Opinion of the Court by Justice SCOTT.
A Hopkins County Circuit Jury found Appellant, Albert Springfield, guilty of trafficking in a controlled substance in the first degree and of being a persistent felony offender (PFO) in the first degree. He was sentenced to the maximum of five years' imprisonment, which was enhanced to twenty years' imprisonment due to his
On December 24, 2010, Appellant and some friends were at his apartment when an acquaintance, Tina Eisenhower, stopped by to purchase some crack cocaine. However, Appellant did not have any crack at his apartment, so he left to go get some as, according to him, a "favor." Unbeknownst to Appellant, Eisenhower had started her own "personal war against crack cocaine."
Eisenhower had an arrangement with Deputy Sheriff Shawn Bean of the Hopkins County Sheriff's Department to purchase $30 worth of crack from Appellant. Bean provided Eisenhower with a spy camera, microphone, and $30 for the purpose of catching Appellant in the act. After making the purchase from Appellant, Eisenhower met with Bean to give him the crack and recording device. For her efforts, Eisenhower received $100 in cash as payment.
Eight months later, Appellant was indicted by a Hopkins County Grand Jury for first-degree trafficking in a controlled substance, a Class D felony, and for being a first-degree PFO. The case proceeded to a jury trial, and the jury returned a verdict finding Appellant guilty of trafficking cocaine. After the Hopkins Circuit Court Clerk testified during the penalty phase and introduced evidence to establish Appellant's prior convictions, the jury also found him guilty of being a first-degree PFO and recommended that he be sentenced to the maximum, twenty years' imprisonment. The trial court adopted the jury's recommendation.
Appellant first argues that the trial court erred to his substantial prejudice when it denied him his right to a randomly selected jury. Specifically, Appellant alleges that that the trial court erroneously excused a potential juror based upon his religious views. "Longstanding Kentucky law has held that a trial court's decision on whether to strike a juror for cause must be reviewed for abuse of discretion." Shane v. Commonwealth, 243 S.W.3d 336, 341 (Ky.2007) (citing Adkins v. Commonwealth, 96 S.W.3d 779 (Ky.2003)); Pendleton v. Commonwealth, 83 S.W.3d 522 (Ky.2002).
In voir dire, the Commonwealth asked if anyone on the jury panel had personal or religious beliefs that would prevent them from sitting in judgment of another person. One juror asked to approach the bench, where he explained that "I don't feel like I should judge no one. Like, I don't feel like it's my right, it's my place." The trial judge then asked him what this belief was based upon and he stated, "Joshua, the Messiah." He agreed with the judge that he had religious beliefs that may prohibit him from sitting in judgment.
Appellant argues that the potential juror was unjustifiably excused for cause simply because he was "not prosecution prone." Furthermore, Appellant alleges that the trial judge's error destroyed the required randomness of the jury selection process and therefore a new trial is required.
However, as was previously established, a trial court's decision as to whether or not to strike a juror for cause must be reviewed for abuse of discretion. Shane, 243 S.W.3d at 338. "`Abuse of discretion in relation to the exercise of judicial power implies arbitrary action or capricious disposition under the circumstances, at least an unreasonable and unfair decision.' ... The exercise of discretion must be legally sound." Allen v. Devine, 178 S.W.3d 517, 523 (Ky.App.2005) (quoting Kuprion v. Fitzgerald, 888 S.W.2d 679, 684 (Ky.1994)).
In the present case the potential juror stated that he could not stand in judgment of another human being, and "guesses" he could listen to the facts of the case and render a verdict. The judge even expressed concern as to whether the juror possessed the ability to listen to the evidence and render an unbiased verdict, one that was not influenced by his religious convictions.
Appellant argues that, "the right to jury trial guarantees to the criminally accused a fair trial by a panel of impartial, `indifferent' jurors. The failure to accord an accused a fair hearing violates even the minimal standards of due process." Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961). However, the juror in question expressed that he could not fairly judge another person and thus he admitted that he was not qualified as a juror. It is for this reason that by striking the juror, the trial court was in fact attempting to achieve a jury panel that was qualified to sit in judgment. The trial court used sound legal judgment in making this decision based upon the information provided by the potential juror.
It is for these reasons that this Court does not find that the trial court abused its discretion in striking the juror for cause.
Appellant's first argument is that the trial court erred to his substantial prejudice by allowing the jury to view a videotape of the actual drug transaction outside his presence, unsupervised, in the jury deliberation room. We review a trial court's evidentiary rulings for an abuse of discretion. Anderson v. Commonwealth, 231 S.W.3d 117, 119 (Ky.2007) (citing Woodard v. Commonwealth, 147 S.W.3d 63 (Ky.2004)). "The test for an abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Id. (citing Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky.2000)).
Eisenhower had a video camera and microphone hidden in her purse when she made the buy from Appellant. During Appellant's trial, this video and audio recording was played for the jury and a copy
Appellant argues that this violated the Confrontation Clause of the Sixth Amendment which encompasses the right of criminal defendant to "be confronted with the witnesses against him." Appellant argues that he has a constitutional right to be present at all stages of his trial, including the replaying of tapes in connection with jury deliberations.
RCr 9.72 limits the materials that a jury may review during deliberations:
RCr 9.74 also limits the jury's access to information once the case has been submitted. This rule states:
Appellant argues that under these rules, it is clear that electronic equipment is not allowed to be given to the jury during deliberations, and any information given to the jury must be done in open court in the presence of the defendant.
We disagree with Appellant's argument in this instance. The trial court ultimately has the discretion to allow or disallow certain exhibits into the jury deliberation room. Johnson v. Commonwealth, 134 S.W.3d 563, 567 (Ky.2004). Moreover, concerns that a jury will place an undue emphasis on evidence present in the jury deliberation room generally arise in the context of exhibits that are testimonial in nature. E.g., Buckhart v. Commonwealth, 125 S.W.3d 848, 850 (Ky.2003). For instance, today we also rendered McAtee v. Commonwealth, No. 2011-SC-000259 (Ky. Aug. 29, 2013), in which we held that a video recording of a witness's testimony was testimonial in nature and thus viewing in the jury room was impermissible.
On the other hand, "[n]ontestimonial exhibits... which are verbal in nature, are generally allowed to go into the [jury room]." Id. (quoting Chambers v. State, 726 P.2d 1269, 1275 (Wyo.1986)).
Here, we believe that the video and audio recording of the actual drug transaction falls within the realm of non-testimonial evidence and thus was properly allowed in the jury room. While this Court does not have any prior decisions directly on point, other jurisdictions provide us with guidance in making this determination. New Hampshire v. Dugas, 147 N.H. 62, 782 A.2d 888, 896 (2001) (holding that a store surveillance video was non-testimonial evidence and thus permissible in the jury deliberation room); State v. Monroe, 146 N.H. 15, 766 A.2d 734, 736 (2001) (holding that videotapes and audiotapes are admitted as exhibits into evidence as non-testimonial,
For the aforementioned reasons, we find that the trial court did not abuse its discretion in allowing the jury to review this audio and video recording in the jury deliberation room.
Appellant argues that the trial court erred to his substantial prejudice by failing to instruct the jury on first-degree criminal facilitation to trafficking in a controlled substance. Specifically, Appellant alleges that the evidence presented on his behalf was sufficient to support an instruction of criminal facilitation. We review the refusal to give a jury instruction of a lesser-included offense by the `reasonable juror' standard established in Allen v. Commonwealth:
338 S.W.3d 252, 255 (Ky.2011). Therefore, in evaluating the refusal to give an instruction we must ask ourselves, construing the evidence favorably to the proponent of the instruction, whether the evidence would permit a reasonable juror to make the finding the instruction authorizes.
Appellant argues that the jury could have found that he was merely facilitating the offense of trafficking in a controlled substance, and thus it should have been instructed accordingly. However, "`[a]n instruction on a lesser-included offense is appropriate if and only if on the given evidence a reasonable juror could entertain reasonable doubt of the defendant's guilt of the greater charge, but believe beyond a reasonable doubt that the defendant is guilty of the lesser offense.'" Thompkins v. Commonwealth, 54 S.W.3d 147, 151 (Ky.2001) (quoting Skinner v. Commonwealth, 864 S.W.2d 290, 298 (Ky. 1993)).
No evidence whatsoever was presented in the case at bar that Appellant was guilty of facilitation. Much like the present case, in Thompkins, the defendant sought to have the jury instructed on completely imaginary scenarios for which no evidentiary basis existed:
Id. In Thompkins, we held that the trial court did not err in refusing to provide a jury instruction on the lesser-included offense of facilitation as no reasonable juror would have been able to convict the defendant of facilitation based upon the evidence presented. We hold the same here.
KRS 218A.010(40) defines trafficking as "... to manufacture, distribute, dispense, or sell a controlled substance." Simply distributing or selling a controlled substance constitutes trafficking, and, therefore, if the jury found (as it did) that Appellant obtained and sold the crack to Eisenhower, it could (and did) find Appellant was guilty of trafficking. No evidence was presented to support a criminal facilitation instruction and, therefore, the trial court was correct in not providing it to the jury. Thompkins, 54 S.W.3d at 151.
Furthermore, KRS 506.080 defines criminal facilitation as "acting with knowledge that another person is committing or intends to commit a crime, he engages in conduct which knowingly provides such person with means or opportunity for the commission of the crime and which in fact aids such person to commit the crime." "Facilitation reflects the mental state of
While it is true that by selling crack to Eisenhower, Appellant "facilitated" her in what he thought was the commission of a crime, it does not absolve him of his own criminal liability for selling it to her. Facilitation only reflects the mental state of one who is "wholly indifferent" to the completion of the crime, and in this case Appellant was fully aware that he was in fact obtaining and selling drugs. He did not provide another person the "means or opportunity" to commit a crime, he, instead, committed a crime himself. Furthermore, we would like to point out that while Appellant argues that he should have received an instruction on the "lesser-included offense" of facilitation, facilitation is not a lesser-included offense of trafficking, but merely a lesser-culpability situation. Regardless of the classification, no evidence was presented to allow a reasonable juror to find Appellant guilty of facilitation. For these reasons, we find no error in the trial court's refusal to instruct the jury on facilitation.
Finally, Appellant argues that the trial court erred to his substantial prejudice when it denied his request for an instruction on second-degree PFO. Specifically, Appellant argues that a jury does not have to believe all of the proof put on by the Commonwealth, and thus should have been given the option to sentence him as a second-degree PFO. Implementing the previously established reasonable juror standard, in evaluating the refusal to give a jury instruction, we must ask, construing the evidence favorably to the proponent of the instruction, whether the evidence would permit a reasonable juror to make the finding the instruction authorizes. Allen, 338 S.W.3d at 255.
Appellant's counsel requested a jury instruction on second-degree PFO, which was ultimately denied by the trial judge. Appellant argues that the evidence in support of such an instruction came from Karen McKnight, Hopkins County Clerk. McKnight testified that Appellant's prior convictions included: 1) possession of cocaine for which he received a five-year sentence; and 2) trafficking in cocaine for which he received three five-year sentences to run concurrently.
Defense counsel did not argue that the evidence was insufficient to submit an instruction on first-degree PFO, but argued instead that the jury had a right to disbelieve some of the Commonwealth's evidence, and therefore could have returned a verdict in favor of second-degree PFO.
While it is true that a jury is free to disbelieve the Commonwealth's evidence, this Court held in Payne v. Commonwealth, 656 S.W.2d 719, 721 (Ky.1983), that when it comes to PFO proceedings if a jury believes any of the Commonwealth's evidence then it must believe it all. In Payne, this Court held:
Id.
Therefore, in order to convict Appellant as a second-degree PFO, the jury would have to believe at least part of the proof presented by the Commonwealth, that he had previously been convicted of another felony charge. However, it would also require the jury to disbelieve a part of the proof which, according to Payne, is impermissible absent evidence calling that proof into question. When it comes to the presentation of proof for PFO status, the jury must take the Commonwealth's proof all-or-nothing "in the absence of some evidence bringing one or both prior convictions into dispute." Id. at 721. That is to say, the jury cannot accept part as true and question the rest unless there is an evidentiary basis for disregarding a prior conviction. Therefore, in the instant case, an instruction as to second-degree PFO would require the jury to make a decision contrary to the law as it stands, and a reasonable juror could not make the decision that the instruction authorizes. A jury considering a PFO charge is free to disbelieve a conviction if there is an evidentiary base for doing do, but in the present case there was no evidence to justify disregarding the Commonwealth's proof. It is for this reason that we find no err in the trial court's refusal to instruct the jury on second-degree PFO status. Furthermore, the PFO instruction given to the jury was actually in Appellant's favor, given that by instructing the jury on first-degree PFO only, the jury would have to aquit him of the PFO altogether if it believed that he had only one prior conviction.
For the aforementioned reasons we affirm Appellant's convictions and sentence.
All sitting. All concur.
