PHILLIP R. CONRAD APPELLANT
v.
COMMONWEALTH OF KENTUCKY APPELLEE
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 ...