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Thompson v. Commonwealth

2009 WL 1025166 (Ky. Ct. App. 2009)

April 17, 2009

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Summary

The court admitted digital recordings into evidence. The investigating officer testified that the recordings were downloaded from the recording device to a computer and then to compact discs. The court found that persuasive evidence demonstrated the reasonable probability that the recording contents were not materially altered in any way. The court noted that it is unnecessary to establish a perfect chain of custody or to eliminate all possibility of tampering or misidentification.

Note: This is an unpublished decision. Check your jurisdiction’s rules about citing unpublished decisions before citing this case to a court.

Christopher Anthony THOMPSON, Appellant,
v.
COMMONWEALTH of Kentucky, Appellee

No. 2007-CA-001771-MR

Court of Appeals of Kentucky

April 17, 2009

Appeal from Daviess Circuit Court, Action No. 07–CR–00023; Thomas O. Castlen, Judge.

Counsel

Linda Roberts Horsman, Assistant Public Advocate, Department of Public Advocacy, Frankfort, KY, for Appellant.
Jack Conway, Attorney General of Kentucky, Jeffrey A. Cross, Assistant Attorney General, Frankfort, KY, for Appellee.

Panel members: Lambert, James H., Vanmeter, Laurance B., Knopf, William L. [1]

Vanmeter, Laurance B., Judge

OPINION

Unpublished opinion. See KY ST RCP Rule 76.28(4) before citing.

*1 Christopher Anthony Thompson appeals from a judgment entered by the Daviess Circuit Court after a jury convicted him of two counts of first-degree trafficking in a controlled substance, stemming from his sale of crack cocaine to a government informant. He was sentenced to a total of thirteen years' imprisonment. This appeal followed.

Thompson, an African–American, first asserts that he was denied a fair trial when he was tried by an all-white jury. We disagree.

The videotape of the trial proceedings reveals that after the completion of voir dire, Thompson's counsel moved to strike the entire venire due to its racial composition. Although counsel at first commented that she was unsure whether a single member of the panel was African–American, she later asserted that none of the panel members were African–American. The court, by contrast, perceived that one of the panel members appeared to be African–American. The court and Thompson's counsel then engaged in the following exchange:

Judge: Do you have any reason to believe that this panel was not selected in accordance with the procedures set out by the rules of the Supreme Court?
Counsel: Until I got here I had no idea they were all going to be white, your Honor.
Judge: But that doesn't answer my question. Any reason to believe that this jury wasn't randomly selected pursuant to the administrative rules or the rules of the Supreme Court?
Counsel: I believe that if it were, your Honor, that it would be a demographic anomaly beyond anything in my experience in a county where there are, there appear to be plenty of African–American people and as far as I know a demographic average of at least eight percent African–American.
Judge: What's the percentage, what's the black population of Daviess County?
Counsel: To the best of my knowledge, it's somewhere around eight or nine percent.
Judge: What do you base that on?
Counsel: I base that on personal observation, what I've read in, true it's The Courier Journal rather than your newspaper, but it is the state-wide newspaper of record.
Judge: All right. Thank you. You finished?
Counsel: Yes, your honor.
Judge: All right, well there's no evidence that this jury was selected other than the normal procedures utilized in every jury that has been for the last however many years I've been involved in this and I find it is not unusual to have few if any blacks on the venire and so I'm going to deny your motion.

The name of the alleged African–American venire member was not drawn for seating on the final panel of thirteen jurors.[2]

Clearly, the Sixth and Fourteenth Amendments to the United States Constitution entitle a defendant to be tried by a jury drawn from “a fair cross section of the community.” Taylor v. Louisiana, 419 U.S. 522, 527, 95 S.Ct. 692, 696, 42 L.Ed.2d 690 (1975). See United States v. Allen, 160 F.3d 1096, 1103 (6th Cir.1998). Thus, “jury wheels, pools of names, panels, or venires from which juries are drawn must not systematically exclude distinctive groups in the community and thereby fail to be reasonably representative thereof.” Taylor, 419 U.S. at 538, 95 S.Ct. at 702. A defendant's proof of a prima facie violation of this requirement must include a showing

*2 (1) that the group alleged to be excluded is a “distinctive” group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.

Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 668, 58 L.Ed.2d 579 (1979); Allen, 160 F.3d at 1103; Ford v. Seabold, 841 F.2d 677, 681 (6 th Cir.1988). The government may then rebut such a prima facie showing by demonstrating “that a significant state interest [is] manifestly and primarily advanced by those aspects of the jury selection process, such as exemption criteria, that result in the disproportionate exclusion of a distinctive group.” Duren, 439 U.S. at 367–68; Allen, 160 F.3d at 1103.

Here, the first prong of the Duren test was satisfied since African–Americans constitute a “distinctive” group in Thompson's community. Thus, Thompson was required to demonstrate the proportionate number of African–Americans in his judicial district. Id. See United States v. Odeneal, 517 F.3d 406, 412 (6th Cir.2008); Dickerson v. Commonwealth, 174 S.W.3d 451, 462–63 (Ky.2005).

The record shows that although Thompson generally asserted the local African–American community was grossly underrepresented by the venire's inclusion of only a single member of that community, he failed to provide the trial court with specific supporting evidence of the percentage of African–Americans in his community. The mere use of raw, unsubstantiated population statistics, such as counsel's speculative estimate of what percentage of the local population was African–American, was insufficient. See Dickerson, 174 S.W.3d at 462–63; Ford v. Commonwealth, 665 S.W.2d 304, 307 (Ky.1983).

Moreover, Thompson failed to produce evidence of systematic exclusion of African–Americans from the venire. Although on appeal Thompson complains about the use of voter registration and driver's license lists as sources of potential jurors, the Sixth Circuit Court of Appeals stated in Odeneal that “[v]oter registration lists are the presumptive statutory source for potential jurors. 28 U.S.C. § 1863(b).” 517 F.3d at 412. Further, proof of underrepresentation requires defendants to “ ‘show more than that their particular panel was unrepresentative.’ “ Id., quoting Allen, 160 F.3d at 1003. Indeed, “it has long been the case that defendants are not entitled to a jury of any particular composition-only to a panel from which distinctive groups were not ‘systematically excluded.’ “ Allen, 160 F.3d at 1103, citing Taylor, 419 U.S. at 538, 95 S.Ct. at 702. Thus, proof of systematic exclusion requires a showing “that the underrepresentation is inherent in the jury selection process used.” Allen, 160 F.2d at 1104, citing Ford, 841 F.2d at 685. In the absence of such evidence, Thompson is not entitled to relief on this ground. See Allen, 160 F.3d at 1103; Commonwealth v. McFerron, 680 S.W.2d 924, 927 (Ky.1984); Ford v. Commonwealth, 665 S.W.2d 304, 308 (Ky.1983).

*3 Further, we are not persuaded by Thompson's assertion that the venire's composition violated his right to equal protection. More specifically, he failed to show that the venire selection process resulted in the “substantial underrepresentation” of African–Americans, as demonstrated by “comparing the proportion of the group in the total population to the proportion called to serve as ... jurors, over a significant period of time[,]” and by showing the existence of discriminatory intent through the use of a selection procedure which “is susceptible of abuse or is not racially neutral[.]” Castaneda v. Partida, 430 U.S. 482, 494, 97 S.Ct. 1272, 1280, 51 L.Ed.2d 498 (1977). See also Batson v. Kentucky, 476 U.S. 79, 93, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); Allen, 160 F.3d at 1104–05.

Next, Thompson asserts that the trial court erred by allowing digital recordings into evidence without laying a proper chain of custody. He argues that because the digital recordings of his alleged drug sales to a confidential informant “were made on a digital medium and then downloaded, per [the detective's] testimony, to a computer and then burned onto disc[, a] proper chain could not be laid as the link between the digital device and the computer was missing.” We disagree.

KRE3 901(a) provides that “[t]he requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” An example of authentication or identification is provided by KRE 901(b)(1), which refers to a knowledgeable witness's “[t]estimony that a matter is what it is claimed to be.” As stated in Rabovsky v. Commonwealth, 973 S.W.2d 6, 8 (Ky.1998),

it is unnecessary to establish a perfect chain of custody or to eliminate all possibility of tampering or misidentification, so long as there is persuasive evidence that “the reasonable probability is that the evidence has not been altered in any material respect.” ... Gaps in the chain normally go to the weight of the evidence rather than to its admissibility.

(Citations omitted.) Thus, “the more fungible the evidence, the more significant its condition, or the higher its susceptibility to change, the more elaborate the foundation must be.” Thomas v. Commonwealth, 153 S.W.3d 772, 779 (Ky.2004).

Here, the investigating officer testified at trial regarding the use of the digital recording device, which permitted him to monitor the two drug transactions as they occurred. The officer indicated that the device had been used more than 100 times, that he turned it on before the informant met with Thompson, and that he then turned it off after the informant returned to the designated location. The digital recording files then were downloaded directly from the recording device to a computer, and then to compact discs which the officer specifically identified at trial. Additionally, after the disc recordings were played for the jury, the informant testified they fairly and accurately depicted the events of the transactions.

*4 Thus, the testimony addressed the steps involved in transmitting the voice recordings from one format to another. Despite Thompson's expression of concern regarding the possible alteration of the recordings, persuasive evidence demonstrated the reasonable probability that the recording contents were not materially altered in any way. Rabovsky, 973 S.W.2d at 8. The court did not err by admitting the evidence.

Finally, Thompson contends the trial court erred by failing to strike the Commonwealth's assertion, during the penalty phase closing argument, that the jury's “verdict and your sentence speaks for the county.” Although the issue was not preserved for appellate review, Thompson claims relief should be granted to prevent manifest injustice. We disagree.

The Commonwealth's brief closing argument stated in pertinent part:

Unlike what you see on TV, and probably you may have experienced it if you sat on a jury before, I as a prosecutor do not ask for a specific number of years on a case. The reason I don't do that is because I represent, although I represent the Commonwealth and all of Daviess County in Kentucky, you are a microcosm of this county, you are a representative sampling of all of the citizens in Daviess County, Owensboro, Whitesville, West Louisville, Sargo, all of the other places, communities that we have. And your verdict and your sentence speaks for the county.
....
As far as the number of years, I leave that for you to tell me. And basically what you speak as citizens of Daviess County you're telling me is if you think these officers are doing the right thing, that they are zealously prosecuting the narcotic laws of this Commonwealth, and you wish for them to continue to do so, tell me that in your verdict, tell them that in your verdict, tell the parole board that in your verdict, and most importantly tell Mr. Thompson that in your verdict and give him the appropriate number of years.
If, on the other hand, you believe that these officers have better things in their lives to do, then tell us that, tell me that in your verdict, give him the minimum if that's the way you feel. If that's the way Daviess County feels, tell us that. We're gonna respect your decision in any regard, but you tell us and you guide us for future cases and guide me in future cases, how we approach these cases. So, my only request to you is that you please run them consecutively, whichever number you give. Thank you for your time.

We are not persuaded by Thompson's claim that the Commonwealth's remarks improperly “tended to cajole and coerce the jury to reach a verdict which would meet with public favor.” Nor are we persuaded that the remarks constituted an improper “send a message” argument such as that condemned in United States v. Solivan, 937 F.2d 1146 (6th Cir.1991), or that the remarks improperly urged the jurors to convict Thompson “in order to protect community values, preserve civil order, or deter future lawbreaking” in the “amelioration of society's woes[.]” Id. at 1153 (quoting States v. Monaghan, 741 F.2d 1434, 1441 (D.C.Cir.1984)). Rather than appealing to the jurors' fears and prejudices, the argument generally referred to future law enforcement priorities and concerns. Viewed in its entirety, we do not find a substantial possibility that the overall fairness of the proceeding was seriously affected by the Commonwealth's argument. See Brewer v. Commonwealth, 206 S.W.3d 343 (Ky.2006); Commonwealth v. Mitchell, 165 S.W.3d 129 (Ky.2005).

*5 By a separate order, we have addressed the Commonwealth's motion to strike Thompson's appellate brief and its appendix.

The judgment of the Daviess Circuit Court is affirmed.

ALL CONCUR.

Footnotes

[1]

Senior Judge William L. Knopf sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes (KRS) 21.580.

[2]

Thompson's appellate brief notes that the record is unclear whether another African–American, who requested a work excuse, was part of the panel of 31 venire members.

Kentucky Rules of Evidence.