Opinion
NO. 2019-CA-000896-MR
02-07-2020
JAMES R. KRUEGER APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Kevin Poole Bowling Green, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Frankfort, Kentucky Mark D. Barry Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM MUHLENBERG CIRCUIT COURT
HONORABLE BRIAN WIGGINS, JUDGE
ACTION NO. 18-CR-00181 OPINION
AFFIRMING
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BEFORE: ACREE AND DIXON, JUDGES; BUCKINGHAM, SPECIAL JUDGE. BUCKINGHAM, SPECIAL JUDGE: James R. Krueger appeals from a final judgment of the Muhlenberg Circuit Court sentencing him to 18 years' imprisonment for first-degree trafficking in a controlled substance while being a first-degree persistent felony offender. We affirm.
Retired Judge David C. Buckingham sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution.
A search of Krueger's residence in Muhlenberg County on June 29, 2018, pursuant to a search warrant issued on information from a confidential informant, resulted in law enforcement's discovery of various items indicative of drug trafficking, including a plastic bag of methamphetamine and digital scales on a kitchen counter; $5,653 in cash in a safe; a Ruger 9mm handgun; and $909 in cash and a cell phone found on Krueger's person.
Based upon the fruits of the search, Krueger was charged with first-degree trafficking in a controlled substance (methamphetamine), possession of a handgun by a convicted felon, possession of drug paraphernalia, and being a first-degree persistent felony offender.
Kentucky Revised Statutes (KRS) 218A.1412.
A jury trial was held on April 23, 2019. The trial was trifurcated to include a guilt phase regarding the trafficking and possession charges, a guilt phase regarding the possession of a handgun charge, and a sentencing phase. The jury found Krueger guilty of first-degree trafficking in a controlled substance and possession of drug paraphernalia, acquitted him on the handgun charge, and found him guilty of being a first-degree persistent felony offender. His sentence was fixed at 18 years, and the court entered final judgment pursuant to the jury's verdict on May 8, 2019. This appeal by Krueger followed.
ADMISSIBILITY OF TEXT MESSAGES
Testimony from law enforcement officers during the trial included references to such terms as "basketball," "half," "16th," and "go-go juice." Officers testified that these terms were commonly associated with methamphetamine and were used in text messages found on Krueger's phone. The Commonwealth moved the trial court to admit a series of screenshots of the messages from the phone showing the use of such terms.
The only dates noted for the text messages were June 26 and June 29. No year was noted on the messages, and Krueger's counsel argued to the trial court that, without a determination of the year when the messages were sent and received, the messages were too remote in time to be admissible. Nevertheless, the trial court allowed the Commonwealth to introduce the screenshots into evidence.
Krueger's first argument is that the trial court erred in admitting into evidence text messages from his cell phone that purported to show requests to purchase drugs. He asserts that any probative value was outweighed by the prejudicial effect due to the lack of a showing that the messages had been sent or received within the last year.
"Relevant evidence" is "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." KRE 401. Relevant evidence is admissible, but it may be excluded "if its probative value is substantially outweighed by the danger of undue prejudice[.]" KRE 403.
Kentucky Rules of Evidence.
In order to find Krueger guilty of the crime of first-degree trafficking in a controlled substance, the jury had to find, among other things, that Krueger had the methamphetamine in his possession with the intent of selling it to another person. KRS 218A.1412 and KRS 218A.010(56). It was undisputed that methamphetamine was found in Krueger's residence and Krueger was there with it. Likewise, digital scales and a large amount of cash were found at the same time.
We conclude the text messages were relevant to show intent to sell, as they indicated Krueger's familiarity with drug trafficking and his involvement in it. Further, it appeared that the messages were in chronological order and that the messages were likely sent and received within three days of the search of the premises and discovery of the evidence. Also, as noted by the trial court, text messages generally have only the date and time if they were sent or received in the present year.
The search took place on June 29, and the text messages were dated June 26 and June 29.
Krueger also argues that the text messages were not authenticated and were, therefore, inadmissible hearsay. He acknowledges that he failed to preserve any error in this regard, but he requests this Court to review the issue for palpable error pursuant to RCr 10.26.
Kentucky Rules of Criminal Procedure.
KRE 901(a) states: "The 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." KRE 901(b)(1) gives the following example of authentication: "Testimony of witness with knowledge. Testimony that a matter is what it is claimed to be."
In support of his argument, Krueger cites Kays v. Commonwealth, 505 S.W.3d 260 (Ky. App. 2016). Contrary to the facts in this case, in Kays there were witnesses who testified they personally sent or received the messages to be introduced into evidence. Id. at 269. The principles therein are nonetheless applicable to this case.
This Court held in Kays as follows:
Before text messages become admissible, they must be authenticated. Stated differently, the court must be
sufficiently convinced the item is what the proponent claims it is. KRE 901. We review the trial court's ruling for abuse of discretion. Abuse occurs when the ruling was "arbitrary, unreasonable, unfair, or unsupported by sound legal principles."Id. (citations omitted). This Court further held in Kays:
The Commonwealth's burden under KRE 901 to authenticate a writing is "slight," requiring only a "prima facie showing." A trial court may admit an item so long as it finds sufficient proof has been presented from which a jury may reasonably deem an item to be what it is proclaimed to be. While the judge determines admissibility of the item, the jury determines its authenticity and "probative force."Id. at 270 (citations omitted). Finally, this Court also stated in Kays:
Exercising its considerable discretion, a trial court may admit a piece of evidence solely on the basis of testimony from a knowledgeable person that the item is what it purports to be and its condition has been substantially unchanged. Furthermore, Kays was free to argue to the jury the messages might be incomplete or may have been manipulated.Id. (citation omitted).
We agree with the Commonwealth that it met its prima facie showing that the screenshots of the messages were what they purported to be and that the trial court did not abuse its discretion admitting them into evidence.
CONVICTED FELON TESTIMONY
Detective Griggs, one of the witnesses for the Commonwealth at the trial, was asked a series of questions on cross-examination by Krueger's counsel relating to why the handgun that had been found during the search had not been sent off for testing to determine if it had been fired. As counsel attempted to discredit in some way the Commonwealth's case by eliciting testimony that the gun had not been tested, Detective Griggs responded more than once that the relevant issue was the possession of the gun and not whether it had been fired. He stated he would not have tested the gun unless its having been fired was relevant. He finally stated that in the case before the court, "we're talking about possession of a gun by a convicted felon, and we're not talking about a murder. We're not talking about, where, uh, the gun was shot at somebody or something."
Following the exchange between counsel and Detective Griggs and the last statement Detective Griggs made, Krueger's counsel moved the court to grant a mistrial on the grounds it was error for the jury to learn in the guilt phase of the trial that Krueger was a convicted felon. The court denied the motion.
Krueger likewise argues in this appeal that it is reversible error for the court to have allowed the jury to hear in the guilt phase that he was a convicted felon. In support of his argument, he cites Hubbard v. Commonwealth, 633 S.W.2d 67 (Ky. 1982). In that case the appellate court reversed a criminal conviction for burglary and theft because the trial court had allowed a possession of a handgun by a convicted felon charge to be tried with the other charges rather than severing the charges and trying them separately. Id. at 68. The court in Hubbard noted "the prejudice that necessarily results from a jury's knowledge of previous convictions while it is weighing the guilt or innocence of a defendant on another charge." Id.
In response to Krueger's argument, the Commonwealth makes a three-fold argument. First, it argues Krueger's trial counsel had announced to the jury in his opening statement that Krueger would testify, and therefore the Commonwealth was going to properly ask him if he had been convicted on a felony at the beginning of such testimony. Second, the Commonwealth argues Krueger's trial counsel waived any objection to the testimony because the answer was responsive to the questions. Finally, the Commonwealth argues since Krueger was acquitted of the handgun charge, any error in this regard was harmless.
In Shemwell v. Commonwealth, 294 S.W.3d 430 (Ky. 2009), our Supreme Court held: "Generally '[o]ne who asks questions which call for an answer has waived any objection to the answer if it is responsive.'" Id. at 436 (quoting Estep v. Commonwealth, 663 S.W.2d 213, 216 (Ky. 1984)). We conclude that principle is applicable here.
Krueger's trial counsel vigorously pursued a line of questioning concerning why the gun had not been tested to see if it had been fired. Detective Griggs tried to explain several times that whether or not the gun had been fired was not relevant to the investigation or proof. Krueger's counsel further questioned the detective whether it was important in his opinion as to whether the gun had been fired. Detective Griggs finally responded:
No, it's just different. You would check things differently. You know, we're talking about possession of a gun by a convicted felon, and we're not talking about a murder. We're not talking about, where, uh, the gun was shot at somebody or something.
Detective Griggs had tried to explain several times why testing the gun to see if it had been fired was not important to the investigation or the proof in the case. When counsel persisted with the line of questioning, the detective attempted to further explain. We conclude the answer given by Detective Griggs was responsive to the question and that Krueger thereby waived any objection to the answer. Shemwell, 294 S.W.3d at 436.
Further, as it was planned by Krueger's counsel that Krueger would testify later in the trial, at which time he would be asked if he had been convicted of a felony, any error in this regard was harmless.
We affirm the judgment of the Muhlenberg Circuit Court.
ALL CONCUR. BRIEF FOR APPELLANT: Kevin Poole
Bowling Green, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky
Frankfort, Kentucky Mark D. Barry
Assistant Attorney General
Frankfort, Kentucky