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Ward v. Commonwealth

Supreme Court of Kentucky

October 31, 2019

BENJAMIN DWAYNE WARD APPELLANT
v.
COMMONWEALTH OF KENTUCKY APPELLEE

          ON APPEAL FROM BOONE CIRCUIT COURT HONORABLE JAMES ROGER SCHRAND II, JUDGE NO. 16-CR-00044

          COUNSEL FOR APPELLANT: Shannon Renee Dupree Assistant Public Advocate

          COUNSEL FOR APPELLEE: Andy Beshear Attorney General of Kentucky Micah Brandon Roberts Assistant Attorney General

          OPINION

          MINTON CHIEF JUSTICE.

         A Boone County jury found Benjamin Dwayne Ward guilty of three counts of first-degree sexual abuse, two counts of third-degree rape, four counts of third-degree sodomy, one count of use of a minor in a sexual performance, and two counts of possession of matter portraying a sexual performance by a minor. For these crimes, Ward was sentenced to 70 years' imprisonment. Ward now appeals the resulting judgment as a matter of right, [1]raising several allegations of trial court error. Finding that the trial court erred by not striking one of the jurors for cause, Ward's conviction must be reversed.

         I. BACKGROUND.

         The victim moved in with her father when she was eight years old after her parents divorced. The victim, her siblings, her father, and her step-mother lived together near Ward and his wife, Cindy. The families became friends and often spent time together.

         When the victim was around 11 or 12 years old, she began spending more time at the Wards' house, usually without her siblings. The Wards were truck drivers and spent much of their time away from home. But when the Wards were home, the victim was frequently there with them.

         Initially, Ward behaved as a father figure toward the victim, but his attraction to her became sexual. Ward began to embrace her and touch her and refer to her as "his little girlfriend."

         Ward bought the victim gifts, including a pair of expensive boots, jewelry, and clothes, and gave her a credit card. Ward devised a scheme to give gifts to the victim without Cindy's knowledge. To that end, Ward would leave the gifts in his truck and inform the victim he had left a gift for her. The victim would then sneak out at night and retrieve them.

         The first instance of sexual touching occurred when the victim was about 11-years-old. Ward started rubbing the victim's pants, which led to him using his hand to rub the victim's vagina over her pants. Ward also kissed the victim on the lips and touched her breasts and buttocks. Another instance of sexual touching occurred in Ward's pickup truck. Ward would often pick the victim up a few streets away from their houses and drive her to school. On one occasion in the truck, Ward rubbed the victim's vagina with his hand, then started kissing her, which led to him almost driving off the road. Yet another instance of sexual touching occurred when the victim was sitting on Ward's lap in a computer chair, where he rubbed the victim's vagina over her pants.

         The first time Ward had sexual intercourse with the victim was when they were in a room in the Ward residence called the "bat cave." The victim was between 12 and 14-years-old at the time. Ward asked for sex, and the victim replied, "You're my boyfriend. Sure." Ward then engaged in sexual intercourse with the victim, but he stopped after she began crying because of the pain. The second time Ward had intercourse with the victim was when they were in Ward's basement. The victim testified that she was about 13-years-old at this time. Again, Ward stopped engaging in intercourse with her after she started crying because of the pain.

         Ward also caused the victim to perform oral sex on him. One instance occurred in the "bat cave" when the victim was either 13 or 14-years-old. Another instance occurred either in the "bat cave" or in the basement of the Ward residence. A third instance occurred outside after Ward asked the victim to sneak outside and meet him, which she did after Ward begged for an hour.

         Ward and the victim often engaged in sexting. On one occasion, Ward told the victim that he was upset about something and needed the victim to cheer him up, asking the victim to send him nude photos. The victim complied and sent him four nude photos.

         Cindy eventually suspected impropriety between Ward and the victim. Cindy began to find the victim alone with Ward in the Ward residence. On one occasion, Cindy found the victim clad only in her underwear asleep on the futon in the "bat cave." Cindy eventually learned of the gifts Ward had been leaving for the victim in his truck.

         The victim's father and step-mother discovered a letter written by her that claimed she was in a romantic relationship with Ward. That same month, the Northern Kentucky Children's Advocacy Center interviewed the victim. She told the advocacy center that she and Ward were engaged in a "romantic relationship" and that they would communicate via Facebook. During the interview, the victim explicitly and repeatedly denied any physical contact or sexual activity with Ward. The victim also stated that she had written the letter because she was angry at Ward for not buying her an iPad. Following a second interview, the sheriffs department determined that the victim was "out of control" because of her tumultuous family situation but insufficient evidence was available to proceed with a criminal investigation.

         Soon thereafter, Cindy received a sexually explicit text message from Ward that was intended for the victim. In the text message, Ward communicated his desire to perform oral sex on the victim. When confronted, Ward and the victim both claimed that they had never engaged in a sexual act together.

         One night, while Ward and Cindy were watching a movie in the "bat cave," Cindy turned to see Ward looking at his phone. Cindy then noticed Ward squirming in his seat and rubbing his penis. When Cindy viewed Ward's phone, she became aware that Ward was engaged in a live video chat with the victim in which the victim was nude and displaying her genitals.

         Cindy called the sheriff, stating that she had just witnessed her husband watching on his phone a live video of a naked minor. Cindy provided the officers with several pieces of paper that she had found in the trash containing sexually explicit drawings and references to the victim, presumably created by Ward. The victim testified that Ward used these drawings to communicate silent sexual conversations with her and give her directions over video. After Cindy's report, the sheriffs department arranged for Cindy to attempt a recorded, controlled phone call with Ward.

         During the call, Cindy repeatedly asked Ward for details on the live-stream video incident she witnessed and for details of his relationship with the victim. Ward stated that the victim approached him and that they had engaged in sexting. As the call with Cindy continued, the couple argued, with Cindy making accusations and Ward issuing repeated denials. Ward stated he was going to set the house on fire, to which the sheriffs department responded by sending two officers to secure the residence.

         Following the officers' securing and searching the residence, one of the officers interviewed the victim. The victim stated that she and Ward had sexted several times, but she denied any physical, sexual contact between them. Following this interview, investigators took no further action for six months while waiting on a full analysis of all electronic devices seized during the search of the Ward residence.

         Finally, the victim had a third interview with the Northern Kentucky Children's Advocacy Center. The victim said that she was in a "healthy, normal relationship" with a young man her own age who encouraged her to tell her full story. The victim then admitted that she and Ward had engaged in sexual acts together. The victim described how the relationship began when she was around 11 years old and continued until she was 15 years old. The victim said that she had become infatuated with Ward and considered him her boyfriend. She then described the events recounted above. Based on this interview, the Commonwealth brought charges against Ward that led to his indictment.

         At trial, the jury found Ward guilty of three counts of first-degree sexual abuse, two counts of third-degree rape, four counts of third-degree sodomy, one count of use of a minor in a sexual performance, and two counts of possession of matter portraying a sexual performance by a minor. For these convictions, Ward was sentenced to a total of 70 years' imprisonment. And the trial court entered judgment accordingly. This appeal followed.

         II. ANALYSIS.

         A. The trial court did not err in denying Ward's motion to dismiss the indictment or, in the alternative, to disqualify the Commonwealth Attorney's Office and Sheriffs Department.

         1. Ward's recorded phone calls from jail included privileged attorney-client communications.

         Ward first challenges as error the trial court's denial of his motion to disqualify the Office of the Commonwealth's Attorney for the 54th Judicial Circuit and the Boone County Sheriffs Department for violating his right to privileged attorney-client communication. The background for this motion was the fact that the Commonwealth's Attorney's office and the sheriffs office reviewed recordings of all telephone calls Ward made from the jail while incarcerated pretrial. The basis for this motion was the fact that among those recordings were several conversations about trial strategy between Ward and his defense counsel. This issue is preserved for our review.

         "Any prosecuting attorney may be disqualified by the court. . . upon a showing of actual prejudice."[2] We review a trial court's denial of a defendant's motion to disqualify a prosecutor for abuse of discretion.[3] "The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles."[4]

         Ward moved to disqualify the Commonwealth's Attorney's Office and the Boone County Sheriffs Office after he received from the Commonwealth through pretrial discovery recordings of telephone calls Ward made from jail over a 20 to 21-month period of pretrial incarceration. Contained within those recorded calls were 48 recorded calls between Ward and his defense counsel. Because the Commonwealth's Attorney and the Sheriffs Department were in possession of these recordings containing privileged attorney-client communications, Ward argued, both entities should be disqualified from prosecuting the case. Ward proposed a remedy of new prosecution and law enforcement investigators to ensure that his Sixth Amendment right to counsel would not be violated.

         The trial court conducted an initial hearing in response to Ward's motion. Defense counsel explained that included in the 48 phone calls was substantive communication between Ward and defense counsel regarding trial strategy and witnesses, although defense counsel acknowledged that he had no evidence that the Commonwealth listened to any of the recorded calls.

         Assistant Commonwealth's Attorney Corey Gamm responded that to prepare for trial he routinely subpoenas the recordings of a defendant's incoming and outgoing jail calls. Gamm then explained, "In cases where there are attorney calls ... we don't listen to them. ... As long as I've been doing this that's how we've always done it." Gamm stated that he had not listened to any of the calls between Ward and defense counsel because "that's just not what we do." Another prosecutor explained that both parties to a jail call receive a recorded message stating that the call is being recorded, but defense counsel responded to that assertion by stating that the message also includes an assurance that attorney-client conversations are not recorded.[5] Finally, Gamm stated that while listening to Ward's calls, if he happened across a call between Ward and defense counsel, he skipped that call.

         Clearly concerned about the potential breach of confidential attorney-client communication, the trial court held a second hearing a couple of weeks later. At this hearing, defense counsel called Gamm to testify under oath. Gamm began his testimony by explaining that, as a rule, he files in the record the subpoena of the inmate's telephone record, but he did not do so in the present case because he forgot to do so.[6] Gamm admitted that he did not give defense counsel notice of the issuance of the subpoena.

         Gamm then testified that he received the calls sometime in March. He placed the discs containing the calls in an office file and did not listen to them until August. Gamm sent a message to defense counsel on August 16 and made a copy of the discs, which defense counsel obtained. Gamm testified that he had not listened to any of Ward's phone calls at that point in time.

         When Gamm began the process of listening to the phone calls, he encountered such a high volume of calls that he assigned listening duties of one of the discs to Detective Parker of the Boone County Sheriffs Department. Gamm played the recording of the calls "in the background while [he] was working on other things." Gamm stated, "I can't tell you how far I got into it, but at one point I did realize there was a call between Mr. Ward and [defense counsel]." Gamm could not pinpoint a specific day or time when he encountered that call, but he thought that it was either "several days or a couple weeks" after August 16.

         Defense counsel then asked Gamm, "So you listened to a conversation between Mr. Ward and [defense counsel]?" Gamm stated that he listened to no more than ten seconds of the call and stopped listening when he realized he was hearing a conversation between Ward and defense counsel. Defense counsel then asked Gamm whether he had received jail-call recordings in the past with attorney-client conversations on them, to which Gamm responded that he had never heard an attorney-client call when listening to recorded jail calls before. Gamm also stated that the possibility of hearing attorney-client conversations on recorded jail calls had never occurred to him.

         Defense counsel then asked what action Gamm took after realizing that the Commonwealth was in possession of privileged attorney-client communications. Gamm responded by stating that he assumed that a mistake had been made. He assumed that whatever system was in place to screen that kind of conversation had failed with respect to that conversation. Gamm testified that he thought, "not a big deal." He stopped listening to that call and only listened to a few more calls because the recordings were not divulging information that would help his case. Gamm admitted that he should have notified someone immediately when he heard the call to defense counsel, that he did not give such notice, and that he wished he had. Gamm then testified that he did not hear any privileged attorney-client communications other than the ten seconds of the one call about which he testified.

         Defense counsel then asked whether Gamm took any action to purge the information from his office. Gamm had not. After defense counsel filed the motion to disqualify, Gamm also asked Detective Parker to return the disc to him.

         During examination by the Commonwealth, Gamm backed away from his statement made at the prior hearing that "attorney-client calls are frequently contained in the recordings." Gamm explained that his earlier statement came from speaking with administrative personnel about another case that involved this issue.

         Detective Parker testified at the second hearing that she received two discs from Gamm containing recorded phone calls. She testified that she did not hear any conversations between Ward and defense counsel, and, in fact, she listened to a small number of the total calls in general-she only heard conversations between Ward and his mother and sister and between Ward and a man she did not know but whom she believed to be another inmate. While Detective Parker testified that she never heard defense counsel's voice in any of the phone calls she listened to, she did admit that she would have no way of knowing whether the call she was listening to was between Ward and defense counsel without Ward identifying defense counsel by name. She also testified that she was not sure about the total number of phone calls to which she listened.

         2. Despite the Commonwealth's possession of recordings of privileged conversations, no Sixth Amendment violation occurred; and trial court did not abuse its discretion by declining to disqualify the prosecutor and the sheriff's department.

         Ward argues that his Sixth Amendment right to counsel was violated when the trial court denied his motion to disqualify the Commonwealth's Attorney's Office and the Sheriffs Department. The facts here are troublesome, but we conclude that the trial court did not abuse its discretion in denying Ward's disqualification motion because no Sixth Amendment violation occurred here.

         We dealt with the Commonwealth's possession of privileged attorney-client material in Brown v. Commonwealth.[7] The issue in Brown was "[w]hether the seizure of privileged material from a defendant's jail cell violates that person's right to counsel[.]"[8] In concluding that the defendant's Sixth Amendment right to counsel had not been violated, we began our analysis by examining the U.S. Supreme Court's decision in Weatherford v. Bursey[9] on this issue.[10] In Weatherford, an undercover law enforcement agent accidentally learned of attorney-client privileged information while working undercover.[11]The U.S. Supreme Court found no violation of the defendant's Sixth Amendment right to counsel because the intrusion was accidental and because the undercover agent did not disclose any of the information gathered to the prosecution.[12]

         In Brown, we also recognized the Sixth Circuit's decision in U.S. v. Steele[13] as providing guidance on this issue.[14] Specifically, the Sixth Circuit in Steele listed the following four factors to consider when determining whether the government has violated a defendant's Sixth Amendment 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) whether the details about trial preparations were learned by the government.[15]

         In this case, the "informant" is the third-party company that records jail calls through which the Commonwealth can obtain recordings of those calls by subpoenaing the records in the hands of the company. The weight of the evidence adduced at the hearings before the trial court supports the conclusion that an inmate's incoming or outgoing telephone calls are recorded for several reasons not considered improper government conduct-reasons like preventing an inmate from committing additional crimes either inside or outside the jail or discovering when an inmate might instruct individuals on the outside to destroy potentially incriminating evidence. The weight of the evidence supports the additional conclusion that the Commonwealth obtains recorded jail calls to gather information helpful to the defendant's prosecution.

         The weight of the evidence presented to the trial court does not support the conclusion that the Commonwealth obtains a defendant's incoming and outgoing jail calls to receive privileged communications between an inmate and his or her attorney. And Ward does not identify any specific trial evidence that the Commonwealth obtained through these recorded conversations or any evidence that could not have been obtained outside of the Commonwealth's learning of it through these calls.

         Evaluation of the third and fourth Brown factors proves to be more difficult. There is no dispute that the Commonwealth was in possession of recordings of all the phone calls between Ward and defense counsel. Without revealing the content of the communications, we can say that the phone calls contain conversations between Ward and defense counsel about trial strategy. But Assistant Commonwealth's Attorney Gamm swore under oath that he only inadvertently heard around five to fifteen seconds of one conversation between Ward and defense counsel, while Detective Parker swore that she heard no conversation between the two. Taking the witnesses at their word, [16] the issue then becomes whether mere possession of privileged attorney-client information by the state violates the Sixth Amendment. In this case, under these facts, we cannot find that to be the case.

         Searching for case law from other jurisdictions to aid our analysis, the most analogous case we found is the unreported decision of the U.S. District Court for the District of Arizona in U.S. v. Guzman-Solis.[17] Just as in this case, the defendant sought to dismiss his case because the prosecution had recordings of jail phone calls, some of which included conversations between the defendant and his attorney.[18] Similar to the ratio of attorney-client conversations to the total number of calls at issue in the case at hand, the prosecution in Guzman-Solis had ten hours of recordings of jail telephone calls that included "approximately 45 minutes of privileged attorney-client conversations between counsel and Defendant, during which they discussed trial strategy."[19] The conversations between the defendant and his attorney were in Spanish, so the prosecutor had a detective who spoke Spanish listen to the phone calls.[20] While the prosecutor never heard a conversation between the defendant and his attorney, the detective did hear the beginning of one conversation "but she stopped listening when she recognized the attorney's voice."[21]

         The Court in Guzman-Solis began by examining the Ninth Circuit's decision in U.S. v. Danielson[22] for guidance.[23] The Court explained that in Danielson, "the prosecution team deliberately and affirmatively took steps[] that resulted in obtaining privileged information about Danielson's trial strategy."[24] The Court then specifically described the prosecution's actions in Danielson:

Members of the prosecution team wrote and retained memoranda containing privileged trial strategy information, as well as recorded, listened to, transcribed, and retained the tapes and transcripts containing the privileged information. In addition, the Assistant United States Attorney in charge of the prosecution retained in his private office memoranda and unredacted transcripts containing the privileged ...

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