Orten v. Commonwealth, 2018 Ky. App. Unpub. LEXIS 151

Orten v. Commonwealth, 2018 Ky. App. Unpub. LEXIS 151

State:
Date: March 16, 2018
Defendant: Orten

Orten v. Commonwealth, 2018 Ky. App. Unpub. LEXIS 151

Court of Appeals of Kentucky

March 16, 2018, Rendered

NO. 2017-CA-000189-MR

2018 Ky. App. Unpub. LEXIS 151 | 2018 WL 1355567

TRAVIS LEE ORTEN, APPELLANT v. COMMONWEALTH OF KENTUCKY, APPELLEE

Counsel:
BRIEFS FOR APPELLANT: William G. Deatherage, Jr., Mark A. Gilbert, Hopkinsville, Kentucky.
BRIEF FOR APPELLEE: Andy Beshear, Attorney General of Kentucky, Mark D. Barry, Assistant Attorney General, Frankfort, Kentucky.

Judges:
BEFORE: ACREE, D. LAMBERT, AND J. LAMBERT, JUDGES. ALL CONCUR.

Opinion by: LAMBERT

Opinion

AFFIRMING

LAMBERT, J., JUDGE:

Travis Lee Orten has directly appealed from the final judgment of the Christian Circuit Court convicting him of reckless homicide, fourth-degree assault, speeding, and for being a persistent felony offender. For these offenses, the circuit court sentenced him to fifteen years’ imprisonment. Orten seeks reversal of his conviction based on the circuit court’s rulings on evidentiary matters, jury instructions, and the Commonwealth’s use of a confidential informant. We affirm.

The circuit court provided a succinct recitation of the factual background leading to Orten’s charges in a February 5, 2016 order:

There are certain facts that are not in dispute. In the early morning hours of July 4, 2015, Orten was driving a 2011 GMC Yukon Denali at a high rate of speed, traveling east on Huffman Mill Road in Christian County, when he struck a 2005 Toyota Tacoma in the rear. According to the accident reconstruction report prepared by Deputy Lynn Moe of the Christian County Sheriff’s Office (CCSO) — which may or may not be in dispute — Orten was traveling at a speed of 103 mph two and a half (2.5) seconds before impact and had slowed to 90 mph one-half (0.5) second before striking the rear of the Tacoma.

Upon impact, the Tacoma left the roadway, overturned down an embankment and came to rest after striking a tree. While the vehicle was flipping, three passengers were ejected from the vehicle. One passenger, Jacob Ort, was ejected out of the vehicle against the tree and died at the scene. Another passenger, Kendra Lee, was ejected out of the vehicle and landed in the tree line. She eventually died from the injuries she sustained. Another passenger, William Miles, was ejected out of the vehicle and landed in the roadway. He received emergency medical treatment and survived. The driver, Michael Forrester, was trapped in the vehicle and had to be extricated. He also received emergency medical care and survived.

What happened prior to the fatal wreck is very much in dispute. According to Orten, he was the victim of an unlawful home invasion and assault perpetrated by one or more of the occupants of the Tacoma truck.

Based upon what transpired in the early morning hours of July 4, 2015, the Christian County grand jury returned an indictment against Orten later that month, charging him with two counts of murder pursuant to Kentucky Revised Statutes (KRS) 507.020; two counts of first-degree assault pursuant to KRS 508.010; speeding pursuant to KRS 189.390; leaving the scene of an accident pursuant to KRS 189.580; and for being a first-degree persistent felony offender (PFO I) pursuant to KRS 532.080. Orten was arrested pursuant to a sealed indictment warrant, and he entered a not guilty plea at his arraignment in August. The Commonwealth filed a notice of its intention to proceed as a capital case with aggravating circumstances and to seek the death penalty.

In December 2015, Orten filed a motion to dismiss the charges against him, arguing that he was justified in using such force and was therefore immune from criminal prosecution pursuant to KRS 503.050, 503.055, 503.070, and 503.080. Orten stated that the occupants of the vehicle he hit had just participated in a home invasion of his residence during which they had assaulted him, hit him with a deadly weapon, threatened to kill him, threatened to kill another person in his home, and threatened to kill his family members. The Commonwealth, in response, argued that there was probable cause that Orten’s use of deadly force was unlawful based upon the statements of Brandi Cooper and other witnesses. Based upon Cooper’s statements, the Commonwealth argued that Orten had been using methamphetamine, and Cooper contacted Ort to bring more to his residence. Orten became enraged when they demanded payment and threatened to kill them. Miles and Ort took a television as payment. Cooper did not report seeing any firearms or anyone being assaulted. The Commonwealth did not have any evidence to support Orten’s claims in his motion, noting that he refused to cooperate with law enforcement and provide a statement about the home invasion. In his reply, Orten relied upon the statements of Curtis Killebrew, who was also in his house at the time of the home invasion; Craig Morris, his next-door neighbor from whom Orten sought help; and William Miles, who had been a passenger in the truck and reported that Forrester and Ort had a gun and a knife and had tried to take a car from two women on their way to Orten’s house.

By order entered February 5, 2016, the court denied Orten’s motion to dismiss, reasoning as follows:

One thread that runs through all of Kentucky’s self-defense statutes is that physical force, even deadly force, may be justified only when a person has a reasonable fear of imminent death or great bodily harm to himself or another. KRS 503.050(2) allows for the use of deadly physical force only when the defendant believes that such force is necessary to protect himself against death, serious physical injury, kidnapping, and other conditions set forth in the statute. KRS 503.050(1) allows the use of defensive force intended or likely to cause death or great bodily harm if the person against whom the defensive force was used was in the process of unlawfully and forcibly entering a dwelling or residence. Finally, the use of deadly physical force to protect another is justifiable only when the person using the force believes that such force is necessary to protect a third person against imminent death, serious physical injury, kidnapping, and other circumstances. (503.070(2)).

In this case, the critical and dispositive fact with regard to the pending motion is this: the use of force by Orten that resulted in the deaths of Ort and Lee took place approximately 1.3 miles from his residence, after the occupants of the Tacoma truck had left Orten’s property and after he had traveled at speeds in excess of 100 mph before impact. At that time, location, and under the circumstances in which he used force, Orten was neither being subjected to the use of physical force nor was there any basis for a reasonable belief that force was necessary to protect himself or others against the use or imminent use of unlawful physical force.

Perhaps the result would be different if Orten’s use of force had occurred in his home or at least on his property. Similarly, the result may be different if there was some reason to believe that Orten or someone else was in danger and that his use of force was necessary to protect himself or others. Even if Orten’s version of the facts is to be believed completely, any imminent threat to him or anyone else had dissipated when the occupants of the Tacoma left his property.

It is clear, regardless of which version of events is believed, that even after the occupants of the Tacoma truck left Orten’s property and any imminent threat to Orten or others had dissipated, Orten made the decision to go after them. By doing so, and by doing so at speeds in excess of 100 mph, he clearly became the aggressor. He was not acting, nor did he have any reasonable basis to believe he was acting, in self-defense. As a result, based on the totality of the circumstances, this court finds that there was probable cause to conclude that the force used by Orten that resulted in the deaths of Ort and Lee, and the physical injuries to Miles and Forrester, was not legally justified.

In February 2016, Orten filed a motion seeking the identification of anyone the Commonwealth knew to be present at his home when the occupants of the Tacoma truck were present or at the scene of the accident and to require the Commonwealth to preserve evidence, to provide the criminal histories of the witnesses, to identify any informants, to disclose exculpatory material, to provide his statements, to provide him with statements, reports, and the medical records of Cooper, Miles, Forrester, Lee, and Ort. In its supplemental discovery notice, the Commonwealth stated that there were potential witnesses who were under indictment for their roles in the events of July 4, 2015, including Cooper, Miles, and Forrester. The court held a hearing and later ruled on Orten’s motion, granting it in part and denying it in part, and requiring the Commonwealth to provide Orten with the information and material addressed in the order to the extent it had not previously been provided.

In March 2016, Orten moved to reschedule the trial to permit his legal counsel additional time to adequately prepare based on the Commonwealth’s notice that it intended to seek the death penalty. A jury trial was scheduled for October 6, 2016. In August 2016, Orten again moved to continue the October trial date, stating that he had recently retained co-counsel pursuant to the ABA Guideline addressing death penalty cases. In a notice filed the same month, the Commonwealth amended its notice of intent and indicated that the case would be proceeding as a capital case with aggravating circumstances, but it would not be seeking the death penalty.

In a notice of supplemental discovery filed August 31, 2016, the Commonwealth provided, among other items, an interview with and recordings provided from Robert Fowler. Fowler was a confidential informant in this case for the Commonwealth. Shortly thereafter, Orten moved to compel the Commonwealth to provide the download from Fowler’s phone and all other records and statements from Fowler that pertained to his legal counsel, Darren Wolff, along with other information. Orten later moved for additional discovery related to Fowler, including all statements he provided and all agreements made between him and the Commonwealth. In response, the Commonwealth stated that it had only recently come into possession of the download of Fowler’s phone that had been done in January 2016 and provided a copy of it. It stated that it had provided all statements made by Fowler, that it was providing a summary of a January 2016 meeting and other communications between Fowler and a detective, and that no agreements had been made between Fowler and the Commonwealth although he did have a pending case in Christian Circuit Court.

The court scheduled an evidentiary hearing for September 15, 2016, related to whether Fowler was acting as an agent of the Commonwealth when he obtained information from Orten after his (Fowler’s) arrest. Detective Ed Stokes of the Christian County Sheriff’s Department testified first. He was the lead investigator on Orten’s case. In January 2016, Fowler was arrested in Christian County. Det. Stokes was contacted about Fowler’s traffic stop after Fowler told the investigating officers that he had information about Orten’s case and needed to speak with a detective. An interview was arranged between Fowler, Det. Stokes, and Detective Sergeant Scott Noisworthy. During the interview, Fowler, who had been speaking with Orten on a daily basis, provided information that Orten had purportedly given to him about killing two witnesses in his case, Cooper and Killebrew. Fowler also mentioned Darren Wolff, one of Orten’s attorneys. Based on this information, Fowler signed a confidential informant agreement, and the sheriff’s department provided Fowler with an audio recorder to record his conversations with Orten. Fowler reported back on their conversations, relating that some days Cooper was a problem to Orten, but some days she was not. Det. Stokes did not attempt to limit Fowler’s conversations with Orten to the witnesses. However, Fowler never provided any information about possible harm to the witnesses. Det. Stokes stated that he was not seeking information about the pending charges from Fowler’s recorded conversations. Det. Noisworthy testified next. His role as to Orten’s case was limited to downloading Fowler’s phone on two occasions.

Fowler was the last witness to testify. In January 2016, he was arrested for being in possession of a stolen vehicle. He asked to talk with someone about Orten’s case. As a result, he was asked to record his conversations with Orten about Cooper. He recorded a series of conversations with Orten between January and August of 2016. In none of those conversations did Orten state that he wanted to harm anyone. No one affiliated with the Commonwealth ever attempted to rein in his conversations with Orten. Fowler knew law enforcement was seeking information about the solicitation issue concerning Cooper. Prior to Fowler’s January arrest, Orten had told him that the two witnesses (Cooper and a man whose name he did not remember) were a threat and that he wanted to make sure they did not testify. He then related that Orten told him that he just wanted Cooper to tell the truth. Fowler decided to tell law enforcement about what Orten told him because he was disgusted by Orten’s actions and concerned about the others’ safety. Fowler told Det. Stokes what he thought was relevant from time to time, including plea negotiations, trial strategy, and that Orten was upset.

In September 2016, Orten filed another motion to dismiss, this time based upon the September 15th hearing, citing Fowler’s service as an agent of the Commonwealth when he sought and obtained information from Orten about trial preparation and strategy over a seven-month period. The Commonwealth, he argued, withheld this information until shortly before his October trial date. Because there was no way to cure the Commonwealth’s violation of his Fifth and Sixth Amendment rights, he sought dismissal of the indictment. In a separate motion, Orten moved to postpone the trial based upon the large amount of information the Commonwealth had provided related to Fowler.

The court held a hearing in late September, beginning with its oral rulings on the pending matters, including denying Orten’s motion to dismiss with respect to the Commonwealth’s use of Fowler as an informant and denying the motion to continue the trial. The court and the parties went on to address discovery matters and the appropriate remedy for the information Fowler had obtained outside of the scope of his agreement with the Commonwealth. The court reflected its rulings in a docket order entered September 26, 2016.

The court entered an order on October 4, 2016, memorializing its oral ruling on Orten’s motion to dismiss. The court stated that the investigation into the alleged threats to the witnesses using Fowler should have been “more narrowly tailored in scope and duration” and that the Commonwealth and law enforcement should have instructed Fowler to confine his recorded conversations to information about the witnesses, and once Orten’s statements indicated he did not intend to harm the witnesses, Fowler’s role as an informant should have ended. The court also stated that the Commonwealth should have provided this information to Orten sooner than it did, noting that the arrangement between Fowler and the Commonwealth started in January 2016.

The court went on to consider whether the Commonwealth had intruded on Orten’s right to counsel through its use of Fowler as a confidential informant, setting forth the factors it must consider as enunciated by the Supreme Court of Kentucky in Brown v. Commonwealth, 416 S.W.3d 302 (Ky. 2013), and McBeath v. Commonwealth, 244 S.W.3d 22 (Ky. 2007), and ruling:

Applying the first factors set forth in the Brown, supra, case, there is no question that Fowler entered into an arrangement to serve as an informant for the Commonwealth with regard to Orten. However, there is nothing in the record to indicate that the CCSO [Christian County Sheriff’s Office] intended for Fowler to obtain confidential, privileged information. Instead, the purpose of the agency/informant relationship was for Fowler to obtain information about possible new crimes.

Complicating this conundrum is the long standing relationship, as well as the nature of the relationship, between Orten and Fowler. Even prior to becoming an informant for the Commonwealth, Fowler and Orten not only talked every day, or every other day, they also clearly discussed his pending case. In fact, even after the informant arrangement was made, the vast majority of the conversations consisted of Orten soliciting advice from Fowler, and Fowler offering his opinions, whether asked or not.

The second prong of the Brown test is one that is easily manageable. Based on the court’s review of the recorded conversations, there is no information in those conversations that was not previously known or which could not have been reasonably inferred by the Commonwealth. Furthermore, the exclusion of Fowler as a witness at the trial, as well as the exclusion of the recorded conversations for any and all purposes, including impeachment, would seem to be an appropriate remedy to address this concern. This same analysis would apply to the third prong of the Brown test.

With regard to the fourth prong of the Brown test, although both the Commonwealth and Orten now have a better idea of Fowler’s thoughts and opinions about trial strategy, there was nothing disclosed by Orten in the course of those conversations that would constitute detailed, confidential information concerning Orten’s defense strategies, as argued by Orten.

With regard to the McBeath case, there is no question that Mr. Orten’s right to counsel had attached by the time that Fowler became an informant, as Orten had already been indicted and was already represented by counsel. Secondly, there is no question that Fowler was acting as a government agent at the time that he recorded his conversations with Orten, although the Commonwealth could reasonably argue that the vast majority of his conversations exceeded the scope of the agency relationship. Most importantly, however, is that Fowler never deliberately elicited any incriminating statements from Orten. In fact, Orten never made any admissions, statements against interest, or other incriminating statements during the course of the conversations.

In sum, although it is this court’s opinion that this matter could have been handled much better by law enforcement and the Commonwealth, the substance of the recorded conversations provides no obvious advantage to the Commonwealth nor any evident prejudice to Orten. This court does not believe that law enforcement or the Commonwealth acted in bad faith with regard to this matter, but rather, as set forth above, that the matter simply could have been handled better.

Therefore, the court denied Orten’s motion to dismiss.

The court also rejected Orten’s alternative motion to disqualify anyone who had been exposed to the information obtained from Fowler, stating that “[p]erhaps under some circumstances, in which the prosecutor and/or law enforcement aggressively and in bad faith utilized an informant in such a way as to prejudice the defendant, the removal of the prosecutor may be appropriate. However, that is not the case here.” Finally, the court excluded Fowler from testifying at the trial and deemed the recordings between Fowler and Orten to be inadmissible for any purpose, including impeachment.

Prior to the October 10, 2016, trial date, the Commonwealth filed a Kentucky Rules of Evidence (KRE) 404(b) notice that it may introduce evidence of Orten’s drug use and his involvement in illegal prostitution acts at the time of the events in this case as well as his relationship with Cooper. The Commonwealth also filed a motion in limine seeking, in part, to prohibit Orten from referencing the criminal conduct of the Commonwealth’s witnesses that did not pertain to the immediate events in Christian County on July 4, 2015. Specifically, the Commonwealth requested that Orten not be permitted to mention the events that had taken place in Tennessee or other locations because there was no indication that Orten knew about those events during the home invasion, making them irrelevant to this case. The Commonwealth cited KRE 608 in support of its request, stating that it was not aware of any specific instances of conduct that would reflect on the truthfulness of the witnesses.

Orten objected to the Commonwealth’s motions, stating that the earlier robbery by the Commonwealth’s witnesses would not be offered as character evidence, but would rather be offered under KRE 404(b) for proof of motive, opportunity, or intent. He asserted that their similar actions shortly before the home invasion were admissible to show their motive for coming to his home, their bias against him, and their bias in favor of the prosecution in seeking leniency. Orten also filed motions in limine to prevent the Commonwealth from showing photographs of injured or deceased persons during the trial and from mentioning his statement to Deputy Mark Reid made on July 4, 2015, after he had invoked his right to counsel.

The court considered the parties’ pre-trial motions on October 7, 2016. Orten argued that permitting the introduction of evidence of the criminal activity in Tennessee supported his theory that the home invasion was part of a crime spree, not a drug deal gone bad, and was within the same course of conduct. The court stated that the evidence would be admissible if the home invaders were on trial, but that was not the case. Therefore, the court granted the Commonwealth’s motion in limine to exclude prior criminal activity by the home invaders. The court permitted Orten to include this testimony by avowal.

A jury trial was held beginning October 10, 2017. Orten’s theory of the case was that he was acting reasonably in the situation because he wanted to get to his mother’s house before the home invaders did in order to warn and protect his family members. We shall focus only on the testimony germane to our decision, beginning with that of the surviving home invaders and Cooper.

William Miles, a convicted felon, was one of the home invaders who was injured in the collision. He had been with Lee, Ort, and Forrester in Tennessee in Forrester’s red Tacoma truck the day prior to the home invasion and collision. Cooper had been with them for most of the day, but she had left with another man Miles did not know. At the time of the incident, Miles had known Ort, Forrester, and Cooper for about one month. He had known Lee for several years. Miles testified that the group went to Kentucky to pick up Cooper and get some money. When they arrived at Orten’s residence, he, Ort, and Forrester knocked on door. Someone answered and cracked the door open, but then closed it. Ort forced the door open by kicking it two or three times, and all three entered the residence. They were not wearing face masks, but the other two were wearing bandanas. Miles had a bandana in his pocket because his head had been split open the day before. Ort got into a tussle with a man in the house (Orten) who got away from him and ran out the door. Miles did not see any weapons or objects used in the fight between Ort and Orten.

Miles went on to testify that Cooper was in the residence along with another man Miles could not describe who ran out of the house. Ort told Miles to help him get the television so that he could get money for drugs. Miles did so, and he put the television in the back of the truck as Ort was getting in the driver’s seat. Miles got in the back seat with Lee, who had never left the truck, and the group drove away. While they were driving, Forrester said someone was chasing them, after which the collision occurred. Miles said he blacked out and woke up in the woods next to Lee. She was still alive but not responding. He walked up the road and saw the truck smashed into a tree in the wood line. A man ran to him, asking “Why would you do that? I have a family.” Another man made him sit down and told him an ambulance was on the way. His wrist was crushed in the wreck, and he underwent surgery to correct it. On cross-examination, Miles admitted that he was under a felony indictment in relation to this case and had been charged with first-degree burglary. He had given a recorded statement to two detectives shortly after the collision. His testimony at trial differed from what he told the detectives; Miles said he had not been completely honest during the statement because he had been scared.

Michael Forrester was another of the home invaders and was also a convicted felon. He was the owner of the truck involved in the collision. Like Miles, Forrester testified that he had been with Lee and Ort that morning and had been with Cooper prior to that. He had used methamphetamine two or three days before and was coming down from the effects of the drugs. Forrester had known Ort for several years, but he had not known Miles or Lee for long. Forrester stated that he had a long knife he always carried as well as a .45 handgun, which he said was in the middle console of the truck that night.

Earlier in the day, after “something went down in Clarksville,” either Ort or Miles told the group they were going to get drugs, and Forrester went with Ort because he did not trust Miles. He admitted to being involved in a crime in Clarksville, after which they went to Orten’s house, although he did not know it was his house until later. He had never met Orten before. Forrester had texted Cooper to ask for the address, and he put the address in the truck’s GPS. Miles was driving, while Forrester was in the backseat and Ort was in the front passenger seat. Forrester testified that he was not told what was going to happen and said it “didn’t feel right.” He went to the front door with Miles and Ort, and he said he saw Miles with the gun “before everything happened.” Miles knocked on the front door, and Forrester saw the knife when the door was kicked in. He also said he saw Miles pull out the gun and kick the door open. When the door opened, the three men ran inside. Forrester stopped in the front foyer while the others went further into the house. He did not see where they went. He only saw Cooper and Orten in the house, stating he saw Cooper in the kitchen. Forrester stated that he did not remember anything going on in the house but said that Orten was yelling. He did not see any physical contact between Orten or anyone else. Forrester never took his knife out of the holster, and he said he had not seen the gun inside the house. He said that no one was injured. He also did not report seeing any drugs.

Forrester went on to testify that he saw Orten exit the house while the group was still inside. Orten was wearing boxers. Forrester testified that he got everyone to leave after Orten ran out. Forrester got into the driver’s seat, and he saw the others jump into the truck next. He saw Miles put a television in the truck bed. Lee had been sleeping in the truck. They left as soon as Miles entered the truck, and Forrester pulled out of the driveway. Prior to the collision, Forrester said he saw headlights, told everyone to put a seatbelt on, and then felt an impact. He had been wearing his seatbelt while the others had not. Forrester woke up in the hospital remembering nothing. He incurred two broken ribs as a result of the collision. After he was released from hospital, he talked to Det. Stokes and admitted that he had lied to him about what happened in order to protect Ort. He denied that he had been trying to protect anyone with his current testimony.

On cross-examination, Forrester admitted that he had been indicted for the events at Orten’s house and that charges against him were pending. He stated that Ort was looking for money to fund a trip to California for a motorcycle convention. Forrester had bandanas in his truck along with handcuffs and brass knuckles, which he kept in the glove compartment.

Brandi Cooper testified that she had met Orten through a mutual acquaintance a few years before and randomly saw and communicated with him. She heard from Orten during the evening of July 3rd, and she said he asked if she knew any girls who would want to come to his house for sex and to get high. He was willing to pay $100.00 per hour. He also asked if she wanted to come to his house, and they made arrangements, which included sending Curtis Killebrew to pick her up in Clarksville, payment of $100.00 per hour, and all the dope she wanted to do. Killebrew picked her up at the Mapco in Clarksville around 9:00 pm or 10:00 pm and took her to Orten’s home. On the way, Cooper tried to contact another woman, Courtney, to see if she wanted to go with her, but the other person declined. Orten was walking around in a robe when they arrived. She and Orten smoked meth in the master bedroom, watched porn, and engaged in sexual activity for a couple of hours. Killebrew was using drugs with them as well.

During this time, Cooper was communicating with Ort and Courtney via text messages and telephone conversations. She told Ort that Orten was acting out of character. Ort asked if Orten had any money and if anyone else was there. Ort wanted to bring over drugs and get some money by stealing a wallet. Cooper stated that she received a text message right before the group arrived. Ort asked her to open the door, but she declined to do so because she thought Orten would think something was up if she did. Forrester and Miles had also texted her to open the door. Cooper heard the doorbell ring and heard Orten ask who it was. She heard a banging noise, and Orten ran into the garage area. Ort came in with other people while Orten was in the kitchen area and she was in the bedroom doorway. She heard bickering between Ort and Orten about money and heard Orten say he was going to kill “him”. She did not see Orten or anyone else with a weapon, but she was not sure if any weapons were present because she was in the bedroom at first and could not see anything. She did not see a physical altercation. Cooper did not know how the group got into the house, and she saw two people go into the bedroom and take the television.

Cooper testified that she asked the group to come there to bring more drugs and to see if Lee wanted to stay with her. Otherwise, she was going to leave. Cooper told Ort that she wanted it to look like she had been kidnapped, but she did not leave with the group. She was in the kitchen when the group left, and she heard gravel slinging in the driveway. She then saw Orten quickly backing out of the driveway. He seemed fine in the car, but she described him as crazed. She did not see any injuries on Orten or any blood in the house. She left with Killebrew when he came back into the house. She grabbed her purse, but not her cell phone as the others had taken it, while Killebrew was collecting syringes and pipes from the bathroom and bedroom. Killebrew picked up a package of drugs in the driveway, and they left in Orten’s station wagon. As they drove down the street, they encountered the site of the wreck. They turned around and went to a place called the Pantry, where they got high for an hour.

Cooper testified that she was scared to talk to the police right away, and she was worried Orten would go after her because he had money. She spoke to Det. Stokes on the telephone a few days later. She did not initially show up for questioning, and when she did so it was involuntarily. She was arrested in Clarksville in August 2015 and was extradited to Kentucky in September 2015. Cooper stated that she had not lied in her statement, but “went around” in some of the answers so she would not incriminate herself. She went back to clarify her earlier statement. She said that she was no longer the same person, had been sober for fourteen months, and was in school. She was trying to do what was right.

On cross-examination, Cooper stated that she was under indictment in Christian County for burglary due to her action at Orten’s house. She had been in a rehab facility since October 2015. Based upon the time stamp on Mapco’s video showing that Killebrew picked her up at 3:40 am on the morning of July 4th, she admitted she must have been wrong about the time. She clarified that she wanted to set up a fake kidnapping by the group to make it look like she was not in on the burglary and had not planned it. Cooper said that Orten was a good paying client and that she did not want to lose him. But she said that she had not orchestrated the entire crime. She also said she heard Orten say he was going to kill the home invaders. No one else had mentioned injuring or killing anyone.

Curtis Killebrew testified that he had known Orten since they were children. On the night of July 3rd, he arrived at Orten’s house sometime after 11:00 pm. He left to pick up Cooper after 2:00 am on the morning of July 4th. He did laundry when he returned to Orten’s house with Cooper. Orten and Cooper were in the bedroom. He did not see any drugs being used, and he denied using any drugs. He was there for five to six hours. Killebrew described Cooper as acting nervous and jumpy right before the knock on the door. Orten went to the door wearing a robe and did not get a response when he asked who was there. Killebrew was in the kitchen area talking to Cooper at the time. He heard Orten ask why they (the people outside) were hiding. He then heard a loud noise when the home invaders were trying to kick the door down. Orten asked who they were and for whom they worked. Killebrew heard them respond that they worked for the mob. One asked, “Where is the n—– at?” Killebrew went into the garage and hid. One of the home invaders, who was wearing a bandana and hat, stepped through the door to the garage with a gun and hit the switch to turn on the light, but the garage door opened instead. Killebrew exited the garage and went behind the house into the wood line. He stayed there for about ten minutes. Orten came out of the front door wearing underwear and a t-shirt, went to the neighbor’s house, and woke up the neighbor. While Orten was at the neighbor’s house, Killebrew heard the others start up their vehicle and go down the driveway. Orten then returned to his driveway and started his car.

After the vehicles left, Killebrew walked back into the house, saw Cooper in the house, and told her they were leaving. The two left in the station wagon. They were stopped and told there was a bad wreck with bodies on the ground, after which they turned around. The two went to a friend’s house on Southgate drive. Cooper stayed there with him for about an hour before he took her to Circle K for her ride to pick her up. Killebrew returned to his friend’s house.

Killebrew denied taking anything from the house with him. He said he dropped the car keys in the driveway beside the car and picked them up. He denied taking any drugs or paraphernalia with him. The home invaders had taken his phone with them, and it was found at the site of the wreck. Killebrew talked to the police in the next couple of days. He took Orten’s car to his father’s car wash two days later per Orten’s request.

On cross-examination, Killebrew said he heard the person at the door say, “Where’s the money and the dope?” He also heard one person say that they worked for the mafia. He said he thought Cooper was trying to fake how she was acting, making him suspicious, and that she wanted to get back to Clarksville. He also heard Orten yelling for help outside.

Orten testified in his own defense. He had been on probation for a felony conviction, and his restrictions included a curfew and drug testing. He admitted to having had a problem with drugs in the past and that he had taken drugs after the home invasion and collision. He had not used drugs since that time. Orten owned a laundromat and a car wash in Clarksville, Tennessee.

Orten testified extensively about the events of July 3 and 4, 2015. He had been getting ready for a customer appreciation event at the car wash he owned in Clarksville. He took a nap when he got home that night. After he woke up, he watched television and got on the computer before calling a friend of his (Sasha) to come over. At that point, it was past midnight. Sasha did not come over, but he got a call from Cooper, who said she wanted to come over. He agreed, and he sent Killebrew to get her. While they had not talked about payment, he said he would have paid her for sex if she had asked as he had in the past. He denied that he drank alcohol or that any drugs were in the house. Cooper did not bring any drugs with her. After he and Cooper had completed their activities, Orten said he took a shower and then planned to make breakfast and get ready for work. He was making arrangements to get Cooper home.

Orten heard Killebrew say, “Someone is here,” before he heard a knock on the front door. The door was broken, and he had pushed a desk and a coffee table in front of it. Orten asked who was at the door. He could see a shadow step to the side through the opaque glass next to the door. Orten asked why they were hiding. One person said they were from the sheriff’s department. Orten reported that he was scared and did not know what was going on. The people outside started kicking the door open. One person (Miles) got inside by coming over the desk. He was wearing a bandana and had a knife in his hand. Another person (Ort) came in with a pistol in his hand and hit him in the head. That person said, “I’m mafia, mother f—–.” One person went into the bedroom and asked, “Where is the n—– at? I know he’s here. Here, n—–, n—–, n—–. I’m going kill that n—– first.” That person went into the laundry room, came out, went into the bedroom, and asked Cooper, “Where is the drugs and money, b—-.” He began dragging Cooper, who started screaming.

Orten testified that blood was running down his face. He was scared and said he asked the home invaders not to kill him because he had children. Ort put a pistol up to his eye and said that he was mafia and was there to kill him and his family. Ort then went back to looking through the house. Miles was several feet away. Orten took the opportunity to run outside and called for help from the front porch. He ran to his neighbor, Craig Morris’s, house, and he hid behind a tree. When Morris opened the door, Orten asked him to help him and let him in. Morris did not let him come inside. Orten reported hearing someone say, “You can’t stop me, I’m going to kill your babies,” as they ran to the truck. He did not know if anyone was left in the house but saw two people come out of it. He also heard the vehicle leave. Orten ran to his Denali and started driving to his mother’s house, where his children were. He was scared for himself and his family because one of the men said twice that they were there to kill him and his family.

Orten denied that he was chasing the other vehicle. He was in a hurry because he wanted to tell his family what had happened. He did not have his phone and was wearing only boxers. Orten said he did not see the vehicle or its taillights ahead of him until a second before the collision. He said he slammed on the brakes and did not run into the truck on purpose. He thought he had hit a neighbor pulling out of a driveway. Orten stopped his own vehicle because of the wreck, during which the airbag deployed. Orten said he was in shock. He kicked his door open and flagged down the first car that went by. He asked the driver, Ricky Bourland, to tell the sheriff to go after the people who had just broken into his house, and he asked if Bourland saw which way they went. Orten stated he did not know what vehicle he had hit. Bourland asked about his head injury, and Orten told him it was from the home invasion. Bourland also asked about weapons. Orten then ran to the crash site while Bourland called 911 to report the home invasion. Bourland also called Orten’s father. At the crash site, Orten saw items in the road, some of which were his, including a plastic tote and his wallet. He then realized that this was the group who had committed the home invasion. Orten saw a person on the road who he later learned was Miles. He went to him and asked, “Who are you, why did you do this, who sent you, why would you do this?” The man responded that they made him do it.

A sheriff’s deputy arrived and pulled his gun on Orten. Orten sat down in a ditch until his father arrived. Medical personnel responded, and Orten was put in the back of an ambulance. Orten left the hospital with his father because nothing was happening. He and his father went back to Orten’s house, but sheriff’s deputies were everywhere, and they could not get through. They went to his father’s house instead. The sheriff called them at his father’s house asking for a key to unlock the door to the basement. Orten spent the night of July 4th at his father’s home. He said he felt “unbelievable remorse” for the deaths. He went out to buy drugs and got high that night to get the wreck out of his mind. His father was angry when he found out Orten had gotten high and told him to leave the next morning. Orten called his probation officer to report what happened and that he had taken drugs following the incident.

Craig Morris, Orten’s next door neighbor, testified about the events of July 4th. Morris said that Orten came to his door during the early morning hours after he had been awakened by a cry for help. Orten banged on the front door asking for help and for him to call 911, and he said, “They’re trying to kill me, get your gun.” Orten knew Morris had a handgun. The porch light and flood light came on automatically, and Morris could see Orten was wearing boxers. Orten was covered in blood and had a gash on his head. He described Orten as being in a sheer panic and had no doubt that he was in fear of his life. Morris was reluctant to let Orten into his house. He saw a truck in Orten’s driveway with the driver’s door open and heard a person yell from that direction something to the effect of, “You’re trying to kill my babies.” Later, he stated that the man could have said, “You’re trying to kidnap/kill my baby” or “I’ll kill your baby.” Morris saw at least two people near the truck, and he went back inside to call 911. He saw the truck pull out of the driveway as he made the call. He then saw Orten run past his window and drive away in his SUV. He explained this to 911. Morris called 911 for a second time thirty to forty-five minutes later when it was lighter outside; he saw a man and a woman outside of the house looking for something in the grass. The two left in Orten’s mini station wagon a few minutes later. Morris never saw any weapons.

Ricky Bourland testified about his encounter with Orten at the site of the wreck. He described Orten as bloody and confused, and Orten told him that there had been a home invasion and asked if he (Bourland) had seen the vehicle. Orten told him a gun and a knife had been used in the home invasion. Bourland called 911 to report this information, and he saw Orten run towards the crash site, where Bourland saw a person lying in the road. Bourland also called Orten’s father. Police responded to the scene. The recording of Bourland’s 911 call was played during his cross-examination. Orten can be heard in the background telling Bourland that he had discovered the crash victims were the home invaders.

At the conclusion of the trial, the court instructed the jury. As to Ort and Lee, who died in the collision, the authorized verdicts were murder (intentional or wanton), first-degree manslaughter, second-degree manslaughter, or reckless homicide. As to Miles and Forrester, who were injured in the collision, the authorized verdicts were first-degree assault (intentional or wanton), second-degree assault (intentional or wanton), assault under extreme emotional disturbance, or fourth-degree assault. The jury was also instructed on the charges of speeding and leaving the scene of the accident. In addition, the trial court instructed the jury on the privilege of protection of another, but it declined to include a choice of evils instruction as Orten requested. [1]

After deliberating, the jury found Orten guilty of two counts of reckless homicide, two counts of fourth-degree assault (reckless/dangerous instrument) while acting under extreme emotional disturbance, and speeding. The jury found him not guilty of leaving the scene of an accident. Because the jury was unable to reach a unanimous decision during the penalty phase, Orten and the Commonwealth reached a conditional guilty plea as to his sentence, including a guilty plea to the PFO I charge. The recommended sentence was five years on each reckless homicide conviction, 45 days for each assault conviction, and a $100.00 fine for the speeding conviction, with the sentences enhanced to fifteen years pursuant to the PFO I conviction. The sentences were to run concurrently for a total of fifteen years. The court entered a judgment on January 6, 2017, finding Orten guilty pursuant to the jury’s verdict and imposing a fifteen-year sentence pursuant to the agreement, reserving Orten’s right to appeal. This appeal now follows.

On appeal, Orten presents three arguments; namely, that he should have been permitted to present a complete defense by including evidence of the prior robbery by the home invaders in Tennessee, that the jury should have been instructed on a choice of evils defense, and that the trial court should have granted his motion to dismiss based upon the Commonwealth’s use of a confidential informant in violation of his Fifth and Sixth Amendment rights. The Commonwealth refutes each of Orten’s arguments.

For his first argument, Orten contends that the circuit court should have permitted him to present evidence of the robbery committed the prior day in Tennessee by the perpetrators of the home invasion to support his theory that the group had been involved in a crime spree, to discredit the testimony of the Commonwealth’s trial witnesses, and to permit him to put on a complete defense, including the effect the events in his home had on his mental state. This issue was raised in the Commonwealth’s pretrial motion in limine, which the court granted, holding that this evidence was not relevant, although it would have been in a case against the home invaders. We shall review this ruling for abuse of discretion:

On appellate review of a trial court’s rulings with respect to the relevancy of evidence, we observe that determining relevancy is a matter that is left largely to the sound discretion of the trial court. Reece v. Nationwide Mut. Ins. Co., 217 S.W.3d 226, 232 (Ky. 2007). When a trial court’s evidentiary rulings as to relevancy are challenged, we review these rulings under an abuse of discretion standard. Love v. Commonwealth, 55 S.W.3d 816, 822 (Ky. 2001). “The test for abuse of discretion is whether the trial judge’s decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.” Commonwealth v. English, 993 S.W.2d 941, 945, 46 8 Ky. L. Summary 28 (Ky. 1999).

Johnson v. Commonwealth, 231 S.W.3d 800, 807 (Ky. App. 2007).

Orten preserved the testimony of both Forrester and Cooper by avowal pursuant to KRE 103(a)(2). Forrester stated that he and Miles had robbed two women at gunpoint near State Line Road earlier in the day on July 3rd, taking their keys and credit cards. Forrester had a pistol, and Miles had a knife. Ort was in the truck along with Lee, but Cooper was not with them. The group went to Orten’s house later. Forrester had been convicted of a felony for this criminal action. Cooper, on the other hand, testified that she had been with the group during the prior incident in Tennessee. She had been driving the vehicle during the attempted carjacking.

Orten contends that he was attempting to submit this evidence pursuant to KRE 404(b) as evidence of other crimes, wrongs, or acts. He posits that this evidence would have been offered under KRE 404(b)(1) as evidence of “proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident[.]” The Commonwealth, on the other hand, argues that this evidence was properly excluded pursuant to KRE 608 and KRE 609.

KRE 404 addresses the introduction of character evidence and evidence of other crimes:

(a) Character evidence generally. Evidence of a person’s character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:

(1) Character of accused. Evidence of a pertinent trait of character or of general moral character offered by an accused, or by the prosecution to rebut the same, or if evidence of a trait of character of the alleged victim of the crime is offered by an accused and admitted under Rule 404(a)(2), evidence of the same trait of character of the accused offered by the prosecution;

(2) Character of victim generally. Evidence of a pertinent trait of character of the victim of the crime offered by an accused, other than in a prosecution for criminal sexual conduct, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor;

(3) Character of witnesses. Evidence of the character of witnesses, as provided in KRE 607, KRE 608, and KRE 609.

(b) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible:

(1) If offered for some other purpose, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident; or

(2) If so inextricably intertwined with other evidence essential to the case that separation of the two (2) could not be accomplished without serious adverse effect on the offering party.

Orten cites to Blair v. Commonwealth, 144 S.W.3d 801 (Ky. 2004), and other similar cases, in support of his argument that the court should have permitted the introduction of this evidence. As the Commonwealth points out in its brief, these cases discuss the introduction of KRE 404(b) evidence as to an alleged alternative perpetrator. That is not the case here, as Orten was not attempting to argue that the witnesses were the perpetrators of the offenses for which he was indicted and convicted, but rather this evidence was offered to show that they had been involved in an alleged crime spree. We agree with the Commonwealth that Orten was not offering this testimony for a proper purpose pursuant to KRE 404(b).

Furthermore, we agree with the Commonwealth that the circuit court properly excluded this evidence pursuant to KRE 608 and KRE 609. KRE 608 addresses the introduction of evidence of the character and conduct of a witness, and provides in relevant part as follows:

(b) Specific instances of conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness’ credibility, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness: (1) concerning the witness’ character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified. No specific instance of conduct of a witness may be the subject of inquiry under this provision unless the cross-examiner has a factual basis for the subject matter of his inquiry.

And KRE 609 addresses the impeachment by evidence of conviction of a crime:

(a) General rule. For the purpose of reflecting upon the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted if elicited from the witness or established by public record if denied by the witness, but only if the crime was punishable by death or imprisonment for one (1) year or more under the law under which the witness was convicted. The identity of the crime upon which conviction was based may not be disclosed upon cross-examination unless the witness has denied the existence of the conviction. However, a witness against whom a conviction is admitted under this provision may choose to disclose the identity of the crime upon which the conviction is based.

These situations were not at issue in the present case.

Finally, we agree with the Commonwealth that this evidence, including Orten’s mental state, was not relevant and that Orten had a sufficient opportunity to present his defense to the jury. The jury learned through Forrester’s testimony that he had been involved in a crime in Tennessee shortly before the home invasion. However, Orten had no knowledge of this prior criminal activity at the time of the home invasion or when the collision occurred. Therefore, the trial court did not abuse its discretion in excluding evidence of the prior criminal activity in Tennessee.

Next, Orten contends that the trial court should have instructed the jury on a choice of evils defense. We previously noted in footnote 1 that the certified record is missing digital recording of the jury instruction discussion due to a recording error, but Orten included this instruction in his proposed jury instructions. Therefore, we shall review the trial court’s decision not to instruct the jury on this matter for abuse of discretion. Hunt v. Commonwealth, 304 S.W.3d 15, 31 (Ky. 2009), citing Williams v. Commonwealth, 178 S.W.3d 491, 498 (Ky. 2005).

In Hunt, supra, the Supreme Court of Kentucky explained the process of instructing the jury:

“In a criminal case, it is the duty of the trial judge to prepare and give instructions on the whole law of the case, and this rule requires instructions applicable to every state of the case deducible or supported to any extent by the testimony.” Taylor v. Commonwealth, 995 S.W.2d 355, 360, 46 8 Ky. L. Summary 56 (Ky. 1999). However, the trial court has no duty to instruct on theories of the case that are not supported by the evidence. Payne v. Commonwealth, 656 S.W.2d 719, 721 (Ky. 1983).

Hunt, 304 S.W.3d at 30.

In KRS Chapter 503, the General Assembly provided for the choice of evils defense. That principle of justification is contained within KRS 503.030, which provides as follows:

(1) Unless inconsistent with the ensuing sections of this code defining justifiable use of physical force or with some other provisions of law, conduct which would otherwise constitute an offense is justifiable when the defendant believes it to be necessary to avoid an imminent public or private injury greater than the injury which is sought to be prevented by the statute defining the offense charged, except that no justification can exist under this section for an intentional homicide.

(2) When the defendant believes that conduct which would otherwise constitute an offense is necessary for the purpose described in subsection (1), but is wanton or reckless in having such belief, or when the defendant is wanton or reckless in bringing about a situation requiring the conduct described in subsection (1), the justification afforded by this section is unavailable in a prosecution for any offense for which wantonness or recklessness, as the case may be, suffices to establish culpability.

The term “imminent” is defined as “impending danger[,]” KRS 503.010(3), and the Commentary to KRS 503.030 explains:

The necessity for this provision can be seen in those situations in which individuals are confronted with a choice of engaging in conduct defined as criminal or suffering the consequences of greater injury. A practical example of this necessity is the case of an individual speeding through a school zone to get a dying person to a hospital or of someone destroying the property of another to prevent the spread of fire. Subsection (1) provides a defense for conduct of this type if two elements are shown to have existed: a belief by the defendant that his conduct was necessary to avoid an imminent injury; and a belief by the defendant that the injury avoided was greater in degree than the injury sought to be prevented by the statute defining the offense committed. Traditionally no justification has been allowed under this privilege for the intentional taking of an innocent life. Subsection (1) continues this exception.

Under prevailing principles, justification based upon the “choice of evils” concept requires that a defendant’s belief in the necessity of his action be reasonable. No such requirement exists in subsection (1), as a defendant need only have such a belief to qualify for the defense. Pursuant to subsection (2), however, for offenses having wantonness or recklessness as the culpable mental state the defense of “choice of evils” is unavailable to a defendant who is wanton or reckless in believing that his conduct is necessary. It is also unavailable to a defendant who acts wantonly or recklessly in creating a situation that requires a choice of evils. As a consequence of KRS 503.120, this same approach is used for the justifications of self-defense, defense of others, defense of property, and force used for law enforcement. A more complete description is contained in the Commentary to that section.

Orten cites to Burke v. Commonwealth, 322 S.W.3d 71 (Ky. 2010), in support of his argument that he was entitled to an instruction on this defense. In Burke, the defendant sought this instruction “because he believed that if he did not flee the halfway house, he would be robbed again, or even killed.” Id. at 74. The Commonwealth disputes Orten’s citation to this case, arguing that Orten had failed to establish that the harm he sought to prevent was imminent. The Burke Court held that the harm in that case was not imminent, holding as follows:

Appellant testified that after his attackers initially threatened him, they left him alone. Hours later, Appellant undertook his escape without ever reporting the alleged attacks or the threat to the halfway house authorities or to the police. Had Appellant reported the attack to the proper authorities, they could have prevented the harm he feared. Thus, a jury could not reasonably conclude that Appellant’s conduct was “necessary to avoid an imminent public or private injury.” See Montgomery v. Commonwealth, 819 S.W.2d 713 (Ky. 1991) (holding that a “choice of evils” jury instruction was not supported by the evidence when the defendant escaped from a prison facility based on the fear he may be harmed when released into the general prison population).

Burke, 322 S.W.3d at 74.

In the present case, the choice of evils instruction Orten tendered provided as follows:

1. If at the time he was operating his motor vehicle, Travis Orten believed (a) that such action was necessary for him to avoid harm to his family, and (b) that he had no reasonable, viable alternative to avoid such injury to his family, he was privileged to take such action as he believed necessary to protect his family from harm.

2. Provided, however, if you believe from the evidence beyond a reasonable doubt that Travis Orten, by his own conduct, brought about the situation requiring him to choose the course which he took, then the defense of Choice of Evils is not available to him.

This proposed instruction does not contain any indication that the harm Orten sought to avoid was imminent, nor does it identify what specific action he took that would be subject to the privilege. Was he addressing his decision to drive at an excessive speed or to collide with the home invaders’ vehicle? The instruction is not clear. Nor did Orten’s testimony at trial establish that any harm to his family was imminent. He testified that after the home invaders left his residence in their vehicle, Orten drove away in his own vehicle specifically to warn and protect his family from any harm based upon the threats made during the home invasion. While Orten admitted he told the home invaders about his family, he could not have believed that the home invaders knew where to find his children at his mother’s house, especially in light of the fact that Orten did not know them and had apparently never seen them before. Additionally, Orten testified that he did not know he had hit the home invaders’ vehicle until he returned to the crash site.

Furthermore, the circuit court did instruct the jury on the privilege of defense of another:

If at the time Travis Orten’s vehicle collided with the Forrester vehicle, he believed there was an impending danger that the Forrester vehicle’s occupants would use physical force upon his family, he had no duty to retreat if he was in a place where he had a right to be and was privileged to use such physical force against the occupants as he believed to be necessary in order to protect his family against it; but this privilege included the right to use deadly physical force in so doing, only if:

(1) Travis Orten believed there was an impending danger that the Forrester vehicle’s occupants would use physical force upon his family, and that it was necessary to use deadly physical force in order to protect his family from death, serious physical injury, or kidnapping at the hands of the vehicle’s occupants;

AND

(2) Under the circumstances as they actually existed, Travis Orten’s family would have believed (a) that there was an impending danger that the vehicle’s occupants would use physical force upon them, and (b) that it was necessary to use deadly physical force in order to protect themselves from death, serious physical injury, or kidnapping at the hands of the Forrester vehicle’s occupants.

Accordingly, we find no abuse of discretion in the circuit court’s decision to not instruct the jury on a choice of evils defense.

For his last argument, Orten seeks review of the circuit court’s decision to deny his motion to dismiss the indictment for violations of his Sixth Amendment rights based upon the Commonwealth’s employment of Fowler as a confidential informant.

In McBeath, supra, the Supreme Court of Kentucky discussed the factors a defendant must establish to prove his Sixth Amendment right to counsel was violated as well as an appellate court’s standard of review:

In order to show that the Sixth Amendment right was interfered with, a defendant must show that the right to counsel has attached, the informant was acting as a government agent, and that the informant deliberately elicited incriminating statements. [Moore v. United States, 178 F.3d 994, 999 (8th Cir. 1994).] . . . The underlying factual issues are to be reviewed under the clearly erroneous standard but the ultimate constitutional issue is reviewed de novo. [United States v. Johnson, 4 F.3d 904, 910 (10th Cir. 1993).]

McBeath, 244 S.W.3d at 31. More recently, the Supreme Court addressed this issue in Brown, supra, holding:

The Sixth Circuit, in United States v. Steele, listed the following four factors to consider when determining whether the government has intruded on a defendant’s right to counsel:

1) whether the presence of the informant was purposely caused by the government in order to garner confidential, privileged information, or whether the presence of the informant was the result of other inadvertent occurrences; 2) whether the government obtained, directly or indirectly, any evidence which was used at trial as the result of the informant’s intrusion; 3) whether any information gained by the informant’s intrusion was used in any other manner to the substantial detriment of the defendant; and 4) whether the details about trial preparations were learned by the government.

727 F.2d 580, 585 (6th Cir. 1984) (citing Weatherford, 429 U.S. at 554, 97 S.Ct. 837; United States v. Brugman, 655 F.2d 540, 546 (4th Cir. 1981)).

Brown, 416 S.W.3d at 306-07.

In the present case, the circuit court applied the holdings in both Brown and McBeath in determining that Orten’s rights had not been violated. While the court held that Orten had met the first two prongs set forth in McBeath, he had not established that Fowler had elicited any incriminating statements during their conversations. With regard to Brown, the circuit court could not find anything in the conversations between Orten and Fowler that constituted “detailed, confidential information concerning Orten’s defense strategies[.]” The court concluded that neither law enforcement personnel nor the Commonwealth acted in bad faith, although “the matter simply could have been handled better.” We find no error in this holding.

We note that the trial court granted Orten relief, in part, by excluding Fowler as a witness at trial and by deeming the recorded conversations between Fowler and law enforcement personnel to be inadmissible for any purpose. This remedy was sufficient to protect Orten’s rights, and there was no need to remove the Commonwealth’s Attorney from prosecuting the case.

For the foregoing reasons, the Christian Circuit Court’s judgment of conviction is affirmed.

ALL CONCUR.

Footnotes:

1. The video recording of the jury instructions discussion was not included in the certified record on appeal, although the record does contain Orten’s tendered proposed jury instructions including this instruction.

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