NOT TO BE PUBLISHED
OPINION
NICKELL, JUDGE.
Reecola Butler appeals from a judgment entered by the Boyd Circuit Court on September 9, 2010. Following a two-day trial, a jury convicted him on one count of trafficking in a controlled substance, second degree, first offense,1 and one count of trafficking in a controlled substance, first degree, first offense.2 He was sentenced to concurrent terms of one year and ten years for a maximum of ten years. He raises three evidentiary issues on appeal. Having reviewed the briefs, the record and the law, we affirm.
FACTS
Kate Smith, the operator of a food pantry and a resident of Scope Towers in Ashland, Kentucky, was spurred to rid her neighborhood of drug dealers when her eleven-year-old grandson witnessed three illegal drug sales while walking three blocks to her home. Smith knew many of the neighborhood drug dealers because she had fed them at the food pantry or had babysat their children.
Frustrated by rampant drug dealing, Smith met with detectives Rob Brunty and Brian Clark of the Ashland Police Department in April 2009 and offered to make an audiotaped drug buy from Butler as a confidential informant. On July 1, 2009, she arranged for and purchased four hydrocodone pills for $28.00 from Butler, whom she knew as "Rico." This buy occurred in the apartment of Ricky Ingram. On July 13, 2009, she arranged for and purchased a quantity of crack cocaine from Butler for $50.00. This buy occurred in the apartment of Jack Ruggles. Smith was paid $100.00 for each buy.
Det. Clark was the only witness to appear before the Boyd County grand jury. When questioned by the prosecutor, he gave Butler's name, address, date of birth, and social security number; stated the nature of the case to be two controlled drug buys; and read the two charges. Without any additional details, the grand jury indicted Butler on two counts of trafficking.
On July 28, 2010, Butler moved for dismissal of the indictment citing Commonwealth v. Baker, 11 S.W.3d 585 (Ky. App. 2000), and arguing that some evidence had to be presented to the grand jury to support the indictment. The Commonwealth responded that the Baker indictment was dismissed due to prosecutorial misconduct, a fact not alleged in Butler's case. The Commonwealth also noted that:
[c]ourts are extremely reluctant to scrutinize grand jury proceedings as there is a strong presumption of regularity that attaches to such proceedings. Ordinarily, courts should not attempt to scrutinize the quality or sufficiency of the evidence presented to the grand jury. "An indictment returned by a legally constituted and unbiased grand jury . . . if valid on its face, is enough to call for trial of the charge on the merits."
Id., 11 S.W.3d at 588 (footnotes omitted). The motion to dismiss was denied and Butler stood trial on August 2 and 3, 2010.
At trial, Butler argued it was Ingram, not Butler, who sold the drugs to Smith during the recorded buys. To support his defense of an alternate perpetrator,3 counsel planned on playing for jurors an audiotape of an unrelated drug transaction in which Ingram sold crack cocaine to Smith—an act for which Ingram had already pled guilty, served time and was placed on probation for health reasons. Defense counsel sought to introduce the Ingram-Smith tape so jurors could distinguish Butler's voice from Ingram's. In advance of trial, counsel did not reveal to the Commonwealth the plan to introduce the Ingram-Smith tape and a certified copy of Ingram's trafficking conviction.
During opening statement, defense counsel told jurors they would hear audiotapes of the two drug buys for which Butler was standing trial. Defense counsel admitted Butler's voice was on one of the tapes and said the other voice belonged to someone who had already pled guilty to drug trafficking. When defense counsel concluded his opening remarks, the jury was excused for lunch and the Commonwealth apprised the court that reciprocal discovery, as required by a court order entered on January 6, 2010, had not been provided to the prosecution by Butler. Defense counsel responded that he was under no duty to provide the tape of the Ingram-Smith transaction to the Commonwealth since it was generated by the Ashland Police Department; he had just received the tape at 8:30 that morning from Ingram's attorney; and, the tape was going to be used only for impeachment purposes. The Commonwealth argued it was being blindsided; there was no nexus between the Ingram-Smith tape and the Butler-Smith tapes other than the confidential informant (and the police officers); that having received no advance notice of the Ingram-Smith tape, it was unprepared to rebut it in Butler's trial; defense counsel had deliberately waited until jeopardy had attached to reveal his plan; and defense counsel could protect Butler's rights by offering live testimony from Ingram. Finally, the Commonwealth requested a continuance if the court was going to allow Butler to play the tape for the jury.
The court stated he had originally understood Butler and Ingram to be co-defendants and that both had sold drugs to Smith simultaneously. After further discussion, however, the Court realized the sales were unrelated and concluded the defense should have given the Commonwealth notice of its plan to introduce the Ingram-Smith transaction. Ultimately, the court excluded the Ingram-Smith tape, but allowed Butler to subpoena Ingram and offer live testimony from him. Butler made no attempt to subpoena Ingram.
After eliciting chain of custody testimony, the Commonwealth recalled Det. Clark to the stand. On cross-examination, Butler sought to introduce a tape of the grand jury proceedings that resulted in Butler's indictment—his stated goal being to show jurors that Det. Clark had not properly investigated the case. The Commonwealth argued this was improper rebuttal. Defense counsel responded that Det. Clark did not present any evidence to the grand jury; he just read the charges and maintained this information became relevant only in the wake of Smith's testimony. The court directed defense counsel to first establish that Det. Clark needed to have his memory refreshed before he would consider allowing the playing of the grand jury tape. Thereafter, Det. Clark testified he remembered presenting the case to the grand jury, but did not recall his exact testimony, only that he said drugs were purchased from Butler through a confidential informant. After another bench conference, the court told defense counsel he could ask the witness whether he had presented any evidence to the grand jury, and depending upon his answer, it might be impeachable. Defense counsel then handed Det. Clark copies of the two indictments and asked him whether he had given any testimony to the grand jury beyond that contained within the indictments. Det. Clark responded in the negative. The jury ultimately found Butler guilty of the charged offenses. This appeal followed.
LEGAL ANALYSIS
Butler's first complaint is that the trial court erroneously overruled a motion to dismiss the indictment due to insufficient proof. We disagree. Sufficiency of an indictment is addressed in RCr4 5.10, which specifies:
[t]he grand jurors shall find an indictment where they have received what they believe to be sufficient evidence to support it, but no indictment shall be quashed or judgment of conviction reversed on the ground that there was not sufficient evidence before the grand jury to support the indictment.
As explained in 8 Ky. Prac. Crim. Prac. & Proc. § 10:27 (2010-2011), "[t]he grand jury is the sole judge of the sufficiency of the evidence to support an indictment. There is no quantum of evidence below which an indictment may not be returned." (Footnotes omitted). This view is supported by Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397 (1956), and Jackson v. Commonwealth, 20 S.W.3d 906, 908 (Ky. 2000) (quoting Rice v. Commonwealth, 288 S.W.2d 635 (1956)) ("[T]he court will not inquire into the legality or sufficiency of the evidence on which an indictment is based even if it is averred that no legal evidence was produced before the grand jury."). Based upon this strong line of cases, the trial court did not err in allowing trial to go forward.
Butler's second complaint is that the trial court erred in excluding a tape of the Ingram-Smith buy offered for voice recognition purposes and thereby prevented him from offering a complete defense-that of an alternate perpetrator. Crane v. Kentucky, 476 U.S. 683, 690, 106 S.Ct. 2142, 90 L.Ed.2d 636 (1986). We disagree. The discovery order entered by the trial court directed in relevant part:
D. Pursuant to RCr 7.24(3), subsequent to the Commonwealth having filed it's (sic) response to discovery, the Defendant shall within thirty (30) days provide to the Commonwealth the following information, or permit the Commonwealth the opportunity to inspect, copy or photograph the material:
1. All books, papers, documents or tangible objects which the Defendant intends to introduce into evidence and which are in the defense's possession, custody or control.
The penalty for noncompliance with a court's discovery order, as stated in RCr 7.24(9), is:
[i]f at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this rule or an order issued pursuant thereto, the court may direct such party to permit the discovery or inspection of materials not previously disclosed, grant a continuance, or prohibit the party from introducing in evidence the material not disclosed, or it may enter such other order as may be just under the circumstances.
"Pretrial discovery simplifies and clarifies the issues in a case; eliminates or significantly reduces the element of surprise; helps to achieve a balanced search for the truth, which in turn helps to ensure that trials are fair; and it encourages the settlement of cases." See Elkins v. Syken, 672 So.2d 517, 522 (Fla. 1996). Here, defense counsel suspected throughout the weekend before trial began on Monday morning that the second voice on the tapes being offered by the Commonwealth against Butler was that of Ingram. Defense counsel listened to the Ingram-Smith tape on Monday morning and confirmed his suspicion, but said nothing to the Commonwealth until he gave his opening statement, after jeopardy had attached. We agree with the trial court's decision to exclude the Ingram-Smith tape and Ingram's judgment of conviction due to the discovery violation. Defense counsel had the tape prior to trial and should have made the Commonwealth aware of his intention to use it so the Commonwealth could prepare for it. We are not prepared to hold, as Butler urges, that evidence offered solely for impeachment purposes need not be provided to opposing counsel under a reciprocal discovery order. Without the advance notice, the prosecution was surprised and had no opportunity to rebut the Ingram-Smith tape.
It matters not that the Ingram-Smith tape was generated by the Ashland Police Department, nor that Ingram's conviction was the result of work by the Commonwealth Attorney of Boyd County, both of whom were involved in Butler's prosecution. The relevant question is whether the Commonwealth knew the Ingram-Smith tape was going to be offered in the case against Butler and clearly they did not. Thus, under RCr 7.24(9), we discern no error in the trial court's exclusion of the tape in light of defense counsel's violation of the court's reciprocal discovery order.
Furthermore, Butler was not precluded from presenting his desired defense. It was mentioned that Ingram was free on probation due to health issues and could have been subpoenaed to court. However, Butler made no attempt to prove Ingram was unavailable to give live testimony. Moreover, both Det. Brunty and Smith testified they knew Ingram and mentioned he had pled guilty to drug trafficking. Smith also testified that the drug buy that occurred on July 1, 2009, occurred in Ingram's apartment. Hence, jurors were well-aware of the defense theory that Ingram, not Butler, was the real drug dealer. Thus, we discern no error.
Butler's third and final complaint is that the trial court erred in prohibiting him from impeaching Det. Clark with a tape of his grand jury testimony. Defense counsel wanted the petit jury to know that Det. Clark had just read the citation to the grand jury without providing any evidence. Again, we disagree.
The roles of grand and petit juries are distinct. As explained in United States v. Knowles, 147 F.Supp. 19, 21 (D.C.D.C. 1957), "[a] grand jury does not pass on the guilt or innocence of the defendant, but merely determines whether he should be brought to trial. It is purely an accusatory body." Thus, the information presented to the grand jury was irrelevant to the petit jury's task of determining Butler's guilt or innocence. Furthermore, Det. Clark testified he told the grand jury nothing more than the information contained within the indictments. Thus, we discern no error.
For the foregoing reasons, the judgment of the Boyd Circuit Court is affirmed.
ALL CONCUR.
