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NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."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THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE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UNPUBLISHED KENTUCKY APPELLATE DECISIONS,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BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED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 : JANUARY 22, 2009
NOT TO BE PUBLISHED
6;VUyrrntr (~Vurf of 'Pt rtt P"
2007-SC-000224-MR
DANA JACKSON
ON APPEAL FROM CAMPBELL CIRCUIT COURT
V. HONORABLE JULIE R. WARD, JUDGE
NO . 06-CR-00540
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
REVERSING
In Newport, Kentucky in 2006, police officers had come to know the
"Victoria Square" area of the city as a high drug traffic area. As part of an
effort to combat drug trafficking in that area, officers utilized an informant,
Ashley Lowe, to set up a controlled buy. Lowe had previously been charged
with trafficking in a controlled substance and was working with police in
exchange for a reduction of his charges.
In September of 2006, Lowe informed police that he could make a drug
buy. Lowe went to the police station where he placed a telephone call to
Appellant, Dana Jackson. Lowe and Appellant are cousins . The telephone call
was recorded . According to Lowe, a drug buy was set up with Appellant.
After the call was made, Lowe met police officers at a Thrift Way store
near Victoria Square . After searching Lowe, the officers wired him and gave
him sixty dollars in cash . Lowe then made his way to Victoria Square and
waited until a green Ford Explorer arrived . Appellant allegedly got out of the
vehicle and completed the transaction . Lowe returned to the Thrift Way and
surrendered the substance to police.
The substance was sent to the Kentucky State Police Crime Laboratory in
Cold Spring where it was confirmed to be 1 .77 grams of crack cocaine .
Appellant was then arrested and charged with trafficking in a controlled
substance in the first degree . No drugs or money were found on Appellant at
the time of his arrest . While in jail, Appellant placed a telephone call to Lowe .
During the recorded conversation, he told Lowe, "It's going to be hunting
season in Kentucky . Do you feel me?" On the basis of this statement,
Appellant was also charged with intimidation of a witness.
At trial, Ashley Lowe was the Commonwealth's main witness. Lowe was
asked to listen to the audio tape of the "set-up" telephone call and was able to
interpret what was said. He was also asked to listen to the wire tape from the
"drug buy," but was unable to make out what was said because the tape was of
exceptionally poor quality. Officer Brown then took the stand for the
Commonwealth and purported to interpret portions of the "drug buy" tape .
The Commonwealth also prepared a transcript of the jail telephone
conversation between Appellant and Lowe. At trial, the jury was provided with
copies of the transcript . The transcript was not entered into evidence, and no
instruction was requested or given to the jury concerning its limited use . The
jury acquitted Appellant of the intimidating a witness charge, but convicted
him for trafficking in a controlled substance in the first degree, second or
2
subsequent offense, and for being a persistent felony offender in the second
degree . He was sentenced to thirty years imprisonment and appeals to this
Court as a matter of right pursuant to Ky. Const. § 110(2)(b) .
Appellant claims four grounds of error: (1) that there was insufficient
evidence to support a verdict; (2) that he was deprived of due process when the
Commonwealth was allowed to have its witnesses interpret the audio tapes ; (3)
that the court erred by allowing the Commonwealth to provide the jury with the
transcript of Appellant's phone conversation with Ashley Lowe (which
contained Kentucky Rule of Evidence (KRE) 404(b) evidence) ; and (4) that the
jury instructions lacked specificity regarding the second offense and persistent
felony offender penalty enhancements, thus denying him due process of law.
As we will reverse on the second ground, we will address it first.
Thereafter, we will briefly discuss the other issue likely to recur on retrial .
Spring r v. Commonwealth, 998 S .W.2d 439, 445 (Ky. 1999) . We will not
discuss Appellant's claim that there was insufficient evidence to support a
verdict because we find this argument to be without merit. Additionally, we
decline to address the issue of the transcript as it was only relevant to the
witness intimidation charge and will not be admissible on retrial.
INTERPRETATION OF THE AUDIO TAPES
Appellant argues that he was deprived of due process of law when a
police officer and a police informant were allowed to interpret audio tapes of the
"set-up" phone call and the "drug buy" at trial. Appellant argues that it was
error for the trial judge to allow the Commonwealth to advance its version of
what was said in the audio tapes. Appellant further argues that the
3
Commonwealth cannot "have two bites at the apple," and must either have the
witness testify from memory or admit the audio tapes in their entirety while the
witness is on the stand. Although this issue was not preserved for review,
Appellant requests palpable error review under RCr 10.26.
To prevail on an unpreserved claim of error under the palpable error
rule, Appellant must show that the error resulted in manifest injustice. Martin
v. Commonwealth, 207 S .W.3d 1, 3 (Ky. 2006) . Appellant must show "the
probability of a different result or error so fundamental as to threaten his
entitlement to due process of law ." Brooks v. Commonwealth, 217 S .W.3d 219,
225 (Ky. 2007) . On appellate review, the focus is on "whether the defect is so
manifest, fundamental, and unambiguous that it threatens the integrity of the
judicial process ." Martin, 207 S .W.3d at 5.
In the present case, the Commonwealth used two witnesses to relate to
the jury what was being said in the audio tapes. Under KRE 602, "A witness
may not testify to a matter unless evidence is introduced sufficient to support a
finding that the witness has personal knowledge of the matter." Lowe was
present at the time of both communications and had first-hand knowledge of
what was said; therefore, "[a]s with any participant in a conversation, the
informant witness was entitled to testify as to his recollection of what was
said ." Gordon v. Commonwealth, 916 S.W.2d 176, 180 (Ky. 1995) . However,
Lowe did not merely testify from his recollection . He also interpreted the
recordings . In Gordon v . Commonwealth, we visited this very issue . Id. The
police informant took the stand in that case and gave his recollection of the
drug transaction between himself and the appellant. Id. Thereafter, a portion
4
of an audio tape of the transaction was played for the witness . Id. The
prosecutor asked if the witness could hear the tape and what was said . Id .
The witness then recounted what was said in that portion of the tape . Id . In
Gordon , we found this to be error and directed that "upon retrial, the court
should refrain from permitting a witness to interpret what is on [an audio
tape] ." Id. However, in Gordon the error was properly preserved . Id. Here, we
must review for palpable error.
Although it was error for the trial court to allow Lowe to interpret the
audio tapes (rather than have the jury interpret the tapes), we cannot say that
this alone rises to the level of manifest injustice. To begin, Lowe testified to the
events surrounding the drug sale . He was also available for cross-examination
concerning any discrepancies in the tapes. Further, Appellant fails to point to
any specific parts of the tapes he would have interpreted differently.
The testimony of Officer Brown, however, is more problematic . Brown's
testimony was in error because (1) he was allowed to interpret the drug buy
tape for the jury; (2) he did not have "personal knowledge of the matter"; and
(3) it was hearsay. Id . ; KRE 602 ; KRE 802 . The first error in allowing Officer
Brown's testimony is that, like Lowe, Brown should not have been allowed to
interpret inaudible portions of the drug buy tape for the jury. Sanborn v.
Commonwealth , 754 S .W .2d 543, 540 (Ky. 1998) ; Gordon , 916 S .W .2d at 180.
The second error is that there was a preemptory bar to the admissibility of
Officer Brown's testimony under KRE 602 because he had no personal
knowledge of the matter. Finally, Officer Brown's testimony was hearsay
because he was repeating out-of-court statements being offered for the truth of
5
the matter to be asserted . KRE 801 ; KRE 802 . The evidence against Appellant
in this case hinges almost entirely upon the testimony and credibility of Lowe .
There was little other evidence to support a conviction - except the
impermissible interpretation of the drug buy tape by Officer Brown . This made
the improper testimony of Officer Brown highly pivotal to the Commonwealth's
case. We find that the errors present in Officer Brown's testimony result in a
manifest injustice and rise to the level of palpable error. Accordingly, we
reverse on this ground.
JURY INSTRUCTIONS IN THE PENALTY PHASE
Appellant also argues that the jury instructions in the penalty phase
lacked specificity and denied him a unanimous jury verdict and due process of
law. This issue was not preserved for review. However, Appellant has
requested palpable error review . RCr 10.26 .
Appellant's sentence was enhanced under the "second or subsequent
offense" provisions of KRS Chapter 218A, as well as under the persistent felony
offender sentencing statute, KRS 532.080 . We have previously held that an
offender's sentence may be enhanced under both provisions where separate
prior qualifying convictions are used to support each enhancement. Morrow v.
Commonwealth, 77 S .W .3d 558, 560 (Ky. 2002) . Appellant was convicted of
three felonies for trafficking in a controlled substance in 2003 . The jury
instructions in the penalty phase did not distinguish between the three counts
in his 2003 indictment. While we have been careful to note that constitutional
and statutory protections against double jeopardy would prevent the
Commonwealth from using the same prior conviction for both enhancements,
6
there is no indication in the present case that jurors relied upon the same prior
conviction for both enhancements . Id . at 562 . Rather, there were three
previous convictions jurors could have chosen from. Thus, any error present
was harmless . Accordingly, we find no error on this ground .
CONCLUSION
For the reasons set forth herein, Appellant's conviction for trafficking in a
controlled substance in the first degree is reversed, and the case is remanded
to the Campbell Circuit Court for a new trial consistent with this opinion.
Minton, C .J . ; Abramson, Noble, Schroder, Scott, and Venters, JJ .,
concur . Cunningham, J ., also concurs, but states that it is his sentiment that
Gordon needs re-visiting as being too restrictive on the testimony of an actual
participant in transcribed communications . Here, however, the error is much
more pronounced because Officer Brown was a third party who was not even
present during the recorded drug buy and was only interpreting the audio tape .
COUNSEL FOR APPELLANT:
Shannon Renee Dupree
Assistant Public Advocate
Department of Public Advocacy
100 Fair Oaks Lane, Suite 301
Frankfort, KY 40601
COUNSEL FOR APPELLEE:
Jack Conway
Attorney General
Perry Thomas Ryan
Assistant Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, KY 40601-8204