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NOT TO BE PUBLISHED OPINION
· THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."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· THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE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UNPUBLISHED KENTUCKY APPELLATE DECISIONS, -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BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED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 ALO.NG WITH THE
DOCUMENT TO THE COURT AND ALL PARTIES TO THE .
ACTION.
RENDERED: SEPfEMBER 28; 2017
NOT TO BE PUBLISHED
SHAWN WILSON APPELLANT
ON APPEAL FROM HENDERSON CIRCUIT COURT
v. HONORABLE KAREN LYNN WILSON, JUDGE
NO. 16-CR-'00124
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING'
A circuit court jury convicted Shawn Wilson of one count of first-degree
trafficking in a controlled substance and of being a first-degree persistent
felony offender. The jury recommended a sentence of 20 years' imprisonment,
which the trial court accepted. Wilson now appeals the resulting judgment as a
matter of right. I He alleges the following trial errors for review: {1) the
prosecution improperly bolstered a confidential informant's reliability and
credibility; (2) the trial court improperly sustained an objection by" the
prosecution that prevented Wilson from inquiring into potential bias of the
confidential informant; and (3) the prosecution improperly discussed Wilson's
potential for parole and early release without proper evidentiary support.
i Ky. Const. § 110(2)(b).
We affirm the trial court on all three issues because ~e find no e~or in the
trial proceedings.
I. FACTUAL AND PROCEDURAL.BACKGROUND.
Wilson alleges the prosecution improperly bolstered a confidential
informant's reliability and credibility. During the prosecution's case-in-chief,
the Commonwealth called Detective Brad Newman as a witness. Newman
testified to the facts surrounding Wilson's charges, including the use of.a .
confidential in.formant. Without any prior attack by Wilson on the confidential
informant's credibility or reliability, Newman stated, ·"[confidential informant]
has always been credible 'a,nytime he has approached us with.any information,
he's always been reliable, and we've always been able to prove his reliability."
Wilson failed to object on grounds of the introduction of imprope(character
evidence,. thus failing to preserve the issue for review.
Wilson next alleges the cdurt improperly sustained an objection by the
Commonwealth, thereby preventing Wilson from inquiring into the confidential
. informant's potential bias. On cross examination, Wilson asked the confidential
inform.ant, "You currently have a warrant out for child support, is that
correct?" The Commonwealth immediately objected to this question, and the
trial court sustained the objection. Wilson alleges that this line of questioning
would have shown the confidential informant's improper bias toward the
Commonwealth. The parties dispute the preservation of this issue.
Finally, Wilson alleges that the prosecution improperly discussed, in the
sentencing phase of the trial, Wilson's potential eligibility for parole and early
2
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·release without proper evidentiary support. During closing arguments, the
Commonwealth stated:
And as you know, and as I indicated to you earlier, there's.all
kinds of early release. If you give him a 10-year sentence~ don't ·
expect him to be in the penitentiary for 10 years. He got a 12-year
sentence the last time and if he'd served it out he wouldn't be here
today and you wouldn't be here today because he'd still be in
prison.
The Commonwealth did proffer properly certified copies of Wilson's convictions
into the record as Exhibit #5, which w:as introduced and published to the jury.
This exhibit included Wilson's 2008 conviction for Trafficking in a Controlled
Substance First Degree on ~anuary 23, 2008, whereby,.Wilson received a .. 12-
year sentence. After the introduction of this exhibit, Probation and Parole ·
Officer James Bowles testified that Wilson was on parole at the time of the
current
.
offense at issue. Wilson did not object
r
to the Commonwealth's
statements. So 1the issue is unpreserved for _appellate review.
II. ANALYSIS.
· A. Standard of Revietiw.
The app1='"opriate standard of review in this case depends on the
preservation of the three issues before the Court. If an issue is ,unpreserved,
. ..
Kentucky Rule of Criminal Procedure .10.26 states that the appropriate
standard of review is palpable error. 2 Palpable error requires a showing that the
alleged error affected the "substantial rights" of a defendant, where relief may
' • J
be granted "~pon a detet:a+ination that manifest injustice has resulted from the
2 RCr 10.26.
3
error."3 To find that "manifest injustice has resulted from the error," this Court
must conclude that the error so sedously affected the fairness, integrity, or
public reputation of the proceeding as to be "shocking or jurisprudentially
(
intolerable."4 But if any one of the three issues above is deemed to be
preserved, the appropriate standard of review is abuse. of discretion because all
three rulings are evidentiary rulings. 5 ''The test for abuse of discretion is
whether the trial judge's decision was arbitrary, unreasonable, unfair,. or
unsupported by sound legal principles."6
B. Prosecution's Improper Bolstering of Confidential Informant's
Reliability and Credibility Not Palpable Error.
.
Both parties concede that this· issue is.unpreserved, so we review this
issue for palpable error. Both parties also agree that the prosecution·
improperly bolstered the credibility of the confidential informant without his
credibility first having been attacked and throug?- specific instances of conduct
unrelated to truthfulness and untruthfulness. The Commonwealth insists this
error is hannless, but Wilson argues this error amounts to palpable error. We
hold that this error did not amount to palpable error.
Even where testimony is introduced in error, " ... this Court may still
determine that the error is h8.rmless pursuant to RCr 9.24 and the standards
3 Id. .
4 Martin v. Commonwealth; 207 S.W.3d 1, 4 (Ky. 2006).
s McDaniel v. Commonwealth, 415 S.W.3d 643, 655 (ky.2013); Partin v. Commonwealth,
918 S.W. 219, 222 (Ky. 1996). · ·
6 Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999) ..
4
set forthin Winstead v. Commonwealth7."B "A non-constitutional evidentiary
error .. .is harmless if the reviewing court can say with fair assurance that the
judgment was not substantially swayed by the error."9 Errors have also been
found to be harmless in light of other strong evidence, as there is no possibility
the error substantially swayed the ju:ry.10 "When rehabilitation evidence is
admitted before credibility is attacked, ~y error is harmless as long as
credibility is, in fact, later impeached." 1 l Regarding this exact type of error, the
court in Fairrow v. Commonwealth 12 stated, "Nor are we satisfied that the
admission of improper evidence of the character of a mere witness affected
Appellant's substantial rights and constituted manifest injustice so as to
require reversal as palpable error. "13
. .
Here, under a Wiley analysis, the Con:imonwealth did present other
evidence of Wilson's crimes, completely unrelated to the veracity and ,reliability
of the confidential infomi~t. Among the evidence presented by the
Commonwealth included: (1) Detective Newman's testimony that, before the
second controlled buy, Newma.Il. searched the confidential informant's person
and vehicle, ensuring both were free of contraband or money; (2) Newmap.
pr~vided the confidential informant with $100 to pur~hase drugs from Wilson;
7 283 S.W.3d 678 (Ky. 2009). .
a Harris v. Commonwealth~ 384 S.W.3d 117, 122 (Ky. 2012).
9 Id. at 125 (citing Winstead v. Commonwealth, 283' S.W.3d 678, 688-89 (Ky. 2009)).
lo Wiley v. Commonwealth~ 348 S.W.3d 570, 579 (Ky. 2010); Hunt v. Commonwealth,
304 S.W:3d 15, 35 (Ky. 2009); Winstead, 283 S.W.3d at 689. .
11 Reed v. Commonwealth, 738 :;>:W.2d ~18, 821 (Ky. 198¥) (citing Summitt v.
·Commonwealth, 550 S.W.2d 548, 550 (Ky. 1977).
12 175 S.W.3d 601 (Ky. 2005).
13 .Id. at 606.
5
(3) Wilson admitted to meeting with the confidential informant on the day of
)
the second controlled buy, supported with video.evidence; and (4) after the
meeting, the confidential informant possessed the reque.sted quantity of
.· methamphetamine. In light of such strong evidence; no ·possibility exists that
the error, the admission of cha.J:"acter evidence, substantially ·swayed the jury. ~.
Additionally, under a Reed analysis, Wilson· did attack the confidential
informant's character after the CommQnwe8lth bolstered it. Wilson attempted
to portray the confidential informant as an unemployed individual who took
advantage of Wilson's mother and who reneged on his debts to Wilson and
Wilson's family. Wilson's cross-examination.of the confidential informant
included questions regarding the length of his status as a confidential
informant, his testimony in other cases as a confidential informant, and his
aoility to "get out of trouble" through his service as a corifidential informant.
Wilso:p.'s closing argtiment reiterated that the confidential informant owed
money to Wilson and Wilson's mother, specifically referring to the confidential
informant as a "bum." Under Reed, because the confidential informant's·
reliability ~d credibility were eventually attacked by Wilson, any error related
to bolstering the witness's character before attack is rendered harmless .
. Lastly, even if the admissic;m of the character evidence was not harmless,
it did not rise to the level of palpable error. Fairrow dealt with this exact issue .
"
and reached the conclusion that the improper admission of character evideric~
of a witness does not amount fo palpable error. So, no palpable error exists .
.6
·c. Trial Court Did Not Abuse Discretion by Ruling on Confidential.
Informant's Potential Bias.
The parties dispute the preservation of this issue. "[I]f a litigant believes
I
that error has occurred (to his detriment) during a ... [criminal] judicial
proceeding, he must ol;>ject in order to preserve the issue. If he fails to do so in
a timely manner, his claim for relief from the error is forfeited."14 ·Wilson argues
that the cross-examination of the confidential informant itself sufficiently
preserved the issue for ~eview. Even if we agree with Wilson, we hold that the
trial court's ruling on this matter did not amount to an abuse of discretion.
KRE 608(b) affords the court discretion as to the introduction of "specific
instances of conduct·of a witriess, for the purpose of attacking the witness's
' .
cr~dibility."15 Before a trial court can even entertain its discretion regarding
admissibility of the act, (1) the act must be probative of truthfulness or
untruthfulness and (2) the cross-examiner must possess a factual basis for the
subject matter of his inquiry. 16 An ~ct of a witness for which he or she has yet
to be· criminally convict~d, such as the confidential informant's alleged warrant
'
for unpaid child support, falls under the discretion of the trial"court as to
whether it is to be admissible to impeach the credibility of that witness.
Reasonable minds can differ as to whether alleged unpaid child support
is probative of truthfulness or untruthfulness. Additionally, Wilson failed to
14 Puckett v. U.S., 556 U.S. 129 (2009). ·
1s KRE 608(b).
16 Id.
7
provide a sufficient factual basis for 'this alleged bad act. So the trial court's
decision was reasonable. We affinn the ruling of the trial court on this issue.
~'
D. Prosecution's Discussion of Early Release or Parole Not Palpable
Error
Both parties concede that this argument is unpreserved; thus, we review
this issue for palpable error. Wilson argues that the Commonwealth's
statements (1) were unsupported by any evidence and (2) tainted the jury's
verdict by misleading the jury into believing that Wilson would be released and
not serve his whole sentence.
Regarding Wilson's first argument, as noted earlier~ the Commonwealth
did introduce evidence regarding_ Wilson's prior conviction and 12-year
sentence, supporting its statement in closing argument, "He got a 12-year
sentence the last time .... " Additionally, the law affords all parties wide. latitude
\
when malting closing argumertts. 17 So Wilson's first argument fails because the
Commonwealth's actions did not amount to any error.
· Regarding Wilson's second argument, we acknowledge that the
Commonwealth's assertion, "If you give him a 10-year sentence, don't expect
him to be in the penitentiary for 10 y~ars,'' could possibly suggest to a
.reasonable mind that a harsher sentence is needed to ensure Wilson's
imprisonment._ln support of his argument, Wilson cited numerous cases. But,
the statements made by the Commonwealth in this case do not rise to the level
11 See Crossland v. Commonwealth, 291 S.W.3d (Ky. ~009); Bbcler v: Commonwealth,
204 S.W.3d 616 (Ky. 2006).
8
of error appearing in any of the cases offered by Wilson. is In sum, the
1
Commonwealth in this case did not make a conclusory factual or legal
misstatement to the jury, as the Commonwealth did in the case~ cited by
Wilson where the court found reversible error; ra~er; the Commonwealth
· simply suggested a truly plausible scenario. So the Commonwealth's
statements do not rise to the level of palpable error.
III. . CONCLUSlON.
We affirm the judgment because we find no palpable error and no abuse
of discretion by the trial court.19
Millton, C.J.; Cunningham, Hughes, Keller, VanMeter, Venters and
Wright~ JJ., sitting. Minton, C.J.: Cupningham, Hughes, VanMeter, Venters
and Wright, JJ., concur. Keller, J., concurs in result only.
1s Whitaker v. Commonwealth, 895 S.W.2d 953, 957 (Ky. 1995) (prosecutor misstated
that defendant would be rel~ased after 12 years rega:i"dless of any·other circumstances);
Offutt v. Commonwealth, 799 S.W.2d 815, 815 (Ky. 1990) (prosecution failed to instruct
the juzy that the defendant would not be eligible for parole until he has serv~d 12 years);
Holt v. Commonwealth, 219 S.W.3d 731, 732-39 (Ky. 2007) (prosecutor improperly
impeached witness with statements made to prosecutor); Robinson v. Commonwealth,
181 S.W.3d 30, 38 (Ky. 2005) (incorrect or false testimony about the impact of good time.
credit); Ruppee v. Commonwealth, 754 S.W.2d 852,. 853 (Ky. 1988) (prosecutor
misstated law when stating defendant would be paroled in seven and one half years no
matter what); Blane v .. Commonwealth, 364 S.W.3d 140, 153 (Ky. 2012) (juzy was
advised of 'original charges which were amended or dismissed).
19 Wilson mentioned in passing the possibility of this Court finding cumulative error in
the three issues presented if the court did not find palpable error in them individually.
But this Court "[has) found cumulative error only where the. individual errors were
themselves substantial, bordering~ at least, on the prejudicial." Brown v.
Commonwealth, 313 S.W.3d 577, 631 (Ky. 2010) .. The issues presented by Wilson do not
meet this standard.
9
COUNSEL FORAPPELLANT:
Brandon Neil Jewell
Assistant Public Advocate
COUNSEL FOR AJ>PELLEE: .
Andy Beshear
Attorney General of Kentucky
Thomas Allen Van De Rostyne
. Assistant Attorney General
10