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RENDERED: FEBRUARY 15, 2024
NOT TO BE PUBLISHED
Supreme Court of Kentucky
2022-SC-0439-MR
TERRY NEAL STRODE APPELLANT
ON APPEAL FROM MONROE CIRCUIT COURT
V. HONORABLE DAVID L. WILLIAMS, JUDGE
NO. 22-CR-00032
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Terry Neal Strode appeals from his convictions after a jury trial of
trafficking in a controlled substance and possession of a controlled substance.
The jury found Strode to be a subsequent offender regarding the trafficking
charge and recommended a sentence of twenty years’ together with a sentence
of three years’ for possession of hydrocodone, all to be served concurrently. The
trial court sentenced him in conformity with that recommendation.
Strode argues the Monroe Circuit Court committed palpable error by
reading to the jury those portions of Strode’s indictments which referenced his
alleged crimes as being “second offenses” and by allowing the Commonwealth
to question Strode about the circumstances of his prior felony trafficking
conviction.
I. FACTUAL AND LEGAL BACKGROUND
On February 23, 2022, a confidential informant working for Kentucky
State Police (KSP), was given cash to purchase methamphetamine from Strode
in a “controlled buy.” After visiting Strode at Strode’s residence, the informant
provided KSP with 2.7 grams of methamphetamine. A search warrant was then
issued for Strode’s residence and executed the next day.
During the search, Strode admitted having methamphetamine on his
person and stated it was for his personal use. A pill bottle was found on him
containing over two grams of methamphetamine. Strode also had a wallet
containing $2,700.00 in cash including $320.00 of the bills received from the
informant. Strode denied having any other drugs other than what was in his
pill bottle. However, in Strode’s residence, KSP also found methamphetamine
residue on a metal tray, three pill bottles containing hydrocodone, a meth pipe,
a bong, and a black box matching a description given by the informant that
contained clear plastic baggies, a scale, pill bottles, a syringe, a measuring
scoop, a glass vial and a bottle of hand-cleaner with a false bottom. Detectives
also located a .22 magnum revolver which was unlawful for Strode to possess
given his prior felony conviction for methamphetamine trafficking. In a closet,
the officers also found a Horse Cave Police Department uniform jacket as well
as a bulletproof vest. In the basement, a PVC pipe was found, which was
“stuffed” with marijuana.
Strode was arrested and later indicted on two counts of first-degree
trafficking in a controlled substance (second offense), one count for the
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methamphetamine allegedly sold to the informant and one count for the
methamphetamine found in his residence. He was also indicted for one count
of trafficking in a controlled substance for the hydrocodone recovered during
the search of his residence, and one count each for possession of drug
paraphernalia, possession of marijuana, and possession of a handgun by a
convicted felon. Prior to trial commencing, the Commonwealth asked the trial
court to sever the possession of a handgun by a felon charge, stating it “would
be too prejudicial [to Strode] in the proof of guilt phase.” Strode’s counsel did
not object and the charge was not prosecuted in this trial.
Strode chose to testify in his defense and stated that while he and the
informant had used drugs together, he had not sold him drugs. In Strode’s
version of events, the informant had come to his house with cash to pay him
for a trailer that Strode had sold him the day before. 1
The jury ultimately found Strode not guilty of trafficking
methamphetamine to the informant, but found him guilty of the second
charged offense of trafficking methamphetamine based upon what was found
in his residence. He was also found guilty of the lesser included offense of
possession of the hydrocodone rather than trafficking in hydrocodone which
was charged in the indictment.
1 During cross-examination by the Commonwealth, Strode refused to identify
who supplied him with his drugs. The trial court refused Strode’s offer to identify his
supplier outside the presence of the jury and held Strode in contempt, sentencing him
to 179 days in addition to any other sentence he might receive.
3
During the penalty phase, the jury found Strode to be a subsequent
offender regarding the trafficking charge and recommended a sentence of
twenty years’. The jury also recommended a sentence of three years’ for the
possession of hydrocodone, with both sentences to run concurrently. Strode
was sentenced in accordance with the jury’s recommendations.
II. LEGAL ANALYSIS
Strode raises two legal issues, both of which relate to his prior trafficking
conviction which was first referenced during voir dire and then brought up
again during the Commonwealth’s cross-examination of Strode during the guilt
phase of his trial. However, neither of these alleged errors were preserved by a
proper and contemporaneous objection. Consequently, we may only afford
relief to Strode upon satisfaction of the rigorous palpable error standard found
in Kentucky Rule of Criminal Procedure (RCr) 10.26, which states:
A palpable error which affects the substantial rights of a party may
be considered . . . by an appellate court on appeal, even though
insufficiently raised or preserved for review, and appropriate relief
may be granted upon a determination that manifest injustice has
resulted from the error.
As summarized in Brewer v. Commonwealth, 206 S.W.3d 343, 349 (Ky.
2006):
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[.]”
A palpable error must be so grave in nature that if it were
uncorrected, it would seriously affect the fairness of the
proceedings. Thus, what a palpable error analysis “boils down to”
is whether the reviewing court believes there is a “substantial
possibility” that the result in the case would have been different
without the error. If not, the error cannot be palpable.
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Id. (footnotes omitted) (quoting Burns v. Level, 957 S.W2d 218, 222 (Ky. 1997),
abrogated on other grounds by Nami Res. Co., L.L.C. v. Asher Land and Mineral,
Ltd., 554 S.W.3d 323 (Ky. 2018); Ernst v. Commonwealth, 160 S.W.3d 744, 758
(Ky. 2005); Schoenbachler v. Commonwealth, 95 S.W.3d 830, 836 (Ky. 2003)).
A. Did the Trial Court Commit Palpable Error by Reading Portions of the
Indictment Referencing Strode Committing a Second Offense? –
Unpreserved
During voir dire, the trial court read the remaining counts of the
indictment verbatim, which informed the prospective jurors that Strode was
charged with “second offense” trafficking of a controlled substance. No
objection was made by Strode’s counsel nor was any admonition requested.
After the jury was selected and excused for lunch, the Commonwealth’s
Attorney initiated the following discussion which referenced the reading of the
indictment:
Commonwealth: This is something I didn’t know how to approach
Judge. You read the indictments verbatim.
Trial Court: Yes
Commonwealth: And each one of the first three counts are second
offenses. So are we going to have in the guilt phase proof.
Trial Court: I believe there’s no other way to do it.
Commonwealth: Okay.
Strode’s Counsel: I would object your Honor and state that . . .
Trial Court: Do you have any law?
Strode’s Counsel: I’ll look at it over the lunch. I mean, I think it
should be bifurcated.
Trial Court: The only thing you can bifurcate in a trial is the guilt
phase and the penalty phase. Okay now. There, there would be a
situation you can see that if they convicted of this and in the
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second phase they could introduce evidence he had ever been
convicted before.
Commonwealth: In, in the penalty phase you can bring the whole.
Trial Court: I understand that, but it would, it would, that would
appear to me just to be a situation where the penalty—there is no,
there’s no difference between the elements of a first and second
conviction other than a prior conviction, so I don’t know how you
can present the case without presenting the case that he had a
prior conviction if that’s the law. It’s not just in the sentencing that
it takes it up. You could look at it that it doesn’t apply, that you
take it up in the sentencing, to take it up to the next level. Do you
know what I’m saying?
Strode’s Counsel: Yes, sir.
Trial Court: So, think about that. We’ve still got plenty of time to
do the instructions. I’ve got the instructions and I’ll call [staff
attorney] and have her take a look at it.
Commonwealth: Okay. I just thought it was an issue that I didn’t
know, and I just wanted some direction.
Trial Court: Okay do a little research instead of doing lunch. You
can research during lunch.
There appears to be no further discussion regarding the reading of the
indictment in the record, and we do not recognize Strode’s counsel’s “objection”
in this discussion to have been a belated objection directed at the previously
read indictment. It is obvious from the context of this discussion that counsel
and the trial court were not discussing the error of reading the second offense
portions of the indictment but instead were deliberating on “when” (either
during the guilt phase or the penalty phase of the trial) evidence of Strode’s
prior trafficking conviction could be presented by the Commonwealth to prove
the second offense “element” of the alleged crimes.
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Evidence of a prior conviction introduced only for enhancement purposes
should be reserved to the penalty phase of a trial. Commonwealth v. Ramsey,
920 S.W.2d 526, 528 (Ky. 1996). In Lewis v. Commonwealth, 642 S.W.3d 640,
643 (Ky. 2022), we specifically found that a trial court erred by reading
portions of the defendant’s indictment during the guilt phase of the trial that
mentioned his previous convictions and discussed the fact that such
information violated Kentucky Rule of Evidence (KRE) 404(b), which generally
prohibits evidence of other crimes committed by defendants which is
introduced for the purpose of proving the defendant's character “in order to
show action in conformity therewith.” However, we did not reverse Lewis’s
conviction because “[b]reaches of KRE 404(b)’s rule against the admission of
prior bad acts as character evidence are generally subject to admonitory
cures[,]” and after Lewis objected, the trial court recognized the error and
admonished the jury to disregard the information which we deemed to be
acceptable. Lewis, 642 S.W.3d at 643.
While the trial court should not have read the full indictment to the jury
which, by implication, informed them that Strode had been previously
convicted of the same crime, this does not mean that this error constitutes a
reversible error. Here, unlike in Lewis, Strode made no objection to the trial
court reading the indictment which included the “second offense” language 2
2 “As a general rule, a party must make a proper objection to the trial court and
request a ruling on that objection or the issue is waived.” Brooks v. Commonwealth,
114 S.W.3d 818, 825 (Ky. 2003) (citing Commonwealth v. Pace, 82 S.W.3d 894 (Ky.
2002); Bell v. Commonwealth, 473 S.W.2d 820 (Ky. 1971)).
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and those few words were substantially less prejudicial to Strode than his own
later testimony to that effect which we will next discuss. Under these
circumstances, we find that the trial court’s error was harmless and did not
rise to the level of palpable error necessary to reverse Strode’s conviction.
B. Did the Commonwealth Commit Palpable Error by Questioning Strode
about his Prior Conviction? – Unpreserved
Strode also argues that the trial court erred in allowing the
Commonwealth’s Attorney to ask Strode questions about his prior conviction
during the guilt phase of the trial. We do not agree with Strode that his
counsel’s previous (and unexplained) objection made during the bench
conference regarding the proper time to establish a prior offense preserved this
later occurring assignment of error and will again review this matter under a
palpable error standard.
During his direct examination, Strode admitted possession of the
methamphetamine found pursuant to the search warrant but denied having
any intent to sell it. Then, during cross-examination, Strode was questioned by
the Commonwealth regarding his prior trafficking conviction and testified as
follows:
Q: Mr. Strode, have you ever been convicted of a felony?
A: Yes, sir, I have.
Q: And what was the last felony?
A: Trafficking. I used to sell drugs, I did.
Q: Trafficking in what?
A: A controlled substance. Methamphetamine.
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Q: O.K.
A: And I pled guilty to it, got a 15-year sentence, done time in jail,
and served it out on probation[.]
Defense counsel not only did not object at any point during this
questioning but, on redirect, also had his client repeat the fact:
Q: Terry, you’ve admitted that you’re a convicted felon?
A: Yes, sir.
Q: You’ve used methamphetamine in the past?
A: Yes, sir.
Q: You were using methamphetamine at the time that these events
occurred?
A: Yes.
Later, during re-cross, Strode again testified about his prior
trafficking, this time without any prompting by the Commonwealth:
Q. Mr. Strode, did I just hear you when you were talking about
hydrocodone, you said you didn’t move it?
A. I mean, if I ever did –
Q. That’s what you said, wasn’t it?
A. Yeah, I used to move drugs. That’s something you’d never see
me move, ever. I used to sell drugs. But I did not sell or mess with
any type of pain pills. Did not mess with any type of
pain pills or anything. Do I sell drugs now, no. Did I sell him
drugs, no. Did I used to, yes. That’s why I accepted a deal for
fifteen years[.]
At that juncture, the trial court precluded any further questioning
or testimony regarding the time Strode had served but at no time did
Strode’s counsel object or request any type of admonition.
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Strode argues correctly that, regarding impeachment for being a
convicted felon, under KRE 609(a), “[t]he identity of the crime upon
which [a] conviction was based may not be disclosed upon cross-
examination unless the witness has denied the existence of the
conviction.” Therefore, under KRE 609(a), once Strode admitted to having
a prior felony trafficking in a controlled substance conviction, the
Commonwealth was precluded from asking any more specifics about the
crime. Albeit in a different context, our Supreme Court has held that “[i]t
is a fundamental principle that the introduction of a previous conviction
during the process of determining guilt or innocence is prejudicial.” Dedic
v. Commonwealth, 920 S.W.2d 878, 879 (Ky. 1996) (citing Jones v.
Commonwealth, 198 S.W.2d 969 (Ky. 1947)).
In response, the Commonwealth argues that it was entitled to question
Strode about his prior criminal activity given that he took the stand and
testified that he was not trafficking the very drugs he unquestionably
possessed. KRS 404(b)(1) includes several other purposes for which character
evidence might be admissible, including “proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident . . . . ”
Specifically, the Commonwealth argues that Strode’s prior trafficking
conviction was relevant and probative to determining whether he possessed (as
he undeniably did) the illicit drugs and paraphernalia associated with sales
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with the intent 3 to sell them as opposed to merely having them for personal use.
The Commonwealth is correct, we have previously determined that evidence of
a prior conviction was admissible to prove motive, intent, and plan to
manufacture methamphetamine under KRE 404(b). Hayes v. Commonwealth,
175 S.W.3d 574, 588 (Ky. 2005). In the context of this case, the facts
concerning Strode’s prior drug trafficking experience served as an admissible
counter to his testimony that he was not dealing in drugs when he was
arrested.
Even had Strode persuaded this Court that errors occurred in his trial,
he still cannot demonstrate that they likely impacted the outcome of the trial or
seriously impacted its overall fairness in light of the abundant physical
evidence of drug sales found in his residence. In sum, Strode’s earlier
conviction was not necessary in determining that he was trafficking and, given
that the jury declined to find him guilty of trafficking to the informant (the first
count of the indictment) and declined to find him guilty of trafficking the
hydrocodone he possessed, we cannot see that his prior conviction was relied
upon whatsoever by the jury, and no prejudice existed as to warrant a new
trial.
3 “‘Traffic,’ except as provided in KRS 218A.1431, means to manufacture,
distribute, dispense, sell, transfer, or possess with intent to manufacture, distribute,
dispense, or sell a controlled substance[.]” KRS 218A.010(56). “‘Traffic’ means to
distribute, dispense, sell, transfer, or possess with intent to distribute, dispense, or
sell methamphetamine.” KRS 218A.1431(3).
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III. CONCLUSION
Accordingly, we affirm Strode’s conviction by the Monroe Circuit Court.
All sitting. All concur.
COUNSEL FOR APPELLANT:
Maureen Sullivan
COUNSEL FOR APPELLEE:
Russell M. Coleman
Attorney General of Kentucky
Bryan D. Morrow
Deputy Solicitor General
Elizabeth Hedges
Assistant Solicitor General
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