ON APPEAL FROM RUSSELL CIRCUIT COURT HONORABLE VERNON MINIARD, JR., JUDGE NO. 08-CR-00168.
COUNSEL FOR APPELLANT: Emily Holt Rhorer, Assistant Public Advocate.
COUNSEL FOR APPELLEE: Jack Conway, Attorney General of Kentucky, Todd Dryden Ferguson, Assistant Attorney General.
MINTON, CHIEF JUSTICE.
Barry Kerr appeals as a matter of right his convictions for first-degree trafficking in a controlled substance, second offense; second-degree trafficking in a controlled substance; and being a first-degree Persistent Felony Offender (PFO 1). He raises the following issues on appeal:
1) he is entitled to retroactive application of House Bill 463;
2) his sentence of fifty years' imprisonment constitutes cruel and unusual punishment;
3) the trial court erroneously denied his motion to suppress evidence uncovered in an illegal search;
4) the trial court erroneously admitted prior-bad-acts evidence and hearsay evidence;
5) the prosecutor's closing argument constituted misconduct; and
6) the jury recommended sentences enhanced by the PFO statute without first fixing sentences for the underlying charges.
Kerr's convictions and sentences must be reversed because the trial court erroneously admitted hearsay evidence. Because we reverse, we need address only the issues likely to recur upon retrial.
I. FACTUAL AND PROCEDURAL BACKGROUND.
Kerr had two outstanding arrest warrants at the time Kentucky State Police received an anonymous tip that he was trafficking pills out of a guest room at the Pinehurst Lodge. Only one guest room in the lodge was being rented at the time,  so Lieutenant Irvin and Detective Wesley set up surveillance of the rented room from an unoccupied neighboring room.
For the first hour of surveillance, the officers observed no activity in or out of the room. Within the next hour, a vehicle in which Kerr was a passenger pulled up to the rear door of the rented room. Kerr exited the vehicle carrying a blue duffel bag and entered the rented room.
About an hour and a half later, another car containing three people parked at the rear of the lodge. Two of the people entered the rented room and stayed for ten to twelve minutes before the trio left the lodge. About an hour later, the same car returned with three people, two of whom had visited the rented room earlier. Those two again went into the rented room and stayed for ten to twelve minutes before all three visitors left the lodge. Lieutenant Irvin and Detective Wesley unsuccessfully attempted to arrange for other officers to stop the car both times it left the lodge.
After two to three hours passed without further traffic,  Lieutenant Irvin and Detective Wesley, with assistance from other officers, decided to make contact with the occupant of the rented room. Kerr opened the door to the officers' knock, and the officers discovered that Stephanie Sharp was also present in the room. The officers immediately arrested Kerr. Located in the floor of the bedroom was the blue duffel bag that Kerr was seen carrying earlier. It was unzipped, and the officers could see large pill bottles—like those used commercially in pharmacies—and plastic baggies with pills in them. The bag also contained three empty pill bottles.
In addition to the pills, officers discovered $1, 269.00 in cash in the pocket of Kerr's trousers, which were hanging on the back of the bedroom door. They found a crack pipe under the mattress. And they found a rolled up dollar bill with white powder residue, digital scales, a knife with white powder residue, and a box of plastic sandwich baggies.
The grand jury indicted Kerr, charging him with (1) one count of first-degree trafficking in a controlled substance (oxycodone), second or subsequent offense; (2) two counts of second-degree trafficking in a controlled substance (hydrocodone and alprazolam); (3) one count of possession of drug paraphernalia, second or subsequent offense; and (4) with being a PFO 1.
At trial, the trial court granted a directed verdict of acquittal on the charge of trafficking in alprazolam. And the jury found Kerr guilty of (1) first-degree trafficking in a controlled substance, second offense; (2) second-degree trafficking in a controlled substance; and (3) being a PFO 1. The jury acquitted Kerr of possession of drug paraphernalia. The jury recommended a sentence of fifty years' imprisonment for first-degree trafficking in a controlled substance, second offense, as enhanced by being a PFO 1; and a sentence of twenty years' imprisonment for second-degree trafficking in a controlled substance as enhanced by being a PFO 1, with the sentences to be served concurrently. The trial court sentenced Kerr in accordance with the jury's recommendation.
A. Evidentiary Errors.
Before the prosecution began its case on the first day of trial, Kerr moved the court in limine to exclude two areas of evidence: (1) that police received an anonymous tip that Kerr was trafficking drugs out of a guest room at the Pinehurst Lodge, and (2) that the police had outstanding arrest warrants for Kerr. Kerr argued that the anonymous tip was hearsay and that the arrest warrants were unduly prejudicial and would be used by the jury as propensity evidence. Kerr wanted the trial court to limit the jury's information to knowing only that the police were at the lodge conducting surveillance, the police knocked on Kerr's door, and immediately arrested him.
The Commonwealth argued that the jury needed more information to understand what was happening at the lodge leading up to Kerr's arrest. The Commonwealth argued that the anonymous tip would not be presented as substantive evidence but to explain why the police were monitoring Kerr. The trial court ruled that it would allow testimony that the police had arrest warrants for Kerr—but not the crimes underlying the warrants—and would admonish the jury in order to limit prejudice to Kerr. The Commonwealth then agreed that it would not offer evidence of the anonymous tip. Ultimately, evidence of both the arrest warrants and the anonymous tip was introduced at trial under circumstances discussed below.
Kerr argues that the existence of the arrest warrants and the tip that he was trafficking pills out of the lodge are irrelevant, more prejudicial than probative under Kentucky Rules of Evidence (KRE) 403, and prohibited prior-bad-acts evidence. He also contends the anonymous tip evidence is inadmissible hearsay. We will review the arrest warrant and anonymous tip evidence separately because they implicate distinct evidentiary rules. Upon review, we hold that the trial court erred in allowing testimony of the anonymous tip but did not err in allowing testimony of the arrest warrants.
1. The Trial Court Abused its Discretion in Admitting the Anonymous Tip Evidence, and the Error was not Harmless.
Detective Wesley was the Commonwealth's first witness. He testified that the police did not charge Sharp because there was no traffic in or out of the guest room before Kerr's arrival and Sharp did not have any drugs, money, or contraband on her person at the time of arrest. On cross-examination, Kerr's line of questioning explored why the officers charged Kerr with drug trafficking but did not charge Sharp or the other people observed visiting the guest room. He asked the detective why the people who visited Kerr's guest room were not charged if the police believed they were buying pills. The detective responded that it "would be an assumption that those people were trafficking pills. I have no proof of it." Kerr then asked why it was not an assumption that Kerr was trafficking pills if it would be an assumption that the people visiting the room were trafficking.
At that point, a bench conference ensued at which the trial court agreed with the Commonwealth that Kerr had just opened the door for Detective Wesley to respond that it was not an assumption that the room occupants were trafficking because of the anonymous tip implicating Kerr. When Kerr offered to withdraw the question, the trial court said that the witness should be allowed to answer because the question had been raised before the jury. Detective Wesley then proceeded with testimony to the effect that the reason for the surveillance mission at Pinehurst Lodge was the arrest warrants for Kerr and an anonymous tip that Kerr was trafficking in controlled substances at the lodge.
Lieutenant Irvin also testified that the police did not arrest Sharp because she did not have any contraband on her or in her purse, nor had they received any information that Sharp was doing "bad stuff out of the room.
The Commonwealth later emphasized the significance of this anonymous-tip testimony in its closing argument to the jury. Kerr contends the trial court should have excluded the anonymous tip as irrelevant hearsay.
We have acknowledged that "information as to the motivation of police officers for actions they have taken may be needed to avoid misleading the jury." But "receipt of such information is fraught with danger of transgressing the purpose underlying the hearsay rule." An officer should not be allowed to relate unlimited "historical aspects of the case, replete with hearsay statements in the form of complaints and reports, on the ground that he was entitled to give the information upon which he acted. The need for the evidence is slight, the likelihood of misuse great."
In Gordon v. Commonwealth,  we described the fine line between the type of legitimate evidence that may be admitted to avoid misleading the jury and the type of illegitimate hearsay evidence that only purports to do so. We held that testimony explaining why a defendant had become a suspect in a drug investigation is relevant to avoid any implication that the defendant was unfairly singled out in the drug sting operation and to explain why the defendant was targeted. "[A]n arresting or investigating officer should not be put in the false position of seeming just to have happened upon the scene; he should be allowed some explanation of his presence and conduct." It should be sufficient for an officer to testify that he acted "'upon information received' or words to that effect[.]" So, in Gordon, "it was not improper to admit evidence that appellant had become a suspect in the county-wide drug investigation. This avoided any implication that appellant had been unfairly singled out and explained why the police equipped an informant with a recording device and money with which to attempt a drug buy from appellant."
But "[t]here was no legitimate need to say or imply that [Gordon] was a drug dealer or that he was suspected by the police department of selling drugs in a particular vicinity." This crossed the line into inadmissible hearsay, which we held was "utterly unnecessary and unfairly prejudicial. . . . Admission of this evidence branded [Gordon] a drug dealer, violated his right to confront and cross-examine witnesses, [and] denied his right to be tried only for the crime charged . . ., "
As in Gordon, it would have been proper for Detective Wesley to testify that Kerr had become a suspect in a drug investigation. This would have avoided Kerr's attempts to suggest that he had been unfairly singled out for prosecution. It also would have explained, at least partially, why officers pursued Kerr more rigorously than the visitors to Kerr's room. But there was no legitimate need to inform the jury of the anonymous tip that Kerr was dealing drugs out of the Pinehurst Lodge. This was inadmissible hearsay.
We reject the Commonwealth's contention that the anonymous tip testimony was not hearsay because it was offered to show the officers' motivation in arresting Kerr, not to prove the truth that Kerr was trafficking. Extrajudicial statements to a police officer are inadmissible hearsay unless ...