Rodney Bullock v. Commonwealth of Kentucky ( 2020 )

RENDERED: DECEMBER 4, 2020; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-0560-MR
RODNEY BULLOCK APPELLANT
APPEAL FROM KNOX CIRCUIT COURT
v. HONORABLE GREGORY A. LAY, JUDGE
ACTION NO. 18-CR-00195
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
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BEFORE: ACREE, DIXON, AND K. THOMPSON, JUDGES.
ACREE, JUDGE: Rodney Bullock appeals the Knox Circuit Court’s March 23,
2019 final judgment. He argues the circuit court erred: (1) by denying his motion
for a directed verdict; and (2) by denying him the right to effectively cross-
examine the prosecution’s confidential informant. Finding no error, we affirm.
BACKGROUND
Scott Smith worked with the Barbourville Police Department as a
confidential informant. On July 16, 2018, Smith met with Officer Adam Townsley
to work a drug case against Rodney Bullock. Officer Townsley searched Smith,
equipped him with a recording device, and gave him thirty dollars to buy drugs
from Bullock.
Smith drove to a gas station, followed by Officer Townsley in an
unmarked vehicle. At the gas station, Smith met with Bullock and asked if he
knew where he could purchase some drugs. Officer Townsley then observed
Smith and Bullock driving away from the gas station parking lot and pulling into a
nearby Little Caesars restaurant where Bullock sold Smith methamphetamine.
Immediately after the sale, Smith gave Officer Townsley the drugs
and a full debriefing was conducted at the Barbourville Police Department.
Bullock was indicted by the Knox County grand jury on trafficking in a controlled
substance in the first degree.
At trial, the Commonwealth played the recording of the transaction,
but the sound was muffled because Smith kept the device in his pocket. The jury
heard testimony from Officer Townsley and other officers who were present. After
the jury deliberated, they found Bullock guilty and recommended a ten-year
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sentence. The circuit court sentenced Bullock in accordance with the
recommendation. This appeal followed.
ANALYSIS
First, we note that Bullock did not properly preserve his claim that the
circuit court improperly denied his directed verdict motion. Kentucky Rules of
Civil Procedure (CR) 50.011 says that “[a] motion for a directed verdict shall state
the specific grounds therefor.” In this case, Bullock’s attorney moved for a
directed verdict, stating only “[w]e take the position that the Commonwealth has
not proved each and every element of this case.” (Video Record (VR) 2/13/2019;
1:30:55.) This falls short of the requirement, under CR 50.01, to direct the court’s
attention to specific elements of the crime that the prosecution had not proved
beyond a reasonable doubt.
In Pate v. Commonwealth, 134 S.W.3d 593 (Ky. 2004), the Supreme
Court addressed the sufficiency of a similarly general directed verdict motion.
Defense counsel, at the close of the Commonwealth’s case, said, “I make a motion
for a directed verdict, Your Honor,” which he repeated at the close of all evidence.
Id. at 597. The Supreme Court said:
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“Rule 13.04 of the Rules of Criminal Procedure provides that ‘the Rules of Civil Procedure
shall be applicable in criminal proceedings to the extent not superseded by or inconsistent with
these Rules of Criminal Procedure.’” Gross v. Commonwealth, 648 S.W.2d 853, 856 (Ky.
1983).
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These utterances were not sufficient. CR 50.01 requires
that a directed verdict motion “state the specific grounds
therefor[,]” and Kentucky appellate courts have
steadfastly held that failure to do so will foreclose
appellate review of the trial court’s denial of the directed
verdict motion. Accordingly, we find that the issue of
whether the trial court erred in denying Appellant’s
directed verdict motion was not properly preserved for our
review.
Id. at 597-98 (footnotes omitted).
On its face, Bullock’s motion might appear less general than Pate’s.
Bullock’s motion at least limited the grounds to the elements of the crime and
excluded the ground that his “defense [wa]s of such probative force that in the
absence of countervailing evidence the defendant would be entitled to a directed
verdict of acquittal.” LaPradd v. Commonwealth, 334 S.W.3d 88, 90 (Ky. 2011)
(quoting Kentucky Revised Statutes (KRS) 500.070(1)). Still, Pate would control
because the same could be said of his original motion; it preceded any defense he
presented even though his second motion did not. The Supreme Court said neither
of “[t]hese utterances” of Pate’s counsel was sufficient.
Furthermore, cases involving appeals of the denial of a directed
verdict motion reveal that the motion identified the specific element the defendant
believed the Commonwealth failed to prove. See, e.g., Murphy v. Commonwealth,
509 S.W.3d 34, 45 (Ky. 2017) (“entitled to a directed verdict, as the prosecution
failed to prove the element of forcible compulsion”); Wilburn v. Commonwealth,
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312 S.W.3d 321, 325 (Ky. 2010) (“failed to prove that he was armed with a deadly
weapon—an element necessary under the provision of the first-degree robbery
statute Wilburn was charged with violating”); McGuire v. Commonwealth, 287
S.W.2d 917, 917 (Ky. 1956) (“entitled to a directed verdict of not guilty because
the prosecution failed to prove there had been a ‘breaking’, an essential element of
the crime”).
Finally, Bullock’s brief continues this lack of specificity. It does not
identify any specific element he believes the Commonwealth failed to prove.
Instead, he simply argues that he should not have been convicted “unless the
prosecution proves every element in the offense charged” and “the prosecution
fail[ed] to prove the elements of this offense . . . .” (Appellant’s brief, pp. 3, 5.)
However, Bullock requested palpable error review in his reply brief.
In Commonwealth v. Jones, the Supreme Court held that an appellant could request
palpable error review in his reply brief. 283 S.W.3d 665, 670 (Ky. 2009).
Therefore, this Court shall review Bullock’s argument for palpable error under
Kentucky Rules of Criminal Procedure (RCr) 10.26.
Under palpable error review, this Court may reverse the conviction if
the denial of the directed verdict motion resulted in manifest injustice. Martin v.
Commonwealth, 207 S.W.3d 1, 3 (Ky. 2006). Manifest injustice is found only if
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the error seriously affected the “fairness, integrity or public reputation of [the
proceeding].” Id. at 4 (citation omitted).
After thoroughly examining the record, we conclude the circuit court
did not commit any error, palpable or otherwise, in denying a directed verdict. The
jury heard testimony from the investigating officers and the audio recording from
the alleged drug deal. Smith also testified to Bullock’s actions. We cannot say
with any degree of certainty that it was clearly unreasonable for the jury to find
guilt based on the evidence because the evidence amounted to more than a scintilla
as to each element of the crime with which Bullock was charged. See Perdue v.
Commonwealth, 411 S.W.3d 786, 790 (Ky. App. 2013).
The circuit court’s order denying Bullock’s directed verdict motion is
affirmed.
Bullock also argues the circuit court erred by denying him the right to
effectively cross-examine Smith. We review errors concerning limits on cross-
examination for abuse of discretion. Nunn v. Commonwealth, 896 S.W.2d 911,
914 (Ky. 1995).
According to Bullock, his counsel wanted to elicit testimony that
Smith was arrested a few months prior to trial for public intoxication, suggesting
an improper motivation for cooperating with police and arranging drug buys to
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further their investigations. Bullock believes proof of the arrest illuminated
Smith’s suspect background and credibility.
Bullock, in fact, was able to make some inroads to his effort,
succeeding in cross-examining Smith as follows:
Counsel: When was the last time you used
methamphetamine?
Smith: About three months.
Counsel: So, three months ago, puts us about November,
right?
Smith: Mhmm.
Counsel: You’re not a saint are you, Steve?
Smith: Who?
Counsel: You.
Smith: No.
Counsel: You’ve done some things, haven’t you?
Smith: Sure.
Counsel: Okay, and uh, you were arrested pretty recently,
weren’t you?
Smith: A couple months, three or four months ago,
maybe.
Counsel: What were you arrested for?
Smith: P.I.
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(VR 2/13/2019; 1:10:39 – 1:11:09.)
At that point, the Commonwealth objected, arguing the line of
questioning was irrelevant. Smith’s arrests were inadmissible, said the
Commonwealth, and Smith’s other convictions were misdemeanors that were
likewise inadmissible. The circuit court sustained the objection. We find no error
here.
Bullock is correct that a criminal defendant has a constitutionally
protected right to cross-examine witnesses for any potential bias or motivation in
testifying. Davis v. Alaska, 415 U.S. 308, 316-17, 94 S. Ct. 1105, 1110, 39 L. Ed.
2d 347 (1974). However, it is well-established that the right is not unlimited, and
trial courts “retain wide latitude insofar as the Confrontation Clause is concerned
to impose reasonable limits on such cross-examination based on concerns about,
among other things, harassment, prejudice, confusion of the issues, the witness’[s]
safety, or interrogation that is repetitive or only marginally relevant.” Delaware v.
Van Arsdall, 475 U.S. 673, 679, 106 S. Ct. 1431, 1435, 89 L. Ed. 2d 674 (1986);
see also Commonwealth v. Maddox, 955 S.W.2d 718, 721 (Ky. 1997) (“[t]rial
courts retain broad discretion to regulate cross-examination”). “[T]he
Confrontation Clause guarantees an opportunity for effective cross-examination,
not cross-examination that is effective in whatever way, and to whatever extent,
the defense might wish.” Van Arsdall, 475 U.S. at 679, 106 S. Ct. at 1435
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(emphasis in original) (citation omitted). “In defining reasonable limitations on
cross-examination, this Court has cautioned: ‘a connection must be established
between the cross-examination proposed to be undertaken and the facts in
evidence.’” Davenport v. Commonwealth, 177 S.W.3d 763, 768 (Ky. 2005)
(quoting Maddox, 955 S.W.2d at 721). The trial court does not err by limiting
evidence of potential bias when there is a lack of credible evidence supporting the
inference. Bowling v. Commonwealth, 80 S.W.3d 405, 411 (Ky. 2002).
Our Supreme Court addressed this issue in Davenport v.
Commonwealth. In that case, the appellant challenged the trial court’s refusal to
permit defense counsel to cross-examine a witness about his probationary status in
an adjacent county as well as his pending misdemeanor charges in the venue
county. The appellant maintained that the proposed cross-examination was
necessary to impeach the witness’s credibility by establishing the possibility that
he may have cooperated with the police in anticipation of leniency regarding his
probation and, more importantly, to establish that an even greater potential for bias
existed given the two misdemeanor charges that were pending at the time of the
trial. Here, Bullock takes the same approach as Davenport, claiming the exclusion
of that testimony violated his Sixth Amendment right to cross-examine the
prosecution’s witnesses.
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Upholding the trial court’s decision in Davenport, the Supreme Court
said:
[A] limitation placed on the cross-examination of an
adverse witness does not automatically require reversal:
the “denial of the opportunity to cross-examine an adverse
witness does not fit within the limited category of
constitutional errors that are deemed prejudicial in every
case.” Van Arsdall, 475 U.S. at 682, 106 S. Ct. at 1437.
Rather, a reviewing court must first determine if the
Confrontation Clause has been violated. The [United
States Supreme] Court explained:
While some constitutional claims by their
nature require a showing of prejudice with
respect to the trial as a whole, the focus of the
Confrontation Clause is on individual
witnesses. Accordingly, the focus of the
prejudice inquiry in determining whether the
confrontation right has been violated must be
on the particular witness, not on the outcome
of the entire trial . . . . We think that a
criminal defendant states a violation of the
Confrontation Clause by showing that he was
prohibited from engaging in otherwise
appropriate cross-examination designed to
show a prototypical form of bias on the part
of the witness, and thereby “to expose to the
jury the facts from which jurors . . . could
appropriately draw inferences relating to the
reliability of the witness.” Respondent has
met that burden here: A reasonable jury
might have received a significantly different
impression of [the witness’] credibility had
respondent’s counsel been permitted to
pursue his proposed line of cross-
examination.
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Davenport, 177 S.W.3d at 768 (quoting Van Arsdall, 475 U.S. at 680, 106 S. Ct. at
1435-36.
However, the Van Arsdall Court noted that any Confrontation Clause
inquiry must be fact specific: “that on the facts of that case, the error might well
have contributed to the guilty verdict.” 475 U.S. at 683, 106 S. Ct. at 1437.
While a witness’s pending charges or probationary status
alone may, in some cases, be a satisfactory basis upon
which to infer bias, the facts in evidence here were simply
insufficient to support the inference of Davenport’s bias.
Other than the plain fact of Davenport’s probationary
status, defense counsel offered no evidence whatsoever to
support the claim that he was motivated to testify in order
to curry favor with authorities. Nor was there any
evidence that prosecutors had offered Davenport a “deal”
for his testimony.
Davenport, 177 S.W.3d at 771.
We believe Bullock presented a “reasonably complete” picture of
Smith’s motivation. And, as in Davenport, the jury would not have received a
“significantly different impression” of Smith’s credibility had defense counsel
been permitted to cross-examine him about his misdemeanors.
The jury heard that Smith was arrested for public intoxication before
the Commonwealth could object. Additionally, the jury heard Smith admit to
methamphetamine use. Bullock wanted to bolster Smith’s testimony with evidence
of arrests and misdemeanor convictions, but nothing in the record indicates he
could present evidence Smith committed a felony. The evidence he wanted to
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present is inadmissible under Kentucky Rules of Evidence (KRE) 609.
Furthermore, any “specific instances of the conduct of a witness, for the purpose of
attacking or supporting the witness’ credibility, other than conviction of crime as
provided in Rule 609, may not be proved by extrinsic evidence.” KRE 608(b).
The exception to these rules for evidence specifically probative of the witness’s
untruthfulness is inapplicable. Bullock’s counsel admitted the misdemeanors only
pertained to public intoxication or violence, not truthfulness. On this record we
cannot say the circuit court abused its discretion in failing to allow Bullock to
address Smith’s arrest or prior misdemeanor convictions.
CONCLUSION
For the foregoing reasons, we affirm the Knox Circuit Court’s March
23, 2019 final judgment.
DIXON, JUDGE, CONCURS.
THOMPSON, K., JUDGE, CONCURS IN RESULT ONLY.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Brandon N. Jewell Daniel Cameron
Frankfort, Kentucky Attorney General Of Kentucky
Ken W. Riggs
Assistant Attorney General
Frankfort, Kentucky
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