Opinion
NO. 2016-CA-001858-MR
04-06-2018
CHRISTOPHER A. DITTO APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Molly Mattingly Assistant Public Advocate Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Frankfort, Kentucky Courtney J. Hightower Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM BRECKINRIDGE CIRCUIT COURT
HONORABLE BRUCE T. BUTLER, JUDGE
ACTION NO. 15-CR-00033 OPINION
AFFIRMING
** ** ** ** **
BEFORE: KRAMER, CHIEF JUDGE; COMBS AND THOMPSON, JUDGES. KRAMER, CHIEF JUDGE: Christopher A. Ditto appeals the Breckinridge Circuit Court's judgment convicting him of first-degree trafficking in a controlled substance, methamphetamine, two grams or more; and of being a first-degree persistent felony offender. After a careful review of the record, we affirm the circuit court's judgment.
I. FACTUAL AND PROCEDURAL BACKGROUND
Christopher A. Ditto was indicted on charges of first-degree trafficking in a controlled substance, two or more grams of methamphetamine; and of being a first-degree persistent felony offender (PFO-1st). The circuit court ordered that Ditto should receive a mental and criminal responsibility examination at the Kentucky Correctional Psychiatric Center (KCPC) to determine his mental condition, his competency to stand trial, and his criminal responsibility at the time the offenses were committed. A competency hearing was held, following which the circuit court entered an order finding Ditto competent to stand trial.
Subsequently, a jury trial commenced, during which Ditto moved for a directed verdict of acquittal. His motion was denied. Ditto was convicted of first-degree trafficking in a controlled substance, two or more grams of methamphetamine; and of PFO-1st. He was sentenced to serve fifteen years of imprisonment.
Ditto now appeals, contending that the circuit court erred: (a) in determining Ditto was competent to stand trial; (b) in denying the defense's motion for a continuance; (c) in denying his motion for a directed verdict because there was no proof of a quantity of methamphetamine of two or more grams, and in instructing the jury on first-degree trafficking in methamphetamine, two or more grams; (d) in denying the defense's motion pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); (e) in allowing the Commonwealth to play insufficiently authenticated video and audio exhibits of the drug buy; and (f) in allowing the Commonwealth to elicit narration from Detective Scott McMichael while playing the "buy video" for the jury.
II. ANALYSIS
A. COMPETENCY TO STAND TRIAL
Ditto first alleges that the circuit court erred in determining he was competent to stand trial. During the competency hearing in this case, Dr. Jaclyn Williams, a temporary licensed psychologist at KCPC who had evaluated Ditto, testified. Defense counsel objected to Dr. Williams's being permitted to testify as an expert because defense counsel did not believe that Dr. Williams was qualified to provide expert testimony. Dr. Williams attested that she had completed a rotation of her internship at KCPC where she conducted about sixty psychological evaluations that went toward the overall competency and criminal responsibility evaluations of KCPC patients. Additionally, since obtaining her doctoral degree nine months earlier, Dr. Williams had been working toward completing her one year of post-doctoral training at KCPC, working as a full-time evaluator conducting competency and criminal responsibility evaluations. Dr. Williams attested that during her post-doctoral training at KCPC, she had completed sixty-six evaluations. She was a "temporary licensed psychologist," which meant that the Commonwealth of Kentucky permitted her to work toward completing her post-doctoral work at KCPC while she was under the supervision of another doctor. Dr. Williams attested that the doctor who supervised her had approximately twenty-five years of experience in Kentucky conducting forensic evaluations. The circuit court overruled defense counsel's objection and allowed Dr. Williams to testify as an expert.
"The qualification of a witness as an expert rests within the sound discretion of the trial court. KRE 702." Combs v. Stortz, 276 S.W.3d 282, 294 (Ky. App. 2009). Pursuant to KRE 702,
Kentucky Rule of Evidence.
[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if:
(1) the testimony is based upon sufficient facts or data,
(2) the testimony is the product of reliable principles and methods, and
(3) the witness has applied the principles and methods reliably to the facts of the case.
In the present case, Dr. Williams qualified as an expert based at least upon her education and training. The circuit court properly found that Dr. Williams's testimony was based upon sufficient facts or data. Dr. Williams testified that when Ditto arrived at KCPC, he met with a staff psychiatrist who took his medical history and performed a physical examination of him. He also met with a social worker who obtained his records and a history of his functioning. While Ditto was at KCPC, he was observed around the clock, and his medical chart from KCPC included notes from nurses and security personnel who had been observing him since he arrived there. Dr. Williams reviewed the aforementioned records, as well as records from when he was discharged from the hospital. She also conducted her own evaluation of Ditto. Consequently, Dr. Williams's testimony was based upon sufficient facts or data.
Regarding whether Dr. Williams's testimony is the product of reliable principles and methods, she attested that she used various measures to assess Ditto's intellectual, emotional, and psychiatric functioning during her evaluation. These included the Wexler test to determine Ditto's IQ; the Miller Forensic Assessment of Symptoms Test (MFAST) to determine if Ditto was over-exaggerating his psychological symptoms; the Competency to Stand Trial (CAST) assessment, which is not normed for a person with Ditto's IQ, but Dr. Williams simply used it as an interview form; and the Competency to Stand Trial - Mental Retardation (CASTMR) test, which is standardized for a person with an intellectual disability, i.e., for a person such as Ditto, who has a substandard IQ. Therefore, Dr. Williams's testimony is the product of reliable principles and methods.
In this opinion, we will use the same spelling for the name of this test that Ditto used in his opening appellate brief.
Although the name of this test includes the term "mental retardation," and the trial attorneys and at least one of the psychologists who testified during the competency hearing used that term, we will substitute the term "intellectually disabled" throughout this opinion, pursuant to Kentucky Revised Statute 446.013.
As for whether Dr. Williams applied the principles and methods reliably to the facts of the case, the circuit court properly found that she did. Even the defense's expert, Dr. Paul Ebben, testified that when he administered to Ditto the CASTMR, which again is the test to determine if someone of Ditto's IQ is competent to stand trial, he basically arrived at the same results that Dr. Williams had obtained when she administered that test. Therefore, Dr. Williams was qualified to testify as an expert concerning Ditto's competency pursuant to KRE 702, and the circuit court did not abuse its discretion in permitting her to testify as an expert.
We now turn to address Ditto's allegation that the circuit court erred in determining that he was competent to stand trial.
A competency determination is based on the preponderance of the evidence standard. We may disturb a trial court's competency determination only if the trial court's decision is clearly erroneous (i.e., not supported by substantial evidence)."Keeling v. Commonwealth, 381 S.W.3d 248, 262 (Ky. 2012) (internal quotation marks and citations omitted).
KRS 504.060(4) provides: "'Incompetency to stand trial' means, as a result of mental condition, lack of capacity to appreciate the nature and consequences of the proceedings against one or to participate rationally in one's own defense." Similarly, the United States Supreme Court has stated that the test for whether an individual is competent to stand trial is "whether he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding—and whether he has a rational as well as factual understanding of the proceedings against him." Dusky v. United States, 362 U.S. 402, 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960). With this test in mind, we must determine whether substantial evidence supported the trial court's finding that Appellant was competent to stand trial.
Kentucky Revised Statute.
Dr. Williams testified that in the various tests she conducted during her evaluation, Ditto's performance on the reality testing was good; he was calm in his chair; and he had "some psychomotor restlessness," but he remained seated and was cooperative. Ditto's affect occasionally was "incongruent with the topics" he was discussing. He occasionally made unusual statements, such as that he could hear "softball pillow talk," but he was unable to explain what that meant. She did not find any evidence of malingering.
Dr. Williams administered the Wexler test to Ditto, and he scored a full-scale IQ of 61, which was in the "extremely low range." His perceptual reasoning, which concerns abstract thinking, was 71, which is in the borderline or below-average range. This places him in the bottom three percent of the population. Ditto reads at a third-grade level.
Dr. Williams administered the MFAST assessment, to determine if Ditto was over-exaggerating his psychological symptoms. Dr. Williams found that Ditto did not over-report his psychological symptoms.
When she tested Ditto for competency, Dr. Williams used two tests: the CAST assessment, which is not normed for a person with Ditto's IQ; and the CASTMR assessment, which is standardized for a person with an intellectual disability, such as Ditto. As previously mentioned, the CAST test was just used as an interview form. Based upon the CAST test, Dr. Williams found Ditto to be logical and coherent.
The CASTMR test has three sections. On the CASTMR, Ditto performed well on section one, which tested his understanding of the legal process. He performed to a substandard degree on section two, which tested his ability to assist in his defense. On section three, in discussing his strategy for his defense, Ditto claimed to be innocent of the charges, which Dr. Williams stated was a rational and appropriate defense strategy to maintain. That section of the test is scored based on whether Ditto's answers correspond to the discovery documentation. Thus, if the defendant states he was not present when the crime was committed and that he did not commit the crime, the test is going to score it as an incorrect answer because the test does not account for the fact that a defendant could potentially be innocent. Therefore, Ditto's score on section three of the test reflects poorly on his competency. Dr. Williams explained that based on his defense strategy of claiming to be innocent of the charges, Ditto's score was as it should be. Dr. Williams found that Ditto demonstrated the capacity to learn and retain information over time about the legal system, which he had acquired through repeated participation in legal proceedings. She came to this conclusion based upon the fact that Ditto did not learn this information at KCPC, yet he was able to provide information to her about the court participants and their roles, such as how the judge is involved in determining guilt or innocence and in determining the sentence the defendant receives. Dr. Williams knew from Ditto's records that he had prior experiences with the court system. Because Ditto did not learn this information about court participants and their roles at KCPC, she concluded that he had learned it through his prior court experiences. Thus, he had been able to retain that information over time and produce it to Dr. Williams throughout the evaluation. Based upon Dr. Williams's evaluation of Ditto, she opined at the time of her evaluation that he was competent to stand trial.
Dr. Paul Ebben, a licensed clinical psychologist who had been conducting forensic examinations for about twenty years, testified for the defense. Dr. Ebben also evaluated Ditto, and the test results he obtained were not significantly different from those that Dr. Williams obtained. However, his interpretation of the test results was different. He stated that the CAST test, which Dr. Williams used, was inappropriate to use in evaluating Ditto because of his intellectual disability. Dr. Ebben testified that he administered the CASTMR test again, which Dr. Williams had also used, and which Dr. Ebben stated was an appropriate measure. Dr. Ebben's findings based on the CASTMR were basically the same as Dr. Williams's. On the first section, Ditto scored in the normal range, indicating that he is competent in those areas. On the second section concerning his skills to assist his defense, Ditto's score fell in the borderline range. The third section of the CASTMR tested Ditto's understanding of the case events, and his score fell in the incompetent range for that section. Dr. Ebben testified that Ditto's scores on the second and third sections of the CASTMR from when Dr. Ebben administered the test improved over the time he took it previously when Dr. Williams administered the test, which Dr. Ebben stated shows that Ditto was learning.
As previously mentioned, Dr. Williams testified that she merely used the CAST test as an interview form in this case.
Dr. Ebben also administered the Evaluation of Competency to Stand Trial Revised instrument (ECSTR), which he attested is the only other competency measure that is normed on the intellectually disabled population. Dr. Ebben explained that the ECSTR has three sections: the first section is called "consult with counsel," which concerns, inter alia, the defendant's ability to work with counsel and assist in his own defense; the second section is called "factual understanding of courtroom proceedings scale," which concerns what a jury does, a judge does, and the lawyers do; and the third section is called the "rational understanding of courtroom proceedings."
Dr. Ebben testified that on the ECSTR's "consult with counsel" section, Ditto tested in the moderate impairment range in terms of competency. Dr. Ebben attested that because Ditto did fine on the section of the CASTMR concerning his "factual understanding of courtroom proceedings," that section of the ECSTR was not re-administered to Ditto. Dr. Ebben did administer the third section of the ECSTR concerning Ditto's "rational understanding of courtroom proceedings." That section reveals the defendant's decision-making capacity and his ability to weigh the pros and cons of decisions about his case, such as: whether he should testify; whether the evidence is for or against him; and whether he should accept or reject a plea offer. On this third section of the ECSTR, Ditto scored within normal limits. However, Dr. Ebben testified that this section tests whether the defendant is giving psychotic responses, and if he is not psychotic, he will score within normal limits, although his responses may have been poor. Therefore, Ditto had a normal score on the third section, even though he could not tell Dr. Ebben how he would reason if he should or should not testify at trial. Ditto did understand what would be good versus bad outcomes in his case, but he could not reason in terms of evidence against him and how he would use that to make a decision in his case, such as whether to accept or reject a plea offer. Consequently, Dr. Ebben opined that although Ditto's score was within normal limits, there are limitations in terms of his thinking and reasoning skills, which he stated is what you would expect in a mildly intellectually disabled individual. Therefore, the ECSTR generated some concerns about Ditto's competency. Dr. Ebben testified that in his opinion, and taking into consideration Ditto's performances on both the CASTMR and the ECSTR that Dr. Ebben administered to him, Ditto was incompetent.
Upon our review of both Dr. Williams's and Dr. Ebben's testimonies at the competency hearing, there was substantial evidence to support the circuit court's determination that Ditto was competent to stand trial. Accordingly, we must not interfere with the sound discretion of the trial court. We therefore affirm.
B. MOTION FOR CONTINUANCE
Next, Ditto asserts that the circuit court erred in denying the defense's motion for a continuance. The defense moved for a continuance the day before trial was scheduled to begin, arguing that Ditto should be returned to KCPC for treatment because the defense could not be fully prepared for trial due to Ditto's lack of cooperation and participation. An emergency hearing was held regarding the motion. During the hearing, the court stated that the defendant's lack of cooperation with counsel was not a reason to grant a continuance. The possibility of a guilty plea was discussed during the hearing as well, but as soon as the idea was raised, Ditto informed the court that he did not want to enter a guilty plea and that he was ready to go to trial. The circuit court denied the motion for a continuance. The defense renewed its motion on the morning of trial, and the court denied it.
[W]hether a continuance is appropriate in a particular case depends upon the unique facts and circumstances of that case. The factors are:Guffey v. Guffey, 323 S.W.3d 369, 371 (Ky. App. 2010) (internal quotation marks and citations omitted).
1) length of delay;
2) previous continuances;
3) inconveniences to litigants, witnesses, counsel, and the court;
4) whether the delay is purposeful or is caused by the accused;
5) availability of other competent counsel;
6) complexity of the case; and
7) whether denying the continuance will lead to identifiable prejudice[.]
As for the length of the delay, the defense in this case did not request any specific amount of time, only that Ditto be returned to KCPC for treatment. However, the court noted that to its knowledge, KCPC does not treat people.
Regarding previous continuances, a seven-month continuance had previously been granted in the case to allow Ditto's competency to be evaluated. As for the inconvenience to litigants, witnesses, counsel, and the court, the defense waited until the day before trial to file its motion for a continuance. Therefore, because the Commonwealth, the court, and the witnesses were ready to go to trial the next day, a continuance would have been an inconvenience to them, particularly considering that the trial had already been continued for seven months previously.
Further, the delay was purposeful and caused by the accused. Ditto was refusing to cooperate with his counsel, and this was the only reason given for needing a continuance.
There was no issue of the competence of defense counsel; therefore, this factor weighs against Ditto. As for the complexity of the case factor, this case involved trafficking in methamphetamine, and there was video and audio evidence of the crime, so this was not a complex case. Finally, regarding the factor of whether the continuance would lead to identifiable prejudice, we are unaware of any identifiable prejudice that would result.
In summary, most of the factors to consider in determining whether a continuance is appropriate weigh against granting a continuance in this case. Consequently, the circuit court did not err in denying Ditto's motion.
C. DIRECTED VERDICT AND JURY INSTRUCTION
Ditto contends that the circuit court erred in denying his motion for a directed verdict because there was no proof of a quantity of two or more grams of pure methamphetamine. He also asserts that the court erred in instructing the jury on first-degree trafficking in methamphetamine, two or more grams. The Commonwealth argues that these claims are not preserved for our review because Ditto's motion for a directed verdict was not based upon the amount of pure methamphetamine present in the substance sold and because Ditto did not object to the jury instructions concerning the amount of methamphetamine.
At the close of the Commonwealth's case, the defense moved for a directed verdict based on a lack of evidence identifying Ditto as the perpetrator in the case. The motion was denied. Ditto now claims on appeal that his motion for a directed verdict should have been granted on other grounds that he did not raise in the circuit court. "A motion for a directed verdict shall state the specific grounds therefor, CR 50.01, and failure to state a specific ground will foreclose appellate review, except to the extent that palpable error is shown[.]" McCleery v. Commonwealth, 410 S.W.3d 597, 601-02 (Ky. 2013) (internal quotation marks and citations omitted). The specific claim Ditto alleges on appeal concerning his motion for a directed verdict and his claim concerning the jury instructions are not preserved for our review. However, because Ditto has requested it, we will review them for palpable error pursuant to RCr 10.26. See McCleery, 410 S.W.3d at 602.
Kentucky Rule of Civil Procedure.
Kentucky Rule of Criminal Procedure.
A palpable error which affects the substantial rights of a party may be considered by the court on motion for a new trial or by an appellate court on appeal, even though insufficiently raised or preserved for review, and appropriate relief may be granted upon a determination that manifest injustice has resulted from the error.RCr 10.26. For an error to be palpable, it "must be so grave in nature that if it were uncorrected, it would seriously affect the fairness of the proceedings." Brewer v. Commonwealth, 206 S.W.3d 343, 349 (Ky. 2006). Manifest injustice results from a "defect in the proceeding [that is] shocking or jurisprudentially intolerable." Martin v. Commonwealth, 207 S.W.3d 1, 4 (Ky. 2006).
"A directed verdict of acquittal is improper when the evidence is sufficient to induce a reasonable juror to believe beyond a reasonable doubt that the defendant is guilty. . . ." Mackey v. Commonwealth, 407 S.W.3d 554, 558 (Ky. 2013) (internal quotation marks and citation omitted). "The trial court must draw all fair and reasonable inferences in favor of the Commonwealth, reserving questions of credibility and weight of the evidence for the jury." Id. (Citation omitted).
Ditto contends that he was charged with violating KRS 218A.1412(1)(b), trafficking in a controlled substance in the first degree, methamphetamine, greater than or equal to two grams. He argues that the Commonwealth did not prove that this amount of pure methamphetamine was present in the mixture that was sold to the informant. The Kentucky Supreme Court recently addressed this issue in a case involving cocaine, rather than methamphetamine. In Hawkins v. Commonwealth, 536 S.W.3d 697 (Ky. 2017), Hawkins was convicted of, inter alia, trafficking in four or more grams of cocaine. Evidence was produced at trial showing "police seized from Hawkins more than eighteen grams of a white substance appearing to be crack cocaine. Later laboratory testing confirmed the seized substance actually contained some amount of cocaine." Hawkins, 536 S.W.3d at 699. Hawkins argued on appeal to the Supreme Court "that he was improperly convicted of this particular crime because the Commonwealth's evidence failed to show that the substance seized contained four or more grams of pure cocaine." Id. The Supreme Court stated Hawkins was convicted under KRS 218A.1412(1)(a), trafficking in four grams or more of cocaine and that KRS 218A.010 defines "cocaine" as "a substance containing any quantity of cocaine, its salts, optical and geometric isomers, and salts of isomers." Id. at 702. The Court noted Hawkins alleged the Court "should read the statutes as requiring that the weight refers to 'pure' cocaine—exclusive of cutting agents and other foreign substances." Id. The Supreme Court disagreed. Id.
In its analysis in Hawkins, the Supreme Court held that KRS 218A.010 "clearly defines 'a substance containing any quantity of cocaine' as cocaine." Id. at 703 (footnote omitted). The Court reasoned:
It is impossible to give effect to the words 'containing any quantity of cocaine' if the definition is read to apply only to pure cocaine. It goes without saying that pure cocaine contains a quantity of cocaine. This definition was not meant to be read so narrowly, though. By its own words, it includes a substance containing any quantity of cocaine. Any other interpretation strains the plain meaning of the statute.Id. In Hawkins, the Court noted the evidence presented at trial included "the forensic analysis was of a solid appearing to be crack cocaine weighing 5.475 grams," and that "the 'constitution' of the solid . . . included both pure cocaine and cutting agents." Id. It explained "Webster's Dictionary defines substance as 'b. a material of a particular kind or constitution.'" Id. (quoting Webster's II New Riverside University Dictionary (1984)). The Supreme Court stated "[t]he key is that the solid contained 'any quantity of cocaine,' as required by the statute." It concluded that "[c]ombining Webster's definition of substance with the definition of cocaine found in the statute makes it clear that the entirety of the solid tested must be considered cocaine—not only those amounts that are 'pure.'" Id. (Emphasis added).
The Supreme Court's reasoning in Hawkins also applies to Ditto's case, although the type of drug involved is different from that in Hawkins. Both Hawkins and Ditto were convicted pursuant to KRS 218A.1412(1) of trafficking in a controlled substance in the first degree, but in Hawkins's case, the drug was cocaine, and in Ditto's, it was methamphetamine. Specifically, Ditto was convicted pursuant to KRS 218A.1412(1)(b), which provides: "A person is guilty of trafficking in a controlled substance in the first degree when he or she knowingly and unlawfully traffics in: . . . [t]wo (2) grams or more of methamphetamine." The term "methamphetamine" is defined in KRS 218A.010(31) as follows: "'Methamphetamine' means any substance that contains any quantity of methamphetamine, or any of its salts, isomers, or salts of isomers." This definition of "methamphetamine" is similar to the definition of "cocaine," which we set forth supra in our discussion of Hawkins.
During trial in the present case, Kentucky State Police forensic scientist specialist Rebecca Ennis testified that the substance at issue weighed 2.91 grams and it tested positive for methamphetamine. She did not conduct a purity test to determine how much of that 2.91-gram substance was pure methamphetamine or some other substance. However, pursuant to the definition of "methamphetamine" in KRS 218A.010(31), the term "methamphetamine" encompasses "any substance that contains any quantity of methamphetamine." (Emphasis added.) Thus, according to that definition and the reasoning in Hawkins, it is unnecessary to show how much of the substance was pure methamphetamine and how much was some other substance—it only matters that the substance contains some amount of methamphetamine. Because evidence was introduced in this case to show that the substance contained methamphetamine, the substance satisfied the KRS 218A.010(31) definition of "methamphetamine." Additionally, because testimony was introduced to show that the methamphetamine substance weighed 2.91 grams (i.e., two grams or more of methamphetamine) and that Ditto sold it to the informant, the evidence was sufficient to prove that Ditto committed the crime of trafficking in a controlled substance in the first degree, methamphetamine, pursuant to KRS 218A.1412(1)(b). Consequently, no palpable error occurred when the circuit court denied Ditto's motion for a directed verdict.
As previously noted, Ditto also claims that the circuit court erred in instructing the jury on first-degree trafficking in methamphetamine, two or more grams. "In a criminal case it is the duty of the court to prepare and give instructions on the whole law and this rule requires instructions applicable to every state of case deducible or supported to any extent by the testimony." Kelly v. Commonwealth, 267 S.W.2d 536, 539 (Ky. 1954) (citations omitted). In the present case, as discussed supra, the charge of first-degree trafficking in a controlled substance, methamphetamine, two or more grams, was supported by the testimony produced at trial. Consequently, the circuit court was required to instruct the jury on first-degree trafficking in methamphetamine, two or more grams, and no palpable error occurred when the court instructed the jury on that charge. D. BATSON MOTION
Next, Ditto argues that the circuit court erred in denying the defense's motion pursuant to Batson, 476 U.S. at 79; 106 S.Ct. at 1712. He alleges that the Commonwealth was racially discriminatory in striking a potential juror from the jury panel.
Ditto's appellate brief notes that the circuit court agreed to hear the defense's Batson motion even though the jury had already been sworn. Typically, "a Batson objection which is not raised before the swearing of the jury and the discharge of the remainder of the panel is untimely." Washington v. Commonwealth, 34 S.W.3d 376, 378 (Ky. 2000). In the present case, after the jury members who had been selected were called and seated in the jury box, the court asked the attorneys in this matter, "gentlemen, are we good to go?" None of the attorneys said anything in response, so the court swore the jury. After the jury was sworn, but before the remainder of the panel was discharged, defense counsel raised its Batson objection. Therefore, whether Ditto's Batson objection was timely is questionable.
Nevertheless, the circuit court addressed the objection, and we will review it.
Under Batson, claims of racial discrimination in the use of peremptory strikes are analyzed under a three-step test. First, the defendant must show a prima facie case of racial discrimination. If the trial court is satisfied with the defendant's showing, the burden shifts to the prosecutor to state race-neutral reasons for the peremptory strikes. The trial court must then determine whether the defendant has sufficiently proven purposeful discrimination. A trial court's denial of a Batson challenge is reviewed for clear error.
. . . .
The second Batson step [is] whether the prosecutor stated a race-neutral basis for the strike. . . . This step sets a fairly low bar for the Commonwealth to meet. [T]he issue is the facial validity of the prosecutor's explanation.
Unless a discriminatory intent is inherent in the prosecutor's explanation, the reason offered will be deemed race neutral. . . .Mash v. Commonwealth, 376 S.W.3d 548, 555-56 (Ky. 2012) (internal quotation marks and citations omitted).
At the third step of Batson, the burden shifts back to the defendant to show purposeful discrimination. At this step, the trial court [is] required to determine whether the prosecutor's race-neutral reason [is] actually a pretext for racial discrimination. Because the trial court's decision on this point requires it to assess the credibility and demeanor of the attorneys before it, the trial court's ultimate decision on a Batson challenge is like a finding of fact that must be given great deference by an appellate court. In the absence of exceptional circumstances, appellate courts should defer to the trial court at this step of the Batson analysis.
The third step of the Batson test is where the persuasiveness of the justification becomes relevant. Although a prosecutor theoretically could fabricate a demeanor-based pretext for a racially-motivated peremptory strike, the third step in Batson alleviates this concern by permitting the court to determine whether it believes the prosecutor's reasons.
. . . .
. . . [E]valuation of the prosecutor's state of mind based on demeanor and credibility lies peculiarly within a trial judge's province.
In the present case, defense counsel stated that its reason for the Batson objection was that one of the potential jurors who was struck from the panel by the Commonwealth was of the same race as Ditto. The parties do not dispute that the defense made a prima facie showing of racial discrimination concerning that one juror.
Although a defendant is no longer required to show racial identity between himself and the stricken juror in asserting his Batson challenge, the defendant must show an inference of racial discrimination in choosing to strike a juror from the venire. See Roe v. Commonwealth, 493 S.W.3d 814, 828 (Ky. 2015), as corrected (Ky. 2016).
As for the second step in the Batson analysis, the Commonwealth told the court it initially liked that potential juror because he was self-employed. However, as one of the defense attorneys began questioning the juror, the defense attorney discovered that the juror was a former Marine. The defense attorney, who himself had served in the military, and whose son was a Marine, stated "Semper Fi" to the juror, who responded with "Semper Fi." The Commonwealth asserted that it then decided to strike the juror because it was concerned that the juror would tend to believe defense counsel more or be more sympathetic to the defense because the juror and the defense attorney appeared to have built some rapport over their shared military service.
To satisfy step two of Batson, the prosecutor's neutral explanation must be clear and reasonable. This is so because a clear, reasonably specific and legitimate reason is necessary for the trial court to fulfill its duty to assess the plausibility of the proffered reason for striking the potential juror in light of all the evidence; therefore, it is essential that the proponent of the peremptory strike fully articulate the reason so that a proper assessment can be made.Johnson v. Commonwealth, 450 S.W.3d 696, 703-04 (Ky. 2014), abrogated on other grounds by Roe v. Commonwealth, 493 S.W.3d 814 (Ky. 2015), as corrected (Ky. 2016) (internal citations omitted). The circuit court found that the Commonwealth's reason for striking the potential juror was race-neutral. We find no error in this determination.
Regarding the third step of the Batson analysis, the defense in this case made no further argument after the Commonwealth proffered its race-neutral reason for the strike. At the third step, the burden of proof shifts back to the defendant to show purposeful discrimination. The defense failed to make any argument regarding purposeful discrimination here. Further, the circuit court clearly believed the credibility of the prosecutor and his argument that he had a race-neutral reason for striking the potential juror. Unless exceptional circumstances are present, we will not disturb a circuit court's credibility finding. The defense has not shown that such exceptional circumstances are present here. Consequently, Ditto's Batson claim lacks merit.
E. INSUFFICIENTLY AUTHENTICATED VIDEO AND AUDIO EXHIBITS
Ditto also alleges that the circuit court erred in allowing the Commonwealth to play insufficiently authenticated video and audio exhibits of the drug buy. Specifically, he contends that because Detective Scott McMichael was not present for the events that were recorded, he could not authenticate the recordings.
Pursuant to KRE 901(a), "[t]he requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." In the trial court, "[t]he proponent's burden of authentication is slight, which requires only a prima facie showing of authenticity[.]" Johnson v. Commonwealth, 134 S.W.3d 563, 566 (Ky. 2004) (citation omitted). "On appellate review, the trial court's finding of authentication is reviewed for abuse of discretion." Id. (Citations omitted).
Detective McMichael testified that he searched the informant's person, and Sergeant Corey Knochel searched the informant's vehicle before the drug buy. Detective McMichael told the informant what he was supposed to buy and how much it would cost; gave the informant the money to buy the drugs; gave the informant the video recording device and the audio recording device; and told the informant where to meet him and Sergeant Knochel following the drug buy. After the recording devices were started and began recording, Detective McMichael provided an introduction on the recordings, stating: the purpose of the operation (i.e., a controlled buy); who the suspect was; the suspect's date of birth and social security number; where the drugs would be purchased; what drugs would be bought; the amount of drugs that would be bought; the amount that was to be paid for the drugs; the informant's identifying number (i.e., he was referred to as C.I. 1750); Detective McMichael's own name; the name of the officer assisting Detective McMichael (i.e., Sergeant Knochel); the date and time that the recordings were being made; the fact that the informant was provided a video recording device and an audio recording device for purposes of recording the transaction; and the fact that the informant and the informant's vehicle were searched, and no contraband was found prior to the drug buy.
Confidential Informant
Detective McMichael testified that his voice was on the recordings, as well as the informant's and Ditto's voices. Testimony was presented that Detective McMichael and Sergeant Knochel followed the informant to the building where the drug buy took place and that they waited outside while the informant went inside to buy the drugs. After the drug buy, Detective McMichael and Sergeant Knockel followed the informant back to the location where they planned to meet him after the controlled buy. Once they met the informant at that location, they obtained from him the drugs he bought from Ditto and they searched him and his vehicle again.
On the video recording and the audio recording, Detective McMichael can be heard noting at the beginning of the recordings that the time was approximately "13:04," and that the time at the end of the recordings after the drug buy was "13:25." This time span approximately matches the amount of video and audio the jury observed on the recordings. Additionally, there were no obvious edits or breaks in the conversation on either recording, as would occur if the tape had been paused or stopped and then restarted back into the middle of the conversation. Further, there was no testimony that the recordings had been stopped. Consequently, the circuit court did not abuse its discretion in authenticating the video and audio recordings of the drug buy.
The informant was called to testify for the Commonwealth. When the Commonwealth attempted to question him during trial, the informant pleaded the Fifth Amendment, thereby refusing to testify on the basis that he might incriminate himself.
F. NARRATION WHILE PLAYING THE "BUY VIDEO"
Finally, Ditto asserts that the circuit court erred in allowing the Commonwealth to elicit narration from Detective McMichael while the "buy video" was being played for the jury. Specifically, Ditto contends that at one point while playing the drug buy video for the jury, the Commonwealth paused the video and asked Detective McMichael if he could identify the person on the video. The detective responded, "[t]hat's Chris Ditto," as the defense objected. The court overruled the objection. Ditto also alleges that the Commonwealth later paused the video again and asked Detective McMichael the following: "Detective, based on your experience, can you tell what he's doing?" The defense objected, but its objection was overruled. Detective McMichael responded: "He's weighing the drugs that [are] being purchased." Ditto alleges that these narrative responses by Detective McMichael violated KRE 701 and KRE 602.
The Commonwealth argues that preservation of this issue is "questionable." Specifically, the Commonwealth asserts that when it twice paused the video in these instances, defense counsel objected, and the circuit court overruled the objections, "it was incumbent on counsel to make the grounds for [the] objection[s] known to the court." However, the Commonwealth's argument is misplaced. Counsel does not need to specify the grounds for an objection unless the trial court requests it. See Ross v. Commonwealth, 577 S.W.2d 6, 16 (Ky. App. 1977). The trial court made no such request in these instances. Therefore, the Commonwealth's assertion lacks merit.
KRE 701 concerns testimony by lay witnesses. It provides:
If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are:
(a) Rationally based on the perception of the witness;
(b) Helpful to a clear understanding of the witness' testimony or the determination of a fact in issue; and
(c) Not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.
As for KRE 602, it provides in pertinent part: "A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the witness' own testimony."
"[A] lay witness may not interpret audio or video evidence, as such testimony invades the province of the jury, whose job is to make determinations of fact based upon the evidence." Morgan v. Commonwealth, 421 S.W.3d 388, 392 (Ky. 2014) (internal quotation marks and citation omitted). "It is for the jury to determine as best it can what is revealed in the tape recording without embellishment or interpretation by a witness." Id. (Internal quotation marks and citation omitted).
In Boyd v. Commonwealth, 439 S.W.3d 126 (Ky. 2014), two lay witnesses provided narrative testimony concerning security video footage. The witnesses "testified to events that they did not perceive in real time." Boyd, 439 S.W.3d at 131-32. The Kentucky Supreme Court held that "[t]hose parts of the narration were violative of KRE 602 and 701, because the testimony exceeded the witnesses' personal knowledge of the events, and should not have been permitted." Id. at 132. However, the Court held that "the error was harmless because the jurors were watching the video and were in a position to interpret the security footage independently from the testimony, which provides fair assurance that the judgment was not 'substantially swayed by the error.'" Id. (Quoting Winstead v. Commonwealth, 283 S.W.3d 678, 688 (Ky. 2009) (holding that pursuant to RCr 9.24, "[a] non-constitutional evidentiary error may be deemed harmless, . . . if the reviewing court can say with fair assurance that the judgment was not substantially swayed by the error.")).
In the present case, even if we were to assume that the two points of narrative testimony complained of were violative of KRE 602 and KRE 701, the introduction of this testimony was harmless. First, regarding Detective McMichael's identification of Ditto on the video, we do not find that the judgment was substantially swayed by this testimonial evidence. The video was paused and the perpetrator's face was on the screen when Detective McMichael made the identification. Ditto was sitting in the courtroom during trial, so the jury merely had to compare the image on the paused video to Ditto sitting in the courtroom to be able to identify him. Further, at one point, the jury had just heard the perpetrator speak on the video recording when Ditto himself spoke out loudly in court. The jury likely heard his voice and could make a determination if the in- court voice sounded like the voice of the perpetrator on the video recording of the drug buy. Therefore, the introduction of Detective McMichael's narrative testimony identifying Ditto in the drug buy video was harmless because the judgment was not substantially swayed by this error.
It is unclear from our review of the trial recording what Ditto said in court, but his voice nevertheless can be heard on the recording.
Second, regarding Detective McMichael's narrative testimony stating that the perpetrator on the drug buy video was weighing the drugs that were being purchased, the judgment again was not substantially swayed by this testimonial evidence. On the video, the perpetrator can be seen measuring the drugs in some manner. As this is occurring, the perpetrator and the informant can be overheard discussing the weight of the drugs being bought and the fact that although the informant wanted to buy an "eight ball" of the drug, the weight of the drug being sold was slightly less than that. They can then be heard joking that the perpetrator will just owe the informant more the next time he buys drugs from the perpetrator. Consequently, the introduction of Detective McMichael's narration stating that the perpetrator was weighing the drugs that were being purchased was harmless error because the judgment was not substantially swayed by this error. Therefore, Ditto's claims regarding Detective McMichael's narrative testimony fail.
Detective McMichael testified that an "eight ball" of the drug is the equivalent of one-eighth of an ounce. --------
Accordingly, the judgment of the Breckinridge Circuit Court is affirmed.
COMBS, JUDGE, CONCURS.
THOMPSON, JUDGE, DISSENTS. BRIEFS FOR APPELLANT: Molly Mattingly
Assistant Public Advocate
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky
Frankfort, Kentucky Courtney J. Hightower
Assistant Attorney General
Frankfort, Kentucky