# IMPORTANT NOTICE NOTTO BE PUBLISHED OPINION

· THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),

· THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE

CITED OR,USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY.COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS,
- RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY·ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALO.NG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE

. ACTION.RENDERED: SEPfEMBER28; 2017 NOT TO BE PUBLISHED

SHAWN WILSON APPELLANT



### v. ON APPEAL FROM HENDERSON CIRCUIT COURT HONORABLE KAREN LYNN WILSON, JUDGE NO. 16-CR-'00124
COMMONWEALTH OF KENTUCKY
MEMORANDUM OPINION OF THE COURT AFFIRMING' APPELLEE

A circuit courtjury convicted Shawn Wilson ofone count offirst-degree trafficking in a controlled substance and ofbeing

## afirst-degree persistent felony offender. Thejury recommended a sentence of20 years' imprisonment, which the trial court accepted. Wilson now appeals the resultingjudgment as a matter ofright. I He alleges the following trial errors for review: { 1) the prosecution improperlybolstered a confidential informant's reliability and credibility; (2) the trial court improperly sustained an objection by"the prosecution that prevented Wilson from inquiring into potential bias ofthe confidential informant; and (3) the prosecution improperly discussed Wilson's potential for parole and early release without proper evidentiary support.

i Ky. Const. § 110(2)(b).We affirm the trial court on all three issues because**~e** find no**e~or** in the trial proceedings. I. FACTUAL AND PROCEDURAL.BACKGROUND. Wilson alleges the prosecution improperly bolstered a confidential informant's reliability and credibility. During the prosecution's case-in-chief, the Commonwealth called Detective Brad Newman as a witness. Newman testified to the facts surroundingWilson's charges, including the use of.a
. confidential in.formant. Without any prior attack byWilson on the confidential informant's credibility or reliability, Newman stated, ·"[confidential informant] has always been credible 'a,nytime he has approached us with.any information, he's always been reliable, and we've always been able to prove his reliability." Wilson failed to object on grounds ofthe introduction ofimprope( character evidence,.thus failing to preserve the issue for review. Wilson next alleges the cdurt improperly sustained an objection by the Commonwealth, therebypreventingWilson from inquiring into the confidential

.informant's potential bias. On cross examination, Wilson asked the confidential

inform.ant, "You currently have a warrant out for child support, is that correct?" The Commonwealth immediately objected to this question, and the trial court sustained the objection. Wilson alleges that this line ofquestioning would have shown the confidential informant's improper bias toward the Commonwealth. The parties dispute the preservation ofthis issue. Finally, Wilson alleges that the prosecution improperly discussed, in the sentencingphase ofthe trial, Wilson's potential eligibility for parole and early
2\

·release without proper evidentiary support. During closing arguments, the

Commonwealth stated: And as you know, and as I indicated to you earlier, there's.all kinds ofearlyrelease. Ifyou give him a 10-year**sentence~** don't · expect him to be in the penitentiaryfor 10 years. He got a 12-year sentence the last time and ifhe'd served it out he wouldn't be here today and you wouldn't be here today because he'd stillbe in prison. The Commonwealth did proffer properly certified copies ofWilson's convictions into the record as Exhibit #5, which w:as introduced and published to thejury. This exhibit included Wilson's 2008 conviction for Trafficking in a Controlled Substance First Degree on**~anuary** 23, 2008, whereby,.Wilson received a ..12- year sentence. After the introduction ofthis exhibit, Probation and Parole · Officer James Bowles testified that Wilson was on parole at the time ofthe current offense at issue. Wilson did not object to the Commonwealth's

. r statements. So 1 the issue is unpreserved for _appellate review. II. ANALYSIS.

· A. Standard ofRevietiw. The app1='"opriate standard ofreview in this case depends on the preservation ofthe three issues before the Court. Ifan issue is,unpreserved,

. .. Kentucky Rule ofCriminal Procedure .10.26 states that the appropriate standard ofreview is palpable error.2 Palpable error requires a showing thatthe alleged error affected the "substantialrights" ofa defendant, where reliefmay ' • J

be granted**"~pon** a detet:a+ination that manifest injustice has resulted from the

2 RCr 10.26. 3error."3 To find that "manifest injustice has resulted from the error," this Court must conclude that the error so sedously affected the fairness, integrity, or public reputation ofthe proceeding as to be "shocking orjurisprudentially
( intolerable."4 But ifany one ofthe three issues above is deemed to be preserved, the appropriate standard ofreview is abuse.ofdiscretion because all three rulings are evidentiaryrulings. 5 ''The test for abuse ofdiscretion is whether the trialjudge's decision was arbitrary, unreasonable, unfair,.or unsupported by sound legal principles."6 B. Prosecution's Improper Bolstering ofConfidential Informant's Reliability and Credibility Not Palpable Error.



### . Both parties concede that this·issue is.unpreserved, so we review this issue for palpable error. Both parties also agree that the prosecution· improperly bolstered the credibilityofthe confidential informant without his credibilityfirst having been attacked and throug?- specific instances ofconduct unrelated to truthfulness and untruthfulness. The Commonwealth insists this
error is hannless, but Wilson argues this error amounts to palpable error. We hold that this error did not amount to palpable error. Even where testimony is introduced in error, "
...this Court may still determine that the erroris h8.rmless pursuant to RCr 9.24 and the standards

3 Id.
. 4 Martin v. Commonwealth; 207 S.W.3d 1, 4 (Ky. 2006). s McDaniel v. Commonwealth, 415 S.W.3d 643, 655 (ky.2013); Partinv. Commonwealth, 918 S.W. 219, 222 (Ky. 1996). · · 6 Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999)
.. 4set forthin 

### Winstead v. Commonwealth7."B "A non-constitutional evidentiary
error...is harmless ifthe reviewing court can say with fair assurance that the judgment was not substantially swayed by the error."9 Errors have also been found to be harmless in light ofother strong evidence, as there is no possibility the error substantially swayed theju:ry.10 "When rehabilitation evidence is admitted before credibility is attacked,**~y** error is harmless as long as credibilityis, in fact, later impeached." 1

### l Regarding this exact type oferror, the court in 

### Fairrow v. Commonwealth12 stated, "Nor are we satisfied that the admissionofimproper evidence ofthe character ofa mere witness affected Appellant's substantial rights and constituted manifest injustice so as to require reversal as palpable error."13

. . Here, under 

### a Wiley analysis, the Con:imonwealth did present other evidence ofWilson's crimes, completely unrelated to the veracity and,reliability ofthe confidential**infomi~t.** Among the evidence presented by the Commonwealth included: (1) Detective Newman's testimony that, before the second controlled buy, Newma.Il. searched the confidential informant's person and vehicle, ensuringboth were free ofcontraband or money; (2) Newmap.**pr~vided** the confidential informant with $100 to**pur~hase** drugs from Wilson;

7 283 S.W.3d 678 (Ky. 2009).
. a Harris v.**Commonwealth~** 384 S.W.3d 117, 122 (Ky. 2012). 9 Id. at 125 (citing Winstead v. Commonwealth, 283' S.W.3d 678, 688-89 (Ky. 2009)). lo Wiley v.**Commonwealth~** 348 S.W.3d 570, 579 (Ky. 2010); Hunt v. Commonwealth, 304 S.W:3d 15, 35 (Ky. 2009); Winstead, 283 S.W.3d at 689.
. 11 Reed v. Commonwealth, 738 :;>:W.2d**~18,** 821 (Ky. 198¥) (citing Summitt v. ·Commonwealth, 550 S.W.2d 548, 550 (Ky. 1977). 12 175 S.W.3d 601 (Ky. 2005). 13 .Id. at 606. 5(3) Wilson admitted to meeting with the confidential informant on the day of ) the second controlled buy, supported with video.evidence; and (4) after the meeting, the confidential informant possessed the reque.sted quantity of

.· methamphetamine. In light ofsuch strong evidence; no·possibility exists that

the error, the admission ofcha.J:"acter evidence, substantially·swayed thejury. Additionally, under a Reed analysis, Wilson· did attack the confidential informant's character after the CommQnwe8lth bolstered it. Wilson attempted to portray the confidential informant as an unemployed individual who took advantage ofWilson's mother and who reneged on his debts to Wilson and Wilson's family. Wilson's cross-examination.ofthe confidential informant included questions regarding the length ofhis status as a confidential informant, his testimony in other cases as a confidential informant, and his aoility to "get out oftrouble" through his service as a corifidential informant. Wilso:p.'s closing argtiment reiterated that the confidential informant owed moneyto Wilson and Wilson's mother, specifically referring to the confidential informant as a "bum." Under Reed, because the confidential informant's· reliability**~d** credibilitywere eventually attacked byWilson, any error related to bolsteringthe witness's character before attack is rendered harmless
.

. Lastly, even ifthe admissic;m ofthe character evidence was not harmless, it did not rise to the level ofpalpable error. Fairrowdealt with this exact issue
. 

## " and reached the conclusion that the improper admission ofcharacter**evideric~** ofa witness does not amount 

### fo palpable error. So, no palpable error exists
.

. 6**~.**

## ·c. Trial Court Did Not Abuse Discretion by Ruling on Confidential. Informant's Potential Bias. The parties dispute the preservation ofthis issue. "[I]f

### a litigant believes

I that error has occurred (to his detriment) during a ...[criminal]judicial proceeding, he must ol;>ject in order to preserve the issue. Ifhe fails to do so in
a timely manner, his claim for relieffrom the error is forfeited."14 ·Wilson argues that the cross-examination ofthe confidential informant itselfsufficiently preserved the issue for**~eview.** Even ifwe agree with Wilson, we hold that the trial court's ruling on this matter did not amount to an abuse ofdiscretion. KRE 608(b) affords the court discretion as to the introduction of"specific instances ofconduct·ofa witriess, for the purpose ofattacking the witness's

' .**cr~dibility."15** Before a trial court can even entertain its discretion regarding admissibility ofthe act, (1) the act must be probative oftruthfulness or untruthfulness and (2) the cross-examiner must possess a factual basis for the subject matter ofhis inquiry. 1 6 An**~ct** ofa witness for which he or she has yet to be·criminally**convict~d,** such as the confidential informant's alleged warrant ' 

### " for unpaid child support, falls under the discretion ofthe trial court as to whether it is to be admissible to impeach the credibility ofthat witness. Reasonable minds can differ as to whether alleged unpaid child support is probative oftruthfulness oruntruthfulness. Additionally, Wilson failed to

14 Puckettv. U.S., 556 U.S. 129 (2009). · 1s KRE 608(b). 16 Id. 7provide a sufficient factual basis for 'this alleged bad act. So the trial court's decision was reasonable. We affinn the ruling ofthe trial court on this issue.**~'** 

### D. Prosecution's Discussion ofEarly Release or Parole Not Palpable Error Both parties concede that this argument is unpreserved; thus, we review this issuefor palpable error. Wilson argues thatthe Commonwealth's statements (1) were unsupported by 

### any evidence and (2) tainted thejury's verdict by misleading thejuryinto believing that Wilson would be released and not serve his whole sentence. Regarding Wilson's first argument, as noted**earlier~** the Commonwealth did introduce evidence regarding_Wilson's prior conviction and 12-year sentence, supporting its statement in closing argument, "He got a 12-year sentence the last time
...." Additionally, the law affords all parties wide. latitude

\ when malting closing argumertts. 17 So Wilson's first argument fails because the Commonwealth's actions did not amount to any error.

·Regarding Wilson's second argument, we acknowledge that the Commonwealth's assertion, "Ifyou give him a 10-year sentence, don't expect him to be in the penitentiary for 10**y~ars,''** could possibly suggest to a .reasonable mind that a harsher sentence is needed to ensure Wilson's imprisonment._ln support ofhis argument, Wilson cited numerous cases. But, the statements made by the Commonwealth in this case do not rise to the level

11 See Crossland v. Commonwealth, 291 S.W.3d (Ky.**~009);** Bbcler v: Commonwealth, 204 S.W.3d 616 (Ky. 2006). 8oferror appearing 1in any ofthe cases offered byWilson.is In sum, the Commonwealth in this case did not make a conclusory factual or legal misstatement to thejury, as the Commonwealth did in the**case~** cited by Wilson where the court found reversible error;**ra~er;** the Commonwealth

· simply suggested a truly plausible scenario. So the Commonwealth's

statements do not rise to the level ofpalpable error. III.
.CONCLUSlON. We affirm thejudgment because we find no palpable error and no abuse ofdiscretion by the trial court.19 Millton, C.J.; Cunningham, Hughes, Keller, VanMeter, Venters and**Wright~** JJ., sitting. Minton, C.J.: Cupningham, Hughes, VanMeter, Venters and Wright, JJ., concur. Keller, J., concurs in result only.

1s Whitaker v. Commonwealth, 895 S.W.2d 953, 957 (Ky. 1995) (prosecutor misstated that defendant would be**rel~ased** after 12 years rega:i"dless ofany·other circumstances); Offuttv. Commonwealth, 799 S.W.2d 815, 815 (Ky. 1990) (prosecution failed to instruct thejuzythatthe defendantwould notbe eligible forparoleuntil he has**serv~d** 12years); Holt v. Commonwealth, 219 S.W.3d 731, 732-39 (Ky. 2007) (prosecutor improperly impeached witness with statements made to prosecutor); Robinson v. Commonwealth, 181 S.W.3d 30, 38 (Ky. 2005) (incorrect orfalse testimonyaboutthe impact ofgood time. credit); Ruppee v. Commonwealth, 754 S.W.2d 852,. 853 (Ky. 1988) (prosecutor misstated law when stating defendant would be paroled in seven and one halfyears no matter what); Blane v.. Commonwealth, 364 S.W.3d 140, 153 (Ky. 2012) (juzy was advised of'original charges which were amended or dismissed). 19 Wilson mentioned in passing the possibility ofthis Court finding cumulative error in the three issues presented ifthe court did not find palpable error in them individually. But this Court "[has) found cumulative error only where the.individual errors were themselves substantial,**bordering~** at least, on the prejudicial." Brown 

## v. Commonwealth, 313 S.W.3d 577, 631 (Ky. 2010)
..The issues presentedbyWilson do not meet this standard. 9COUNSEL FORAPPELLANT: Brandon Neil Jewell Assistant Public Advocate
COUNSEL FOR AJ>PELLEE:
. Andy Beshear Attorney General ofKentucky Thomas Allen Van De Rostyne

.Assistant Attorney General

10