Jack Conway, Attorney General, Courtney J. Hightower, Assistant Attorney General, Counsel for Appellant.
Linda Roberts Horsman, Assistant Public Advocate, Counsel for Appellee.
The Commonwealth of Kentucky appeals from a decision of the Court of Appeals which reversed a judgment of the Kenton Circuit Court convicting Appellee, Leah Tramble, of trafficking in marijuana over five pounds and sentencing her to five years' imprisonment.
The Commonwealth contends that the Court of Appeals erred in its conclusion that: 1) the trial court erroneously admitted evidence of Appellee's prior bad conduct in violation of KRE 404(b); and 2) that the prosecutor improperly misstated the facts during closing arguments. The Court of Appeals also held that a discovery violation occurred as a result of the late disclosure of an incriminating statement
made by Appellee, but that the late disclosure was harmless; the Commonwealth contends that there was no discovery violation.
Upon review, we conclude that the admission of the prior bad act evidence was proper, and that the prosecutor's correction of his misstatement during closing arguments cured any prejudicial effect that might otherwise have arisen. Therefore, we reverse the Court of Appeals' decision and reinstate the judgment of the Kenton Circuit Court.
I. FACTUAL AND PROCEDURAL BACKGROUND
At trial the Commonwealth introduced the following evidence. United States Postal Inspector Karen O'Neill was investigating the transportation of marijuana through the mail from her post in Cincinnati, Ohio. In February 2009, her investigation began to focus on John Cottrell. While investigating the case against Cottrell, Inspector O'Neill became familiar with Appellee. Significantly, it appears that at some point Cottrell was arrested in Ohio as a result of a drug investigation and that on at least one occasion a package of marijuana might have been mailed directly to Appellee's residence.
In August 2009, Inspector O'Neill received a phone call from Deputy Michael Kappes with the Boone County Sheriff's Department. Kappes told O'Neill that he had received a call from Arizona reporting that a package containing marijuana was to be delivered via Federal Express to an address in Crescent Springs, Kentucky. Upon investigation, O'Neill discovered that the address was a mailbox at a United Parcel Service (UPS) office in Crescent Springs that was rented to Appellee.
Pursuant to a warrant, Kappes, O'Neill, and other law enforcement officers opened the package bound for Appellee's mailbox and discovered over five pounds of marijuana. Kappes arranged for the package to be delivered to the UPS office and for one of his agents to pose as a clerk. Shortly before closing time, Appellee entered the UPS Store and picked up two packages, including the traced box.
Upon leaving the store, Appellee was intercepted by police officers. Deputy Kappes and Inspector O'Neill spoke with her. According to them, Appellee admitted that she knew that the packages contained marijuana and that she was to deliver them to Cottrell in Cincinnati. The combined weight of the marijuana found in the two packages was seventeen pounds. Although Appellee offered to cooperate with the authorities, Inspector O'Neill could not make arrangements with the Cincinnati Police Department for a sting operation to incriminate Cottrell. Subsequently, Appellee was charged with trafficking in marijuana over five pounds and conspiracy to traffic in marijuana.
Inconsistent with prior statements allegedly made to Kappes and O'Neill, Appellee argued at trial that she did not know that marijuana was in the packages. Appellee was convicted of trafficking in marijuana over five pounds and was sentenced to imprisonment for five years.
Appellee appealed her conviction to the Court of Appeals. The Court of Appeals held that reversible error occurred as a result of (1) the trial court's pretrial ruling permitting the admission of prior bad act evidence in violation of KRE 404(b); and (2) a misstatement of fact made by the Commonwealth during closing arguments. We granted discretionary review principally to examine whether reversible error occurs when the prosecutor makes a material ...