Shawn Wilson v. Commonwealth of Kentucky

IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION

· THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), · THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR,USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY.COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, - RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD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 OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALO.NG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE .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RENDERED: SEPfEMBER 28; 2017 NOT TO BE PUBLISHED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

\

·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 *4 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) ..

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.

(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.

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).

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.

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

Footnotes

[2] RCr 10.26.