Howard v. Com.

• Decision Date: 20 October 1989
• Docket Number: No. 88-CA-1521-MR,88-CA-1521-MR
• Citation: Howard v. Com., 787 S.W.2d 264 (Ky. Ct. App. 1989)
• Parties: Ronnie HOWARD, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: Kentucky Court of Appeals

Page 264

787 S.W.2d 264

Ronnie HOWARD, Appellant, v.COMMONWEALTH of Kentucky, Appellee.

No. 88-CA-1521-MR.

Court of Appeals of Kentucky.

Oct. 20, 1989.

Rehearing Denied Dec. 15, 1989.

Discretionary Review Denied

by Supreme Court

May 16, 1990.

David F. Broderick, Elizabeth Y. Downing, Cole, Broderick, Minton, Moore & Thornton, Bowling Green, for appellant.

Frederic J. Cowan, Attorney General, Frankfort, Morris Lowe, Sp. Asst. Atty. Gen., Bowling Green, for appellee.

Before CLAYTON, ELSWICK and MCDONALD, JJ.

ELSWICK, Judge:

During 1987 Hilltopper Billiards was under surveillance by law enforcement officers.Pursuant to 18 U.S.C. Sec. 2516, the Federal Bureau of Investigation received authorization from a United States District Judge to electronically intercept oral communications from the premises.An electronic "bug" was placed under the desk of Drake Jenkins who managed the business and recordings were made of the oral communications in the office.Logs were kept of the conversations and a visual surveillance of the establishment was maintained by the Kentucky State Police.

On September 17, 1987, appellant was observed going into Hilltopper Billiards.As a result of a taped conversation between appellant and Drake Jenkins in which appellant offered to sell Jenkins a pound of marijuana, appellant was indicted by the Warren County Grand Jury.He was subsequently tried, convicted and sentenced to two-years confinement.For the reasons set forth below, we affirm.

Appellant argues the trial court erroneously admitted evidence of conversations illegally obtained by a wiretap.In Basham v. Commonwealth, Ky., 675 S.W.2d 376(1984), the Supreme Court ruled evidence obtained in a wiretap operation conducted by federal law enforcement officers in accordance with federal law and pursuant to a federal court order is admissible in state court proceedings absent collusion between the state and federal authorities to circumvent the statestatute prohibiting wiretaps.The trial court held a suppression hearing on this issue and found no evidence of collusion.We have reviewed the video tape of this hearing and find no error.Accordingly, we hold the tape recording of the conversation between appellant and Jenkins to have been properly admitted into evidence.

During the course of the trial the Commonwealth called Kentucky State Police DetectiveEddie Railey to testify concerning the meaning of certain words used in the conversation between appellant and Jenkins on the theory they were using "drug language" not readily understood by the average juror.Appellant assigns as error the trial court's permitting the witness to identify the voice on the tape as the voice of the appellant.Appellant characterizes Railey as an expert witness.We disagree for we do not believe it requires an "expert" to identify a voice on a tape recording.Railey testified he had known appellant since 1979 or 1980 and was familiar with his voice.He further testified he had heard appellant's voice on at least one other tape recording.Railey testified he had heard the tape recording of the conversation between appellant and Jenkins and recognized his voice.Under Rule 901(b)(5) of the Federal Rules of Evidence this is clearly admissible.Even if it were error, which it was not, in view of the photograph of appellant entering Hilltopper Billiards shortly before the conversation took place, the testimony of other officers who observed appellant enter the premises and appellant identifying himself on the tape in response to questions by Jenkins after he knocked on the door to Jenkins' office but before he was admitted, it would be harmless error.In other words, there was ample evidence of appellant's identity even without Railey's testimony as to identity.

Insofar as the audibility of the tape is concerned, this is a matter within the sound discretion of the trial court.Sanborn v. Commonwealth, Ky., 754 S.W.2d 534(1988).We find nothing wrong with the Commonwealth presenting evidence interpreting drug language as it assisted the jury in understanding the taped conversations.State v. Nightwine, 137 Ariz. 499, 671 P.2d 1289(App.1983).

Appellant assigns as error the failure of the Commonwealth to produce the marijuana allegedly possessed by the appellant for purposes of sale.In this case no marijuana was seized by the Commonwealth.Appellant was observed entering Hilltopper Billiards carrying a paper bag of sufficient size to contain a pound of marijuana.He was taped offering to sell Drake Jenkins a pound of marijuana for sixteen hundred dollars.Jenkins declined to buy because of the price asking appellant if he had any cheaper.Appellant replied that he did, but that he would have to deliver it later that evening because he didn't have the cheaper grade with him.The police did not arrest appellant at this time because of the ongoing investigation which they did not wish to jeopardize by making an arrest.As a result thereof, no marijuana was seized.

KRS 218A.010(19) defines "traffic" to mean, inter alia, possession of a controlled substance with intent to sell.Appellant argues Jacobs v. Commonwealth, Ky., 551 S.W.2d 223(1977), requires production of some amount of the controlled substance.We do not agree with this interpretation of Jacobs.

In Jacobs appellant was arguing the quantity of phenmetrazine seized was insufficient to sustain a conviction for violation of possession of a Schedule II nonnarcotic controlled substance under KRS 218A.070(3)(c).The Supreme Court ruled that evidence of possession of any amount of the controlled substance was sufficient to withstand a motion for a directed verdict of acquittal.We do not, therefore, read Jacobs to require the Commonwealth to produce an actual physical sample of the controlled substance as that was not the issue addressed to the Court.

We are also cited to Green v. Commonwealth, Ky.App., 684 S.W.2d 13(1985), andSmith v. Commonwealth, Ky., 722 S.W.2d 892(1987).Green involved the unnecessary destruction of a total drug sample.This court ruled the test results would be inadmissible "... unless the defendant is provided a reasonable opportunity to participate in the testing, or is provided with the notes and other information incidental to the testing, sufficient to enable him to obtain his own expert evaluation."As the Commonwealth is not seeking admission of any test results for the reason it doesn't have any, we deem Green to be distinguishable on the facts.Smith is a rape and murder case in which the Supreme Court cites the opinion of this court in Green.The Supreme Court held on the facts in Smith that the results...