Norton v. Com.

• Decision Date: 15 July 1994
• Docket Number: No. 92-CA-2658-MR,92-CA-2658-MR
• Citation: 890 S.W.2d 632
• Parties: Roger Scott NORTON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: Kentucky Court of Appeals

Page 632

890 S.W.2d 632

Roger Scott NORTON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 92-CA-2658-MR.

Court of Appeals of Kentucky.

July 15, 1994.

Rehearing Denied Oct. 28, 1994.

Discretionary Review Denied By

Supreme Court Feb. 8, 1995.

Mark A. Posnansky, Appellate Public Advocate, Louisville, for appellant.

Chris Gorman, Atty. Gen., Lana Grandon, Asst. Atty. Gen., Criminal Appellate Div., Frankfort, for appellee.

Before JOHNSTONE, McDONALD and WILHOIT, JJ.

OPINION

McDONALD, Judge.

Appellant, Roger Scott Norton, appeals from the judgment of the McCracken Circuit Court convicting him of trafficking in LSD and sentencing him to ten (10) years imprisonment.

Norton presents two arguments on appeal:

ARGUMENT I

THE TRIAL COURT COMMITTED REVERSIBLE ERROR AND VIOLATED APPELLANT'S FEDERAL CONSTITUTIONAL RIGHTS UNDER THE SIXTH AND FOURTEENTH AMENDMENTS AS WELL AS SECTION ELEVEN OF THE KENTUCKY CONSTITUTION BY PERMITTING

THE PROSECUTOR TO PLAY THE TAPE OF THE UNDERCOVER DRUG BUY AND INTRODUCE THE TYPEWRITTEN TRANSCRIPT TO THE JURY.

ARGUMENT II

THE TRIAL COURT COMMITTED REVERSIBLE ERROR AND VIOLATED DUE PROCESS BY PERMITTING EVIDENCE TO BE INTRODUCED REGARDING A PROPOSED SALE OF MARIJUANA.

The background facts of this case are straightforward. In March 1991, acting on a tip from a confidential informant, the Paducah Police Department organized an undercover drug buy. On March 26, 1991, the informant, one Ricky Fritz, and an undercover officer, Lawrence Acree, went to the appellant's residence. Prior to going there, Fritz was thoroughly searched by the police for verification that he was not in possession of any drugs, then both Fritz and Acree were wired with transmitting devices. The transmitters enabled additional police officers who were located in vehicles near appellant's apartment to monitor and record the conversations that occurred between Acree, Fritz and anyone they came in contact with at the residence.

Based on the events that occurred on March 26, 1991, an indictment against the appellant, Norton, and Janie Street was handed down by the grand jury. Norton was charged with trafficking in a schedule I non-narcotic controlled substance (LSD). Street was charged with complicity to trafficking in a schedule I non-narcotic controlled substance (LSD).

Norton and Street (who, subsequent to the date of the event giving rise to the charge but prior to the trial in this matter, were married) were tried together on June 24-25, 1992.

At trial Officer Acree testified about what happened at the appellant's residence and specifically related from his personal knowledge and observations that: during the course of the meeting with the appellant, Norton, he (Norton) took Fritz upstairs and had a "private" discussion with him; the two then returned back downstairs at which time he observed Norton hand the LSD to Fritz; Fritz then passed the LSD to him (Acree); he (Acree) then paid Norton for the LSD; Norton then counted the drug money in his (Acree's) presence. The tape recording made during the course of this transaction was played for the jury who was provided a typewritten transcript (prepared by the Commonwealth and made available to defense counsel) to follow along while listening to the recording. Acree and the officers who monitored and recorded the conversation testified that the tape and transcript "fairly and accurately" reflected what was said on that evening at Norton's residence and that there had been no alteration, no changes, no deletions nor any additions to the content. The officers further identified the portions of the recorded conversation attributable to the informant (Fritz), Officer Acree, and the two defendants, Norton and Street.

The recordings at issue relate a conversation between the two defendants, Norton and Street, Officer Acree, and informant Fritz. The tapes also contain non-substantive remarks and sounds made by unidentified voices in the background. The conversation revolves around a discussion of a possible sale of marijuana, including the logistics of how such a transaction might occur, such as: the quantity desired; the cost; how the money and goods would be delivered and exchanged. Intermingled in this conversation is some discussion regarding "acid": whether Norton has any; how much it costs; and its quality.

In support of his first argument on appeal, i.e., that the trial court committed reversible error in allowing the tape of the undercover drug buy to be played for the jury and allowing the jury to read the typewritten transcript, Norton's contentions are threefold. First, he asserts a confrontation and hearsay problem with the introduction of the tapes and transcript. Secondly, he argues the tapes should have been determined inadmissible because of poor sound quality. Finally, he contends it was reversible error to introduce the transcript that he alleges was the Commonwealth's own interpretation of an inaudible and unintelligible recording.

Norton contends that the playing of the tapes containing unidentified voices and the voice of Janie Street, with statements made attributable to her, violated his right to confrontation. In essence, argues Norton, Street and the other unidentified people effectively became witnesses for the prosecution and he had no ability to confront these witnesses because Street was on trial together with him and the identity of the others was unknown. Accordingly, this forms the basis of his hearsay and confrontation claim.

As related by Professor Lawson, The Kentucky Evidence Law Handbook § 8.05 (3d ed. 1993), Kentucky courts have long adhered to the following principle in defining hearsay:

The theory of the hearsay rule is that when a human utterance is offered as evidence of the truth asserted in it, the credit of the assertor becomes the basis of our inference, and therefore the assertion can be received only when made upon the stand and subject to the test of cross-examination....

This hearsay rule forbids the use of an assertion made out of court, as testimony of the truth of the matter asserted....

Citing Davis v. Bennett's Adm'r, 279 Ky. 799, 807, 132 S.W.2d 334, 338 (1939), and Barnes v. Commonwealth, Ky., 794 S.W.2d 165 (1990). Hearsay has been defined in the Kentucky Rules of Evidence as: " 'Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." KRE 801. Kentucky's rule parrots that contained in the Federal Rules.

Statements made outside the courtroom are divided into categories of hearsay and non-hearsay. If used to prove the truth of the matter asserted, such statements constitute hearsay. If used for some other purpose, the statements are non-hearsay. When such statements are offered into evidence for a non-hearsay purpose, they become evidence which the opposing party may fully scrutinize through cross-examination of the witness offering to prove the making of the statement. This has been the basis for the United States Supreme Court to rule that the admissibility of out-of-court statements for non-hearsay purposes does not in any way violate the confrontation clause. Lawson, supra at § 8.00. See Tennessee v. Street, 471 U.S. 409, 105 S.Ct. 2078, 85 L.Ed.2d 425 (1985).

We conclude that the tapes at issue do not constitute hearsay; instead, they were evidence of the event itself, introduced for a non-hearsay purpose. The issue here is not whether someone else (for instance, the undercover officer) may testify as to what other persons said during the transaction but, instead, whether the tapes of the actual voices of the persons conversing during the course of the transaction are admissible as competent evidence, arguably the best evidence that the transaction or meeting did, in fact, occur and that the statements were, in fact, made. The playing of the tapes was not for the purpose of proving the truth of the matters being asserted, i.e., that a pound of marijuana cost $2,000 or that someone "took a hit and a half and said he was fried," or that the suppliers did not want to come to Norton's place or that Norton lived there since he was 6 years old or that Norton only had one hit left, etc.... The Commonwealth had no interest in proving whether such statements were true but rather that the defendants, Street and Norton, were present, engaged in negotiations, and were involved in the transaction that Officer Acree testified occurred.

Having concluded that the evidence at issue was not hearsay, it follows that there has been no violation of appellant's right to confrontation as embodied in both the United States' and Commonwealth's Constitutions. Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980); United States v. Inadi, 475 U.S. 387, 391-95, 106 S.Ct. 1121, 1124-26, 89 L.Ed.2d 390, 396-98 (1986); White v. Illinois, 502 U.S. 346, 112 S.Ct. 736, 116 L.Ed.2d 848 (1992).

Norton also cites and relies upon Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), and Lee v. Illinois, 476 U.S. 530, 106 S.Ct. 2056, 90 L.Ed.2d 514 (1986), in asserting it was reversible error to play the tapes and introduce the transcript containing statements made by Street. Norton further cites us to Cruz v. New York, 481 U.S. 186, 107 S.Ct. 1714, 95 L.Ed.2d 162 (1987), wherein it was held that "... a non-testifying co-defendant's confession incriminating the defendant is not directly admissible against the defendant." Norton urges us to determine that the introduction of the tapes constituted a classic case of the type error prohibited by the well-recognized constitutional principles set forth in Bruton and adhered to by the Kentucky courts. See Cosby v. Commonwealth, Ky., 776 S.W.2d 367 (1989); Butler v. Commonwealth, Ky., 516 S.W.2d 326 (1974); Lowe v. Commonwealth, Ky., 487 S.W.2d 935 (1972). Norton extends the same argument regarding the statements on the tapes made by unknown...