Petition for Writ of Certiorari — Anderson v. Kentucky

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UNITED STATES SUPREME COURT ©

IN THE |

OF THE UNITED STATES

ANDREW ANDERSON PETITIONER

vs.

COMMONWEALTH OF KENTUCKY RESPONDENT

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF THE

COMMONWEALTH OF KENTUCKY

do hear :

THOMAS E. CLAY, P.S.C.

C. FRED PARTIN

2010 Kentucky Home Life

239 S. Fifth Street

Louisville, KY 40202

(502)589-5051

Counsel for Petitioner

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I. QUESTION PRESENTED FOR REVIEW

Whether statements of a non-

testifying police informant relayed to

the jury through a police officer's

testimceny violated the Petitioners'

Sixth Amendment right of confrontation.

II. TABLE OF CONTENTS

QUESTION PRESENTED. ....... ei

TABLE OF CONTENTS ........ id

TABLE OF AUTHORITIES. ...... .iv

open Gee Sa eae

FORIGNIEEEEE,. 2. 5s 3 SS ee ee

CONSTITUTIONAL PROVISIONS INVOLVED.2

STATEMENT OF THE CASE ...... .3

REASONS FOR GRANTING THE WRIT... .9

I. THE USE OF INADMISSIBLE HEARSAY

TESTIMONY IN DEROGATION OF THE

PETITIONER'S SIXTH AMENDMENT

RIGHTS OF CONFRONTATION

DEPRIVED PETITIONER OF A FAIR

py bd | Pe ee ee ae Oe ee ee ee

_ II. THE VARIOUS CIRCUIT COURTS

OF APPEALS ARE NOT IN AGREEMENT

WITH THE ADMISSIBILITY OF

“INVESTIGATIVE” HEARSAY AND

BECAUSE THE RIGHT OF CONFRON-

TATION IS SO FUNDAMENTAL THIS

COURT: SHOULD ISSUE ITS WRIT

TO SETTLE THIS ISSUE... .19

COMCLUSIO“. «+» « + 6 @ «© & *© @ « see

NOTICE OF APPEARANCE.

CERTIFICATE OF SERVICE.

APPENDIX.

A. ORDER OF SUPREME COURT

DENYING DISCRETIONARY REVIEW.

B. OPINION OF COMMONWEALTH OF

KENTUCKY COURT OF APPEALS

. 30

III. TABLE OF AUTHORITIES

Aprile v. Kentucky, 479 U.S.

an Soe «6 6 6 Se a 4d 4 ew se ORS

Davis v. Alaska, 415 U.S.

308 (1974). Ne ue ae

Dutton v. Evans, 400 U.S. 74

PC ee Se ee as ke ke es oe 3k

Favre v. Henderson, 464 F.2d 359

(Sth Cir. 1972) cert. denied 409

Sy 2 . ears oar:

Harris v. Wainwright, 760

P.2¢ 1148 (lith Cir. 1985). . .17, 23

Hutchins v. Wainwright, 715 F.

2d 512 (llth Cir. 1983) cert. denied

GGm Uses AGra Cheers « 6 © te tw 0 bP

Sanborn v. Commonwealth, Ky.,

72% ©.W.2G@ 3364 €19GG) . « © « 6 « 0 h8

Stewart v. Cowan, 528 F.2d

th Gee Cals Bevel« + « « eh2, 20, 23

Thomas v. U.S., 482 U.S.

Pow Tauern. 6 6 « se ew hue he UMS 23

U.S. v. Brown, 767 F.2d 1078

[wee Gees BOOMS 3 6 8s tt elk lw st Ut RE

U.S. v. Cruz, 805 F.2d

1464 (llth Cir. 1986) cert. denied

481 U.S. 1006 (1987).

U.S. v. Freeman, 816 F.2d 558

(10th Cir. 1987). —

U.S. v. Hilliard, 569 F.2d 143

(D.C. Cir. 1977).

U.S. v. Hunt, 749 F.2d 1028

(4th Cir. 1984) cert. denied

sub nom Hunt v. U.S., 472

U.S., 1018 (1985) ve

U.S. v. Johnson, 872 F.2d 612

(Sth Cir. 2969) . . « «

U.S. v. Lazcano, 881 F.2d 402

(7th Cir. 1989) ;

U.S. v. Martin, 897 F.2d 1368

(6th Cir. 1987) eee

U.S. v. Taylor, 792 F.2d 1019

(llth Cir. 1986) cert. denied

sub nom King v. U.S.

Martin v. U.S., 481 U.S. 1030

U.S. v. Tussa, 816 F.2d 58

(2nd Cir. 1987) on remand sub

nom U.S. v. Patiwana, 723

F.Supp. 888 (E.D.N.Y. 1989)

22,

-22,

19,

-20

-14

-22

FRE 80l(c), Black's Law

Dictionary, West

Pp.

649.

U.S.C.

Publishing Co. inc

section 1257(3)

NO.

IN THE

UNITED STATES SUPREME COURT

OF THE UNITED STATES

ANDREW ANDERSON PETITIONER

Vs.

COMMONWEALTH OF KENTUCKY RESPONDENT

OPINION BELOW

The opinion of the

Commonwealth of Kentucky Court of

Appeals was rendered on February 23,

1990, in an unpublished opinion. A copy

of said opinion is contained in appendix

A. The Commonwealth of Kentucky Supreme

Court decision denying Petitioner's

motion for discretionary review was

entered on August 29, 1990, and is

reproduced in Appendix B.

STATEMENT OF JURISDICTION

The opinion of the

Commonwealth of Kentucky Court of

Appeals was rendered on February 23,

1990. A Motion for Discretionary Review

to the Commonwealth of Kentucky Supreme

Court was timely filed and denied on

August 29, 1990. The jurisdiction of

this Court is invoked pursuant to 28 USC

section 1257(3).

CONSTITUTIONAL PROVISIONS INVOLVED

The ‘Sixth Amendment to the

United States Constitution states:

Rights of Accused. In all

criminal prosecutions the accused shall

enjoy the right to a speedy and public

trial, by an impartial jury of the state

and district wherein the crime shall

have been committed, which district

shall have been previously ascertained

by law, and to be informed of the nature

and cause of the accusation; to be

confronted with the witnesses against

him; to have compulsory process for

obtaining witnesses in his favor, and to

have the assistance of counsel for his

defense.

STATEMENT OF THE CASE

Petitioner, ANDREW ANDERSON,

was indicted by a grand jury sitting in

Louisville, Jefferson County, Kentucky,

on July 13, 1988, in a four (4) count

indictment. That indictment named

Petitioner in two (2) counts of traf-

ficking in a controlled substance (a

Schedule II narcotic-cocaine) and a

single count of unlawful transaction

with a minor in the second degree.

Petitioner entered a plea of not guilty

and a trial date was set for November 1,

1988, in the Jefferson Circuit Cour’

Division Ten, Hon. Rebecca J. Wester-

field, Judge, presiding.

Following a two (2) day trial,

the jury found the Petitioner guilty of

trafficking in a control'’#d substance.

The Court, without intervention of a

jury, sentenced Petitioner to a total

term of imprisonment of eight (8) years

and fined him $10,000.00.

The transaction which led to

the Petitioner's arrest was arranged by

one Sherman Bell (hereinafter “Bell"), a

confidential informant of Detective

Kevin Rumple (hereinafter “Rumple")

(Transcript of Record, 11/1/88, at

14:55) (hereinafter "TR"). The confi-

dential informant had recently been

arrested by Rumple on an armed robbery

charge, which ca1.i.es a potential sen-

tence of from ten (10) to twenty (20)

years with no possibility of probation.

Rumple testified that Bell lied to him

when Bell was being sought in connection

with an armed robbery charge (TR

11/1/88, at 15:02-15:04). Bell also had

a warrant for first degree assault

outstanding. Following Bell's agreement

1. The record on appeal and for purposes

of this petition consists of the video-

tape transcript of the Petitioner's

trial. No written transcript has been

produced. .

to cooperate with the police, Rumple ap-

peared in Court tor him and as a result

of this assistance Bell was released on

his own recognizance despite the seri-

ousness of the charges. In return for

these favors, Bell agreed to provide the

officers with a drug trafficker. A

“controlled buy" was set up and Bell was

fitted with a wire with which pclice

officers used to monitor his conversa-

tion with an unidenm ified third party.

When the arrest occurred Bell had both

the drugs and the m-rey in his posses-

Sion. Petitioner was located a short

distance away from where the exchange

took place.

Detective Woody Graff (herein-

after "Graff") was present at the scene

of the arrest and overheard certain

negotiations between the confidential

informant and the unidentified third

party. Graf described to the jury

discussions regarding price and quantity

he heard as a result of the “wire” which

took place between Bell and the uniden-

tified third party. The unidentified

third party was inferred to be the

Petitioner through this testimonty

although this was never demonstrated

because the confidential informant did

not testify at trial. None of the offi-

cers testifying to the hearsay state-

ments were able to directly identify the

voice of the third party.

Graff's testimony contained

numerous hearsay statements which were

prejudicial and damaging to the Peti-

tioner. An objection to this hearsay

testimony was made by Petitioner's

counsel. However, the Court found that

the testimony fit within the “acted upon

exception" to the hearsay rule. The

trial Court gave an admonition to the

jury which indicated the statements were

offered to “show why the police took the

action they did“ and “what the police

were relying upon and why they proceeded

as they did."

The previous objection on “the

acted upon exception" was again raised

regarding hearsay statements by Detec-

tive Mark Taylor (hereinafter “Taylor")

(TR 11/2/88, at 9:37). : This objection

was also overruled. Taylor then testi-

fied to the substance of the arrange-

ments which were made "to do the deal"

between Bell and the unidentified third

party. (TR 11/2/88, at 9:37). Taylor's

testimony was a repetition of statements

that he had overheard from non-testify-

ing third parties and as such it was

hearsay.

Petitioner's conviction was

affirmed by the Commonwealth of Kentucky

Court of Appeals. A Motion for Discre-

tionary Review with the Supreme Court of

Kentucky was denied on August 29, 1990.

This petition, being filed within the

required limits, is timely.

REASONS FOR GRANTING THE WRIT

I. THE USE OF INADMISSIBLE HEARSAY

TESTIMONY IN DEROGATION OF THE

PETITIONER'S SIXTH AMENDMENT RIGHTS

OF CONFRONTATION DEPRIVED

PETITIONER OF A FAIR TRIAL

The classic definition of

hearsay is “a statement, other than one

made by the declarant while testifying

at the trial or hearing, offered in

evidence to prove the truth of the

matter asserted." FRE 801l(c), Black's

Law Dictionary, West Publishing Co.

(1979), p. 649. Several reasons exist

which justify the strict exclusion of

hearsay evidence. First a jury is

unable to view the declarant's demeanor

arid pass on his credibility when he is

not present. Secondly, the declarant is

not under oath when he makes such state-

ments. 2

2. Whether an oath would have made much

difference to a confirmed liar such as

the informant is a matter for specula-

tion since he did not testify under oath

at this trial.

However, the primary reason

such statements are inadmissible is

because they violate a defendant's right

to cross-examination. (Amendment 6,

U.S. Constitution. Davis v. Aiaska, 415

U.S. 308 (1974). Dutton v. Evans, 400

U.S. 74 (1970).

The informant was not

trustworthy nor reliable. His state-

ments, overheard but not witnessed by

the officers, are likewise not

trustworthy nor reliable. The voice the

informant was speaking with was never

identified. The informant, facing ten

(10) to twenty (20) years in the peni-

tentiary, had a motive to prevaricate in

order to provide the detectives with a

cocaine trafficker.

Stewart v. Cowan, 528 F.2d 79

(6th Cir. 1976), an habeas corpus case

from the Western District of Kentucky,

addressed the “why they did what they

did“ exception to the hearsay rule.

There, the Sixth Circuit reversed the

district court and ordered the Defendant

be granted his writ when a police

officer testified as to the “result” of

his investigation. The Court held that

the statements admitted into evidence

violated the defendant's right to con-

frontation, and even went so far as to

question the Kentucky hearsay exception.

The Kentucky Court of Appeals

affirmed this Petitioner's conviction in

reliance on the hearsay exception.

However the exception had been previous-

ly modified to require that hearsay

explaining why an officer took a certain

action is admissible only when the

taking of that action is an issue in the

case. Sanborn v. Commsrvealth, Ky., 754

S.W.2d 534 (1988) cert. denied sub nom

Aprile v. Kentucky, 479 U.S. 1055

(1989).

Use of hearsay to explain why

a police officer took a certain action

has been condemned by the Second Circuit

Court ot Appeals in U.S. v. Tussa, 816

F.2d 58 (2nd Cir. 1987) on remand sub

nom U.S. v. Patiwana, 723 F.Supp. 888

(E.D.N.Y. 1989). In Tussa the Court

found reversible error in the repetition

of a statement of an informant who did

not testify at trial. The statement

that a Defendant had carried heroin to

an automobile was introduced, ostensi-

bly, to rebut an allegation of recent

fabrication on the part of a case agent.

The hearsay was used to explain why the

second agent had not told the first

agent he saw the Defendant leave with

the narcotics. Despite the fact that an

admonition was given, the error was

found to have a “substantial and injuri-

ous effect." id.

In U.S. v. Hunt, 749 F.2d 1028

(4th Cir. 1984) cert. denied sub nom

Hunt vj. ¥.8,., 472 U.S., 1018 (19858),

hearsay statements concerning prior

Criminal allegations were only admissi-

_—

ble after the Defendant "opened the

door" by asking what evidence the inves-

tigating agents had that the Defendant

was corrupt in the past. A vigorous

defense based on outrageous governmental

conduct was raised. "Wi. -e a Defendant

elects to challenge the government's

conduct of an investigation .. . hear-

say .. . for the limited purpose of

demonstrating that the investigation was

reasonable and free of improper motive

{is admissible])." Hunt, 749 F.2d at

1084.

In Petitioner's case there was

no such challenge to the government's

investigation. The hearsay was not

admitted as rebuttal testimony. It was

offered to infer that the Petitioner was

trafficking in narcotics and as such was

inadmissible. The evidence can only

have been introduced to bolster the

prosecution's case.

U.S. Brown, 767 F.2d 1078 (4th

Cir. 1985) condemned the use of “inves-

tigative" hearsay to bolster a

presecution's case. In that case six

hearsay statements of an unidentified

informant were offered by a case agent

for the limited purposes of explaining

the background as to what occurred

during the investigation. The Court

found this bolstering of the case was

impermissable and resulted in a trial

that was essentially unfair.

Similarly the statements in

this case constituted a substantial

ie)

bolstering of the prosecution's case.

The Petitioner was not arrested with any

drugs or substantial amounts of money on

his person. The only potential explana-

tion for the introduction of the hearsay

statements wes to infer the Defendant

was the unidentified third party with

whom the unidentified informant dis-

cussed the deal.

Other Circuit Courts of Ap-

peals which have wrestled with the

question of "investigative" hearsay have

also found it to be inadmissible. See

e.g. Harris v. Wainwright, 760 F.2d 1148

(llth Cir. 1985), Hutchins v. Wain-

wright, 715 F.2d 512 (llth Cir. 1983)

cert. denied 465 U.S. 1071 (1984), Favre

v. Henderson, 464 F.2d 359 (5th Cir.

1972) cert. denied 409 U.S. 942 (1973),

0.8. vw. Billiard, $69 F.28 143 (D.C.

Ciz. 19773.

The informant, Bell, provided

evidence against this Petitioner without

testifying through the hearsay state-

ments of Detectives Graff and Taylor.

The Petitioner could not cross-examine

that informant to discover the identity

of the other party to the conversation.

This was a violation of the confronta-

tion clause of the Sixth Amendment to

the United States Constitution. The

Petitioner was prejudiced by this error;

this Court should issue the requested

writ because the introduction of the

ieee a

hearsay statements violated the Peti-

tioner's Sixth Amendment rights. The

decision of the Commonwealth of Kentucky

Court of Appeals and the Supreme Court

of Kentucky must be reversed. The

deprivation of such a fundamental right

constitutes error.

II. THE VARIOUS CIRCUIT COURTS

OF APPEALS ARE NOT IN AGREEMENT

WITH THE ADMISSIBILITY

OF “INVESTIGATIVE” HEARSAY AND

BECAUSE THE RIGHT OF CONFRONTATION

IS SO FUNDAMENTAL THIS COURT SHOULD

ISSUE ITS WRIT TO SETTLE THIS ISSUE.

Supreme Court Rule 17.1(b)

indicates that this Court considers the

fact that the various Courts of Appeals

have decided an identical question in

differing ways as a factor to be evalu-

ated in ruling on a Petition for a Writ

of Certiorari.

The Sixth Circuit Court of

Appeals in U.S. v. Martin, 897 F.2d 1368

(6th Cir. 1987) apparently retracted on

Stewart v. Cowan, 528 F.2d 79 (6th Cir.

1976) without explicitly overruling it

by finding Stewart inapplicable to the

facts of Martin. The Sixth Circuit

found the statements in Martin did not

go to the very heart of the government's

case.

The dissenting opinion in

Martin noted that no Court has yet

explained why investigative background

is not hearsay although other circuits

have provided “ambiguous support" for

the contention that it is not.

In U.S. v. Freeman, 816 F.2d

558 (lOth Cir. 1987) the Court simply

found investigative hearsay statements

were not offered for the truth of the

matter asserted and therefore they were

not hearsay.

In U.S. v. Taylor, 792 F.2d

1019 (llth Cir. 1986), cert. denied sub

nom King v. U.S. and Martin v. U.S., 481

U.S. 1030 (1986) hc-rsay statements made

by a non-testifying declarant to a

police officer which were then repeated

to a second police officer who testified

at trial were held admissible. The

statement was given to the first police

officer by a kidnapping victim. The

victim had escaped from his captors and

had been detained by police as a prowl-

er. The first officer died prior to

trial which necessitated the second

officer's testimony. This double hear-

say, which cooborated another victim's

trial testimony was offered only to show

why the victim detained as a prowler was

not arrested as a prowler. The state-

ment was not for the truth of the matter

asserted only to explain why the “prowl-

er" was not arrested. However by its

very nature it served to bolster the

prosecution's case.

Other cases from various

circuits also demonstrate the discrepan-

cy Courts have had in dealing with

investigative hearsay. See e.g. U.S. v.

Cruz, 805 F.2d 1464 (llth Cir. 1986)

cert. denied 481 U.S. 1006 (1987) and

Thomas v. U.S., 482 U.S. 930 (1987),

U.S. v. Lazcano, 881 F.2d 402 (7th Cir.,

1989), U.S. viz Johnson, 872 F.2d 612

(Sth Circuit 1989) reh'g denied 880 F.2d

413 (Sth Cir. 1989).

Even within circuits there is

confusion as to the existence of the

"investigative" hearsay exception.

Compare U.S. v. Cruz, 805 F.2d 1464

(llth Cir. 1986), cert. denied 481 U.S.

1006 (1987) and Thomas v. U.S., 482 U.S.

930 (1987) with Harris v. Wainwright

(llth Cir. 1985); Steward v. Cowan, 528

F.2d 79 (6th Cir. 1976) with U.S. v.

Martin, 897 F.2d 1368 (6th Cir. 1990);

Favre v. Henderson, 464 F.2d 359 (5th

Cir. 1972) cert. denied 409 U.S. 942

(1973) with U.S. vez JO on, 872 F.2d

612 (5th Cir. 1989) reh'g denied 880

F.2d 413 (5th Cir. 1989).

The confusion surrounding this

type of hearsay testimony requires the

type of finality that only a United

States Supreme Court decision can im-

pose. The wide range of opinions being

established by the federal circuits

detracts from uniformity of the law.

Without such uniformity trial Courts are

left with insufficient guidance ana

because of that they are more prone to

make erroneous rulings.

CONCLUSION

The United States Supreme

Court is presented with an opportunity

to settle a controversial issue of

criminal law. Granting certiorari in

the case will promote uniformity among

the various circuits and reduce error at

the trial level by providing appropriate

guidance where it is most needed.

Further, because the decision

of the Commonwealth of Kentucky Court of

Appeals and the denial of the motion for

discretionary review erroneously de-

prived the Petitioner of his Sixth

Amendment right of confrontation the

requested Writ of Certiorari should be

(ye Iho

THOMAS E. CLAY, P.S.C.

C. FRED PARTIN

2010 Kentucky Home Life

239 S. Fifth

Louisville, KY 40202

(502)589-5051

issued.

—e

NO.

IN THE

UNITED STATES SUPREME COURT

OF THE UNITED STATES

ANDREW ANDERSON PETITIONER

Vs.

COMMONWEALTH OF KENTUCKY RESPONDENT

NOTICE OF APPEARANCE

The Clerk of the United States

Supreme Court will enter my appearance

as counsel for Petitioner. I certify

that I am a member of the bar of the

United States Supreme Court. The Clerk

is requested to notify the undersigned

of action by the Court by regular mail.

Respectfully submittsg

Law | ~t

. SE. CLAY, P.S.c.

C. FRED PARTIN

2010 Kentucky Home Life

239 S. Fifth Street

Louisville, KY 40202

(502)589-5051

tre Ranh

CERTIFICATE OF SERVICE

It is hereby certified that a

true and correct copy of the “ohie et

was mailed, postage prepaid, this

day of Oct. ,1990, to Hon. Fred 6 oe

Attorney »y General, Capitol Building

Frankfort, KY pase Lave! J,

APPENDIX

SUPREME COURT OF KENTUCKY

90-SC-192-D

(89-CA-267)

ANDREW ANDERSON, JR. MOVANT

VS. JEFFERSON CIRCUIT COURT

88-CR-1166

COMMONWEALTH OF KENTUCKY RESPONDENT

ORDER DENYING DISCRETIONARY REVIEW

The motion for review of the

decision of the Court of Appeals is

denied.

ENTERED August 29, 1990.

/s/Robert F. Stephens

Chief Justice

RENDERED: February 23, 1990; 3:00p.m.

NOT TO BE PUBLISHED

COMMONWEALTH OF KENTUCKY

COURT OF APPEALS

NO. 89-CA-267-MR

ANDREW ANDERSON, JR. APPELLANT

VS. APPEAL FROM JEFFERSON CIRCUIT

HONORABLE REBECCA WESTERFIELD, JUDGE

ACTION NO. 88-CA-1166

COMMONWEALTH OF KENTUCKY APPELLEE

AFFIRMING

x ke ke & & &

BEFORE: HOWERTON, Chief Judge, GUDGEL,

and MILLER, Judges.

GUDGEL, JUDGE: This is an appeal from a

judgment entered by the Jefferson

Circuit Court. Appellant contends that )

the court erred (1) by admitting certain

alleged hearsay statements, (2) by

failing to give a certain instruction

(3) by finding that a certain juvenile

witness was competent to testify (4) by

denying his motion for a directed ver-

dict and (5) by considering appellant's

failure to cooperate with police in

imposing his sentence. We disagree with

all of appellant's contentions. ‘Hence,

we affirm.

On June 24, 1988, Louisville

police conducted a controlled narcotics

buy. Confidential informant Sherman

Pell was wired with a body microphone

and given about $3,500 to make a buy.

Shortly thereafter police observed

appellant Andrew Anderson driving a car

in which Kenneth Watson, a juvenile, was

&@ passenger. Next, police saw appellant

carrying a bag containing white powder.

Police were told by radio that the drug

deal “would come down" at a certain

Shell station. Police proceeded to the

Shell station where they observed Ken-

neth walk across a field and give a bag

containing cocaine to Bell. When cen-

neth saw police, he began to flee. All

three suspects were arrested, and three

ounces of cocaine was seized.

Appellant was indicted for the

offenses of trafficking in a controlled

substance and unlawful transaction with

a minor in the second degree. A jury

convicted appellant of the trafficking

charge but found him not guilty of the

unlawful transaction charge. Appellant

was sentenced to eight years in prison

and fined $10,000. This appeal fol-

lowed.

First, appellant contends that

the court erred by permitting Detectives

Graff and Taylor to testify to certain

alleged hearsay statements overheard in

a conversation between informant Bell

and another person who was not identi-

fied. We disagree.

The court admonished the jury

that this testimony concerning price and

quantity was admitted to show why the

police drove to the Shell station, not

to prove that money or illegal drugs

were to be exchanged there. In the

recent case of Sanborn v. Commonwealth,

Ky., 754 S.W.2d 534 (1988), our supreme

court discussed at length the “verbal

act” doctrine, a nonhearsay use of

extrajudicial statements. An example of

the doctrine is the extrajudicial state-

ment to a police officer offered to

explain the action subsequently taken by

police. See Manz v. Commonwealth, Ky.

App., 257 S.W.2d 581 (1953). Moreover,

the testimony objected to here did not

implicate appellant because the detec-

tives did not identify appellant as the

person to whom Bell was speaking. Bell

apparently could not be located and did

not testify at trial.

Next, appellant urges that the

court's failure to give an

"“addict/informant” instruction was

error. We decline to review this issue

because appellant did not comply with

RCr 9.54(2) which requires a specific

objection to-be made before the court

instructs the jury in order to preserve

any alleged error. Neither the record

nor the videotape transcript of the

evidence reflects that this was done.

In addition, the record does not contain

a tendered “addict/informant” instruc-

tion.

Next, appellant argues that

the court abused its discretion by

finding that Kenneth Watson, the sixteen

year old juvenile who was arrested witn

appellant, was competent to testify. WE

disagree. The court conducted an exten-

sive competency hearing. Kenneth clear-

ly demonstrated that he knew the differ-

ence between the truth and a lie even

though her did not understand the mean-

ing of an oath or of perjury. In deter-

mining whether a juvenile is competent

to testify the court must decide if the

child is “sufficiently intelligent to

observe, recollect, and narrate the

facts and has a moral obligation to

Speak the truth." Gaines v. Common-

wealth, Ky., 728 S.w.2d 525, 526 (1987).

Our review of the videotape reveals no

error by the trial court in adjudging

Kenneth competent to testify.

Although Kenneth admitted that

he had drunk three or four beers and had

smoked marijuana cigarettes laced with

cocaine on the day of his arrest, this

does not mean he was incapable of remem-

ber or telling the truth. Moreover,

under cross examination appellant's

counsel questioned Kenneth at length

regarding his intoxication and ability

to remember. The weight to be given

Kenneth's testimony was up to the jury.

id, at 527.

Next, appellant argues that

the court erred by failing to grant his

motion for a directed verdict. Again,

we disagree. Contrary to appellant's

assertion, there is considerably more

evidence of appellant's guilt than his

presence at the scene. Moreover, even

though the cocaine was not admitted into

evidence, it was shown to the jury, the

chemist testified that the substance was

cocaine and the chain of custody was

proved. Under the evidence as a whole

it was not clearly unreasonable for the

jury to find appellant guilty. Thus,

the court did not err by denying his

motion for a directed verdict. ommon-

wealth v. Sawhill, Ky., 660 S.W.2d 3

(1983).

| Finally, appellant urges that

the court violated his constitutional

right to remain silent by considering

his failure to cooperate with police in

determining his sentence. We disagree.

Although the commonwealth recommended a

five year sentence, the court was not

bound by this recommendation. Bowling

v. Commonwealth, Ky., 684 S.W.2d 11

(1985).

At the sentencing hearing the

judge stated that she was extremely

concerned about appellant's prior of-

fenses involving assault and weapons.

In addition, she expressed concern about

the substantial amount of controlled

substance involved in this trafficking

offense. The judge then stated that

earlier she had informed appellant that

any meaningful information as to the

source of the illegal drugs would be

taken into consideration. The common-

wealth attorney was then asked if there

had been any cooperation by appellant.

The commonwealth responded, "No."

Without further comment, the judge

imposed a sentence of eight years and a

fine of $10,000.

We have reviewed the federal

cases cited by appellant and find them

to be distinguishable on the facts.

Furthermore, we are of the opinion that

a judge is given wide discretion as

matters which may be considered

imposing sentence. See KRS 532.050.

find no error in the court's conduct

appellant's sentencing hearing.

The court's judgment is af-

firmed.

ALL CONCUR.

ATTORNEY FOR APPELLANT:

Thomas E. Clay, Jr.

Alan S. Rubin

Louisville, KY

ATTORNEY FOR APPELLEE:

Frederic J. Cowan

Attorney General

Elizabeth A. Myerscough

Assistant Attorney General

Frankfort, KY

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