NOT TO BE PUBLISHED

THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD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 OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION.

MEMORANDUM OPINION OF THE COURT

On August 31, 2012, Leslie Johnson was in her car, stopped at an intersection outside of London, Kentucky and waiting to turn onto the highway, when she observed a black vehicle pull next to her and turn into a residential driveway. She then witnessed the driver, Appellant, Phillip Karr, toss a black object into the nearby weeds. Karr, who was wearing a white t-shirt covered in blood, exited the vehicle and began kicking the black object further into the weeds. He then returned to his vehicle and drove away towards London.

Ms. Johnson remained at the location, called 911, and reported what she had observed, including a description of the vehicle and its license plate number. Once police arrived on the scene, they determined that the black object discovered in the weeds was a one-step "shake and bake" methamphetamine lab. A police detective then escorted Ms. Johnson to the Bingo Zone, a local bingo hall, where she identified Karr's vehicle and license plate number. Soon thereafter, Karr was arrested and Ms. Johnson identified him as the man she witnessed tossing the meth-lab out the window of his vehicle.

As a result, Karr was indicted on one count of manufacturing methamphetamine, first offense. A Laurel Circuit Court jury found Karr guilty of that charge and recommended a sentence of twenty years imprisonment. Following a presentence investigation report, the trial court sentenced Karr in accord with the jury's recommendation. Karr now appeals his judgment and sentence as a matter of right pursuant to § 110(2)(b) of the Kentucky Constitution. Three issues are raised and addressed as follows.

Testimony During Sentencing Phase

First, Karr argues that the prosecutor and probation officer misinformed the jury that Karr could not lose his good time credit, and that this misinformation influenced the jury to recommend the maximum sentence of twenty years incarceration. This issue is unpreserved and Karr requests we review for palpable error. RCr 10.26. "In order to demonstrate an error rises to the level of a palpable error, the party claiming palpable error must show a `probability of a different result or [an] error so fundamental as to threaten a defendant's entitlement to due process of law."' Allen v. Commonwealth, 286 S.W.3d 221, 226 (Ky. 2009) (quoting Martin v. Commonwealth, 207 S.W.3d 1, 3 (Ky. 2006)).

Karr cites the following exchange between the Commonwealth's Attorney and Mr. Hampton, a Probation and Parole Officer, that occurred during the sentencing phase of trial:

KRS 197.045(1) provides six different types of credit that are available to reduce a prisoner's sentence. Mr. Hampton and the Commonwealth's Attorney specifically discussed educational credit, good time credit, and statutory time credit. The Commonwealth's Attorney defined "statutory time credit" as "credit for so many days based upon [defendant's] sentence," and then stated that such credit "cannot be taken away[.]" Mr. Hampton affirmed both of these statements.

However, KRS 197.045 does not reference "statutory time credit." Further, the only credit available under KRS 197.045 that is "based upon [defendant's] sentence" is good time credit. KRS 197.045(1)(b)(1). Contrary to the above-cited testimony, good time credit may be revoked. The only credit that cannot be revoked under this statute by the Department of Corrections is that time spent in detention prior to sentencing. KRS 197.045(2) states:

Thus, the jury was presented with an incorrect statement of the law regarding the availability and application of credit provided by KRS 197.045.

In Robinson v. Commonwealth, we held that a parole officer's erroneous testimony that an inmate's good time credit could reduce the minimum period of parole eligibility constituted palpable error. 181 S.W.3d 30, 37-38 (Ky. 2005). Accordingly, the Court remanded that case for re-sentencing, specifically noting that "[t]he jury was given information to consider that was obviously confusing to the very people who deal with it on a daily basis." Id. at 38. We concluded that "[t]here is a reasonable likelihood that the jury was influenced by the incorrect testimony." Id. Determinative in our decision in Robinson was that the defendant received the maximum sentence for his conviction and the Commonwealth emphasized the guarantee of good time credit during sentencing phase closing arguments. Id.

Although the incorrect testimony in the present case was "obviously confusing," as in Robinson, we are unconvinced that there was "a reasonable likelihood that the jury was influenced" as a result. Robinson, 181 S.W.3d at 38. Karr did receive the maximum sentence provided by statute for his conviction. However, unlike Robinson, there is no evidence that the Commonwealth emphasized the time credit testimony with the jury during closing arguments or otherwise. Id. Thus, any error "most assuredly did not render [Karr's] sentencing . . . manifestly unjust under RCr 10.26." Cox v. Commonwealth, 399 S.W.3d 431, 436 (Ky. 2013) (holding that parole officer's testimony during sentencing phase of trial, while less than detailed, did not constitute palpable error). We conclude that the incorrect testimony elicited during the sentencing phase of Karr's trial does not constitute palpable error.

Continuance of Trial

Karr further alleges that the trial court erred by denying his motion for a continuance of trial. We review a trial court's denial of a motion for continuance under an abuse of discretion standard. Snodgrass v. Commonwealth, 814 S.W.2d 579, 581 (Ky. 1991) (overruled on other grounds by Lawson v. Commonwealth, 53 S.W.3d 534 (Ky. 2001)).

Karr specifically contends that his motion should have been granted because the Commonwealth informed Karr's counsel the day before trial that it had recordings of Karr's jail phone conversations. In addition, Karr asserts that a continuance was warranted because he was unable to subpoena a potential defense witness, Benjamin Liford. Karr requested the continuance the morning of trial.

RCr 9.04 authorizes a trial court to grant a continuance "upon motion and sufficient cause shown by either party . . . ." Whether to grant a continuance is determined on a case-by-case basis wherein the trial court is directed to consider the following:

Snodgrass, 814 S.W.2d at 581.

Identifiable Prejudice

The first six Snodgrass factors arguably weigh in favor of Karr, or at least do not weigh against him. This was not an especially complex trial. Most significantly, however, Karr has failed to demonstrate that the trial court's denial of a continuance resulted in identifiable prejudice. See Bartley v. Commonwealth, 400 S.W.3d 714, 733 (Ky. 2013) ("Identifiable prejudice is especially important."). Further, "[c]onclusory or speculative contentions that additional time might prove helpful are insufficient." Id. (citing Hudson v. Commonwealth, 202 S.W.3d 17, 23 (Ky. 2006)).

In the present case, the jail telephone recordings were not admitted, nor scheduled to be admitted, by the Commonwealth at trial. During a bench conference, the Commonwealth's Attorney specifically stated to the trial court in the presence of defense counsel that the phone conversations reviewed by the Commonwealth did not contain any exculpatory evidence. See Brady v. Maryland, 373 U.S. 83, 87 (1963) (holding that the prosecution is required to disclose favorable evidence to an accused as a matter of due process); Akers v. Commonwealth, 172 S.W.3d 414 (Ky. 2005).

We also agree with the Commonwealth that, had the phone recordings contained any exculpatory evidence, the defense would have presumably elicited that evidence through direct testimony from Karr. See Bartley v. Commonwealth, 400 S.W.3d 714, 732-34 (Ky. 2013) (holding that the trial court's denial of defendant's request for a continuance resulting from a delinquent disclosure of records was not an abuse of discretion). In that case, the defendant failed to specifically identify "a defense theory or mitigating evidence that she was not given an adequate opportunity to develop and pursue." Id. at 734. We further recognized in Bartley that the Commonwealth was willing to exclude the records from evidence, and that "the Commonwealth had no obligation to provide the records in the first instance because there was nothing to suggest that they were exculpatory . . . ." Id. at 733; see also Keeling v. Commonwealth, No. 2006-SC-000003-MR, 2007 WL 1789750, at *2 (Ky. June 21, 2007) ("Once the trial court excluded all portions of the report not previously disclosed to Appellant, there was no longer any legitimate reason to grant a continuance.").

Similar to the defendant in Bartley, Karr has failed to articulate any defense theory or mitigating evidence that he was unable to present due to the Commonwealth's delinquent disclosure. Karr testified as scheduled concerning his mistaken identity defense theory without impediment. Further, the trial court also prohibited the Commonwealth from using the phone recordings as evidence. Moreover, the record does not reflect that Karr filed an affidavit pursuant to RCr 9.04. Perhaps most compelling is that, even after ample time to review the tapes post-trial, no motion for a new trial was requested. See RCr 10.02; RCr 10.06. Therefore, we are being petitioned to reverse Karr's conviction without any basis for a claim that he was prejudiced by the delinquent production of the tapes. The issues presented in Justice Venters' well-written dissent demonstrate that the Commonwealth's discovery practice in the present case was concerning to say the least. However, we cannot conclude that this resulted in an abuse of the trial court's discretion by "deciding against the obvious inconvenience of postponing a trial on the verge of its commencement." Bartley, 400 S.W.3d at 734.

Karr further argues that the testimony of an absent defense witness, Benjamin Liford, would have supported his trial theory. Karr specifically asserts that defense counsel completed a subpoena but could not serve it on Mr. Liford because he was currently housed in the Clay County Detention Center. In any event, our review of the record indicates that Karr failed to comply with the affidavit provisions of RCr 9.04. See, e.g., Gray v. Commonwealth, 203 S.W.3d 679 (Ky. 2006); Cornwell v. Commonwealth, 523 S.W.2d 224 (Ky. 1975) (holding that a trial court's refusal to grant a continuance on account of absent witnesses will not be disturbed unless there is a clear showing of abuse of discretion in denying the continuance).

Moreover, Karr testified at trial that Mr. Liford assaulted him prior to his arrest at the Bingo Zone. The Commonwealth did not refute this testimony, recognizing that it actually corroborated part of the Commonwealth's trial theory. Accordingly, we cannot say that the trial court abused its discretion in denying Karr's motion for a continuance of trial.

Directed Verdict

Lastly, Karr argues that the trial court erred in denying his motion for a directed verdict of acquittal for the offense of manufacturing methamphetamine. We will reverse the trial court's denial of a motion for directed verdict "if under the evidence as a whole, it would be clearly unreasonable for a jury to find guilt[.]" Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991) (citing Commonwealth v. Sawhill, 660 S.W.2d 3 (Ky. 1983) (emphasis added)). The record demonstrates that the Commonwealth presented sufficient evidence that would allow a reasonable jury to convict Karr.

At trial, Leslie Johnson testified that she positively identified Karr and his vehicle at the Bingo Zone as being the same individual and vehicle she had reported to the police. Ms. Johnson further testified that the license plate number of the vehicle from which she witnessed Karr toss the black object matched the license plate number of the vehicle she identified at the Bingo Zone.

We have held that "when the evidence is contradictory, the credibility of witnesses and the weight to be given to sworn testimony are for the jury to decide." Roark v. Commonwealth, 90 S.W.3d 24, 38 (Ky. 2002); see also Edmonds v. Commonwealth, 906 S.W.2d 343, 347 (Ky. 1995) (recognizing that the jury is not required to believe self-serving statements from the defendant or any of his witnesses). Although this case may have turned on the credibility of witnesses, we cannot say that it was clearly unreasonable for the jury to convict Karr of the offense charged.

The critical witness in this case was a total stranger to Karr who had no prior encounters with him. The record is void of any reasons as to why Ms. Johnson was not a totally objective witness. Further, her observations were made at close range. She immediately reported what she had just seen and gave an especially detailed description of Karr and his vehicle, including the license plate number. Accordingly, the trial court did not err in denying Karr's motion for a directed verdict of acquittal.

Conclusion

For the foregoing reasons, the judgment of the Laurel Circuit Court is hereby affirmed.

Minton, C.J.; Cunningham and Scott, JJ., concur. Abramson, J., concurs in result only. Venters, J., dissents by separate opinion in which Keller and Noble, JJ., join.

VENTERS, J., DISSENTING.

At around 4:30 p.m., on the eve of trial, Karr's defense counsel learned that the prosecutor had 6 hours and 20 minutes of recordings of the telephone calls Karr made from his jail cell as he awaited trial. To be clear, Karr's attorney did not receive the recordings, nor did he receive a summary of their content; he was simply informed of their existence. The prosecutor presumably found them to be relevant enough that he felt constrained to disclose their existence prior to trial in order to avoid a possible post-judgment collateral attack.

Immediately upon the opening of court the next morning, defense counsel moved to continue the trial so that he could obtain the recorded conversations and review them before his client was exposed to the jeopardy of trial. The prosecutor informed the trial court that the recordings captured some forty different conversations, including several between Karr and a material eyewitness in the case. The prosecutor acknowledged that he actually listened to no more than a handful of the calls, but that he had heard enough to know that the material witness, a friend of Karr's, made statements inconsistent with what she had earlier told police. Nevertheless, based upon the prosecutor's assurance that the recordings contained no exculpatory evidence, the trial court denied Karr's request for a continuance. Karr was convicted and this direct appeal followed.

The Commonwealth rebuts Karr's appeal with the argument that if the recordings contained any exculpatory evidence, Karr himself would have elicited that evidence at trial. The majority's adoption of that argument demonstrates a callous indifference to the high demand we place upon the criminal defense bar to render effective assistance of counsel. By what kind of magic could defense counsel, merely hours before the start of the trial, obtain the recordings; listen to more than 6 hours of conversations; determine what, if anything, was relevant either as exculpatory evidence or as impeachment of trial witnesses; arrange for the trial presentation of such evidence; do everything else that must be done the night before a trial; sleep; and be in court the next morning ready for trial? The answer is self-evident.

It may be argued that Karr has still not shown how he was prejudiced by his inability to review the recordings. The issue does not arise in the form of a discovery violation under Akers v. Commonwealth,1 for which a conviction will be set aside "only where there exists a reasonable probability that had the evidence been disclosed the result at trial would have been different."

Because the "evidence" was never disclosed, no one could know before the trial how it might impact the verdict. The issue was whether the trial should be delayed in order to find out. So far as the record discloses, it has not been shown that defense counsel ever actually received the recordings. It may be suggested that defense counsel should have pursued the matter further with some kind of post-trial motion, but with no procedural mechanism for after-the-trial discovery; and without a fair opportunity to review the material in advance of a motion for a new trial, counsel could not in good faith assert that the information would have mattered. The burden in the trial court should have been on the Commonwealth to show that the information lacked relevance, and that burden was not met by the prosecutor's assurance that he had listened to a small sample of the recorded conversations and found nothing significant.

Moreover, there is no procedural device for fact-finding on the content of the recorded conversations during the appeal process. This Court is not authorized to conduct such an evidentiary review, nor could we because the recorded conversations were never introduced into the record: the prosecutor did not do so, and defense counsel never had them to authenticate and introduce. By our own rules, trial counsel is not permitted to offer in this Court evidence not contained in the trial record.

A timely disclosure by the Commonwealth would have avoided the whole issue by providing defense counsel with an opportunity to review the recordings before the trial. We now condone such tardy disclosures with an opinion that shifts to the defendant's trial counsel, who has no opportunity to make an evidentiary record, the burden of accurately demonstrating the nature of the recordings. I would reverse; the Commonwealth was negligent in not providing the material in a timely manner, and the trial court abused its discretion by not allowing Karr's attorney a reasonable opportunity before trial to obtain and then review the recordings, particularly in light of the prosecutor's admission that the recordings disclosed prior inconsistent statements made by an important witness in the case. Keller and Noble, JJ., join.