills sold by Howard .
possession prevails over a qualified privilege . In Barroso, this
Court extended the logic of Ritchie, unanimously holding that a
defendant's constitutional right to discover exculpatory evidence
prevails over absolute privileges, too .
The common and necessary thread of these cases is that a criminal
defendant's constitutional rights to exculpatory information prevail
over rules and statutes that prohibit the defendant from receiving
the information. This is true even if those rules or statutes purport
to absolutely prohibit disclosure . To put it simply, "constitutional
rights prevail over conflicting statutes and rules ."
This is not to say, of course, that a criminal defendant has a right
to review any confidential documents by baselessly asserting the
documents might be helpful. When dealing with confidential
records, this Court has previously stressed that it is necessary to
"`preclude fishing expedition[s] to see what may turn up' and
`unrestrained foray[s] into confidential records in the hope that the
unearthing of some unspecified information' " could be useful to
the defense .
Thus, in Barroso, this Court held that two steps are required
before a court may give a criminal ' defendant access to confidential
records . First, the defendant must produce "evidence sufficient to
establish a reasonable belief that the records contain exculpatory
evidence ." Second, the trial court must conduct an in camera
review to determine whether or not the records sought actually do
contain such evidence.
The Barroso procedure protects a criminal defendant's
constitutional rights to exculpatory records, as well as the
government's interests in keeping certain records confidential .
Indeed, as this Court has said regarding a rape victim's
confidential psychotherapy reports : "[T]he trial judge's in camera
inspection of [the victim's] psychotherapy records prdtect[s the
defendant's] constitutional rights without destroying [the victim's]
interest in protecting the confidentiality of those portions of the
records . . . irrelevant to the [defendant's] interests."
Id. at 227-228 (citation omitted) .
The trial court did not have the benefit of the Bartlett decision when it
denied Howard's request for the KASPER records . However, under Bartlett it is
clear that the court erred in basing its denial of Howard's request upon the
privacy rights of the witnesses. It is now established that the privacy rights of
the witnesses must yield to Howard's constitutional. right to obtain exculpatory
evidence contained in the confidential KASPER records .
However, as explained in Bartlett, there is no automatic right to access
KASPER records . Rather, the right is constrained by the two-step procedure
outlined in Commonwealth v. Barroso, 122 S.W .3d 554, 558-563 (Ky. 2003) . As
noted, under step one of this procedure, the defendant must overcome the
threshold requirement of producing "evidence sufficient to establish a
reasonable belief that the records contain exculpatory evidence ." If that is
done, the trial court must then conduct an in camera review to determine
whether or not the records sought actually contain exculpatory evidence .
While the trial court erred by failing to undertake the Barroso procedure,
nevertheless, as explained below, the error was harmless because the trial.
court reached the correct result.
Sufficient evidence was developed in the trial record and in Howard's
arguments upon appeal to enable us to assess the effect of applying the
Barroso procedure to the KASPER records Howard sought. The record
discloses that Howard failed to meet the threshold burden under Barroso for
access to the records of any of the four witnesses. He did not present evidence
sufficient to create a reasonable belief that the KASPER records contained
exculpatory information.
In regard to Steve and Brooke Hanlon, Howard has identified no theory
under which their KASPER records would yield exculpatory evidence. Steve
made the August 1 purchase and one of the August 7 purchases from King;
Brooke made the other August 7 purchase from King. The purchases were
monitored and recorded by Detective Roberts. If the KASPER records disclosed
that the Hanlons had prescriptions for the type of pills they purchased from
King, because of the monitoring and recording procedures undertaken by
Detective Roberts, there is no possibility that the Hanlons could have used
their own supply of pills to feign the purchases from King. Nor, would the lack
of prescriptions in the Hanlons' records be exculpatory. In short, there is no
plausible theory under which either of the Hanlon's KASPER records could
contain evidence exculpatory of the charges against Howard. Accordingly, even
if the Barroso procedure had been used by the trial court, Howard would not
have been entitled to the Hanlons' KASPER records .
With regards to Simons' KASPER records, Howard states "Proof of
amount, quantity and dates of dispensing could reasonably be argued to be
relevant in terms of discovery. Not having the ability to inspect these reports
denied the Defendant the ability to fully investigate the case, and to fully crossexamine a witness called to testify against him." As noted, Simons testified at
trial that he received ninety 80, milligram Oxycontin pills from the Veterans
Administration each month. Presumably these disbursements would be
reflected in the KASPER records. Simons further testified that he sold his pills
through Howard from about June 2007 until after December 2008 ; that
Howard picked up pills from him on August 7, 2008; and that a $1,000 .00
cash deposit made into his bank account on August 8, 2008, came from the
proceeds of pills sold by Howard . This narrative matches the theory that
Simons supplied Howard with the pills purchased by the Hanlons from King on
August 7 .
Conceivably, the KASPER records could refute Simons's claim that he
had a VA prescription for Oxycontin pills and thereby indicate that Simons was
untruthful when he testified that he used Howard to sell those pills. That
would be exculpatory evidence ; however, the theoretical possibility that
KASPER records could contain exculpatory evidence is not the standard . The
standard is that the defendant must produce "evidence sufficient to establish a
reasonable belief that the records contain exculpatory evidence."
Barlett, 311
S.W :3d at 227. Thus, in order to obtain Simons's KASPER records, it was
incumbent upon Howard to present facts sufficient to establish a reasonable
belief that Simons misrepresented his VA prescription information . Mere
suspicion (and Howard does not even claim he has that suspicion) or a remote
possibility falls far short of a reasonable belief. The record clearly establishes
Howard's inability to meet the threshold requirement under Barroso to access
Simons's KASPER records.
With regard to KASPER records relating to King, Howard argues "she
testified that she received the Oxycontin and Opana from [him] . However,
without the ability to inspect any KASPER reports for her, the Defense was
denied the ability to fully investigate [her] history." We begin by noting that a
need for "the ability to fully investigate the history" of a witness is not the
standard. Nevertheless, King personally made the three August l and August
7 sales to the Hanlons and the only evidence linking Howard to those
transactions was King's testimony that she received the pills from Howard . 8 It
is possible that King had her own prescriptions for the Opana and Oxycontin
pills she sold to the Hanlons. If so, then KASPER records proving this
alternative source would be exculpatory evidence . Nevertheless, as with
Simons, Appellant offers no more than a speculative possibility which falls well
short of the reasonable belief standard contained in Barroso - a standard
which specifically excludes "fishing expeditions ." Accordingly, the
Barroso
standard is not satisfied in respect to King's KASPER records.
In summary, though the trial court's erred by basing its denial of
Howard's motion to review the KASPER records on the privacy rights of the
witnesses, and the error in failing to apply the Barroso standard was of
constitutional dimensions, such errors -are subject to harmless error review .
As demonstrated by our discussion above, the error was "harmless beyond a
reasonable doubt," and thus meets the requirement to be deemed harmless
error under the applicable constitutional error standard .
8
Winstead v.
Simons testified that he supplied pills to Howard on August 7, 2008, which is
circumstantial evidence that Howard then supplied the pills to King to sell to the
Hanlons later that day. Further, Detective Roberts provided testimony that Howard
made a substantial deposit into his bank account on August l, 2008, which, again,
is circumstantial evidence that he was involved in the transactions . Again,
however, King provided the only direct evidence of Howard's involvement.
Commonwealth, 283 S.W.3d 678, 689 n . 1 (Ky. 2009) (citing Chapman v.
California, 386 U .S. 18 (1967)) .
III . UNPRESERVED ERRORS
Howard alleges several instances of improper testimony given by
prosecution witnesses during his trial. Howard acknowledges that the alleged
errors are unpreserved, and requests palpable error review . The instances of
alleged improper testimony may be characterized as (1) evidence of prior drug
dealing by Howard; (2) evidence of police familiarity with Howard, implying bad
character ; and (3) evidence that Howard had a sexual relationship with
Natasha King.
Pursuant to RCr 10.26, an unpreserved error is reversible only if
manifest injustice has resulted from the error. "That means that if, upon
consideration of the whole case, a substantial possibility does not exist that the
result would have been different, the error will be deemed nonprejudicial ."
Graves v. Commonwealth, 17 S .W.3d 858, 864 (Ky. 2000) (citing Jackson v.
Commonwealth, 717 S.W . 2d 511 (Ky. App. 1986)) . "To discover manifest
injustice, a reviewing court must plumb the depths of the proceeding . . . to
determine whether the defect in the proceeding was shocking or
jurisprudentially intolerable." Id. (citations omitted) . "For an error to be
palpable, it must be `easily perceptible, plain, obvious and readily noticeable .'
A palpable error `must involve prejudice more egregious than that occurring in
reversible error [.]' Brewer v. Commonwealth, 206 S .W.3d 343, 349 (Ky. 2006)
(citations omitted) . Thus, .the alleged error must be "so improper, prejudicial,
and egregious as to have undermined the overall fairness of the proceedings ."
Id. (citing Soto v. Commonwealth, 139 S.W.3d 827, 873 (Ky. 2004)) .
A. Evidence of Previous Uncharged Acts of Drug_Dealing
Howard cites, six occasions where he claims improper testimony relating
to prior uncharged acts of drug dealing was admitted into evidence. The
testimony to which we are cited is as follows (all questions are asked by the
Commonwealth)
1 . Prior drug trafficking testimony, of Natasha King
Q . Have you gotten drugs from him since you have known him?
A. Yes, sir.
Q . Have you sold drugs for him since you have known him?
A. Yes, I have.
Q . I mean, you sold Opana and Oxycontin for Donald Howard regularly,
didn't you?
A . Yes, sir.
2 . Prior drug trafficking testimony of Steven Hanlon
Q. Have you ever gotten pills from him or have you ever seen people get
pills A. Yes, sir.
Q. Directly from him?
A. Yes, sir, I have .
Q. You have what?
A. I have seen Donald Howard - - I purchased pills from Donald Howard.
I have traded drugs for pills from Donald Howard .
3 . Prior drug trafficking testimonyof Brooke Hanlon
Q . And had you purchased pills or been given pills by the Defendant in
the past?
A. Yes, sir.
Q. On how many occasions?
A. Five or six probably.
Q. What type of pills?
A. Or, no, probably five to ten probably .
Q . And what type of pills did he give or sell or traffic to you?
A. Those are his, the ones that he was prescribed to the Oxymorphone .
Q. Opanas?
A. And they were - yeah, the Opanas and they were 40 milligrams .
4 . Prior drug trafficking testimony of Robert Scott Wilson
Q . Okay, have you ever traded pills?
A. Yeah.
Q. You ever traded pills with this man right here [referring to Howard]?
A. Yeah, on occasion if I was out or something .
Q. Have you ever seen Donald Howard sell any of those pills?
A. Yes .
Q . Tell me about that?
A. What do you mean tell you about it?
Q. Just exactly what I asked . You just told me you had seen him selling
pills . Tell me when is the last time before you got arrested you saw him
selling pills if you remember? This year? Last year?
A. Last year.
Q . Last year. How many times did you see him selling pills?
A . Several I guess .
Q . Several you guess. Who did you see him peddling pills to?
A . Natasha. Cody Tingle .
Q. Who else?
A. John Marsh .
Q. These people that you have named, those kind of people hang out at
his house?
A. Yes.
5 . Prior drug trafficking testimony of Donald Simons
Q . When did you get started, and how, fronting these pills to Donald
Howard?
A. I don't know. He started talking about he could get rid of pills I told
him I was getting. He said he would get rid of them so I started doing it.
Q. How much could he get rid of them for?
A. $80.00 I think for the 80s .
Q. So, a dollar a milligram?
A. Yes, sir.
Q. How long did that go on?
A. From about June of '07 till after December '08 .
6 . Prior drug trafficking testimony of Detective Roberts
Q. Let me show you a document we will identify as 6-C and ask you if
you can identify it?
A. Yes, sir, that is the document I have prepared showing the
prescription versus the deposits into the bank.
Q. All right, and what you have done here and what the jury will see
when they get it individually is you have shown the date of the doctor's
visit, is that correct?
A. That's correct .
Q. You have shown the prescription that he got.
A. Yes, sir.
Q. On that particular date? For example January 9th of '08? (emphasis
added) .
A. That's correct.
KRE 404(b) provides as follows :
(b) Other crimes, wrongs, or acts. 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.
As this Court has previously stressed, KRE 404(b) is "exclusionary in
nature," and as such, "any exceptions to the general rule that evidence of prior
bad 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'Bryan v.
Commonwealth, 634 S.W .2d 153, 156 (Ky. 1982)) . As recognized in Tamme v.
Commonwealth, 973 S.W .2d 13, 29 (Ky. 1998), the list of exceptions
enumerated in the rule is illustrative, not exclusive.
Although testimony explaining why a defendant had become a suspect in
a drug investigation is admissible and relevant to avoid any implication that
the defendant was unfairly singled out, testimony that the defendant is an
established and known drug dealer, solely to establish that as a fact for the
jury's consideration, is improper . As stated in Gordon v. Commonwealth, 916
S .W .2d 176, 179 (Ky. 1995) :
In the case at bar, it was not improper to admit evidence that
appellant had become a suspect in the county-wide drug
investigation. This avoided any implication that appellant had
been unfairly singled out and explained why the police equipped
an informant with a recording device and money with which to
attempt a drug buy from appellant. The next question [eliciting
prior drug dealing evidence], however, was utterly unnecessary and
unfairly prejudicial. There was no legitimate need to say or imply
that appellant was a drug dealer or that he was suspected by the
police department of selling drugs in a particular vicinity .
(emphasis added) ; see also Peyton v. Commonwealth, 253 S.W .3d 504, 516 (Ky.
2008) . 9
Similarly, in Muncy v. Commonwealth, 132 S.W.3d 845, 847 (Ky. 2004),
we recognized, "it would typically be improper for the Commonwealth or a
9
The Commonwealth, relying upon Gordon, argues "The Commonwealth was
permitted to show the course of the investigation . The remarks of Detective Roberts
did no more than explain why the police were interested in [Howard] and that they
were not unfairly picking on him ." However, the testimony presented went far
beyond the bounds of Gordon, and, in any event, Gordon is not applicable here .
King's sales to the Hanlons, alone, supplied the explanation of why Howard was
targeted for the November transaction and not singled out, and so there was no
need to present additional instances of prior drug dealing. Gordon does not, as
suggested by the Commonwealth, stand for the principle that when a defendant is
on trial for drug trafficking then all of his prior, uncharged acts of trafficking are
admissible .
testifying witness to refer to the [uncharged] undercover buys as Appellant was
not being tried for such conduct." Although Muncy ruled that the evidence was
admissible, the ruling was based on the fact that Appellant had opened the
door to such evidence when he denied having knowledge of the drugs, and is
therefore distinguishable from this case . Id.
The only relevance of the testimony of Howard's other alleged drug
dealing was to prove his character so that the conduct for which he was on
trial would be seen as being in conformity with such character. Evidence of
prior, uncharged drug dealing in a drug trafficking case is precisely the kind of
evidence KRE 404(b) is designed to exclude . Howard was not being tried for
those drug deals, and the testimony was not admissible under any of the
exceptions contained in KRE 404(b)(1) . The only question, then, is whether the
improper evidence rises to the level of palpable error . We conclude that it does.
This is not a case of a fleeting reference to a prior bad act unsolicited by
the Commonwealth . Rather, this is a case where on multiple occasions the
Commonwealth deliberately and methodically elicited inadmissible testimony
relating to past drug dealing by Howard . It is self-evident that the parade of
witnesses testifying concerning prior drug dealing by Howard was
overwhelmingly prejudicial. Through this testimony Howard was
comprehensively and definitively portrayed as a habitual drug dealer.
Moreover, as previously noted, Natasha King was the only witness
directly implicating Howard as the source of the pills sold to the Hanlons on
the three August transactions . King, according to the record, is herself a drug
dealer and drug user, who agreed to testify against Howard in order to strike a
better deal for herself on her own drug trafficking indictments . Therefore, to a
significant degree, the case for each of the three August transactions simply
pitted King's credibility against Howard's credibility. It follows that the
plethora of witnesses who were examined by the Commonwealth regarding
Howard's prior drug dealing was particularly significant under the facts of this
case .
For these reasons, and based upon our consideration of the whole case,
we are constrained to conclude that a substantial possibility exists that, absent
the erroneous prior drug dealing evidence, the verdict returned by the jury may
have been different for any of the three charges occurring in August 2008 .
Graves v. Commonwealth, 17 S.W .3d at 864 (holding unpreserved trial error is
non-prejudicial if "upon consideration of the whole case, a substantial
possibility does not exist that the result would have been different.") . While
reversal upon grounds of palpable error is an exceptional measure, all of the
elements to do so are met here . We therefore reverse the three convictions
relating to the transactions occurring on August 1 and August 7, 2008, and
remand for a new trial upon these charges, with the multiple instances of
Howard's other uncharged drug activity excluded.
The conviction relating to the November 2008 drug sale was based upon
overwhelming evidence . This sale was monitored and taped by Detective
Roberts, and the recording of the transaction was played for the jury. The
verdict on this transaction did not depend solely on King's credibility. We see
no reasonable possibility that the outcome for this conviction would have been
any different had the proceeding not been tainted by the improper testimony of
Howard's other drug transactions . We further conclude that the conviction on
this count was unaffected by the other instances of improper testimony
described in the following sections of this opinion. Thus, the conviction
relating to the November transaction is affirmed.
B . Evidence of Police Familiarity With Appellant
Howard next alleges that palpable error occurred when Detective Roberts
testified that Howard's name had frequently arisen during prior investigations
he conducted during his time on the police force. In support of his claim, he
cites us to the following exchanges which occurred at trial:
Q . Had the name of the Defendant come up at any time, Donald
Howard?
A. Yes sir. Yes sir. Not only, not only through Mr . Hanlon, but also in
my previous five years working the road in uniform, Mr. Howard's name
had come up on several occasion through investigations that I had.
As reflected by the exchange, the testimony tended to show that Howard
was familiar to police as one whose name frequently comes up during their
investigations ; that is, that his character is such that he is often a suspect in
criminal conduct . "The prosecutor may introduce evidence of the accused's
bad character only to rebut evidence of the accused's good character[ .]" Metcalf
v. Commonwealth, 158 S .W.3d 740, 745 (Ky. 2005) ; KRE 404(a)(1) ("Evidence of
a person's character or a trait of character is not admissible for the purpose of
proving action in conformity therewith on a particular occasion" subject to
exceptions not applicable here) . Here, Howard had not yet put his character at
issue so as to permit the use of the testimony to rebut evidence of his good
character.
Accordingly, the testimony "served no purpose other than to insinuate
that Appellant was a person of bad character in contravention of KRE
404(a)(1)," Thomas v. Commonwealth, 170 S .W .3d 343, 352 (Ky. 2005), and
that he is just the sort of person apt to commit the alleged crimes . As such,
upon retrial, Detective Roberts should not be permitted to testify that Howard's
name has come up on several occasions during prior criminal investigations
unless such testimony fits into one of the exceptions provided by KRE
404(a)(1) .
C . Evidence of Howard's Sexual Relations With King
Howard contends that palpable error occurred as a result of Natasha
King's testimony concerning their prior sexual relationship . In support of his
argument, he cites the following testimonial exchange between King and the
prosecutor :
Q. How long have you known the Defendant, Donald Howard?
A. For about two and a half years .
Q. How do you know the Defendant?
A. He was married to my mom's sister .
Q. So you are [a] niece to him.
A . Yes, sir.
Q . Have the two of you had a sexual relationship also?
A. Yes, sir.
Q . How long has that gone on?
A. The whole time I have been around him.
Howard argues that "this testimony cannot be justified to serve
absolutely any legitimate purpose, and was merely intended to `shock' the
conscious [sic] of the jury" and further demonstrates that "the Commonwealth
seeks to secure a conviction through slander and not proof."
He bases his argument against the evidence on KRE 404(b), the improper
use of character evidence . We begin our analysis of it with the more
fundamental question of relevance. In order to be admitted, evidence must be
relevant . KRE 402. Relevant evidence is "evidence having 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 .
The Commonwealth, in response, argues that the testimony "was
admissible [and therefore relevant] to establish that Ms . King knew the
Appellant and was close to him," and that "the evidence was background
information about two people involved in illegal narcotics trafficking and how
close they were to each other, which could help the jury decide if there might be
any bias one way or the other in Ms . King's testimony." (emphasis added) .
A romantic relationship, or the failure thereof, between a defendant and
a witness may often be indicative of the witness's bias. However, as
demonstrated by the Commonwealth's argument, it is unclear whether the
testimony was presented to demonstrate that King was biased against Howard
because of the relationship, or biased in his favor because of it, or whether she
was not biased at all. Thus, under the facts of this case, whether there is bias
because of the relationship is speculative . It follows that the information
regarding the sexual relationship had slight probative value.
On the other hand, testimony that a defendant has had a sexual
relationship with his niece (albeit by marriage) is, obviously, of significant
prejudice to Howard's overall character . The information clearly may tend to
inflame the jury against the defendant . It follows that, without more, any
probative value of evidencing regarding the relationship "is substantially
outweighed by the danger of undue prejudice[ .]" KRE 403 .
Accordingly, upon retrial, if the Commonwealth seeks to prove that
Howard had engaged in sexual relations with King merely to inform the jury of
a possibility of bias "one way or the other," the trial court should sustain
Howard's objection to its admissibility. However, the trial court will retain its
discretion to admit evidence of the relationship for legitimate evidentiary
purposes, if the occasion arises, as guided by KRE 401, 402, 403, and 404.
IV. CONCLUSION
For the foregoing reasons the judgment with respect to Case No. 08-CR00118, and the ten-year sentence imposed thereunder, is affirmed . The
judgment with respect to Case Nos . 08-CR-00095 and 09-CR-00031 is reversed
and the matter is remanded to the Carroll Circuit Court for additional
proceedings consistent with this opinion. .
Minton, C .J., Abramson, Noble, Schroder and Venters, JJ ., concur.
Scott, J., concurs in part and dissents in part by separate opinion in which
Cunningham, J ., joins.
SCOTT, J., CONCURRING IN PART AND DISSENTING IN PART:
Although I join the majority as to the other issues in this case, I cannot
agree that the trial court erred by admitting the prior acts testimony. I would
affirm the convictions in this case and hold that the testimony addressing the
prior drug transactions, the officer's familiarity with Appellant, and King's
sexual relationship with Appellant were properly admitted.
Testimony Regarding Prior Drug Transactions
Necessarily, one would-and should-recognize a significant difference in
evidence detailing that a defendant is a major supplier of drugs to other dealers,
rather than a street dealer himself. This is particularly so when the
Commonwealth's proof directly shows that the defendant is an up-the-ladder,
major supplier of drugs to various street peddlers, as it did in this case. Thus,
one should not expect such evidence to be limited to one supply and one sale .
Necessarily, it must consist of testimony regarding multiple instances of
conduct (as we have here)--such as to distinguish the major supplier from the
street dealer. I believe such testimony comports with KRE 404(b) and would
hold the testimony in this case tended to show, inter alia, the ultimate dealer's
"resources" to carry out his distribution of illicit drugs and further his access to
the drugs.
KRE 404(b) provides in pertinent part:
Other crimes, wrongs, or acts. 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 recognized this rule as "exclusionary in nature," and I agree that
trial courts should closely watch and strictly enforce the rule so as to be sure
that a defendant does not suffer an unfair trial. See Clark v. Commonwealth,
223 S .W.3d 90, 96 (Ky. 2007) . However, as recognized by the majority, that
rule is not finite ; the list is illustrative rather than exhaustive . Tamme v.
Commonwealth, 973 S .W.2d 13, 29 (Ky. 1995) . Thus, where the
Commonwealth seeks to introduce prior acts, it may do so as long as it does
not introduce the acts "to show action in conformity therewith."
In this. case, I believe the testimony regarding the prior drug transactions
was properly introduced to show that Appellant had the resources and ability
to supply intermediate drug dealers . I liken this case to the facts presented in
Latorre v. United States, where the United States Court of Appeals for the First
Circuit, interpreting FRE 404(b) (the nearly identical federal rule), affirmed the
trial court's admission of prior acts . 922 F.2d 1 (1st Cir. 1990) . In that case,
the defendant was being tried for crimes stemming from the theft of tractor
trailers and the United States sought to introduce testimony regarding several
other trailer hijackings similar to those at issue . Id. There, the court, while
noting the possibility that the jury "might have been tempted to find the
[defendants] guilty merely because of the great number of other hijackings they
had carried out," affirmed the trial court's ruling notwithstanding the
possibility that the introduction of such evidence was "overkill." Id. The court
concluded that "[t]he testimony about the prior trailer thefts, if believed,
established beyond any doubt that the Latorres had the . . . resources . .
plan and carry out a successful hijacking." Id. (emphasis added) .
I believe the testimony presented in this case likewise establishes beyond
a reasonable doubt that Appellant possessed the ability and resources to be a
major supplier . Given the Commonwealth's theory of the crime--that Appellant
was the primary distributor to intermediate drug peddlers-I believe it perfectly
permissible for the jury to hear testimony about Appellant's prior drug
distributions to the extent that the Commonwealth sought to prove his
capability to do so. I would therefore affirm the trial court in this regard .
Testimony Regarding Officer's Familiarity With Appellant
I also disagree with the majority's holding that it was error to admit the
officer's testimony concerning his familiarity with the defendant, to wit:
Commonwealth : Had the name of the Defendant come up at any time,
Donald Howard?
Officer : Yes, sir. Yes, sir . Not only, not only through Mr. Hanlon, but
also in my previous five years working the road in uniform, Mr. Howard's
name had come up on several occasions through investigation that I had .
I agree with the Commonwealth that this testimony was necessary to show why
the officers were interested in Appellant, particularly given our ruling in Gordon
v. Commonwealth, 916 S.W .2d 176, 178 (Ky . 1995) . There, we held it proper to
admit similar testimony and reasoned :
In the case at bar, it was not improper to admit evidence that
appellant had become a suspect in the county-wide drug
investigation. This avoided any implication that appellant had
been unfairly singled out and explained why the police equipped
an informant with a recording device and money with which to
attempt a drug buy from appellant. The next question [eliciting
prior drug dealings evidence], however, was utterly unnecessary
and unfairly prejudicial . There was no legitimate need to say or
imply that appellant was a drug dealer or that he was suspected by
the police department of selling drugs in a particular vicinity .
Id. Given this discussion, it is clear that the Commonwealth may admit
evidence regarding why a defendant is singled out, but, generally, may not
testify regarding a defendant's prior drug dealings or the fact that the
defendant was suspected of selling drugs in a particular vicinity .
A perusal of the officer's testimony here shows that the officer made no
statements implying that Appellant was a drug dealer or that he was suspected
by the police department of selling drugs in a particular vicinity . Rather, the
officer confined his statements to why Appellant garnered the attention of the
officers in this case and made clear "why the officers equipped an informant
with a recording device and money with which to attempt a drug buy from"
Appellant. We allowed similar testimony in Gordon, and I would allow it here.
Testimony, Regarding Sexual Relationship
Between Appellant and King
Finally, the majority holds that the trial court erred by admitting
testimony from Natasha King, i.e. :
Commonwealth : How long have you known the Defendant, Donald
Howard?
King: For about two and a half years or so .
Commonwealth : How do you know the Defendant?
King: He was married to my mom's sister.
Commonwealth : So, you are a niece to him?
King: Yes, sir .
Commonwealth : Have the two of you had a sexual relationship also?
King: Yes, sir.
Commonwealth : How long has that gone on?
King: The whole time I have been around him.
The majority laments that this testimony was irrelevant and concludes
that it had a "significant prejudice to [Appellant's] overall character ." The
majority goes further and posits that this testimony "may tend to inflame the
jury against the defendant" and holds the testimony irrelevant under KRE 402 .
I simply cannot agree .
At first blush, this type of testimony may, in some circumstances, be so
inflammatory that it should be excluded, particularly if such testimony
insinuates some type of incestual relationship or other type of criminal
conduct. But we do not have that here . Here, King, age twenty-eight at the
time of trial, testified that she had an ongoing sexual relationship for roughly
two-and-a-half years with Appellant who "was married to [her] mom's sister."
According to King's testimony, she must have been beyond the age of majority
when the relationship began. Thus, there is no indication that the relationship
was one of a criminal nature, albeit provocative; and neither is there any
indication that the two committed incest as defined by our Legislature under
KRS 530.020 . 1 The jury simply heard that there was a sexual relationship
between
a major drug supplier and one of his intermediate peddlers .
Given that this testimony lacks the incendiary quality of incest or other
type of sexual crime, I cannot say that it was so inflammatory such that it
deserved exclusion under KRE 403.
I also disagree that this information is irrelevant . Under KRE 401,
relevant evidence is "evidence having any tendency to make the existence of
any fact that is of consequence to the determination of the action more
A person is guilty of incest when he or she has sexual intercourse or deviate sexual
intercourse, as defined in KRS 510.010, with a person whom he or she knows to be
an ancestor, descendant, brother, or sister. The relationships referred to herein
include blood relationships of either the whole or half blood without regard to
legitimacy, relationship of parent and child by adoption, and relationship of
stepparent and stepchild.
probable or less probable than it would be without the evidence ." Here, the
jury was called on to decide one question: whether Appellant was guilty of the
abovementioned drug crimes. As part of its case-in-chief, the Commonwealth
offered eye-witness testimony from King, someone close to Appellant. King's
testimony directly implicated Appellant, and, indeed was the crux of the
Commonwealth's evidence . As such, I believe the jury was entitled to know
how King knew Appellant, the extent of their relationship, and why Appellant
would have trusted her such that he would have made her one of his
intermediate drug peddlers . Thus, testimony regarding their relationship
would have given the background information necessary to equip the jury with
the ability to evaluate the veracity of her statements .
The majority's contrary conclusion, in my opinion, leads to a dangerous
result and unnecessarily ties the hands of the Commonwealth . Given the rule
announced today, that a sexual relationship between a confidential informant
and the defendant on trial is of no relevance, the majority does damage to the
Commonwealth's ability to give the jury the proper background to a case and to
one of its witnesses. I do not believe the jury should be blinded from the
relationship existent between a confidential informant and a defendant on
trial-particularly when the confidential informant is the star witness . The
jury's primary function is to give weight and credibility to witnesses and, thus,
I believe they are entitled to know how well the witness and the defendant
know each other. Such knowledge is imperative and necessary for the jury to
make a more informed decision and ultimately serves the search for the truth.
I would therefore affirm the trial court on this issue as well.
Cunningham, J ., joins .
COUNSEL FOR APPELLANT:
F. Dennis Alerding
P.O . Box 42
Covington, Kentucky 41012-0042
COUNSEL FOR APPELLEE:
Jack Conway
Attorney General
William Bryan Jones
Assistant Attorney General
Office of the Attorney General
Office of Criminal Appeals
1024 Capital Center Drive
Frankfort, Kentucky 40601
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