Released for Publication June 4, 2015.
[Copyrighted Material Omitted]
ON APPEAL FROM BARREN CIRCUIT COURT. HONORABLE PHILLIP R. PATTON, JUDGE. NO. 13-CI-00010.
COUNSEL FOR APPELLANT: Shannon Renee Dupree, Assistant Public Advocate.
COUNSEL FOR APPELLEE: Jack Conway, Attorney General of Kentucky, Leilani K. M. Martin, Assistant Attorney General.
OPINION OF THE COURT BY JUSTICE VENTERS. All sitting. Minton, C.J., Abramson, Barber, Keller, and Noble, JJ., concur. Cunningham, J., concurs in result only.
A Barren Circuit Court jury found Appellant, Dennis James Trigg, guilty of first-degree trafficking in a controlled substance and possession of drug paraphernalia. Appellant was sentenced to twenty years' imprisonment for the trafficking charge and assessed a $500.00 fine for the drug paraphernalia charge. On appeal, he asserts that: (1) the Commonwealth impermissibly introduced an incriminating oral statement that had not been disclosed to Appellant pursuant to RCr 7.24(1); (2) the trial court erred when it allowed testimony commenting on Appellant's pre-arrest silence; and (3) the $500.00 fine should be vacated. For the following reasons, we reverse.
I. FACTUAL AND PROCEDURAL BACKGROUND
Two suspects arrested for illegal drug possession in Glasgow, Kentucky, told police that they had purchased crack cocaine from Appellant. In response, Glasgow police officers obtained a warrant to search the residence at 514 East College Street, believing it to be Appellant's home. When Officers Mike Burton, Nick Houchens, and others arrived at the scene to execute the warrant, Appellant opened the door. He remained on the premises throughout the three-hour search. His mother apparently owned the home, but she was passed out on a couch surrounded by liquor bottles.
During the search, police examined a man's suit coat that was hanging in a bedroom closet. In the pocket of the coat, they found wrapped in a sock a quantity of crack cocaine, two boxes of razor blades, a pill, and cash totaling $920.00. They also found $336.00 and a box of plastic sandwich bags under the bed in the same room. Consequently, Appellant was arrested.
Appellant did not testify at trial, but through the testimony of friends and relatives he presented a defense that he did not reside in his mother's East College Street home, that he lived mainly at the homes of his girlfriend and his father, that he stayed with his mother only when stormy weather threatened because she was afraid of storms, and that the items found during the search did not belong to him.
During Officer Houchens's testimony, the prosecutor asked if at any time during the search, Appellant ever said, " Look, I don't even live here," or words to that effect. Appellant's objection to that question was overruled, and the prosecutor asked again if Appellant ever said during the search, " This isn't where I live, this isn't my residence." Houchens responded that Appellant had not said anything to that effect.
The same inquiry was directed to Officer Burton. He agreed that Appellant never denied that he lived at the searched premises. The Commonwealth also asked Burton why he thought the bedroom where the contraband was found belonged to Appellant. Burton responded that during the search he asked Appellant whose room it was, and Appellant admitted that it was his. Appellant's trial counsel objected to that testimony because this incriminating statement was not disclosed by the Commonwealth during pre-trial discovery. The trial court overruled Appellant's objection.
Ultimately, the case went to jury and Appellant was convicted of trafficking in a controlled substance (cocaine) and possession of drug paraphernalia. He was acquitted on another charge, possession of
hydrocodone. Appellant was sentenced as noted above. This appeal followed.
Appellant presents three arguments on appeal. First, he contends that the admission of an incriminating statement, which the Commonwealth had not disclosed during discovery, rendered him unable to prepare an adequate defense. Second, he asserts the Commonwealth's use of his silence during the search violated his Fifth Amendment privilege against self-incrimination. Finally, Appellant also argues that the $500.00 fine should be vacated. We address each argument in turn.
II. THE COMMONWEALTH'S FAILURE TO DISCLOSE APPELLANT'S INCRIMINATING STATEMENT REQUIRES REVERSAL
We first consider Appellant's argument that his trial was fundamentally flawed when the trial court allowed the introduction of evidence that Appellant told police that the bedroom in which the contraband was found was " his" room. Specifically, Appellant contends this evidence should have been excluded from the trial because, in violation of RCr 7.24(1), the Commonwealth had failed to disclose the statement during pre-trial discovery. The Commonwealth denies that RCr 7.24(1) was violated and asserts in the alternative that any error associated with admission of the undisclosed statement was harmless. We agree with Appellant and now hold that his convictions must be reversed.
RCr 7.24(1) provides in pertinent part that prior to trial, " the attorney for the Commonwealth shall disclose the substance, including, time, date, and place, of any oral incriminating statement known by the attorney for the Commonwealth to have been made by a defendant to any witness . . . ." The Commonwealth first contends that RCr 7.24 is not implicated here because Appellant's oral incriminating statement was not " known by the attorney for the Commonwealth" in advance of the trial. The Commonwealth notes that the prosecutor had not, prior to trial, asked the police investigators how they had determined which bedroom was Appellant's, and thus never learned of Appellant's statement until its fortuitous revelation at trial. We have no reason to doubt that. This is not a matter of prosecutorial misconduct and it is not claimed to be such.
However, our case law is clear: the Commonwealth cannot claim ignorance in order to avoid an RCr 7.24(1) violation. We have held that when a testifying law enforcement officer knows of a significant statement that was made, that knowledge is properly imputed to the Commonwealth, regardless of whether the prosecuting attorney had actual knowledge of the statement. Anderson v. Commonwealth, 864 S.W.2d 909, 912 (Ky. 1993). In the context of evaluating a ...