[Copyrighted Material Omitted]
Emily Holt Rhorer, Assistant Public Advocate, for appellant.
Jack Conway, Attorney General, Courtney J. Hightower, Assistant Attorney General, for appellee.
On August 17, 2010, Appellant, Kenneth Brown, made an agreement to sell David Curd eight pounds of marijuana for the price of $8,000. This was not the first time Appellant had sold drugs to Curd. As usual, Appellant and Curd decided to meet the following afternoon at Autosmart 3, located in Louisville, Kentucky. Since Appellant had no mode of transportation, he asked his friend, Stewart Grice, to drive him to the car lot. Once there, Appellant, with the marijuana in tow, entered the backseat of Curd's vehicle. Appellant was immediately surprised to see an unknown male by the name of Lashawn Talbert in
the front passenger's seat. Talbert expressed concern over the presence of Grice, who was waiting in the car next to them. Accordingly, Curd started his vehicle and exited the lot. Appellant repeatedly asked Curd to pull into various parking lots they passed. Curd, however, continued driving.
At some point during this surprise excursion, Talbert pulled out his gun and pointed it at Appellant. Curd then parked in the driveway of an abandoned house. Once parked, Appellant jumped out of the vehicle to make his escape, leaving the marijuana behind. Appellant's flight was delayed as he attempted to retrieve his cell phone that was dropped upon his exit from the car.
The events which occurred after Appellant's departure from the vehicle are in dispute. Appellant maintains that Talbert, while holding the gun in his hand, leaned outside the passenger's side door and told Appellant to come back to the vehicle. As a result, Appellant swiftly reached for his own gun and began shooting at the vehicle. Without hesitation, Curd pushed on the gas and left the scene. Appellant continued shooting as the vehicle drove away. The bullets not only hit Talbert's head, but also entered a nearby house. Talbert died at a Louisville hospital three days later.
On August 30, 2010, Appellant was indicted by a Jefferson Circuit Court grand jury for the crimes of murder, possession of a firearm by a convicted felon, two counts of first-degree wanton endangerment, and tampering with physical evidence. The possession of a firearm by a convicted felon charge was later dismissed. On April 5, 2010, Appellant was also indicted for one count of trafficking in marijuana five pounds or more while in possession of a firearm. The two cases were subsequently consolidated.
The trial commenced on January 9, 2012. The jury was instructed on all degrees of homicide and self-defense. Ultimately, the jury convicted Appellant of murder, two counts of first-degree wanton endangerment, tampering with physical evidence, and trafficking in marijuana five pounds or more while in the possession of a firearm. Appellant was sentenced to twenty-four years imprisonment. Appellant now appeals his conviction and sentence as a matter of right pursuant to Section 110(2)(b) of the Kentucky Constitution.
Right to Counsel
Appellant first argues that the trial court erred in failing to dismiss the indictments against him due to a violation of his Sixth Amendment right to counsel. This argument has several components. First, Appellant maintains that his attorney-client privilege was violated when police searched his jail cell and seized privileged material. Secondly, Appellant asks us to find that the Commonwealth's seizure of privileged information amounted to an infringement on his right to counsel. Thirdly, Appellant believes this infringement required the trial court to dismiss the indictments against him.
Appellant's trial was originally scheduled for June 28, 2011. Shortly before his trial, around June 16, 2011, Appellant mailed letters to several media outlets. Appellant's letters essentially stated that he was unjustly imprisoned. Appellant also made numerous admissions as he detailed the events of August 18, 2010, including the fact that he killed the victim. The Commonwealth unsuccessfully attempted to obtain the original letters by subpoenaing the media outlets.
On the day Appellant's trial was to begin, the judge decided to continue the trial date. Later that afternoon, Detective Brenda Wescott of the Louisville Metro
Police Department contacted a different judge and obtained a warrant to search Appellant's jail cell. The purpose of the search was to locate the original letter Appellant had sent to the media outlets. Two Louisville Metro Correctional Officers searched Appellant's jail cell and seized approximately forty-two documents. The seized documents were given directly to Detective Wescott who later emailed the documents to the prosecutor and defense counsel. Appellant requested that the trial judge conduct an in camera review of the documents, which he summarily performed. The trial judge sealed approximately twenty-four documents as protected by the attorney-client privilege and ordered Detective Wescott not to communicate with anyone about the items seized.
Appellant moved to dismiss the indictments. On December 9, 2011, a hearing on the motion was held. The trial court determined that there was no intrusion upon Appellant's right to counsel. To support its conclusion, the trial court justified Detective Wescott's actions in obtaining a warrant by stating that the original copy was needed in order to authenticate the copy she received from the media. The trial court further opined that no prejudice had occurred based on Detective Wescott's testimony that she did not discuss the contents of the privileged documents with anyone.
Whether the seizure of privileged material from a defendant's jail cell violates that person's right to counsel is one of first impression in the Commonwealth of Kentucky. The U.S. Supreme Court addressed this legal argument in Weatherford v. Bursey, 429 U.S. 545, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977). In that case, Bursey, an undercover law enforcement agent, and Weatherford were arrested for vandalizing a federal building. Id. at 547, 97 S.Ct. 837. In an effort to preserve his cover, Bursey met with Weatherford and his attorney on two separate occasions in order to prepare for trial. Id. at 547-48, 97 S.Ct. 837. Bursey maintained that at no time had he passed along any information gathered at the two meetings to his superiors or the prosecuting attorney. Id. at 548, 97 S.Ct. 837. The Court found that because Bursey did not disclose any of the information gathered at the meetings, and since the intrusion was not purposeful, Weatherford's right to counsel had not been violated. Id. at 558, 97 S.Ct. 837. Subsequently, the U.S. Supreme Court again commented on this unique argument, stating that even when the government does purposefully intrude into the attorney-client relationship, prejudice to the defendant must be shown. United States v. Morrison, 449 U.S. 361, 101 S.Ct. 665, 66 L.Ed.2d 564 (1981).
The Sixth Circuit, in United States v. Steele, listed the following four factors to consider when determining whether the government has intruded on a defendant's right to counsel:
1) whether the presence of the informant was purposely caused by the government in order to garner confidential, privileged information, or whether the presence of the informant was the result of other inadvertent occurrences;
2) whether the government obtained, directly or indirectly, any evidence which was used at trial as the result of the informant's intrusion; 3) whether any information gained by the informant's intrusion was used in any other manner to the substantial detriment of the defendant; and 4) ...