Conrad v. Commonwealth

         ON APPEAL FROM MCLEAN CIRCUIT COURT HONORABLE BRIAN WIGGINS, JUDGE NO. 16-CR-00029

          COUNSEL FOR APPELLANT: Erin Hoffman Yang Assistant Public Advocate.

          COUNSEL FOR APPELLEE: Andy Beshear Attorney General of Kentucky Mark Barry Assistant Attorney General.

          OPINION

          MINTON CHIEF JUSTICE.

         A circuit court jury convicted Phillip Conrad of first-degree trafficking in a controlled substance over 2 grams, arid of being a first-degree persistent felony offender. The jury recommended a twenty-year prison sentence, which the trial court imposed in its final judgment.

         Conrad appeals the judgment as a matter of right.^[1] He contends the trial court erred by: (1) allowing a detective to give prejudicial testimony, (2) giving faulty penalty-phase jury instructions producing a flawed sentence, (3) allowing improper evidence in the penalty phase, and (4) allowing a non-unanimous jury verdict in the penalty phase. Because we hold that none of these alleged errors warrants reversal, we affirm the trial court's judgment.

         I. FACTUAL AND PROCEDURAL BACKGROUND.

         Conrad was arrested after selling methamphetamine to a confidential informant during a controlled buy. After the controlled buy, Detective Thompson obtained a search warrant for Conrad's residence. Upon executing the search warrant, police discovered scales, empty baggies, and a wallet containing approximately $2, 300. Included in the $2, 300 was $300 in marked bills. Testing by the Kentucky State Police Lab confirmed the presence of methamphetamine among the items seized.

         II. ANALYSIS.

         A. No Prejudice Resulted from Detective Thompson's Testimony.

         Conrad first argued that he was denied a fair trial because testimony from Detective David Thompson violated Kentucky Rule of Evidence (KRE) 404(b). We find no reversible error.

         The purpose of KRE 404(b) "is to prohibit unfair inferences against a defendant"^[2] by excluding "evidence of other crimes, wrongs, or acts ... to prove the character of a person in order to show action in conformity therewith."^[3]Conrad alleges the Commonwealth violated this rule when Detective Thompson explained to the jury that confidential informants are sometimes used as the "minnow to catch a bigger fish." Conrad did not object to the Commonwealth's question that produced this response from Detective Thompson. Conrad objected to the detective's answer, citing KRE 404(b), but he did not move to strike the answer as unresponsive. The trial court did not make a ruling on the objection because the Commonwealth ended the line of questioning at that point and moved on. Further, Conrad did not insist on a ruling from the trial court nor did he request an admonition to be given to the jury.^[4]

         Because no admonition was given and because the alleged error is evidentiary in nature, our inquiry is whether this questionably preserved error was of such a substantial nature as to sway the final judgment.^[5] Conrad's strongest statement in his argument asserting that the alleged improper testimony swayed the jury is, "It is possible that the improper suggestion Mr. Conrad was a high level trafficker contributed to him receiving the maximum sentence." This is a weak assertion that hardly supports his argument. Even without Detective Thompson's statement, the jury heard testimony from the informant-drug buyer, who testified that he asked to buy $800 worth of methamphetamine and Conrad sold him just over 2 grams of methamphetamine. Further, the transaction was recorded on both audio and video, which the jury heard and viewed. The recording referred to Conrad as his "drug supplier" without objection, and the state laboratory technician testified that the substance seized from Conrad was indeed methamphetamine.

         With all this evidence, we are not persuaded that Officer Thompson's minnow-and-fish metaphor substantially swayed the verdict.

         B. Conrad is not entitled to a Mistrial Because of Alleged Errors in the Sentencing Phase of the Trial Proceeding.

         Conrad next asserts that the trial court erred when it denied his motion for a mistrial. The motion was made upon the jury's return in the sentencing phase, when the parties and the court were made aware that the page of the instructions containing the verdict form, the page requiring the jury to record the punishment it fixed for the underlying trafficking conviction, had been inadvertently omitted from the set of instructions sent to the jury room. Realizing the procedural irregularity, the trial court recommitted the case to the jury with a full set of instructions. We find no error here.

         Conrad acknowledges that there is no case in which a mistrial has been granted because of the error he alleges. And the Commonwealth correctly notes that the decision to grant a mistrial is within the trial court's discretion^[6] and that a trial court should grant a mistrial only when there is a showing of "manifest necessity for such an action or an urgent or real necessity."^[7]

         Conrad does not dispute that the trial court orally instructed the jury in the sentencing phase by reading aloud its instruction that the jury was required to fix a sentence for the underlying trafficking conviction before fixing punishment in the event they were further satisfied from the evidence that Conrad was a first-degree persistent felony offender. And the jury retired to the jury room to deliberate punishment with a written set of those instructions as read aloud by the trial court.^[8] But when the jury returned a verdict sentencing Conrad to twenty years solely on the PFO charge, the trial court and ...