Watkins v. Commonwealth of Kentucky

• Decision Date: 09 May 2003
• Docket Number: NO. 2002-CA-001097-MR.,2002-CA-001097-MR.
• Parties: CEDRIC WATKINS, APPELLANT v. COMMONWEALTH OF KENTUCKY, APPELLEE.
• Court: Kentucky Court of Appeals

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CEDRIC WATKINS, APPELLANT v. COMMONWEALTH OF KENTUCKY, APPELLEE.

NO. 2002-CA-001097-MR.

Court of Appeals of Kentucky.

May 9, 2003.

APPEAL FROM DAVIESS CIRCUIT COURT HONORABLE THOMAS O. CASTLEN, JUDGE ACTION NO. 01-CR-00436.

Kim Brooks, Covington, Kentucky, BRIEF FOR APPELLANT.

Albert B. Chandler, III, Attorney General, and Ian G. Sonego, Assistant Attorney General, Frankfort, Kentucky, BRIEF FOR APPELLEE.

BEFORE: EMBERTON, CHIEF JUDGE; BAKER AND HUDDLESTON, JUDGES.

OPINION AFFIRMING

** ** ** ** ** ** ** **

BAKER, JUDGE.

Cedric Watkins appeals from a judgment of the Daviess Circuit Court sentencing him to ten years for trafficking in a controlled substance in the first degree and being a persistent felony offender in the first degree following a jury trial. We affirm.

In September 2001, the Owensboro Police Department received complaints about open-air drug dealing near a certain low-income apartment complex. In response, police officials in the Street Crimes Unit decided to conduct an operation involving a controlled drug-buy utilizing a confidential informant. Sergeant David Thompson, the commanding officer of the Street Crimes Unit, elicited the assistance of C.A., who had worked with Sgt. Thompson on previous occasions, to act as a paid confidential informant.

On the night of September 28, 2001, Sgt. Thompson and Officer Scott Norris met with C.A. at a hotel parking lot, searched him for drugs, installed a microphone transmitter in his truck, gave him a $20 bill to purchase the drugs, and instructed him where to go. C.A. went to the housing complex, drove around for a few minutes, and then parked near a refuse dumpster. Simultaneously, members of the Street Crimes Unit went to the area in two vehicles—one containing Sgt. Thompson and Officers Brock Peterson and Anthony Meadows, and a second containing Officers Scott Norris and Mark Powers. Sgt. Thompson had a receiving device that allowed him to monitor and record transmissions from the microphone transmitter. The first vehicle containing Thompson, Meadows, and Peterson was positioned so that they could also visually observe C.A.'s actions.

As C.A. circled the complex, he saw Watkins on a bicycle. As soon as C.A. stopped his truck at the dumpster Watkins approached him and they engaged in a drug transaction. Watkins offered to sell C.A. either two small pieces or one larger piece of rock cocaine. C.A. opted for the single piece, gave Watkins the $20 bill, and drove away. As soon as C.A. left the immediate area, the police officers in both vehicles started pursuing Watkins. As the first vehicle approached Watkins, he recognized Officer Meadows and allegedly threw an object onto the ground. When the officers were in the process of taking him into custody, Watkins was still holding the $20 bill that he received from C.A. in his hand. When the second vehicle arrived, Officer Peterson told them that Watkins had thrown something. In a search of the area, Officer Norris recovered a brown paper napkin containing 6-7 pieces of rock cocaine on the ground a few feet from Watkins.

Sgt. Thompson met with C.A. at the designated meeting place, searched him again, and conducted a debriefing, which was recorded. C.A. gave Sgt. Thompson the piece of rock cocaine that he had purchased from Watkins. Watkins was arrested and charged with trafficking in cocaine.

On November 6, 2001, the Daviess County grand jury indicted Watkins on one felony count of trafficking in a controlled substance in the first degree (cocaine) (Kentucky Revised Statute (KRS) 218A.1412) and for being a persistent felony offender in the first degree (PFO I) (KRS 532.080). The circuit court conducted a jury trial on March 26-27, 2002. The witnesses included, inter alia, Sgt. Thompson, Officers Norris, Peterson and Powers for the Commonwealth, and Watkins for the defense. Watkins admitted selling C.A. the cocaine but suggested that he had been entrapped and targeted by the police in retaliation for his criticism of the police department in a newspaper article. Defense counsel moved for a directed verdict based in part on a defense of entrapment at the close of the Commonwealth's case,¹ which was denied. The trial court instructed the jury on first-degree trafficking in a controlled substance (cocaine) with an entrapment defense and first-degree possession of a controlled substance. The jury returned a guilty verdict on first-degree trafficking in a controlled substance (cocaine) and PFO I and recommended a sentence of ten years. On May 13, 2002, the trial court entered a judgment sentencing Watkins to serve ten years' imprisonment for firstdegree trafficking in a controlled substance (cocaine) and being a PFO I consistent with the jury's verdict. This appeal followed.

Watkins raises two issues on appeal. First, he challenges the trial court's exclusion of certain evidence offered by the defense concerning C.A.'s prior criminal record. During cross-examination of Sgt. Thompson, defense counsel asked him that whether when he hired informants, he wanted persons who would be believable as a witness in a trial. Sgt. Thompson responded affirmatively and said he performed a background investigation of a potential informant's criminal history to determine character and suitability. When asked what his investigation of C.A. revealed, Sgt. Thompson said he found only "assaults." Defense counsel then attempted to question Sgt. Thompson about several prior charges involving C.A., and the Commonwealth objected.

The trial court conducted a hearing outside the presence of the jury where defense counsel indicated that he wanted to question Sgt. Thompson and C.A. for impeachment purposes about the following aspects of C.A.'s criminal history: (1) a 1995 misdemeanor conviction for violation of an emergency protective order; (2) a 1995 charge for hindering prosecution that was dismissed; (3) a July 2000 misdemeanor conviction for fourth-degree assault; and (4) a pending charge for public intoxication. The trial court sustained the Commonwealth's objection with respect to excluding reference to the first three items, but it allowed defense counsel to question C.A. during his cross-examination as to the pending public intoxication charge for purposes of demonstrating possible bias on the part of C.A.. See, e.g., Bowling v. Commonwealth, Ky., 80 S.W.3d 405, 411 (evidence of pending indictment admissible to show bias of witness in seeking favor of prosecutor though not for impeachment). Watkins contends that the evidence of C.A.'s criminal history was admissible to impeach Sgt. Thompson's statement concerning C.A.'s credibility based on a criminal history containing only "assaults."²

Kentucky Rule of Evidence (KRE) 611(b) sets forth the general scope of cross-examination stating: "A witness may be cross-examined on any matter relevant to any issue in the case, including credibility. In the interest of justice, the trial court may limit cross-examination with respect to matters not testified to on direct examination." In addition, KRE 608 limits attack of a witness' character to general reputation evidence and KRE 609(a) limits attack of a witness' credibility by evidence of his criminal history to felony convictions. See also KRE 404(a)(3) (referring to KRE 607, KRE 608, and KRE 609 with reference to admissibility of character evidence relating to witnesses). Watkins asserts that the criminal history evidence was not offered to question C.A.'s character, and these rules do not prohibit use of the evidence to impeach Sgt. Thompson's testimony with respect to the thoroughness of his research of C.A.'s background. This position is untenable and disingenuous.

The issue of C.A.'s criminal history arose during cross-examination of Sgt. Thompson by defense counsel involving C.A.'s credibility or believability as a witness in any potential criminal prosecution. This line of questioning clearly was intended to solicit information implicating C.A.'s character and credibility, which is generally limited to general reputation and not specific criminal acts. Use of the misdemeanor convictions would have been inadmissible to impeach C.A. during his cross-examination under KRE 609(a), and the defense cannot introduce evidence of specific acts that would be otherwise inadmissible in questioning C.A. indirectly through questioning of Sgt. Thompson absent some other valid basis other than impeachment or attack of C.A.'s credibility or character for truthfulness. Although the rules of evidence do not explicitly prohibit impeachment generally by evidence of specific instances of conduct, the Kentucky Supreme Court has stated that the principle prohibiting impeachment of a witness by "`particular wrongful acts'" is embedded in CR 43.07 and case law. See e.g., Tamme v. Commonwealth, Ky., 973 S.W.2d 13, 29; Daugherty v. Kuhn's Big K Store, Ky. App., 663 S.W.2d 748. RCr 43.07 provides in relevant part:

A witness may be impeached by any party, without regard to which party produced him, by contradictory evidence, . . . or by evidence that his general reputation for untruthfulness renders him unworthy of belief; but not by evidence of particular wrongful acts, except that it may be shown by the examination of a witness, or record of a judgment, that he has been convicted of a felony.

Watkins' argument that C.A.'s criminal record was admissible to impeach through contradictory evidence the testimony of Sgt. Thompson concerning his background search of C.A. is unavailing. This rationale violates the collateral facts doctrine, which is well established in case law. See Robert Lawson, The Kentucky Evidence Law Handbook § 4.10 (3d ed. 1993); Eldred v. Commonwealth, Ky., 906 S.W.2d 694, 705. This doctrine prohibits impeachment by contradiction on facts that have no independent material relevance and require extrinsic evidence. "`A matter is considered collateral if the matter itself is not relevant in the litigation to establish...