Potts v. Com.

• Decision Date: 22 September 2005
• Docket Number: No. 2003-SC-0500-MR.,2003-SC-0500-MR.
• Parties: Anthony Monroe POTTS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

172 S.W.3d 345

Anthony Monroe POTTS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 2003-SC-0500-MR.

Supreme Court of Kentucky.

September 22, 2005.

Euva D. May, Assistant Public Advocate, Appellate Division, Department of Public Advocacy, Frankfort, KY, Counsel for Appellant.

Gregory D. Stumbo, Attorney General, William Robert Long, Jr., Assistant Attorney General, Criminal Appellate Division, Frankfort, KY, Counsel for Appellee.

Opinion of the Court by Justice COOPER.

A Montgomery Circuit Court jury convicted Appellant, Anthony Monroe Potts, of three counts of trafficking in a controlled substance in the first degree, KRS 218A.1412, and found him to be a persistent felony offender in the first degree, KRS 532.080(3). He was sentenced to a total of twenty years of imprisonment and appeals to this Court as a matter of right, Ky. Const. § 110(2)(b), claiming that the trial court committed reversible error by: (1) overruling his motion for a directed verdict of acquittal; and (2) permitting the introduction of two inaudible videotapes and one inaudible audiotape of purported drug transactions. Finding no error, we affirm.

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Appellant's convictions arose out of three drug transactions with Betty Hall, who was working as a confidential informant for the Kentucky State Police. Hall, who was previously charged with trafficking in marijuana, informed the Kentucky State Police that Appellant supplied her with crack cocaine. She agreed to cooperate in an investigation and began working with Detective Mike Martin of the Kentucky State Police. On August 29, 2001, Hall placed a call to Appellant's cellular telephone and arranged to meet with him to purchase approximately one gram of crack cocaine. Martin searched Hall and her vehicle prior to the transaction to ensure that she did not possess any crack cocaine that she could falsely claim to have obtained from Appellant. Martin then equipped Hall with an audio recording device placed a video recording device inside her vehicle, and gave her $100.00 in cash. Martin followed Hall to a Wal-Mart parking lot, where he witnessed Appellant exit a separate automobile and sit down in the passenger side of Hall's vehicle. Appellant remained in Hall's vehicle for a short period of time, returned to the other automobile, and drove away. Martin followed Hall to a predetermined location, where he searched her a second time. Hall gave Martin approximately one gram of crack cocaine, and she no longer had the cash that Martin had given to her. At Appellant's trial, Hall testified that she gave Appellant the $100.00 in exchange for the crack cocaine.

On September 10, 2001, Hall contacted Appellant again and arranged to meet him in a car wash parking lot for another transaction. As before, Martin searched Hall and her vehicle, equipped Hall with an audio recording device, placed a video recording device inside Hall's vehicle, and provided her with $100.00 in cash. Martin followed Hall to the car wash and witnessed Appellant approach her vehicle. This time, Appellant leaned into the window of Hall's vehicle and briefly spoke with her. After Hall drove away, Martin followed her to a predetermined location, where he searched her and received approximately one gram of crack cocaine. Hall later testified that she gave Appellant the $100.00 in exchange for the crack cocaine.

Finally, on October 17, 2001, Hall again contacted Appellant on his cellular telephone and arranged a meeting in a Kroger parking lot. Martin followed the same procedures as with the two previous transactions, except this time he provided Hall with $250.00 in cash. Upon Hall's arrival at the Kroger parking lot, Martin observed an unfamiliar vehicle, which he later discovered was registered to Appellant's brother. Hall exited her own vehicle, walked toward the other vehicle, and sat in its front passenger seat. A short time later, Hall exited that vehicle, returned to her own vehicle, and drove away. Martin followed Hall to the debriefing location, where she provided him with an "eight ball," or approximately four grams, of crack cocaine. Hall testified at Appellant's trial that she gave Appellant the $250.00 in exchange for the "eight ball" of crack cocaine.

I. SUFFICIENCY OF THE EVIDENCE.

Appellant claims that the trial court erred in overruling his motion for a directed verdict of acquittal because the evidence was insufficient to support his convictions for trafficking in a controlled substance. Appellant asserts that there are two types of sufficiency: "quantitative sufficiency," which is lacking when the evidence presented at trial fails to establish each element of the charged offense; and "qualitative sufficiency," which, according to Appellant, is lacking when the evidence presented at trial is so unreliable that a conviction could not be based on that evidence alone. Appellant does not dispute that the Commonwealth presented enough evidence at his trial to satisfy the "quantitative sufficiency" requirement. Rather, he argues that because the Commonwealth's primary witness, Betty Hall, suffered from bipolar disorder, admitted to drug use, and had a motive to fabricate her accounts of Appellant's drug transactions, her testimony was so lacking in credibility that it rendered the evidence "qualitatively insufficient" to support his convictions. We reject this proposition for several reasons.

Before addressing the validity of the so-called "qualitative sufficiency" issue, however, we note that this issue is unpreserved. Appellant's motion for a directed verdict of acquittal failed to specify any grounds for the motion. CR 50.01 states, in pertinent part, "[a] motion for a directed verdict shall state the specific grounds therefor." We have previously applied CR 50.01 to criminal cases and have held that its requirement of "specific grounds" must be followed to preserve for appellate review a denial of a motion for a directed verdict of acquittal. Pate v. Commonwealth, 134 S.W.3d 593, 597-98 (Ky.2004); Daniel v. Commonwealth, 905 S.W.2d 76, 79 (Ky.1995). See also Hicks v. Commonwealth, 805 S.W.2d 144, 148 (Ky.App.1990). In Pate, the defendant moved for a directed verdict at the close of the Commonwealth's case and renewed his motion at the close of all evidence, but merely stated, "I make a motion for a directed verdict, Your Honor." 134 S.W.3d at 597. The motion in Pate, which we held to be inadequate to preserve the issue for appellate review, is factually indistinguishable from Appellant's motion in this case. Because this issue is unpreserved, we will review it only for a palpable error that affected Appellant's substantial rights and resulted in manifest injustice. RCr 10.26.

Appellant interprets dictum in Schoenbachler v. Commonwealth, 95 S.W.3d 830 (Ky.2003), to mean that a failure by the Commonwealth to present sufficient evidence to support a criminal conviction always constitutes palpable error. Id. at 836-37.¹ Our cases, however, are replete with affirmances of convictions where unpreserved errors pertained to the Commonwealth's failure to prove an element of the offense. E.g., Pate, 134 S.W.3d at 597-98 (failure to prove possession of all the chemicals or equipment necessary to manufacture methamphetamine — but also holding that there was no failure of proof); Baker v. Commonwealth, 973 S.W.2d 54, 55 (Ky.1998) (failure to prove victim of unlawful imprisonment was exposed to risk of serious physical injury — but also holding that there was no failure of proof); Daniel v. Commonwealth, 905 S.W.2d 76, 79 (Ky.1995) (failure to prove child sex abuse victim was less than twelve years of age); Knox v. Commonwealth, 735 S.W.2d 711, 712 (Ky.1987) (same), overruled on other grounds by Lane v. Commonwealth, 956 S.W.2d 874 (Ky.1997); Jackson v. Commonwealth, 670 S.W.2d 828, 832 (Ky.1984) (failure to prove value of stolen property — but vacating conviction on other grounds); Marshall v. Commonwealth, 625 S.W.2d 581, 583 (Ky.1981) (failure to prove date of prior conviction used for persistent felony offender enhancement). Appellant's interpretation of Schoenbachler not only runs contrary to each of these decisions, but also would essentially eliminate the well-established requirement that a party properly preserve a claim of insufficiency of evidence by informing the trial court of the relief requested and the reasons therefor. We therefore disagree with Appellant's interpretation of Schoenbachler.

According to Appellant, where evidence is found to be sufficiently lacking in credibility, the Due Process Clause requires reversal of a conviction primarily based on that evidence. Appellant cites Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977), and Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), in support of that proposition. However, those decisions addressed only the admissibility of identification testimony, both holding that the reliability of the identification is the critical factor in determining its admissibility. Manson, 432 U.S. at 114, 97 S.Ct. at 2253; Neil, 409 U.S. at 199, 93 S.Ct. at 382. Neither opinion contains language suggesting that the Due Process Clause's standards for admissibility of identification testimony should be extended to govern appellate review of claims of insufficiency of evidence.

In Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the United States Supreme Court articulated the standard of review required by the Due Process Clause with respect to the sufficiency of evidence to support a criminal conviction, holding that "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id. at 318-19, 99 S.Ct. at 2788-89. Appellant claims that the Jackson standard embodies both "quantitative sufficiency" and "qualitative sufficiency."...