Appellant, Derrick Helm, stands convicted of Complicity to Trafficking in a Controlled Substance, First Degree, First Offense, and Persistent Felony Offender in the Second Degree. For these crimes, Appellant was sentenced to twenty years' imprisonment. He now appeals to this Court as a matter of right pursuant to the Kentucky Constitution. Ky. Const. § 110(2)(b).
On March 6, 2008,
Shortly after arriving at the meeting point, a vehicle pulled into the parking lot, but the driver, however, was not Appellant. Recognizing the driver, the cooperating witness immediately approached and inquired "Where's Derrick?" In response, the driver stated "he sent me up here." The cooperating witness then exchanged his one-hundred dollars for a bag of cocaine.
Subsequently, a grand jury indicted Appellant for Complicity to Trafficking in a Controlled Substance, First Degree, First Offense. Appellant pled not guilty, and the matter proceeded to trial on October 26, 2009.
Prior to trial, the Commonwealth moved the trial court to allow the introduction of certain KRE 404(b) testimony from the cooperating witness regarding prior drug transactions between himself and Appellant. Specifically, the Commonwealth asked that the cooperating witness be allowed to testify that he lived with and bought cocaine from Appellant for approximately three months prior to the March 6th transaction. The Commonwealth asserted that these prior acts tended to prove, inter alia, motive, opportunity, intent, knowledge and absence of mistake. The trial court granted the Commonwealth's motion over Appellant's objection.
During trial, the Commonwealth peremptorily struck juror 155—the lone remaining black juror. In response, Appellant challenged the Commonwealth's strike pursuant to Batson v. Kentucky, 476 U.S. 79 (1986), but was overruled after the trial court found that the Commonwealth recited sufficient race-neutral reasons supporting the peremptory strike.
Appellant now contends that the trial court committed reversible error in both its rulings regarding the 404(b) evidence and the Batson challenge. Finding no error, we affirm.
Appellant contends that the trial court abused its discretion and violated KRE 404(b) by admitting evidence of prior cocaine purchases between himself and the cooperating witness. Attempting to distinguish our decision in Walker v. Commonwealth, Appellant argues that because the cooperating witness testified "very vaguely and generally to occasions that he obtained cocaine from the Defendant," the testimony should have been excluded. See Walker v. Commonwealth, 52 S.W.3d 533 (Ky. 2001). He further contends that this evidence "could only have been intended to expose the character of [Appellant] on prior occasions and to show that on [the date in question] he acted in conformity therewith," and thus was in violation of KRE 404(b). Furthermore, Appellant asserts that the testimony's undue prejudice substantially outweighed its probative value.
The Commonwealth responds by noting that Appellant placed his intent directly in issue in his opening statement and thus argues that this case falls within the confines of our decision in Walker. The Commonwealth further avers that the testimony was necessary, inter alia, to explain to the jury that Appellant had knowledge of the transaction—specifically, knowledge regarding the use of the word "bill" to refer to cocaine and that the two used the word in their previous transactions. Thus, as posited by the Commonwealth, because KRE 404(b) permits the introduction of evidence of prior acts to show "knowledge," the previous cocaine transactions were properly admitted. Moreover, the Commonwealth asserts that the prior acts were relevant to prove intent, as Appellant placed the issue in genuine dispute.
KRE 404(b) provides in pertinent part:
We have long interpreted this rule as "exclusionary in nature," and as such have cautioned trial courts that "any exceptions to the general rule that evidence of prior acts is inadmissible should be `closely watched and strictly enforced because of [its] dangerous quality and prejudicial consequences."' Clark v. Commonwealth, 223 S.W.3d 90, 96 (Ky. 2007) (quoting O'Bryan v. Commonwealth, 634 S.W.2d 153, 156 (Ky.1982)). However, a trial court applying this rule has the discretion to admit other instances of misconduct so long as (1) the evidence is relevant, (2) the evidence is probative of an issue other than propensity or conformity (3) the evidence's prejudice does not substantially outweigh its probative value. Muncy v. Commonwealth, 132 S.W.3d 845, 847 (Ky. 2004) [quoting Parker v. Commonwealth, 952 S.W.2d 209, 213 (Ky. 1997)).
In addition to this three-pronged inquiry, when a party attempts to admit 404(b) evidence for purposes of intent, as here, we require a fourth inquiry and thus question whether the issue of intent is in genuine dispute. Walker, 52 S.W.3d at 536 (citing Robert G. Lawson, The Kentucky Evidence Law Handbook, § 2.25, p. 98 (3d ed 1993)).
With these four questions in mind, we turn to the case at bar, and address whether the trial court abused its discretion by admitting the testimony.
As stated above, before a party may introduce prior acts so as to prove intent, the issue must be in genuine dispute. In Walker v. Commonwealth, this Court questioned whether the Commonwealth could introduce a prior drug transaction—which occurred one day before events giving rise to the crimes charged—to prove intent in that case. 52 S.W.3d 533. In answering in the affirmative, we concluded: "[The appellant's] `mere presence' defense that attacked both the possession and intent to sell elements of the trafficking charge certainly placed the issue of intent to sell in dispute." Id.
We based our decision in Walker on the notion that
Id. (quoting United States v. Thomas, 58 F.3d 1318 (8th Cir. 1995)) (emphasis added). With this premise in mind, we now address whether Appellant's intent was in genuine dispute in this case so as to merit the introduction of the prior acts.
Here, Appellant specifically asserted in opening statements that he had nothing to do with the transaction, i.e., he asserted a general denial.
Having determined that Appellant placed his intent and knowledge in genuine dispute, we must now determine whether the prior acts were relevant to the issues of intent or knowledge—essentially whether the prior acts are relevant to prove something other than propensity or conformity. KRE 404(b). Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." KRE 401.
In Walker, we held that the prior drug transaction was relevant because it "tended to make it more probable that [the appellant] intended to sell the drugs in his possession." Walker, 52 S.W.3d at 537; see also United States v. Beechum, 582 F.2d 898, 911 (5th Cir. 1978). We again hold that prior acts such as those in this case, in light of the charges alleged, are relevant as showing "that because the defendant had unlawful intent in the [the first drug sale], it is less likely that he had lawful intent in [this drug sale]." Walker, 52 S.W.3d at 537 (quoting Beechum, 582 F.2d at 3911). Furthermore, we believe that the prior acts testimony in this case tended to prove that Appellant had knowledge that the cooperating witness wanted to set up a drug buy when he used the term "bill" in the conversation as a result of the prior course of dealings—particularly because the cooperating witness testified that the two used the word to mean cocaine during their prior transactions. Thus, we conclude that the prior acts testimony was relevant to intent and knowledge— issues outside 404(b)'s prohibition on propensity and conformity.
Notwithstanding the above 404(b) analysis, when evidence is properly admitted to prove something other than propensity or conformity and the evidence is relevant to that end, a court still must evaluate the acts and determine whether its admission is so unduly prejudicial such that the probative value is substantially outweighed. KRE 403. Where the undue prejudice substantially outweighs the evidence's probative value, it should be excluded. Id.
The probative value of evidence "relates to whether there is sufficient evidence that the `other crime, wrong, or act' actually occurred." Davis v. Commonwealth, 147 S.W.3d 709 (Ky. 2004). We opined in Davis that probativeness "is resolved under KRE 104(b) . . . by admitting the evidence if the jury could reasonably conclude that the act occurred and that the defendant was the actor." Id. at 725 (citing Bell v. Commonwealth, 875 S.W.2d 882, 889-91 (Ky. 1994)); see also Huddleston v. United States, 485 U.S. 681, 689 (1988); Parker v. Commonwealth, 952 S.W.2d 209, 214 (1997). See also Robert G. Lawson, The Kentucky Evidence Law Handbook, §2.25, p. 131 (4th ed. 2003) (construing Parker v. Commonwealth as standing for the proposition that "other crimes evidence is sufficiently probative to be admitted if the trial judge believes the jury could reasonably infer that the prior bad acts occurred and that [the defendant] committed such acts."). Thus, in this case, we must answer whether a "jury could reasonably conclude that the act occurred and that the defendant was the actor." Davis, 147 S.W.3d at 725.
Here, Appellant argues that the cooperating witness's testimony was vague, general, and without sufficient corroborative evidence so as to be reliable. As a result of the allegedly unreliable nature of the testimony, Appellant avers that there is insufficient evidence to support its probative value.
The Commonwealth responds by noting that this Court has held uncorroborated testimony sufficient to support a conviction. Hodge v. Commonwealth, 17 S.W.3d 824, 841. (Ky. 2000). Therefore, as posited by the Commonwealth, since a conviction may be upheld based solely on uncorroborated testimony, "an even stronger argument exists that the jury may reasonably conclude from [the cooperating witness's] testimony that the prior drug sales took place." We agree with the Commonwealth.
Recently, this Court upheld a conviction that largely relied on the eyewitness testimony of a cooperating witness. Mullins v. Commonwealth, No. 2009-SC-000566-MR, 2010 WL 4156766 *5 (Ky. Oct. 21, 2010). There, the appellant argued that because the Commonwealth's evidence included recordings that were indiscernible and because the cooperating witness was unreliable, the conviction should not stand. Id. However, we rejected that argument and held:
Id. (citing Baker v. Commonwealth, 234 S.W.3d 389 (Ky. App. 2007); People v. Calabria, 816 N.E.2d 1257 (N.Y. 2004); State v. Davis, 848 So.2d 557 (La. 2003)). Thus, having ruled that a jury could base a verdict solely on the eyewitness testimony and since a guilty verdict requires a finding of beyond a reasonable doubt, we must conclude that a trial court does not abuse its discretion in determining that uncorroborated eyewitness testimony is enough to support the lower evidentiary standard required to prove prior acts, i.e., evidence upon which the jury could reasonably conclude that the act occurred and that the defendant was the actor.
Having concluded that the evidence was supported by sufficient evidence so as to be probative of Appellant's knowledge and intent, we must balance that probativeness against the undue prejudice as directed by KRE 403 which provides in pertinent part, "[although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of undue prejudice...."
We recognize that virtually all evidence submitted by the Commonwealth for the purposes of implicating a defendant is prejudicial to some degree. Ford Motor Co. v. Fulkerson, 812 S.W.2d 119 (Ky. 1991); Brown v. Commonwealth, 313 S.W.3d 577, 606 (Ky. 2010). Yet, before evidence may be excluded under KRE 403, the prejudice must be undue and it must substantially outweigh the evidence's probative value. KRE 403. Undue or unfair prejudice as used in 403 is not to be equated with testimony simply adverse to the opposing party. Dollar v. Long Mfg., N.C., Inc., 561 F.2d 613, 618 (5th Cir. 1977).
In this case, the cooperating witness, responding to direct examination by the Commonwealth, made several statements regarding prior drug transactions involving Appellant, to wit:
After this exchange, the trial court admonished the jury not use the above testimony as "evidence of defendant's guilt in this case," and instructed them not to use it except so far as the evidence "may show, if it does show, the defendant's identity with this case, or his knowledge about this case, or his intent in this case." Then, after the admonishment, the Commonwealth continued to question the cooperating witness regarding the events leading up to and surrounding the March 6 transaction.
With this testimony in mind, we now question whether the trial court abused its discretion in determing that the probative value was not substantially outweighed by the undue prejudice.
We begin our analysis by reiterating the maxim that testimony regarding prior bad acts should be "closely watched" and that 404(b), as an exclusionary rule, should be "strictly enforced" because of the "dangerous quality and prejudicial consequences" of this sort of evidence. Clark v. Commonwealth, 223 S.W.3d 90, 96 (Ky. 2007). Indeed, at first blush, and within a vacuum, the testimony above, standing alone, probably would have merited exclusion. However, given the fact that Appellant made a general denial, directly placing his intent in genuine dispute, and because he denied knowledge that the term "bill" referred to a cocaine transaction, we are persuaded in the opposite direction.
The prior transactions which took place mere months
Finally, we turn to Appellant's assertion that the trial court erred by overruling his Batson challenge to the Commonwealth's peremtory strike of juror 155. Finding no error, we affirm the trial court's ruling.
When a defendant objects to the use of a peremptory strike under the auspices of Batson, 476 U.S. 79, the defendant must first make a prima facie showing that the peremptory challenge is on the basis of race. Commonwealth v. Snodgrass, 831 S.W.2d 176, 178 (Ky. 1992). Once the requisite showing has been made, the burden shifts to the prosecutor to articulate a race-neutral explanation for making the peremptory challenge. Id. Ultimately, the trial court must decide whether the defendant has carried the burden of proving purposeful discrimination. Id. Such a decision is entitled to "great deference" on appeal and will only be disturbed where the trial court is clearly erroneous. Gray v. Commonwealth, 203 S.W.3d 679, 690-91 (Ky. 2006); Washington v. Commonwealth, 34 S.W.3d 376 (Ky. 2000).
In this case, the record reveals that the trial court did not determine whether Appellant established a prima facie showing that the peremptory challenge was based on race. Instead, the trial court jumped to the question of whether the Commonwealth had sufficient race-neutral reasons for the peremptory challenge. However, as discussed below, we conclude that the Commonwealth properly asserted a race neutral reason for the strike and thus consider the issue of whether Appellant established a prima facie case moot. Therefore, we confine our analysis to whether the trial court was clearly erroneous in ruling that the Commonwealth had sufficient race-neutral reasons for the peremptory strike. See Snodgrass, 831 S.W.2d at 179 (citing Hernandez v. New York, 500 U.S. 352, 359 (1991)).
In this case, the Commonwealth provided the following race-neutral reasons to the trial court, explaining why it employed a peremptory strike against juror 155:
In response to the race-neutral reasons put forward by the Commonwealth, defense counsel asserted, as he does in this appeal, that since the trial court rejected the abovementioned reasons when it considered a for cause challenge against the same juror, the court should again reject those reasons for purposes of the Batson issue. The trial court rejected that position, and so do we.
When a defendant attacks a peremptory challenge under the auspices of Batson, and after a prima facie case of purposeful discrimination is made, all that is required of the Commonwealth is to articulate a reason that is race-neutral on its face. Commonwealth v. Coker, 241 S.W.3d 305, 307 (Ky. 2007). Absent a discriminatory intent inherent in the prosecutor's explanation, the reason offered "will be deemed race neutral." Gray v. Commonwealth, 203 S.W.3d 679, 690-91 (Ky. 2006) (citing Hernandez, 500 U.S. 352). And as is pertinent to this case, the Commonwealth's explanation for the strike "need not rise to the level justifying exercise of a challenge for cause . . . . " Gamble v. Commonwealth, 68 S.W.3d 367, 371 (Ky. 2002).
Having reviewed the Commonwealth's race-neutral reasons in this case, we cannot say that the trial court was clearly erroneous in accepting them as sufficient justification for a race-neutral peremptory challenge. We reiterate today that the race-neutral reason requirement in Batson does not mandate a party assert reasons equal to those in a for-cause challenge.
For the aforementioned reasons, we affirm the Lincoln Circuit Court in all respects.
All sitting. All concur.
