APPEAL FROM PENDLETON CIRCUIT COURT HONORABLE JAY DELANEY, JUDGE ACTION NO. 10-CR-00076
The opinion of the court was delivered by: Vanmeter, Judge:
RENDERED: MARCH 8, 2013; 10:00 A.M.
BEFORE: CAPERTON, LAMBERT, AND VANMETER, JUDGES.
Floyd Wright appeals from the final judgment of the Pendleton Circuit Court sentencing him to ten years' imprisonment for his conviction of complicity to first-degree trafficking in a controlled substance (cocaine) and second-degree persistent felony offender ("PFO2"). For the following reasons, we reverse and remand this case to the Pendleton Circuit Court for a new trial.
On or about August 6, 2008, police secretly recorded an undercover informant purchasing crack cocaine from Sean Records at Records's apartment. Wright was present during this transaction and was charged with complicity to first-degree trafficking in a controlled substance (cocaine) and PFO2. Records later pled guilty and agreed to testify at Wright's trial as part of his plea agreement.
After close of all the evidence at trial, the jury was instructed to
find Wright guilty of complicity if it believed beyond a reasonable
doubt that Wright "with the intention of promoting or facilitating the
commission of [Sean Records's unlawful sale of crack cocaine] aided
Sean Records in the commission of the offense." See KRS*fn1
218A.1412; KRS 502.020. The jury returned a verdict finding
Wright guilty of complicity and PFO2, and recommended ten years'
imprisonment, which the trial court imposed. Wright appealed and now
presents various claims of error and requests that his conviction be
vacated or, in the alternative, that this case be reversed and
remanded for a new trial.
We first address Wright's claim that the trial court abused its discretion by allowing the jury to take the prosecutor's laptop into the deliberation room with them to listen to the audio recording of the drug deal. We agree the trial court abused its discretion in doing so, and reverse on this basis alone.
RCr*fn2 9.72 provides that "[u]pon retiring for deliberation the jury may take all papers and other things received as evidence in the case." The trial court has discretion to send exhibits with the jury during its deliberation. Johnson v. Commonwealth, 134 S.W.3d 563, 567 (Ky. 2004). RCr 9.74 further provides:
No information requested by the jury or any juror after the jury has retired for deliberation shall be given except in open court in the presence of the defendant (unless the defendant is being tried in absentia) and the entire jury, and in the presence of or after reasonable notice to counsel for the parties.
In this case, the audio recording of the drug transaction was admitted into evidence as Commonwealth's Exhibit #2 and was played for the jury during trial. After the case was submitted to the jury, the jury sent a note requesting to hear the tape again. The trial court played the tape numerous times in open court for the jury to hear. The jury then sent another note requesting to have the tape played in the deliberation room to determine whether two male voices could be heard because the tape was inaudible when played in open court.
The trial court and counsel for both parties discussed the jury's request, and Wright objected to the tape being played in the deliberation room outside of his presence, citing RCr 9.74 in support. In response, the Commonwealth emphasized that the jury had already heard the audio recording in open court during trial and no information was submitted to the jury for consideration outside of Wright's presence which had not already been submitted to the jury in his presence. The Commonwealth noted that the audiotape had been admitted into evidence as an exhibit, and that a jury is permitted to take exhibits into the deliberation room. The Commonwealth candidly acknowledged that it was unsure what other information was on the laptop, and that the jury might be able to access inadmissible evidence. Over Wright's objection, the trial court permitted the prosecutor's laptop to be taken into ...