Kevin Ray Moore v. Commonwealth of Kentucky

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                                                     RENDERED: JUNE 20, 2025
                                                        NOT TO BE PUBLISHED



               Supreme Court of Kentucky
                                2024-SC-0324-MR

KEVIN RAY MOORE                                                       APPELLANT



                   ON APPEAL FROM BATH CIRCUIT COURT
V.                  HONORABLE DAVID BARBER, JUDGE
                             NO. 23-CR-00006



COMMONWEALTH OF KENTUCKY                                               APPELLEE


                  MEMORANDUM OPINION OF THE COURT

                                   AFFIRMING

      Kevin Ray Moore appeals from his convictions by the Bath Circuit Court

following a jury trial. The jury determined that Moore was guilty of first-degree

trafficking in a controlled substance (over two grams of methamphetamine),

first-degree trafficking in a controlled substance (fentanyl), possession of a

firearm by a convicted felon, and being a persistent felony offender in the first

degree (PFO-1). The trial court sentenced him in accordance with the jury’s

recommendation to a total of fifty years in prison. Moore appeals to this Court

as a matter of right. Finding no grounds for reversal, we affirm.

                   I. FACTUAL AND LEGAL BACKGROUND

      On September 14, 2022, after “running the plates” of a Honda Civic that

had left Moore’s residence, Officer Cody McDaniel was made aware that the
vehicle was not insured and conducted a traffic stop. During the stop, Officer

McDaniel noticed the smell of marijuana and the tense demeanor of the two

occupants, a female driver and a male passenger. After informing the driver of

the reason for the stop, Officer McDaniel requested she follow him back to his

cruiser where he questioned her about the marijuana odor. The driver

indicated that her male passenger was a user and that she had dropped off

another individual before heading home. Officer McDaniel, a K9 officer who had

his dog present in his police car, proceeded to employ his dog to conduct a free

air sniff of the vehicle, which indicated the presence of narcotics. The

passenger was then questioned about the odor and admitted he had marijuana

in the vehicle. Officer McDaniel asked the passenger to exit the vehicle. After

the passenger left, Officer McDaniel saw a white powdery substance he believed

to be methamphetamine in the vehicle.

      During the stop, two vehicles which Officer McDaniel had previously seen

at Moore’s residence slowly passed by observing the scene. Officer McDaniel

believed the occupants of these vehicles were observing him for purposes of

warning Moore. At trial, Officer McDaniel would testify that he was “very

familiar” with Moore and where he lived.

      Ultimately, neither the driver nor the passenger of the Honda was

charged with possession, and neither would testify at Moore’s trial. Instead,

using the information garnered from this stop, Officer McDaniel requested a

search warrant for Moore’s property which was issued. Additional officers

responded to Moore’s residence and Moore was detained while the search of his

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residence commenced. Moore resided in a camper on property that included a

house and at least one out-building near Moore’s camper.

      The police located and seized: (a) 41.269 grams of a “tan powder/solid

with white solids” substance, which was later tested and determined to be

fentanyl; (b) 27.665 grams of a “crystalline substance” which proved to be

methamphetamine; (c) six “light green round scored tablets” which were found

to be oxycodone; (d) a Ruger semiautomatic pistol; (e) drug paraphernalia; (f)

scales; and (g) $5000.00 in cash.

      Moore’s trial took less than one day. The Commonwealth called Officer

McDaniel, another officer who had responded to the search, and an employee

of the Kentucky State Police Forensics Lab who testified as to the weights and

identifications of the drugs seized.

      Moore did not testify and called no witnesses. Moore’s defense centered

upon the fact that no witness had been called to testify that Moore had sold

them illegal drugs and, at best, the most he could be found guilty of was

possession.

      The Commonwealth’s position was that Moore had no job or source of

income and therefore the cash, along with the scales and the incredibly large

amounts of drugs seized, clearly indicated trafficking. To this end, the

Commonwealth elicited testimony that the roughly 42 grams of fentanyl

constituted at least 400 individual doses.

      The jury found Moore guilty on each count for which he was tried: two

counts of trafficking in a controlled substance, first degree, Kentucky Revised

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Statutes (KRS) 218A.1412; and one count of being a convicted felon in

possession of a handgun, KRS 527.040. The jury initially recommended Moore

receive sentences of ten years on each of the trafficking counts, which the jury

then enhanced to twenty years based on his PFO-1 status. The jury

recommended that each sentence be served consecutively, and the trial court

sentenced Moore in accordance with this recommendation to a total of fifty

years in prison.

                                  II. ANALYSIS

      Moore raises two issues on appeal, both of which concern the same

testimony. Moore argues the trial court erred by allowing Officer McDaniel to

offer hearsay testimony impermissibly “inferring” to the jury that the occupants

of the Honda told Officer McDaniel that Moore had sold them

methamphetamine. To Moore, that hearsay served as both the basis for the

search warrant and the reason Moore was convicted of trafficking instead of

mere possession.

      According to Moore’s argument, Officer McDaniel’s testimony constituted

impermissible “investigatory hearsay” which also, in effect, deprived him of his

constitutional right to confront his actual accusers, the occupants of the

Honda.

A. Officer McDaniel’s Testimony

      The Commonwealth called Officer McDaniel to testify at trial and the

following exchanges took place:




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      Commonwealth:       Okay, and can you explain to me why you
                          arrested Mr. Moore?

      Officer McDaniel: Based off information from a traffic stop that I’d
                        done.

      At that point, Moore’s counsel objected, fearing that the Commonwealth

would be eliciting hearsay from Officer McDaniel by having him repeat the

statements made to him by the occupants of the Honda who were not going to

be called by the Commonwealth to testify. Specifically, Moore’s counsel stated

to the trial court, “[o]ur objection is this witness should not be allowed to testify

to what the occupants of the car said.”

      The trial court advised the Commonwealth that Officer McDaniel could

not repeat what he had been told by the occupants but could “testify about the

circumstances under which he had reasonable belief to obtain the search

warrant.” Questioning resumed, resulting in the following exchanges cited by

Moore:

      Commonwealth:       And after you located the methamphetamine you
                          observed what you did, spoke to those
                          individuals, what was your next step?

      Officer McDaniel: To contact your office.

      Commonwealth:       Okay, and why did you contact my office?

      Officer McDaniel: I gave you the information from that point. I
                        contacted you to see if there was enough
                        probable cause to conduct a search warrant on
                        the residence.

      Commonwealth:       Okay and did I say that there was enough
                          probable cause for search warrant?

      Officer McDaniel: You did.

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      Commonwealth:      Okay, and after that point what did you do?

      Officer McDaniel: After that we contacted a judge, he goes over
                        the information inside of the search warrant
                        and grants it or denies it.

      Commonwealth:      Okay and in this case did the judge say there
                         was enough probable cause for a search
                         warrant?

      Officer McDaniel: He did.

      No objection was raised or renewed by Moore during this questioning.

According to Moore’s argument, “the only non-hearsay basis” to which Officer

McDaniel testified that supported the search warrant was his testimony that he

saw two other cars which had come from Moore’s residence observing Officer

McDaniel’s stop of the Honda.

      Moore asserts that despite, or in circumvention of, the trial court’s

instruction, the Commonwealth effectively:

      [R]epresented to the jury that Moore had been identified as the
      source of the narcotics by the car’s occupants during the traffic
      stop as exhibited by not only his personal decision to seek a search
      warrant, but the implicit vouching effect in asserting that both a
      judge and the same prosecutor conducting the trial personally
      credited the identification.
      ....

      Put simply, the jury could easily infer from the testimony that the
      occupants of the car had named Mr. Moore. This was clear
      hearsay, as to the most incriminating evidence [of trafficking]
      against Mr. Moore.

B. Was Officer McDaniel’s Testimony Impermissible Hearsay?

      In his brief, Moore acknowledges that “this court has previously

remarked that ‘investigative hearsay’ is a misleading and non-descriptive



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term[,]” 1 but still chose to use the terminology. This Court has done more than

describe the term as misleading; we have attempted to purge its usage entirely.

      In Ruiz v. Commonwealth, 471 S.W.3d 675, 680–81 (Ky. 2015), we stated:

      Lest our repetition of the term “investigative hearsay” be
      misconstrued, we state here without equivocation: there is no such
      thing in our jurisprudence as “investigative hearsay.” There is no
      special rule of evidence known as “investigative hearsay.” The term
      simply is not a part of the evidentiary lexicon.

      Despite our condemnation in Sanborn v. Commonwealth, 754
      S.W.2d 534, 541 (Ky. 1988) (overruled on other grounds by
      Hudson v. Commonwealth, 202 S.W.3d 17, 22 (Ky. 2006)), of what
      has been termed the “investigative hearsay” rule, it is still invoked
      on occasion. Perhaps we have failed in our decisions to vanquish it
      with sufficient vigor to send the message. We said in Sanborn,
      “Prosecutors should, once and for all, abandon the term
      ‘investigative hearsay’ as a misnomer, an oxymoron.” We now
      extend that suggestion to all of the bench and bar.

(Emphasis added).

      In Ruiz, this Court attempted to explain that the term creates a false

impression that there is a “unique species of hearsay” and “muddle[s] the

analysis” of our conventional rules regarding hearsay. Id. at 81.

      “Hearsay” is “a statement, other than one made by the declarant while

testifying at the trial or hearing, offered in evidence to prove the truth of the

matter asserted.” Kentucky Rules of Evidence (KRE) 801(c). A police officer’s

testimony, just like that provided by witnesses, victims, or defendants, is

subject to the same hearsay rules found in KRE 801A, 802, 803, and 804.



      1 Moore took this statement from Morris v. Commonwealth, 2019-SC-0606-MR,

2021 WL 1133612, at *7 (Ky. Mar. 25, 2021) (unpublished).

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      Officer McDaniel did not repeat anything said to him by either occupant

of the Honda nor did he even attempt to paraphrase what he had been told.

However, “[i]t is a witness’s testimony about the substance of an out-of-court

speaker’s statement, and not merely a verbatim recitation of the statement,

that is problematic and barred by the hearsay rule.” Dickerson v.

Commonwealth, 485 S.W.3d 310, 325 (Ky. 2016). “A police officer’s

“conclusion” or “summary” of information gleaned from investigatory

interviews, such as [the officer’s] testimony here, is no less hearsay than the

interviewees’ statements on which it is based.” Id.

      In Dickerson, this Court determined an officer’s testimony to be hearsay

because it was “essentially that the fourteen or so people he interviewed during

his investigation stated that there was no truth to the [defendant’s alibi] story.”

Id. The Commonwealth elicited this testimony specifically to prove the “truth of

the matter,” which was the defendant’s alibi was in fact a lie crafted to hide his

crime. We explained, “[h]ere, the fourteen interviewees made the out-of-court

statements asserting the matter offered into evidence—that the [alibi] was

untrue. And the in-court testimony relaying those out-of-court statements to

the jury, albeit by summarizing them, was certainly offered to prove the truth

of the matter they asserted.” Id. at 324.

      That same understanding of an officer’s hearsay testimony was implicit

in Sanborn, in which this Court held that a police officer’s testimony about

conclusions he drew from interviewing dozens of people and “did not obtain

any information from the people whom he interviewed verifying the appellant’s

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alibi,” was inadmissible hearsay. 754 S.W.2d at 542, overruled on other

grounds by, Hudson v. Commonwealth, 202 S.W.3d 17 (Ky. 2006).

      In both Dickerson and Sanborn, the officer was in reality restating and

summarizing what he had been told by others and repackaging it as a

“summary” or “conclusion” in a broad attempt to avoid our hearsay rules.

However, that is not what occurred during Moore’s trial. Officer McDaniel’s

testimony did not restate or summarize anything he was told by the Honda’s

occupants and—at most—what he might have been told would have explained

the actions he took in seeking a warrant and conducting a search. This is not

hearsay because such testimony was not offered “to prove the truth of the

matter [Moore trafficking drugs] asserted.” Rather, what Officer McDaniel

conveyed was offered to explain the actions he took which were relevant

regardless of whether the (allegedly inferred) statements were true or false.

      The jury heard sufficient competent evidence from which it could infer,

from the full circumstances, that Moore was trafficking illegal drugs. Moore

was unable to provide any witnesses of his own or develop any testimony

during cross-examinations of the Commonwealth’s witnesses to support the

notion that he was not trafficking the drugs seized at his residence. Officer

McDaniel’s limited testimony regarding the stop of the Honda, which came

from the direction of Moore’s residence, was not central to the Commonwealth’s

case. The Commonwealth’s evidence focused on the amounts of illegal drugs

confiscated from Moore together with testimony that such amounts could not

have been for personal use. Such evidence together with his scales,

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inexplicable amounts of cash on hand, and a handgun (in the possession of a

convicted felon) were more that sufficient evidence to support Moore’s

trafficking convictions. A review of the Commonwealth’s opening statement and

closing argument reinforces this conviction. At no point in the trial did the

Commonwealth attempt to convey the idea that the Honda’s occupants or

anyone else had told Officer McDaniel that Moore was dealing. In contrast, it

was Moore’s counsel who highlighted the fact that no one had testified, or had

been called to testify, that Moore was trafficking in an ultimately fruitless effort

to convince the jury that Moore could not be guilty of any crime greater than

possession.

C. Was Moore’s Right to Confront Witnesses Violated?

      Moore also argues that the trial court erred by allowing what was, in

substance, a violation of his Sixth Amendment right to confrontation, by

allowing Officer McDaniel to testify in lieu of the occupants of the Honda. See

U.S. Const. amend. VI (“In all criminal prosecutions, the accused shall enjoy

the right . . . to be confronted with the witnesses against him.”).

      The Confrontation Clause forbids the “admission of testimonial

statements of a witness who did not appear at trial unless he was unavailable

to testify, and the defendant had a prior opportunity for cross-examination.”

Crawford v. Washington, 541 U.S. 36, 53–54 (2004); see also Melendez–Diaz v.

Massachusetts, 557 U.S. 305, 309 (2009) (“A witness’s testimony against a

defendant is . . . inadmissible unless the witness appears at trial or, if the




                                        10
witness is unavailable, the defendant had a prior opportunity for cross-

examination.”) (citing Crawford, 541 U.S. at 54).

      Therefore, whether Officer McDaniel’s testimony (allegedly inferring what

witnesses had told him) violated Moore’s confrontation rights turns on whether:

(a) the out-of-court statements were testimonial; (b) the out-of-court speakers

were unavailable to testify; and (c) Moore had an opportunity to cross-examine

them. Only the first issue concerns us as there was no proof offered that the

vehicle’s occupants were unavailable and, since they were not otherwise

present at trial, 2 Moore did not cross-examine either one.

      However, similar to our determination regarding whether Officer

McDaniel’s testimony was hearsay, we can readily state that his testimony was

not impermissible under the Confrontation Clause. Officer McDaniel’s limited

testimony regarding the traffic stop was a factual representation of what he

witnessed himself and did not serve as a restatement of anything told to him by

either occupant. We can not agree that the “fact” that Officer McDaniel sought

a search warrant of Moore’s residence given the information gathered from that

stop equates to “testimonial” representations that either occupant specifically

informed him that Moore had sold them the methamphetamine found in their

vehicle. Additionally, Moore knew the identities of both of the vehicle’s

occupants prior to trial and could have subpoenaed one or both if he actually




      2 Moore does not assert that he was unable to subpoena the two witnesses

himself or even attempted to do so.

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believed their testimony would have either assisted his defense or undermined

the Commonwealth’s case against him.

      Even were we persuaded that a violation of Moore’s confrontation rights

had occurred, it would not necessarily mean that his convictions must be

reversed. Reversal is required only if the error was not harmless. See Kentucky

Rules of Criminal Procedure (RCr) 9.24. Because this would be a constitutional

error, the harmlessness threshold is much higher than for non-constitutional

errors; the standard here is whether we are convinced “beyond a reasonable

doubt that the error complained of did not contribute to the verdict obtained.”

Chapman v. California, 386 U.S. 18, 24 (1967); see also Taylor v.

Commonwealth, 175 S.W.3d 68, 72 (Ky. 2005) (applying constitutional-

harmless-error analysis to Crawford violation). As this Court has explained, the

analysis “involves considering the improper evidence in the context of the entire

trial and asking whether there is a ‘reasonable possibility that the evidence

complained of might have contributed to the conviction.’” Staples v.

Commonwealth, 454 S.W.3d 803, 826–27 (Ky. 2014) (quoting Talbott v.

Commonwealth, 968 S.W.2d 76, 84 (Ky. 1998)).

      “The question . . . is whether the improper evidence was of a weight, was

of a striking enough nature, or played a prominent enough role in the

Commonwealth’s case to raise a reasonable possibility that it contributed to

the conviction.” Id. at 827. Considering this standard, examining the limited

nature of the allegedly constitutionally-offensive evidence in the context of the

entire trial, and in light of the overwhelming evidence of Moore’s guilt we have

                                        12
already discussed, the Court would still determine any such error would have

been harmless beyond a reasonable doubt. Simply put, we are convinced that

no reasonable juror would have relied on the allegedly inferred testimonial

evidence in convicting Moore. Thus, there was no reasonable possibility that it

contributed to his conviction.

                                 III. CONCLUSION

      We affirm Moore’s convictions and the sentences imposed by the Bath

Circuit Court.

      All sitting. All concur.


COUNSEL FOR APPELLANT:

Ned Pillersdorf
Pillersdorf Law Offices


COUNSEL FOR APPELLEE:

Russell Coleman
Attorney General

Courtney J. Hightower
Assistant Attorney General




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