James Bradley Townsend v. Commonwealth of Kentucky ( 2021 )

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NOT TO BE PUBLISHED OPINION
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RENDERED: AUGUST 26, 2021
NOT TO BE PUBLISHED
Supreme Court of Kentucky
2019-SC-0566-MR
JAMES BRADLEY TOWNSEND APPELLANT
ON APPEAL FROM PULASKI CIRCUIT COURT
V. HONORABLE JEFFREY T. BURDETTE, JUDGE
INDICTMENT NO. 18-CR-00328
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
REVERSING
A circuit court jury convicted James Bradley Townsend of two charges of
complicity to traffic in controlled substances and of being a first-degree
persistent felony offender. The resulting judgment imposed a sentence of 20
years’ imprisonment. Townsend makes two arguments in this matter-of-right
appeal1 seeking reversal of the judgment: (1) the trial court erred when it failed
to suppress evidence seized from his home based on a defective search warrant
and (2) the trial court erred when it allowed the Commonwealth to introduce
improper propensity evidence in the guilt phase of the trial in the form of prior
convictions for drug-related crimes. We find no error in the trial court’s
decision not to suppress the seized evidence, but we agree with Townsend that
1 Ky. Const. § 110(2)(b) (“Appeals from a judgment of the Circuit Court imposing
a sentence of . . . imprisonment for twenty years or more shall be taken directly to the
Supreme Court.”).
the judgment must be reversed because the trial court erred by allowing
evidence of Townsend’s prior convictions in the guilt phase of the trial.
I. FACTUAL AND PROCEDURAL BACKGROUND
Townsend was in jail on matters unrelated to the present case when his
live-in girlfriend, Samantha Keith, sold illegal drugs to a confidential informant
while in Townsend’s residence. Police Capt. Roger Estep, who accompanied the
informant, witnessed the crime for which Keith was later prosecuted.
Later, Estep contacted the same informant inquiring about a recent
burglary. The burglary victim told police that he believed certain named
individuals were responsible for the burglary and that some of the items stolen
in the burglary could be found in Townsend’s residence. A few weeks later, the
same informant contacted Estep reporting that she had been in Townsend’s
residence where she had seen a few guns that Townsend said were stolen.
Based on this information, Estep completed an affidavit and obtained a search
warrant for Townsend’s residence.
Some two months after Keith sold drugs to the informant in Townsend’s
residence, police executed a search warrant on the residence. During the
search, officers found crystal methamphetamine, cooked methamphetamine,
oxycodone pills, Suboxone strips, a bag of marijuana, and $1,274.00 in cash.
In a truck located near Townsend’s residence was a bag containing ingredients
for manufacturing methamphetamine. The allegedly stolen guns described by
the informant were not found.
2
The grand jury indicted Townsend for complicity to traffic
methamphetamine and oxycodone, manufacturing methamphetamine, and for
being a first-degree persistent felony offender. As the case proceeded to trial,
the Commonwealth informed the trial court and defense counsel of its intent to
introduce Townsend’s prior conviction for possession of a methamphetamine
precursor during the guilt phase of the trial. Over the defense’s objection, the
trial court ruled this evidence admissible, finding it probative of Townsend’s
intent and knowledge to manufacture methamphetamine. This prior conviction
was discussed several times at trial. Ultimately, Townsend was not convicted
of manufacturing methamphetamine, but he was convicted of complicity to
traffic methamphetamine and oxycodone and of being a first-degree persistent
felony offender.
I. ANALYSIS
A. The trial court properly denied Townsend’s motion to suppress
because the search warrant was supported by probable cause.
The Fourth Amendment provides the right of people to be secure in their
houses and protects against unreasonable searches and seizures.2 A search is
unreasonable, absent a few exceptions, unless it is accompanied by a warrant
supported by probable cause.3 An affidavit submitted in support of a search
warrant shows probable cause when it creates a reasonable likelihood that
2 U.S. Const. amend. IV.; Ky. Const. § 10.
3 Com. v. Pride, 302 S.W.3d 43, 50 (Ky. 2010).
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evidence of the crime exists at the place to be searched.4 The trial court
examines the four corners of the affidavit and assesses the totality of the
circumstances alleged to deduce if this reasonable likelihood exists.5 Evidence
found as a result of a warrant lacking this nexus will be suppressed.6 We
review de novo a trial court’s denial of a motion to suppress.7 In conducting
our review, we ask if the warrant-issuing judge had a substantial basis for
concluding probable cause existed.8 If no basis exists, the evidence may be
suppressed.
Our analysis in the present case begins with an assessment of the facts
alleged in the affidavit. We look within its four corners to determine whether
there was a fair probability that evidence of the crime, the burglary at the
victim’s house, will be found in a place, Townsend’s residence. Estep prepared
and submitted to the warrant-issuing judge an affidavit making the following
assertions of fact:
On 03/15/2017 the affiant drove confidential source 1705 to the
aforementioned residence. Samantha Keith exited the
aforementioned residence and walked up to my passenger side
window. CS 1705 gave Samantha Keith $120.00 in exchange for a
zip lock bag containing crystal methamphetamine. CS 1705 stated
Samantha Keith is the girlfriend of Brad Townsend and resides
with Brad Townsend at the aforementioned residence.
On 05/17/2017 I contacted confidential source 1705 in reference
to a burglary that had happened inside the Somerset city limits on
4 Minks v. Com., 427 S.W.3d. 802, 808 (Ky. 2014).
5 Hensley v. Com, 248 S.W.3d 572, 576 (Ky. App. 2007).
6 Pride, 302 S.W.3d at 49–50.
7 Id. at 49.
8 Ragland v. Com., 191 S.W.3d 569, 583 (Ky. 2006).
4
05/13/2017. The victim of the burglary told Sgt. Dobbs that
Corey Upchurch and Jordan Prince were responsible for the
burglary. The person further stated to Sgt. Dobbs that some of the
stolen items were with Brad Townsend. On 05/30/2017
confidential source 1705 called the affiant and stated she was at
the aforementioned residence on 05/26/2017. CS 1705 states
Brad Townsend showed her several rifles and shotguns and told
her they were stolen. The confidential source has cooperated with
the Somerset Police Department for approximately 2 months. The
affiant has consistently found them to provide reliable information,
which was corroborated by audio/Video recordings and/or
controlled drug purchases.
Acting on the information received, Affiant conducted the following
independent investigation:
A search of Courtnet records revealed Brad Townsend was
convicted of rece1ving stolen property U/300 on 11/02/1993 case
#93 CR-00031-01 Courtnet records also revealed Brad Townsend
was convicted of Facilitation to manufacture meth on 05/06/2004
case #04 CR-00008-001. A further search of Courtnet records
revealed Brad Townsend was convicted of PCS1 ‘on 03/08/2010
case #09 CR-00335-001. A further search of Courtnet records
revealed Brad Townsend was convicted of Unlawful possession of a
meth precursor and TCS 1St on 11/20/2014 case #14 CR 00098
001 & 14 CR 00100. Through the affiant’s training and experience
convicted felons are not allowed to purchase/possess firearms,
they could obtain them through illegal sales, thefts, and residential
or commercial burglaries.
Townsend argues this affidavit was “bare” and did not create a
substantial basis for concluding probable cause existed for searching his
property for the stolen guns. We disagree. The affidavit was supported by
statements from a confidential informant who had proved to be reliable in the
past.9 The affidavit described that the victim believed his stolen property to be
9 Lovett v. Com., 103 S.W.3d 72 (Ky. 2003). Townsend does not argue that it
was improper for the officer to rely on the informant’s information, instead only
focuses on the officer’s reliance on the victim’s statements because it was misleading.
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at Townsend’s residence. Townsend contends this is a misleading statement
because the victim also told the officer that two other men, not Townsend were
responsible for the crime. But we have never required that every fact in an
affidavit must connect the defendant to the crime. Instead, we ask if
commonsense leads to the conclusion that evidence of the crime will be found
in the place to be searched.
For example in an unpublished decision, Holloway v. Com.,10 we found
an affidavit containing several facts connecting the victim to a suspect to
support the issuance of a warrant. The affidavit described the victim’s
statement about the perpetrator’s characteristics as well as information that
led the victim’s friends to believe she was going to meet him on the day she was
killed. Holloway argued that the affidavit was insufficient because it lacked
several important details about the crime including the exact distance of the
victim’s car from the defendant’s residence, and the affidavit did not explicitly
state that the victim had been with Holloway. But we discussed in Holloway
that as opposed to a hyper-technical view of the facts, we must look to the
totality of the circumstances.11 As a result, we found the victim’s description
alongside the other information led to the common-sense conclusion that there
was a substantial likelihood that evidence of the crime would be found at
Holloway’s residence.12
10 No. 2003–SC–0089–MR 2005 WL 204544 *6-7 (Ky. August 25, 2005).
11 Id. at *7.
12 Id.
6A similar analysis in this case leads us to the conclusion that the
affidavit was sufficient to support a finding of probable cause. While it is true
that the victim did not implicate Townsend in the burglary, but only suggested
the stolen guns were at his house, this statement still connected him to
evidence of the crime. This information was then confirmed by the informant,
who reported to police that Townsend not only told her the stolen guns were at
his house but showed them to her as well. As Townsend notes, probable cause
is a practical, non-technical conception that deals with the practical
considerations of everyday life.13 When considering the facts here described,
the affidavit supports a substantial probability that evidence of the robbery, the
robbery of the victim’s house, would be found at Townsend’s residence.
Townsend also argues the information in the affidavit was stale because
at the time the warrant was executed the information that Estep had was 86
days old. It is a valid point that “[i]n the context of drug crimes information
goes stale very quickly because drugs are usually sold and consumed in a
prompt fashion.”14 However, whether the information in the warrant was stale
is to be determined by the circumstances of each case.15 As we explained in
Ragland v. Commonwealth, staleness is not a cut and dry analysis, but
requires an assessment of the circumstances surrounding the warrant.16 The
13 United States v. Frazier, 423 F.3d. 526, 531 (6th Cir. 2005).
14 United States v. Brooks, 594 F.3d 488, 493 (6th Cir. 2010).
15 United States v. Spikes, 158 F.3d 913, 923 (6th Cir. 1998).
16 476 S.W.3d. at 584–85.
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time between the events listed in the affidavit and the execution of the warrant
is not entirely dispositive.17
The information connecting Townsend to the stolen guns was not stale.
Townsend seems to avoid a crucial point: the warrant in this case was to
search his residence for the stolen guns, not drugs. As the facts aver in the
affidavit, the burglary occurred May 13, 2017. Four days later, Estep
contacted the informant about Townsend after 1) the officer had been told by
the victim that he thought the stolen property was at Townsend’s residence,
and 2) he had previously seen a drug transaction take place at Townsend’s
residence, with which the informant was connected. Thus it was logical for
Estep to ask this informant about information regarding the stolen items
because she had some knowledge about Townsend’s residence. On May 26,
2017, the informant then relayed to Estep that Townsend had showed her
stolen guns and on May 30, less than two weeks after the burglary, police
executed the warrant.
Townsend focuses his staleness argument on the length of time between
Keith’s arrest on March 15, 2017, and the date the warrant was executed, May
30, 2017. However the drug transaction is not the reason the warrant was
executed but instead was the reason Estep reached out to the informant. The
events connecting Townsend to the burglary, the information connecting him to
the presence of items stolen in the burglary, and the execution of the warrant,
17 Id. at 584.
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all happened in roughly two weeks, as the investigation progressed. Staleness
is adjudged by the circumstances of each case. and this Court are not
persuaded that the information supporting the issuance of this warrant was
stale.
B. The trial court committed reversible error when it allowed the
Commonwealth to introduce evidence of Townsend’s prior
conviction in the guilt phase of the trial.
Townsend argues that admitting his prior conviction for possession of a
methamphetamine precursor during the guilt phase of the trial was highly
prejudicial and resulted in reversible error. This issue was properly preserved,
so we review for abuse of discretion and reverse the conviction if the error was
not harmless in that it substantially swayed the verdict.18 Evidence of other
crimes, wrongs, or acts cannot be used “to prove the character of a person in
order to show action in conformity therewith.”19 Evidence of prior crimes is
generally inadmissible unless it is relevant to an issue of motive, opportunity,
intent, preparation, plan, knowledge, identity, or absence of mistake or
accident in the case.20 Even if the evidence is relevant to one of those
categories and at issue in the case, the probative value must not be
substantially outweighed by its potential for prejudice to the defendant.21
Dixon v. Com., 519 S.W.3d. 396 (Ky. App. 2017) (citing Allen v.
18
Commonwealth, 395 S.W.3d 451, 467 (Ky. 2013)).
19 Kentucky Rule of Evidence (KRE)404(b).
20 Bell v. Com., 875 S.W.2d. 882, 888 (Ky. 1994).
21 Id. at 890.
9
Townsend was indicted on two counts of first-degree complicity to traffic
a controlled substance; first offense and manufacturing methamphetamine,
first offense; as well as first-degree persistent felony offender. The
Commonwealth filed notice of intent to introduce KRE 404(b) evidence of
Townsend’s 2018 guilty plea to possession of a methamphetamine precursor
after an active “compact meth lab” was found in his truck. The Commonwealth
argued this prior conviction was relevant to prove Townsend’s intent and
knowledge relating to current manufacturing methamphetamine charge.
Defense counsel countered that introduction of the prior conviction was unduly
prejudicial and irrelevant until Townsend put at issue his knowledge or intent
to manufacture methamphetamine. The trial court allowed the evidence to be
admitted, finding that it was probative of Townsend’s intent and knowledge of
manufacturing methamphetamine and being familiar with the items.
The jury heard about the prior conviction more than once during the
trial: first in the Commonwealth’s opening statement, then in Estep’s
testimony, and finally in the testimony of Constable Wallace. The trial court
admonished the jury more than once that this evidence was not to be used to
prove guilt in the present case but only to show knowledge and intent.
Ultimately, the jury did not convict Townsend of the methamphetamine
manufacturing charge but convicted him of complicity to traffic a controlled
substance in the first degree-first offense of greater than 2 grams of
methamphetamine, complicity to traffic a controlled substance-first degree,
10
first offense of less than 10 dosage units of oxycodone, and of being a
persistent felony offender in the first degree.
We find that the trial court erred by admitting evidence of Townsend’s
prior conviction even for the limited purpose of proving his knowledge and
intent. As Townsend points out, he never denied he knew how to manufacture
meth or lacked the intent to manufacture meth. Thus his prior conviction was
not relevant to any genuinely disputed issue. Our discussion about KRE
404(b) in Southworth v. Commonwealth22 is instructive in resolving this issue.
We explained that “if there is no question of fact that the other-acts evidence
resolves, or if there is no proof sufficient to raise a question to be answered,
then the other-acts evidence has no relevance other than to show the
defendant’s propensity to commit acts of violence.”23 We drew a strict line “that
relevance for purposes other than propensity must be found in disputed
issues.”24
Here, the Commonwealth contends Townsend’s prior conviction is
relevant to show knowledge, but that really means proof of the defendant’s
“ability or capacity to commit the act.”25 And “such capacity has to be more
22 435 S.W.3d. 32, 49 (Ky. 2014) (“Such evidence is not admissible unless the
‘other purpose’ allegedly justifying its admission is genuinely in dispute.”) (citing
Robert G. Lawson, The Kentucky Evidence Law Handbook § 2.25(II) (3d. ed. 1993)).
23 Id.
24 Id.
25 Id.
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than proof of a capacity shared by most people.”26 Here, manufacturing meth
is an act that requires a skill set generally unknown to the average person.
But importantly, Townsend never disputed that he lacked that skill.27 The
same can be said of his intent to manufacture methamphetamine, as he also
never based his defense on the inability to form the requisite intent to commit
such a crime. Instead, his defense was simply that the Commonwealth had no
proof that the items seized belonged to him. Contrary to the Commonwealth’s
position that intent and knowledge are always at issue in every drug
manufacturing case, we find that “the knowledge in question . . . must prove
some fact at issue in the case.”28 Without intent or knowledge being in genuine
dispute, the trial court erred in allowing the previous conviction to be
introduced.
Because we find Townsend’s prior conviction was erroneously admitted
we must now assess if the error warrants reversal. An error is reversible if the
erroneously admitted evidence has a reasonable possibility of contributing to
the conviction; it is harmless if there is no reasonable possibility that it
26 Id. 49-50. (“Evidence of a person's capacity to commit the act would not often
be relevant to show that the act was done or the actor's intent; hence, capacity would
usually be offered to identify the defendant as the person who did the act. When
offered on the issue of identity, the ability shown must not be one shared by the entire
populace; e.g., evidence of a prior shoplifting offered to prove the defendant has the
ability to steal. Rather the ability must be one that would serve to discriminate
between the defendant and other persons who might have committed the crime.”).
27 Id. at 50. (“If showing any kind of knowledge is sufficient to meet KRE 404(b),
then the rule would eat itself. All proof of other acts shows some amount
of knowledge of how to do the act.”).
28 Id. at 50.
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contributed to the conviction.29 We find the facts here are like that in
Commonwealth v. Buford.30 In Buford we reversed the defendant’s sexual-
assault conviction after KRE 404(b) evidence was improperly admitted.31 The
Commonwealth had introduced the victim’s prior allegations of sexual assault
against the defendant to show modus operandi as well as intent, motive, plan,
or absence of mistake.32 We found this to be error because the prior
allegations were not so similar to be probative of Buford’s charges.33
Additionally, we found the error to warrant reversal because several witnesses
testified regarding the allegations, and the prior-acts evidence was used as a
crucial part of the Commonwealth's theory of the case.34 Overall, the
improperly admitted evidence was testified to extensively by several witnesses
and was mentioned as a conclusive fact in the Commonwealth’s closing
argument.35 Because the prejudicial evidence was pervasive, we could not say
that its admission did not violate Buford's substantial rights.
We likewise find here that Townsend’s convictions must be reversed as
we cannot say with assurance that the jury was not substantially swayed by
29 Winstead v. Commonwealth, 283 S.W.3d 678, 689 (Ky. 2009) (“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.”).
30 197 S.W.3d. 66, 76 (Ky. 2006).
31 Id. at 69-70.
32 Id. at 70.
33 Id. at 70-71.
34 Id. at 72.
35 Id.
13the introduction of Townsend’s 2014 guilty plea and conviction. While he was
not convicted on the current manufacturing-methamphetamine charge, he was
convicted of complicity to traffic a controlled substance of methamphetamine
and oxycodone. The prior conviction was mentioned at least three times,
including during the Commonwealth’s opening statement, Estep’s testimony,
and Constable Wallace’s testimony. Of all improper evidence admitted, Estep’s
statements are most concerning. On cross-examination, defense counsel asked
Estep what evidence proved that items found in an off-site truck were
Townsend’s as opposed to Keith’s.
Estep: Just his priors.
Counsel: Just because he’s Brad?
Estep: Just his priors . . . priors that he was charged to facilitation
of manufacturing meth.
[Judge asks counsel to approach]
This testimony is emblematic of forbidden propensity evidence: Estep informed
the jury that the reason he charged Townsend was because he had committed
a similar crime before. Constable Wallace’s testimony was an in-depth analysis
of the evidence against Townsend in 2014, including pictures and a description
of the items found. Estep’s statement combined with the additional testimony
about Townsend’s prior conviction made it more likely the jury was swayed by
the propensity evidence. The jury was admonished that his prior conviction
was only relevant to prove Townsend’s knowledge of manufacturing meth and
not evidence of guilt of any charge. However we cannot say this cured any
potential for prejudice caused by repetition of the prior-act evidence. The
testimonies and similarity between the prior and current offenses encouraged
14
the jury to infer that because he had been involved before in crimes like the
ones charged here that he once again was guilty.36 Thus we hold that
Townsend’s convictions must be reversed.
III. Conclusion
The trial court properly denied Townsend’s motion to suppress, because
the warrant against him was supported by sufficient facts and the information
contained therein was not stale. But because unduly prejudicial character
evidence was improperly admitted against Townsend at trial, we must reverse
the judgment and remand for a new trial.
All sitting. Minton, C.J., Hughes Keller, Lambert, Nickell, JJ., concur.
VanMeter, J., concurs in part, dissents in part by separate opinion, in which
Conley, J., joins.
VANMETER, J., CONCURRING IN PART AND DISSENTING IN PART:
While I concur in much of the majority opinion, I note that the jury acquitted
Townsend of the charge that was implicated by the prior conviction, i.e.,
manufacturing methamphetamine, which charge was supported by evidence
procured from the off-site truck. He was convicted of the charges, trafficking,
related to the evidence at the house. In other words, admission of the evidence
of the prior conviction was harmless error. Kentucky Rules of Criminal
36 Winstead, 283 S.W.3d at 689.
15
Procedure 9.24. Furthermore the trial court properly ruled that the evidence
satisfied the terms of KRE 404(b).
COUNSEL FOR APPELLANT:
Karen Shuff Maurer
Assistant Public Advocate
COUNSEL FOR APPELLEE:
Mark D. Berry
Assistant Attorney General
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