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IMPORTANT NOTICE
NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED "NOT TOBE PUBLISHED." PURSUANT TO THERULES OFCIVIL PROCEDURE PROMULGATEDBYTHE SUPREME COURT, CR76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED ANDSHALL NOTBE CITED ORUSEDAS BINDINGPRECEDENT IN ANY OTHER CASEIN ANYCOURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKYAPPELLATE DECISIONS, RENDEREDAFTERJANUARY1, 2003, MAYBE CITED FOR CONSIDERATION BYTHECOURTIF THERE IS NOPUBLISHED OPINION THATWOULDADEQUATELYADDRESS THEISSUE BEFORE THE COURT. OPINIONS CITED FORCONSIDERATION BYTHECOURT SHALL BESET OUTAS ANUNPUBLISHED DECISION IN THEFILEDDOCUMENTAND A COPYOFTHE ENTIRE DECISION SHALL BE TENDERED ALONGWITHTHE DOCUMENTTOTHECOURT AND ALLPARTIES TOTHE ACTION.
RENDERED: SEPTEMBER 18, 2008 NOTTO BE PUBLISHED
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2007-SC-000147-MR
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RUSSELL LEE JONES

ON APPEAL FROM HARLAN CIRCUIT COURT
V. HONORABLE RON JOHNSON, JUDGE
NO. 06-CR-00094

COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Russell Lee Jones' appeals as a matter of right from a November 20, 2006 Judgment of the Harlan Circuit Court convicting him of trafficking in a controlled substance (1 St Degree) and being a persistent felony offender (PFO) (2nd Degree). The
Commonwealth alleged that on January 11, 2006, in Harlan County, Kentucky, Jones
sold two halves of a 40 milligram Oxycodone tablet to a confidential informant during a
controlled drug buy. Following his trial, the jury returned a guilty verdict as to both charges and the trial court subsequently sentenced Jones to a total of twenty years imprisonment. On appeal, Jones contends that the trial court erred by (1) failing to grant his motion for a newtrial after discovering that he had not been arraigned as to
'Although both Jones and the Commonwealth have styled this appeal as beingbrought by "Russel Lee Jones," the appellant's name as reflected in the trial record and throughout the appellant's brief is spelled "Russell." Thus, in order to be consistent, we are using the same spelling as seen in the trial record.
either charge; (2) denying his request for a new lawyer or for the opportunity to hire a new lawyer; (3) admitting the confidential informant's pretrial identification of Jones from an unduly suggestive photo array; (4) instructing the jury on theories that were not supported by evidenceand that violated his right to a unanimous verdict; and (5) allowing the Commonwealth to impeach one of his witnesses on a collateral matter.
Although the trial court never formally arraigned Jones on these charges and Jones informed the trial court of this fact prior to trial, because Jones was fully prepared to defend against the charges, he was not prejudiced by his lack of arraignment. Consequently, a newtrial is not warranted on that basis. Jones's other claims of error are either not preserved for appellate review or do not constitute grounds for a reversal. Thus, we affirm Jones's November 20, 2006 Judgment and Sentence.
RELEVANT FACTS
Prior to the confidential informant's interaction with Russell Jones, she had been participating in controlled drug buys supervised by Detective Keith Saylor of the Kentucky State Police for approximately six months. Onthe morning of January 11, 2006, the informant called Clyde Daniels in order to purchase drugs. The informant then met with Detective Saylor, at which point he searched her person and her vehicle, equipped her with a recording device, and gave her $60 to purchase the drugs. The informant testified at trial that after meeting with Detective Saylor, she began driving toward Cawood, Kentucky, to meet Daniels. The two eventually met at a convenience store in Cawood. According to the confidential informant's testimony, Daniels told her to park her car, get into his truck, and then he would find a pill for her. As they both sat in Daniels's truck, however, Russell Jones approached the vehicle and asked them
what they needed. Daniels replied that the informant needed "a 40." Jones then got into Daniels's truck and the three drove away from the store in order to complete the sale. Once they reached an underpass away from town, Jones sold the informant two halves of a 40 milligram Oxycodone tablet for $60. Following the sale, the informant and Daniels took Jones back to the convenience store. Daniels testified at trial that after dropping Jones off at the store, he and the informant drove to a secluded area where they both ingested Oxycodone. However, the informant testified that it was only Daniels who finished "shooting up" before he returned her to her car, which was parked at the convenience store. Approximately an hour after she had left Detective Saylor, the confidential informant returned to their meeting point, produced two halves of Oxycodone, and told Saylor that Russell Jones had sold her the drugs. She also gave Detective Saylor a description of Jones, stating that he was older, had long gray hair, and had a cross-like tattoo on the left side of his face.
Three months later, on April 4, 2006, Detective Saylor asked the confidential informant to come to the Kentucky State Police (KSP) post in order to look at a photo array. Detective Saylor used the informant's previous descriptions of people from whom she bought drugs, partial names the informant had given him, and his own knowledge of people who he believed were involved in dealing drugs in Harlan County to compile a stack of over twenty photographs of potential suspects. When the informant arrived at the KSP post, Saylor presented the confidential informant with the photo array. The informant recognized approximately seventeen of the individuals in the photographs as drug dealers. Specifically, the informant identified Jones as being the man from whom she had bought Oxycodone on January 11, 2006, and recalled that
Clyde Daniels was also involved in the drug transaction that day. Following an
indictment by the Harlan County Grand Jury on May 15, 2006, an arrest warrant was
issued for Jones on May 16, 2006. The next day, Jones was arrested in Cawood,
Kentucky.
On the morning of June 7, 2006, Jones's jury trial began. Jones's defense at
trial was that he was not the same "Russell" who sold the informant Oxycodone. Jones
called as a witness on his behalf Clyde Daniels, who testified in court that he had met
Jones for the first time when they were in jail together awaiting trial and that a different
man had sold the informant drugs on January 11, 2006. Despite this defense, on the
afternoon of June 7, 2006, the jury found Jones guilty of both the drug trafficking charge
and the PFO charge. Later that same day, the jury recommended that Jones be
sentenced to ten years for the trafficking charge enhanced to twenty years by virtue of
Jones's PFO status. On November 20, 2006, the Harlan Circuit Court entered
Judgment and Sentence, imposing the twenty-year sentence as recommended by the
jury. This appeal followed. ANALYSIS
I . Because Jones Did Not Suffer Prejudice From His Lack of Arraignment, the Trial Court's Failure to Formally Arraign Him Does Not Constitute Grounds for Vacating Jones's Convictions.
On June 7, 2006, after both the Commonwealth and the defense announced that they were ready to proceed on the trafficking and the PFO charges, Jones and his counsel began discussing Jones's belief that he had never been arraigned on the two charges forwhich he was about to be tried.
Ultimately, Jones asked the trial judge if he could speak. The trial judge responded that Jones should speak through his attorney,
at which point Jones replied, "she won't speak for me." Jones's trial counsel then
stated that her client wanted her to make a motion to dismiss because he claimed he
had never been arraigned on the charges. Jones's counsel also told the court that she
had informed Jones that because Kentucky was a notice state and he had been served
with an indictment and was aware of the charges, the failure to arraign was not
prejudicial and she could not in good faith make a motion to dismiss on that ground.
Jones then requested new counsel or a continuance for the opportunity to hire new
counsel.
At that point, after reviewing Jones's case file, the trial judge noted that pursuant to the trial court's June 2, 2006 Arraignment Order, Jones had been arraigned on May 26, 2006, and had entered a plea of not guilty to the trafficking and PFO charges. After recognizing that Jones had also been granted a motion for a speedy trial in this case, the trial court stated that it was not willing to grant Jones's request for a continuance. Despite the trial court's record, Jones continued to assert that he had not been
arraigned and that his motion for a speedy trial was filed in regards to a separate burglary charge (06-CR-00040) and not in the case of his trafficking and PFO charges (06-CR-00094). Believing that the record accurately reflected what had occurred on May 26, 2006, the trial court denied Jones's motion for new counsel and his motion to dismiss, and proceeded with trial under the belief that Jones had previously been arraigned on both charges and that Jones had requested a speedy disposition of both
charges. Following his guilty verdict, Jones filed a pro se motion to dismiss and to set aside the verdict, alleging that he was never arraigned on the trafficking or the PFO
charges. On June 22, 2006, the trial court denied this motion. On September 26,
2006, after retaining new counsel, Jones filed another motion to set aside his conviction
and set the case for a newtrial. In this motion, Jones explained that although he had
appeared before the court on May26, 2006, the trial court, rather than performing his
scheduled arraignment on the trafficking and PFO charges, addressed the two pro se
motions he presented before the court on that day. One of those pro se motions was a
motion for a speedy trial, which Jones again contended was filed in relation to a prior
burglary charge (06-CR-00040) and not to the trafficking or PFO charges (06-CR

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