                IMPORTANT NOTICE
         . NOT TO BE PUBLISHED OPINION

· THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."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  THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
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  CASE IN ANY.COURT OF THIS STATE; HOWEVER,
  UNPUBLISHED KENTUCKY APPELLATE DECISIONS, ·
  RENDERED AFTER JANUARY 1, 2003, MAY BE CITED ~OR
  CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED
  OPINION THAT WOULD ADEQUATELY· ADDRESS THE ISSUE
                                   '
  BEFORE THE COURT. OPINIONS CITED FOR CONS.IDERATION
  BY THE COURT ,SHALL BE SET OUT AS AN UNPUBLISHED
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                                                RENDERED: SEPTEMBER 28, 2017
                                                        NOT TO BE PUBLISHED




                                2016-SC-000650-MR


SHAWN WILSON                                                                APPELLANT


                  ON APPEAL FROM HENDERSON CIRCUIT COURT
v.                  HONORABLE KAREN LYNN WILSON, JUDGE
                               NO. 16-CR-00124'


COMMONWEALTH OF KENTUCKY                                                    · APPELLEE


                      MEMORANDUM OPINION OF THE COURT

                                     AFFIRMING

      A circuit court jury convicted Shawn Wilson of one count of first-degree

. trafficking in a controlled substance and·of being a first-degree persistent

felony offender.:.The jury recommended a sentence of 20 years' imprisonment,

which. the trial court accepted. Wilson now appeals the resulting judgment as a

matter of right. 1 He alleges the following trial errors for ·review: (1) the

prosecution improperly bolstered a confidential informant's reliability and

credibility; (2) the trial court improperly sustain'ed an objection by the

prosecution that prevented Wilson from. inquiring into potential bias of the

confidential informant; and (3) the prosecution improperly discussed Wilson's

potential for parole and early release without proper evidentiary support.



l   Ky. Const.§ 110(2)(b).




                                                                        \
    We affirm the trial court on all three issues because we find no error 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 surrounding Wilson's charges, including the use of a .

confidential informant. Without ~y prior attack by Wilson 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 of -the introduction of improper'°character

evidence,. thus failing to preserve the issue for review.

       Wilson next alleges the cdurt improperly sustained an objection by the

Commonwealth, thereby preventing Wilson from inquiring into the confidential

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

informant, "You currently have a warrant out for child support, is that

correct?" The Commonwealth- immediately objected to this question, and the

trial court   sustaine~   the objection. Wilson alleges that this line of questioning

would have shown the confidential informant's improper bias toward the

 Commonwealth. The parties dispute the preservation of this issue.

       Finally, Wilson alleges that the prosecution improperly discussed, in the

sentencing phase of the 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 of early release. If you give him a 10-year sentence~ don't ·
            expect him to be in the penitentiary for 10 years. He got a 12-year
            sentence the last time and if he'd served it out he wouldn't be here
            today and you wouldn't be here today because he'd still be in
            prison.

    The Commonwealth did proffer properly certified copies of Wilson's convictions

    into the record as Exhibit #5, which w:as introduced and published to the jury.

    This exhibit included Wilson's 2008 conviction for Trafficking in a Controlled

    Substance First Degree on January 23, 2008, whereby, Wilson received a ..12-

    year sentence. After the introduction of this exhibit, Probation and Parole ·

    Officer James Bowles testified :that Wilson was on parole at the        ti~e   of the

    current
     .
            offense at issue. Wilson did not object
                                             t
                                                    to the Commonwealth's

    statements. So .,the issue is unpreserved for .appellate review.

                                            II. ANALYSIS.

        · A. Standard of Review.
            The appropriate standard of review in this case depends 9n the

    preservation of the three issues before the _c~urt. If an issue is .unpreserved,

    KentuCky Rule of Criminal Procedure 10.26 states that the appropriate

    standard of review is palpable error. 2 Palpable error requires      ashowing that the
    alleged error affected the· "substantial rights" of a defendant, where relief may
.                                     .         1.                                   .

    be granted       "~pon   a detet:n:iination that manifest injustice has resulted from the




    2   RCr 10.26.
                                                     3
error."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 of the proceeding as to be "shocking or jurisprudentially
                                                I
intolerable. "4 But if any one of the three issues above is deemed to be

preserved, the appropriate standard of review is abuse. of discretion because all

three rulings are evidentiary rulings. 5 "The test for abuse of discretion is

whether the trial judge's decision was arbitrary, unreasonable, unfair,. or

unsupported by sound legal principles."6

      B. Prosecution's Improper Bolstering of Confidential 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 credibility, of the confidential informant without his

credibility first having been attacked and through specific instances of conduct

unrelated to truthfulness and untruthfulness. The Commonwealth insists this

error is harmless, 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 error is harmless 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); Partin v. Commonwealth,
918 S.W. 219, 222 (Ky. 1996).                     .
6 Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999) ..

                                            4
                                                                  .             .
set forth.in Winstead v. Commonwealth7."8 "A non-constitutional evidentiary

error ... is harmless if the 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 of other strong evidence, as there is no possibility

the error substantially swayed thejuzy. 10 "When rehabilitation evidence is

admitted before credibility is attacked·,   ~y   error is harmless as long as

credibility is, in fact, later inipeached/'11 Regarding this exact type of error, the

court in Fairrow v. Commonwealth 12 stated, "Nor are we satisfied that the

admission of improper evidence of the character of a 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 Commonwealth did present other

evidence of Wilson's crimes, completely unrelated to the veracity and reliability

of the confidential infomi~t. Among the evidence presented by the

Commonwealth included: (1) Detective Newman's testimony that, before the

second controlled buy, Newman searched the confidential informant's person

and vehicle, ensuring both were free of contraband or money; .(2) Newmap.

provided the confidential informant with $100 to      pur~hase   drugs from Wilson;



7 283 S.W.3d 678 (Ky. 2009).         .
s 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)).
10  Wiley v. CommiJnwealth; 348 S.W.30. 570, 579 (Ky. 2010); Hu_nt v. Commonwealth,
 3:04 S.W.3<l 15, 35 (Ky. 2009); Winstead, 283 S.W.3d at 689.
 11 Reed v. Commonwealth, 738 s:W.2d 818, 821 (Ky. 1987) (citing Summitt v.
·Commonwealth, 550 S.W.2d 548, 550 (Ky. 1977).
12   175 S.W.3d 601 (Ky. 2005).
13   }d. 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

 meetin~,   the confidential informant possess~d the requested quantity of

.· methamphetamine. In light of such strong evidence, no 'possibility exists that

 the error, the admission of character evidence, substantially ·swayed the jury.

       Additionally, under a Reed analysis, Wilson did     ~ttack   the confidential

· informant's character after the Commonwealth bolsteredJt. Wilson attempted
                        .                                                 .
 to portray the confidential informant as an unemployed individual who took

 advantage of Wilson's mother and who reneged on his debts to Wilson and

 Wilson's family. Wilson's cross-examination· of the confidential informant

 in.eluded questions regarding the length of his status as a confidential

 informant, his testimony in other cases as a confidential informant, and his

 a'Qility to "get out of trouble" through his service as a corifidential informant.

 Wilso:p.;s closing argument reiterated that the confidential informant owed

 money to Wilson and ·Wilson's mother, specifically referring to the confidential

 informant as a "bum." Under Reed, because the confidential informant's·

 reliabilitY ~d credibility were eventually attacked by Wilson, any error related

 to bolstering the witness's character before attack is rendered harmless .

      . Lastly, even if the admissi<;>n of the character evidence was not harmless,

 it did not rise to the level of palpable error. Fairrow dealt with this exact issue .
                            "
 and reached the conclusion that the improper admission of character evidenc~

 of a witness does not amount to 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 of this issue. "[I]f a litigant believes
                                          ,
that error has occurred (to his detriment) during a ... [criminal] judicial

proceeding, he must object in order to preserve the issue. If he fails to do so in

a timely manner, his claim for relief from the error is forfeited."14 ·wilson argues

that the cross-examination of the confidential informant itself sufficiently

preserved the issue for    ~eview.      Even if we agree with Wilson, we hold that the

trial court's ruling on this matter did not amount to an abuse of discretion.

        KRE 608(b) affords the court discretion as to the introduction of "specific
                                    r

instances of conduct of a witness, for the purpose of attacking the witness's
         '                      .
credibility."15 Before a trial court can even entertain its discretion regarding

admissibility of the act, (1) the act must be probative of truthfulness or

untruthfulness and (2) the cross-examiner must possess a factual basis for the

subject matter of his inquiry. 16 An act of a witness for which he or she has yet

to be criminally convicted, such as the confidential informant's alleged warrant
                                                                      ,,
for unpaid child support, falls under the discretion of the trial court as to

whether it is to be ad:m,issible to impeach the credibility of that witness.

        :Reaso~able minds can differ as to whether alleged unpaid d1ild support

is probative of truthfulness or untruthfulness. Additionally, Wilson failed to




14 Puckett v. U.S., 55.6 U.S. 129 (2009). ·
1s KRE 608(b).
16 Id.

                                                7
 provide a sufficient factual basis for this alleged bad act. So the trial court's

 decision was reasonable. We affirm the ruling of the trial court on this issue .
                                                                             .-'-


      D. Prosec11tion's Discussion of Early Release or Parole Not Palpable
         Error
         Both parties. concede that this argument is unpreserved; thus, we review

 this issue for palpable error. Wilson argues that the Commonwealth's

 statements (1) were unsupported by any evidence and (2) tainted the jury's

verdict by misleading the jury into 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 tim.e .... " Additionally, the law affords all parties wid_e latitude
        ,.
             \

·when making 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, "If you 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. In support of his argument, Wilson cited numerous cases. But,

 the statements made by the Commonwealth in this case do not rise to the level




 17   See Crossland v. Commonwealth, 291 S.W.3d (Ky. ~009); Bixler v: Commonwealth,
 204 S.W.3d 616 (Ky. 2006).
                                            8
 of error appearing:in any of the cases offered by Wilson. ls In sum, the

 Commonwealth in this case did not make a conclusory factual or legal

 misstatement to the jury, as the Commonwealth did in the cases cited by

 Wilson where the court found reversible error; rather; the Commonwealth

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

 statements do not rise to the level of palpable error.

                                  III.   . CONCLUSlON.
       We affirm the judgment because we find no palpable error and no abuse

 of discretion by the trial court.19


       Minton, C.J.; Cunningham, Hughes, Keller, VanMeter, Venters and

Wright, JJ., sitting. Minton, C.J.: Cunningham, Hughes, VanMeter, Venters

 and Wright, JJ., concur. Keller, J., concurs in result only.




 isWhitaker v. Commonwealth, 895 S.W.2d 953, 957 (Ky. 1995) (prosecutor misstated
that defendant would be relc;:ased after 12 years regardless of any other circumstances);
Offuttv. Commonwealth, 799 S.W.2d 815, 815 (Ky. 1990) (prosecution failed to instruct
the jury that the defendant would not be eligible forparole until he has servt:rd 12 years);
Holt v. Commonwealth, 219 S.W.3d 731, 732-39 (Ky. 2007) (prosecutor improperly
impeached witness with statements made to prosecutor); Robbison v. Commonwealth,
181S,W.3d30, 38 (Ky. 2005) (in?orrect or false testimony about the impact of good 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 half years no
matter what); Blane v. Commonwealth, 364 S.W.3d 140, 153. (Ky. 2012) (jury was
advised oforiginal charges which were amended or dismissed).
19 Wilson mentioned in passing the possibility of this Court finding cumulative error in
the three issues presented if the 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." Broum v.
Commonwealth, 313 S.W.3d 577, 631 (Ky. 2010) .. The issues presented by Wilson do not
meet this standard.
                                             9
COUNSEL FORAPPELLANT:

Brandon Neil Jewell
Assistant Public Advocate .


COUNSEL FOR Af>PELLEE: .

Andy Beshear
Attorney General of Kentucky

 Thomas Allen Van De Rostyne
. Assistant Attorney General




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