A circuit court jury convicted Richard H. Townsend, II, of three counts of first-degree trafficking in a controlled substance, first offense, for conducting three separate drug transactions with a confidential informant, Justin Tate. The trial court sentenced Townsend to twenty years' imprisonment,
Townsend contends (1) that the trial court erred in allowing Tate to testify why Townsend told him not to mention money during the drug transactions and (2) that the Commonwealth committed prosecutorial misconduct by arguing to the jury that Townsend would commit more crime if he was acquitted.
Finding no error, we affirm the conviction.
Justin Tate, a confidential informant for the Kentucky State Police, worked with Detective Phil Clark on three controlled drug transactions involving Townsend. In each of the transactions, Tate purchased Oxycodone from Townsend in exchange for cash. Tate wore a recording device during each of the three transactions, and Detective Clark accompanied him during two of the transactions.
At trial, the Commonwealth played the audio recordings of each of the drug transactions for the jury. The content of the recordings was buttressed by the testimony of both Tate and Detective Clark, who explained their processes and their understanding of the illicit transactions that they were a part of.
The jury convicted Townsend on all three counts of first-degree trafficking in a controlled substance, first offense, and recommended the maximum penalty of ten years on each count. The trial court accepted the jury's recommendation, sentencing Townsend to serve each sentence consecutively, not to exceed twenty years. This appeal followed.
Townsend first argues that the trial court erred in allowing Tate to testify about why Townsend told him not to mention money during the first drug transaction. Townsend argues that allowing Tate's testimony on this topic is both irrelevant and speculative. He argues that the testimony is irrelevant because it does not make the existence of any fact of consequence to the jury's determination of whether or not Townsend sold drugs any more or less probable. Further, he alleges that Tate's testimony explaining Townsend's request not to mention money is an improper topic of testimony because it required speculation. We disagree.
After the jury heard the audio recording of the first transaction between Townsend and Tate, in which Townsend can be heard asking Tate to refrain from mentioning money, the Commonwealth asked Tate to explain to the jury why Townsend requested he refrain from discussing money. Over Townsend's objection, Tate responded that it would make recording the transaction more difficult and that Townsend requested that hand signals be used instead of verbal articulations of money.
It is the most elementary of all evidence rules that 101 relevant evidence is admissible" unless otherwise provided for by law.
Here, Townsend argues that Tate's testimony regarding why Townsend did not want to mention money during the first recorded transaction was not relevant under the Kentucky Rules of Evidence because the testimony would not make the existence of any fact relevant to the jury's determination of whether or not Townsend sold drugs to Tate more or less probable. We find no credence in this argument. Tate's testimony as to why Townsend did not want him to discuss money was directly aimed at disproving the contention that none of the three recordings of the transactions has an easily identifiable expression of the terms of the illicit drug transaction that was taking place. Townsend further clarifies the Commonwealth's need for this type of explanatory evidence by noting in his brief before this Court that "[t]here is not a clear mention of a buy taking place on any of the tapes." Surely, in instances such as this, the Commonwealth is entitled to proffer evidence tending to explain why the drug transactions took place the way they did and why the contents of the recording may not include specific descriptions of the terms of the exchange taking place. We find that Tate's testimony regarding why Townsend did not want to discuss money during the deal was relevant under KRE 401; and, therefore, the trial court did not abuse its discretion in admitting the testimony.
Townsend secondarily argues that Tate's testimony about why Townsend did not want to discuss money audibly was improper because it was speculative. Although Townsend frames this argument in terms of speculation, it appears to truly be charging that Tate's testimony was violative of the mandate in KRE 602 that a witness must have personal knowledge of the matters to which he will testify. Under KRE 602, "[a] witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter."
It is true that KRE 602 will often, present a viable argument for barring testimony that requires a witness to explain what a defendant was thinking when he made a specific statement. But that is not the case here. The evidence introduced at trial showed that Townsend had previously explained to Tate why he did not want to use words to describe the transaction taking place and, more specifically the money changing hands, because he was fearful of being caught. Tate's personal knowledge on this subject is most notably shown by the audio recording of the second transaction that contains Townsend's explanation of why their transactions should not include discussion of money and should be "finger deals." Perhaps most damning to Townsend's argument on this issue is that his attorney conceded to the trial court that Townsend had articulated to Tate why he did not want money to be discussed and further admitted that it was contained on the tape of the second drug transaction. Accordingly, we hold that Tate had sufficient personal knowledge to testify about why Townsend did not want to money to be mentioned; and the trial court did not abuse its discretion in allowing Tate's testimony.
As his second assignment of error, Townsend argues that the Commonwealth committed prosecutorial misconduct in its closing arguments in both the guilt and penalty phase. Townsend concedes this issue is not preserved for review, so we review for palpable error.
Townsend contends that two similar comments by the Commonwealth amount to prosecutorial misconduct. The first statement took place during the guilt phase when the prosecutor remarked that if Townsend is found not guilty, "he'll just go back and push more pills into Boyd County." The second statement took place during the penalty phase when the prosecutor again remarked that if Townsend were released too soon, he "will do this in Boyd County again." Townsend argues that both statements are improper comments on the consequences of a verdict in violation of Payne v. Commonwealth
This Court has previously faced a similar argument regarding a violation of Payne in Barth v. Commonwealth.
This Court has also often disfavored "send a message" type arguments during the guilt phase.
For the foregoing reasons, we find no error in Townsend's trial and affirm his conviction.
All sitting. All concur.