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C ommonwealth O f K entucky C ourt O f A ppeals
NO. 2001-CA-000093-MR

WILLIAM DAVID PENNINGTON

APPELLANT

v.

APPEAL FROM JOHNSON CIRCUIT COURT HONORABLE DANIEL R. SPARKS, JUDGE ACTION NO. 98-CR-00008

COMMONWEALTH OF KENTUCKY

APPELLEE

OPINION AFFIRMING ** ** ** ** ** BEFORE: GUDGEL, CHIEF JUDGE; JOHNSON AND McANULTY, JUDGES. William David Pennington has appealed as a

JOHNSON, JUDGE:

matter of right from a final judgment and sentence of imprisonment entered by the Johnson Circuit Court. Pennington

was found guilty by a jury of trafficking in a controlled substance in the second degree,1 and sentenced to prison for one year. affirm. The evidence in the light most favorable to the Commonwealth was as follows: On March 22, 1996, Johnny Having concluded that no reversible error occurred, we

Pennington, while working as a paid informant for the Kentucky

1

Kentucky Revised Statutes (KRS) 218A.1413.

State Police, attempted to purchase prescription pain pills2 from the appellant, who is his first cousin. In an attempt to gather

evidence against the appellant, Detective Doyle Wilson of the Drug Enforcement Special Investigations unit of the Kentucky State Police gave the informant marked bills to use in purchasing the drugs and equipped him with a tape recorder to record the conversations pertaining to the sale. During the first attempted

drug buy, the appellant told the informant that he did not have the pain pills that the informant had requested, but that he would meet the informant at a later time after he had time to get the pills. The appellant contacted the informant the following day on March 23, 1996, and the two men agreed to meet at Kelly's Game Room3 in Paintsville, Kentucky to transact the drug deal. Det.

Wilson once again gave the informant marked bills to use in purchasing the drugs, and he once again outfitted the informant with a tape recorder to record the transaction. Following the

sale of the pills in the bathroom of Kelly's Game Room, the informant left and went to meet Det. Wilson. The informant gave

Det. Wilson the pills he had bought and the unused money that Det. Wilson had given him for the purchase of the drugs. The

pills recovered by Det. Wilson tested positive for the Schedule III narcotic, hydrocodone. The pills involved all contained hydrocodone, a schedule III narcotic. Nine of the pills were the brand name, Lortab, and eleven of them were the brand name, Lorcet. According to testimony at trial, Kelly's Game Room was an establishment operated by the appellant at the time of the drug buy. Testimony also indicated that Kelly's Game Room may have also gone by the name of Kelly's Amusement. -23 2

The appellant was indicted by the Johnson County grand jury on January 19, 1998, for trafficking in a controlled substance in the second degree. On April 7, 1999, the appellant The final order

was convicted by a jury of the charge.4

sentencing the appellant to one year in prison was entered on January 9, 2001. The appellant has raised four claims of error: (1) that the trial court erred by admitting the audio tapes into evidence without first establishing a proper foundation; (2) that witness Johnny Pennington was improperly permitted to interpret the audio tapes for the jury; (3) that the trial court improperly admitted the pills into evidence without proof of a complete chain of custody; and (4) that the prosecutor made improper remarks in his closing argument during the penalty phase of the trial. affirm on all issues. The appellant claims that the trial court erred by admitting the audio tapes into evidence without first establishing a proper foundation. Specifically, he argues: We

The Commonwealth clearly did not lay a proper foundation for the introduction of the two (2) audio tapes. The informant witness, Johnny Pennington, merely testified that he had recently had an opportunity to listen to the audio tapes, and that, based upon that earlier listening, that the tapes were a fair and accurate recording of the conversations Sentencing was originally scheduled for May 21, 1999. The appellant filed several motions which have delayed his direct appeal to this Court, including a motion for new trial on June 3, 1999. On June 4, 1999, a final judgment and sentence of imprisonment was entered, but on November 20, 2000, a motion for resentencing was filed, and a motion to vacate sentence was filed two days later on November 22, 2000. The order providing for the appellant's "Final Sentencing" was signed on December 15, 2000, and entered on January 9, 2001. This appeal then followed. -34

between the witness and the appellant. The witness Johnny Pennington never made a proper authentication of the tapes by testifying in court that, after actually listening to the tapes in court, that they were a fair and accurate recording of the purported conversations between him and the appellant[.] . . . Present, in-court authentication is what is contemplated and required by KRE5 901(a) and Brock v. Commonwealth6 [citations to record omitted]. The trial court ruled that in order for the informant to testify as to the accuracy of the tapes, he need only have listened to them at some prior time, and that it was not necessary for him to actually listen to the tapes in court. We agree.

The appellant's reliance on Brock for the proposition that a witness must first listen to an audio tape in court before testifying as to the tape's accuracy is misplaced. In Brock, the

defendant attempted to introduce a tape recording to impeach one witness and to refresh the memory of another witness. The trial

court in Brock erred by not allowing the witnesses to hear the audio tape, in court or otherwise. Thus, the witnesses were not Our Supreme

qualified to testify as to the tape's accuracy. Court stated:

Thus, if Della Partin's voice on the tape recording can be identified, and/or if either Della Partin or Shirley Williams should testify that the recording is an accurate reproduction of their conversation, the recording would be sufficiently authenticated to permit its introduction into evidence. Since Appellant was prevented from playing
5

Kentucky Rules of Evidence. Ky., 947 S.W.2d 24 (1997). -4-

6

the tape to either Della Partin or Shirley Williams, he was never afforded the opportunity to authenticate it.7 Thus, Brock does not stand for the proposition that a witness must listen to a tape in court before testifying as to its accuracy. Obviously, the witness must be given an

opportunity to listen to a tape before testifying, but there is no requirement that the witness listen to the tape in court. Rather, in accordance with KRE 901(a), authentication requires "only that evidence be introduced sufficient to support a finding that the matter in question is what its proponent claims."8 Further, in Woods v. Commonwealth,9 the Supreme Court discussed the broad discretion afforded to a trial court judge in determining the admissibility of evidence when authenticity is at issue: As stated in Lawson, The Kentucky Evidence Law Handbook, 2d ed.,

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