Grant v. Commonwealth, No. 2005-SC-000853-MR.

• Decision Date: 24 January 2008
• Docket Number: No. 2005-SC-000853-MR.
• Citation: 244 S.W.3d 39
• Parties: John Gregory GRANT, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

244 S.W.3d 39

John Gregory GRANT, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 2005-SC-000853-MR.

Supreme Court of Kentucky.

January 24, 2008.

Randall L. Wheeler, Assistant Public Advocate, Department of Public Advocacy, Frankfort, KY, Counsel for Appellant.

Jack Conway, Attorney General of Kentucky, Samuel J. Floyd, Jr., Assistant Attorney General, Criminal Appellate Division, Office of the Attorney General, Frankfort, KY, Counsel for Appellee.

Opinion of the Court by Chief Justice LAMBERT.

Following a jury trial in the Grayson Circuit Court, Appellant John Gregory Grant was convicted of manufacturing methamphetamine while in possession of a firearm and possession of a controlled substance (methamphetamine) while in possession of a firearm. He claims his conviction must be reversed due to the admission of improper rebuttal evidence. He challenged the Commonwealth's failure to provide in discovery a copy of a recorded telephone call Appellant placed from the jail. The Commonwealth learned of the recording during trial, while presenting its case in chief, but did not inform Appellant of its existence until after Appellant had concluded his case and testified on his own behalf.

The police obtained a search warrant on February 10, 2004, for the residence and garage of William Payne Jr. after he was suspected of buying pills containing pseudoephedrine at several stores. An officer conducted surveillance of the residence that day. The officer observed Appellant at the garage at around 7:00 to 7:15 p.m. Larry Brooks was also observed at the Payne residence. The search warrant was executed at the property later that night. The police entered both the home and garage. Two people fled into the woods as police arrived. Three people were located in the home and another found behind the garage. Appellant was not present at the Payne residence or garage when the police arrived. The police noticed a video system which allowed those in the garage to observe anyone coming up the driveway to the house. A police clog was used to track the persons who ran, but the dog was unable to follow the trail in the brush.

Police found a working methamphetamine laboratory in the garage. Most of the chemicals needed to manufacture methamphetamine were present at the site. No methamphetamine was found in the garage or house, however. A recipe for manufacturing methamphetamine was found in the residence. Police arrested Larry Brooks later that night. He had in his possession methamphetamine and lithium batteries. Appellant was arrested a few weeks later on March 1, 2004.

Appellant argues that his conviction should be reversed because the Commonwealth failed to timely turn over to him a tape recording of a telephone conversation he had while in jail. He argues that the prosecutor violated a duty to disclose the recording pursuant to an order of the court and provisions of RCr 7.24. The trial court's "Discovery and Inspection" order followed Appellant's motion for discovery. The court ordered the Commonwealth to provide Appellant with the items thereafter listed in the order, and included a command to furnish:

(1) Relevant written or recorded statement [sic] or confessions made by the Defendant, or copies thereof, that are known by the Attorney for the Commonwealth to be in the possession or control of the Commonwealth.

(2) The substance of any oral incriminating statement known by the attorney of the Commonwealth to have been made by the Defendant to any witness, and to permit the Defendant to inspect and copy or photograph any relevant (a) written or recorded statements or confessions made by the Defendant, or copies thereof, that are known by the Attorney for the Commonwealth to be in the possession, custody or control of the Commonwealth[.]

The order also provided that the discovery therein required "shall be reasonable [sic] supplemented as required by RCr 7.24(8)," which provides:

If subsequent to compliance with an order issued pursuant to this rule, and prior to or during trial, a party discovers additional material previously requested which is subject to discovery or inspection under the rule, that party shall promptly notify the other party or the other party's attorney, or the court, of the existence thereof.

Appellant thus contends that the duty contained in the order and RCr 7.24(8) to supplement discovery of Appellant's recorded statements continued throughout trial.

Apparently, the Commonwealth became aware of the recorded conversation at issue during its case in chief when it obtained another jail recording on the morning of the second day of trial.¹ This recording involved William Payne Jr. in a telephone conversation with his mother from the jail. The Commonwealth considered using that recording to impeach a witness at trial. While listening to it, the Commonwealth discovered that William Payne Jr. revealed that Appellant had also placed a phone call from the jail to Payne's parents. The Commonwealth obtained the recording of the conversation between Appellant and Payne's parents, but the Commonwealth's Attorney did not reveal when she first listened to it. During its case in chief, the Commonwealth revealed only to the court and Appellant the existence of the recording of the conversation between Payne and his mother. Nothing was revealed of the conversation in which Appellant was a participant. The Commonwealth then concluded its case.

Appellant testified in his own defense. He testified that he had been to William Payne Jr.'s house on the day the police were there, but had only gone there with Larry Brooks to work on a truck. He asserted that he had not been there while any drug manufacturing or extraction of ephedrine had taken place. He said no one was injecting methamphetamine while he was there. He testified that he did not see any equipment for manufacturing methamphetamine in the garage. He said that the police did not arrive while he was there.

After the conclusion of Appellant's testimony and after he had rested his case, the Commonwealth announced that it had rebuttal evidence. The Commonwealth called Deputy Dennison to testify to a recorded telephone call from the jail. The court asked if the recording had been heard by the defense, and the Commonwealth stated that the deputy was there to testify about a different recording than the one the defense had been informed of previously. The court called for a conference in chambers.

The Commonwealth stated that the recoding it planned to introduce in rebuttal was a conversation between Appellant and the parents of William Payne Jr. The Commonwealth stated that it had only learned of the existence of the statement that morning. The Commonwealth asserted that it was not required to turn over the statement because it was being used as rebuttal evidence. The Commonwealth's Attorney said: "I found out about it when the jail called me this morning and we listened to the first recording. Sandy Payne on the recording says there's a previous conversation between me and [Appellant] Greg Grant. And I'm in rebuttal here. I'm not required to discover my rebuttal evidence."

The recording of the telephone conversation was played in chambers. In the conversation with William Payne Sr., Appellant discussed the allegations against him and made several admissions. He stated that he had taken pseudoephedrine to Payne's house, that he had introduced Brooks to Payne at Payne's request, that Payne had gotten a recipe for manufacturing methamphetamine from the internet after Appellant refused to tell him how, and that he had lied to an officer about whether methamphetamine manufacturing had taken place at Payne's residence. The trial court concluded that the statement contradicted the testimony Appellant had just given on the stand. The court observed that parts of the recording could have been introduced in the Commonwealth's case-in-chief.

The Commonwealth argued that since Appellant made the statement he certainly had knowledge of it. The trial court agreed that Appellant had been informed that calls from the jail might be recorded, so he knew he made the statement. The court held that it would allow the recording, but that Appellant could make his objections for the record. Appellant restated his objection based on not having been provided the recording in discovery....