Walls v. Commonwealth

MARLON WALLS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE

2018-SC-000146-MR

Supreme Court of Kentucky

DECEMBER 13, 2018

IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD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 OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION.

NOT TO BE PUBLISHED

ON APPEAL FROM FRANKLIN CIRCUIT COURT

HONORABLE THOMAS D. WINGATE, JUDGE

NO. 17-CR-00305-001

MEMORANDUM OPINION OF THE COURT

REVERSING AND REMANDING

A Franklin County jury found Marlon Walls guilty of first-degree trafficking in a controlled substance, second or greater offense. Following the jury verdict, the court sentenced Walls to 20 years' imprisonment, per the jury recommendation. Walls appeals as a matter of right alleging the following errors: (1) the trial court's failure to direct a mistrial; (2) the trial court's error in admitting irrelevant and prejudicial evidence as well as evidence in violation of Kentucky Rule of Evidence (KRE) 404(b); (3) the Commonwealth's lack of notice of its intent to introduce KRE 404(b) evidence; (4) improper jury instructions; (5) denial of an unanimous verdict; (6) denial of directed verdict;(7) the Commonwealth's improper attempt to define reasonable doubt in voir dire; and (8) cumulative error. After careful review, we vacate Walls's conviction and remand for a new trial.

I. BACKGROUND

On July 27, 2017, the Franklin County Sheriff's Office was contacted by a confidential informant (CI) who claimed to be able to purchase heroin from a man known as "Bruno." Detective Jeff Farmer knew "Bruno" to be Walls so Farmer used the CI to set up a "controlled buy" of drugs. Farmer searched the CI, provided the CI with a recording device, photographed the buy money, and drove the CI to meet "Bruno." The transaction took place at a convenience store in Frankfort, Kentucky. The CI got into the car with Bruno and returned to Farmer, alleging that he purchased heroin. Another Detective with the Franklin County Sheriff's Office, Detective Banta, watched "Bruno's" car drive to 1020 Champion Way. Farmer drove the CI to 1020 Champion Way to confirm it as "Bruno's" residence.

Farmer alleged to have set up a second buy with the CI later the same day at the same convenience store. Farmer testified that he watched 1020 Champion Way and saw Walls and a white female leave the apartment in a gold, Chevy sedan and drive to the convenience store to meet the CI. At the convenience store, the female entered the store and the CI got into the car to purchase drugs. Walls and the female returned to the residence on Champion Way. Farmer obtained a search warrant on July 28, 2017 for Walls's person and the Champion Way residence, based on the CI transactions.

Farmer instructed the CI to make another buy from Walls at the convenience store. Farmer watched Walls leave the residence, go to the convenience store, and enter the store. Farmer and other officers approached Walls as he exited the store and executed the search warrant on his person. The search revealed some money and a key to the residence, as well as two $50 bills. While Walls was detained at the store, Det. Banta and other officers went to the Champion Way residence to execute that warrant. Laura Jones was inside the apartment. Jones removed a bag of heroin from her bra and told Det. Banta that it was not hers, but that Walls had given her the heroin and told her to hide it on her body.

At trial, Jones testified against Walls and stated that the two were staying with a friend at the Champion Way residence and that Walls supplied her with heroin and also trafficked in heroin. The jury found Walls guilty of trafficking heroin, and the trial court imposed the jury's recommended sentence of twenty years. We set forth additional facts as necessary.

II. ANALYSIS

A. Walls's due process rights were violated through testimony regarding the CI.

Walls first contends that he was denied a fair trial due to the trial court admitting irrelevant and prejudicial evidence relating to the officers' investigation and Walls's alleged prior bad conduct. Each claim of error will be addressed, along with the relevant facts and preservation of each issue.

1. Evidence of prior alleged instances of uncharged trafficking.

Prior to trial, Walls asked the trial court to compel the Commonwealth to turn over any exculpatory or impeachment evidence regarding the CI and the controlled buys. The Commonwealth responded that the CI would not be testifying at trial and the Commonwealth did not plan to use the CI or controlled buys at trial. Walls also argued in limine to exclude: (1) any mention of the controlled buys before the officers' contact with Jones at the residence and (2) any prior criminal records or statements regarding Walls selling, using, or trafficking in drugs. The Commonwealth conceded it would not mention prior convictions and would use the term "prior investigation" when it alluded to Walls's alleged trafficking in drugs with the CI. The Commonwealth intended to state that Walls had two $50 bills on him that were used in a prior investigation. Walls responded that the controlled buys were uncharged allegations, and the use of the $50 implied that there were earlier controlled buys, and this was unduly prejudicial. The trial court overruled Walls's motion, finding it appropriate for the officers to testify about having search warrants because of prior drug trafficking.

At trial, the Commonwealth introduced the two $50 bills through the Franklin County evidence custodian. Det. Farmer testified for the Commonwealth and stated that he asked his informant what car Walls was driving and that he instructed the informant to make another transaction for heroin prior to the execution of the search warrant. Walls objected and requested a mistrial. The court informed the Commonwealth that these thingswere not to be discussed. Defense counsel stated that an admonition could not unring the bell, but to give the admonition to the jury if the trial court would not grant a mistrial. The trial court admonished the jury.

The Commonwealth later asked Det. Farmer if two $50 bills were found on Walls's person. Defense counsel objected again, and the court cautioned the Commonwealth about the questioning. The Commonwealth continued its examination and Det. Farmer testified that the two $50 bills had originated in the Sheriff's office, were involved with the investigation prior to execution of the search warrant, and they were found in Walls's possession. In closing, the Commonwealth said, "It doesn't really matter evidence of drug activity is found in [Walls's] possession with the two $50 bills. Those two $50 bills matched up by serial number to the bills involved in that investigation. But, that doesn't really matter." Walls maintains there was never any testimony regarding the serial numbers on the bills. During deliberations, the jury asked two questions: "What can we conclude from the evidence of $50 found on the defendant?", and "How did Mr. Walls obtain the two $50 bills?" The trial court declined to answer either question and stated, outside the presence of the jury, "I wish I had ruled the other way."

"Relevant evidence" means evidence having 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.

[E]vidence may be excluded if its probative value is substantially outweighed by the danger of undue prejudice, confusion of theissues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.

KRE 403.

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible:

(1) If offered for some other purpose, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident; or

(2) If so inextricably intertwined with other evidence essential to the case that separation of the two (2) could not be accomplished without serious adverse effect on the offering party.

KRE 404(b)(1)&(2).

The case of Graves v. Commonwealth, 384 S.W.3d 144 (Ky. 2012), is instructive. On appeal, Graves alleged that the trial court erred in admitting into evidence allegations that Graves had sold drugs on occasions other than the one being tried. Graves, 384 S.W.3d at 147. "We have recognized that 'it would typically be improper for the Commonwealth or a testifying witness to refer to the undercover buys as Appellant was not being tried for such conduct.'" Id. at 148 (citing Muncy v. Commonwealth, 132 S.W.3d 845, 847 (Ky. 2004)). In Graves, the Commonwealth argued that prior drug transactions were relevant to show modus operandi. This Court rejected that theory and we must do the same here. In Graves, we said that "the Commonwealth is not inferring the unknown event (that Appellant sold cocaine in May) from a known event (that Appellant sold cocaine in April)." Id. at 150. "The proof linking Appellant to the April crime is no better than the proof linking him to the crime on trial. In fact, it's the exact same evidence[.]" Id.

In the case before us, we begin by reiterating that the Commonwealth affirmatively stated it would not be using evidence related to the CI. Unlike Graves, the Commonwealth...