Blankenship v. Commonwealth

Decision Date05 April 2019
Docket NumberNO. 2017-CA-000630-MR,2017-CA-000630-MR
CourtKentucky Court of Appeals




ACTION NO. 14-CR-00064



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JONES, JUDGE: Allen Neil Blankenship brings this appeal from an order of the Russell Circuit Court finding him guilty of manufacturing methamphetamine and sentencing him to ten years' imprisonment. Following review of the record and applicable law, we affirm in part, reverse in part, and remand for a new trial.


On the early evening of March 19, 2014, retired Russell County Sheriff Larry Bennett observed Blankenship, one of Bennett's neighbors, engaging in erratic behavior in his yard. Concerned by Blankenship's behavior, Bennett called Deputy Nick Bertram on his cellphone and requested that Bertram stop by Blankenship's home to conduct a wellness check. Upon arriving at Blankenship's home, Bertram spoke with Blankenship and concluded that he was not in need of any medical assistance. During their conversation, however, Bertram noted a strong chemical odor inside Blankenship's home, which he recognized as characteristic of a methamphetamine lab, and observed that Blankenship's behavior was consistent with what he recognized as signs of being under the influence of methamphetamine. After receiving Blankenship's written consent to search the premises, Bertram searched Blankenship's home, and a one-step methamphetamine lab was discovered. Blankenship was arrested, and, on July 16, 2014, a Russell County Grand Jury issued an indictment charging Blankenship with one count of manufacturing methamphetamine. Blankenship pleaded not guilty to the charge.

Following numerous continuances and changes in Blankenship's trial counsel, a jury trial commenced on February 15, 2017. Following presentation of all evidence, the jury returned a verdict finding Blankenship guilty ofmanufacturing methamphetamine and recommended a sentence of ten years' imprisonment. On March 28, 2017, the trial court entered a final judgment on trial verdict, which adopted the recommendations of the jury. Blankenship then appealed his conviction to this Court. Additional facts will be developed as necessary.


On appeal, Blankenship asserts the following counts of error: that the trial court erred in permitting Bertram to testify by deposition, rather than by live testimony; that the way in which the cross-examination portion of Bertram's videotaped deposition was played to the jury violated his right to confrontation; that the trial court erred in allowing a computer aided dispatch ("CAD") report to be introduced as a business record; that the trial court erred in excluding evidence of Bertram's prior mishandling of evidence; that the trial court erred in failing to strike two jurors for cause; and that the trial court erred in failing to instruct the jury on possession of drug paraphernalia, which Blankenship contends is a lesser-included offense of manufacturing methamphetamine. We address each argument in turn.

A. Use of Deposition Testimony at Trial

In the interim between Blankenship's arrest and the jury trial, Bertram left his job with the Russell County Sheriff's Department. In November of 2016,the Commonwealth moved the trial court for an order allowing it to take Bertram's deposition for use at trial. In support of that motion, the Commonwealth stated that Bertram was currently undergoing mandatory training in North Carolina for his new job. The Commonwealth believed that Bertram, who was a material witness for the Commonwealth's case, would be unavailable to testify at trial as he was unable to leave his training and, once all training was complete, would be deployed to Baghdad, Iraq. Over Blankenship's objections, the trial court permitted the Commonwealth to take a videotaped deposition of Bertram.

Bertram was deposed on January 6, 2017. The deposition was taken in the courtroom before the trial judge, and Blankenship and his counsel were present and fully cross-examined Bertram. In addition to testifying about his search of Blankenship's home, a portion of Bertram's deposition testimony related to his unavailability to testify in person at Blankenship's trial. Bertram acknowledged that he had been served with a subpoena; however, he testified that it was highly unlikely that he would be able to appear at trial. Bertram testified that he was currently in training to handle bomb-detecting dogs. He stated that he was currently on a break from training. But, prior to beginning that break, he had not been permitted to leave training. Bertram testified that he had signed a contract acknowledging that if he left his training at any point before it was completed, he would be required to reimburse his employer for approximately $42,000—theamount his employer had incurred in training expenses. Bertram testified that he had to return to training for thirty-five more days; then, assuming he obtained certification, he would be deployed to Iraq. Based on this testimony, the trial court determined that it was proper for the Commonwealth to use Bertram's videotaped deposition at trial.

On appeal, Blankenship contends that use of the videotaped deposition at trial constitutes reversible error. While Blankenship acknowledges that RCr1 7.20(1) permits the introduction of deposition testimony at a criminal trial in limited circumstances, he contends that the Commonwealth could not rely on RCr 7.20(1) because it failed to make a good-faith effort to secure Bertram's presence at trial. Accordingly, Blankenship contends that use of Bertram's deposition at trial violated his Sixth Amendment right to confront a witness against him. We review a trial court's determination that a witness is unavailable to give live testimony for an abuse of discretion. Brooks v. Commonwealth, 114 S.W.3d 818, 821 (Ky. 2003).

RCr 7.20(1) permits the introduction of deposition testimony at a criminal trial under limited circumstances:

At the trial or upon any hearing, a part or all of a deposition, so far as otherwise admissible under the rules of evidence, may be used if it appears: that the witness is dead; or that the witness is out of the Commonwealth ofKentucky, unless it appears that the absence of the witness was procured by the party offering the deposition; or that the witness is unable to attend or testify because of sickness or infirmity; or that the party offering the deposition had been unable to procure the attendance of the witness by subpoena.

It was clearly established that Bertram would be out of the Commonwealth of Kentucky at the time that Blankenship's trial was to take place. However, while RCr 7.20(1) allows for introduction of deposition testimony "if it appears . . . that the witness is out of the Commonwealth of Kentucky," the United States Supreme Court has held "that a witness's mere absence from the jurisdiction does not make that witness 'unavailable' for trial." St. Clair v. Commonwealth, 140 S.W.3d 510, 539 (Ky. 2004) (citing Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968)). "Consequently, '[r]eliance upon [RCr 7.20(1)] . . . is not conclusive when a defendant claims a denial of his Sixth Amendment right of confrontation.'" Id. (quoting Lovett v. Commonwealth, 103 S.W.3d 72, 82 (Ky. 2003)). "In short, a witness is not 'unavailable' for purposes of . . . the confrontation requirement unless the prosecutorial authorities have made a good-faith effort to obtain his presence at trial." Barber, 390 U.S. at 724-25, 88 S.Ct. at 1321-22, 20 L.Ed.2d at 260. "This constitutional dimension of witness unavailability is reflected in the Kentucky Rules of Evidence." St. Clair, 140 S.W.3d at 539 (citing Robert G. Lawson, The Kentucky Evidence Law Handbook, § 8.45(IV) at 433 (3d ed. Michie 1993) ("A showing that would meet therequirements of [KRE2 804] would simultaneously satisfy the constitutional dictates of the Confrontation Clause.")).

In the instant case, the Commonwealth elicited testimony from Bertram that he would be unable to comply with the subpoena issued to him because, at the time of trial, he would either be residing outside of the country or would be out of the state completing training for his job. Bertram testified that his employer would not permit him to leave that training to testify without being subjected to extreme pecuniary penalty. In sum, Bertram's testimony made it clear that the Commonwealth had made efforts to procure his presence for trial by issuing a subpoena, but that he would not comply with that subpoena. See KRE 804(a)(5). The trial court was within its discretion in relying on Bertram's statements, made under oath, to determine that the Commonwealth hade made a good-faith effort to secure Bertram's presence for trial.

B. Cross-Examination Portion of Bertram's Testimony

At the trial, the Commonwealth utilized the courtroom's audio and video equipment to play Bertram's videotaped deposition on a large screen, with the audio playing through the courtroom speakers. This method worked effectively for the portion of the video depicting the direct-examination of Bertram. When the cross-examination portion of Bertram's deposition began toplay for the jury, however, it became immediately apparent that it was extremely difficult—if not impossible—to hear the questions Blankenship's counsel posed to Bertram. To remedy this issue, the trial court allowed the Commonwealth to play the remainder of the deposition from a laptop, which was situated right next to the jury box. Audio was played through external speakers attached to the laptop. Before beginning the video, the trial court informed the jury about the technical issues and asked if every juror was able to clearly see the laptop screen. One juror requested that the screen be...

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