Case Number: 2016-SC-000256-MR

Judge: Samuel T. Wright III

Court: Kentucky Supreme Court

Plaintiff's Attorney: Andy Beshear
Attorney General of Kentucky

David Bryan Abner
Assistant Attorney General

Defendant's Attorney: Susan Jackson Balliet
Assistant Public Advocate

Description: Misty Shirley had been staying with her fian:ce's daughters, Courtney and
Carrie. Courtney's boyfriend, D.J., had been in an altercation with Misty's
fiance after he and two unidentified males entered Courtney and Carrie's
apartment looking for pills. After the altercation, Misty decitj.ed to leave
Courtney and Carrie's apartment and s_tay with other friends. D .J. called Misty
numerous times, and Misty finally answered the phone the following day. D.J.
put Appellant (his friend) on the phone, and Misty told Appellant she planned
to walk to Walgreens.
When Misty exited her friends' apartment to walk to the drugstore, she
saw Appellant emerge from the building next door, where D.J. was staying.
Appellant offered to walk with Misty to Walgreens, and Misty agreed. The two
did not go directly to the drugstore, but, instead, went to Appellant's mother's
house, as Appellant indicated he needed to get his license. While on the street
~here Appellant's mother lived, Misty and Appellant were joint!d by two
unidentified men. The four then continued. their trek to Walgreens on the
railroad tracks, heading toward a field at the back of the store.
When Misty started to step off the tracks and into the field, someone
struck her in the back of the head with a gun, knocking her down. When she
got up, Appellant faced her, with one of the unidentified men ·on either side.
Misty testified that both Appellant and one of the unidentified men had guns.
One of the men shot in Misty's direction and the three demanded money and
drugs. They finally asked Misty to call someone to "set them up." When Misty
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failed to contact anyone from whom the three could obtain drugs, the
unidentified man with a gun said, "Kill the bitch," and Appellant shot her in·
the mouth. Misty was shot a second time in her back, with this bullet exiting
through her side.
When Misty regained consciousness, she crawled across the field, and
ma9.e her way inside Walgreens. When Misty reached the front of the store,
she stood up in an effort to keep her grandmother, whom Misty was meeting at
Walgreens, from being scared. Misty told the cashier she had been shot before
collapsing in the floor.
The two detectives who spoke with Misty in the ambulance and at the
hospital both testified she said the nickname of the individual who shot her
was "Man." One of the two detectives knew Appellant's nickname was "Man,"
and gave Appellant's name to Detective Shannon Reedus, the lead detective on
the case. Reedus put together a photographic lineup and presented it to Misty.
Misty identified Appellant's photograph, and told Reedus Appellant was the
shooter.I She told Reedus she had known Appellant for a few days and had
been with him on the day of the shooting.
Appellant was arrested about three weeks after the shooting. Reedus
testified Appellant signed a rights waiver and agreed to speak to the police.
1 Misty also identified another of the pictures as being one of the men who was with Appellant. However, the individual in that photograph was in another county jail at the time of the shooting and could not have been with Appellant.
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Appellant was indicted for criminal attempt to commit murder, first
degree robbery, and possession of a handgun by a convicted felon related to
Misty's shooti~g.2 Later, the Commonwealth obtained another indictment
related to the shooti~g, adding first-degree assault (as a lesser-included offense I
of attempted_murder) and tampering with physical evidence. The indictments
were subsequently amen9-ed to add complicity. The handgun charge was
severed from the other charges, and heard separately by the same jury. The
jury found Appellant guilty of criminal attempt to commit murder, posses'sion
of a handgun by a co_nvicted felon, and tampering with physical evidence. The
trial court sentenced Appellant to serve twenty, seven, and three years'
imprisonment, respectively, and ordered those sentences to 111n con9urrently.
This appeal followed.
II. ANALYSIS
A. Appellant's Statement to Police
Appellant first argues that his statement to police was involuntary; as it
was induced and coerced. After his arrest, he was placed in an interview room
at the police station. Before Appellant was interviewed by police, he asked a
detective if he could speak to Officer Dale (the officer who had executed the
warrant). Appellant p~ovided Dale with the location of an individual wanted for
another crime. Dale told Appellant he should "be straight" and. "be honest"
2 The indictment also included charges for an unrelated incident: 'possession of a handgun by a convicted felon,. tampering with physical evidence, illegal possession of a controlled suqstance, and illegal use or possession of drug paraphernalia. These charges were later dismissed.
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"when they come in here," and that Appellant should "start taking
responsibility."
Appellant told Dale that he (Appellant) "was hurting his family" and was.
"scared for their safety." Dale responded that there were "people looking for
you," and fold Appellant the "big wigs" at the department had met about
"what's being said between these groups anq. how they're putting hits on
people, it's serious. Because usually that person ends up dead. So I was •,
warning your parents, your mom, keep away from the windows, just be careful,
cause the word's out." Appellant asked if the officers had determined who put
the hit out, and Dale responded that they had not as of yet, but that they were
working on· it. Dale told Appellant the department "had cars there [at
Appellant's mother's house] to protect you, to protect your mom, to.protect that
fa~ily." Dale reassured Appellant that he would "look out for [his] family." The
two exchanged a fist bui;np before Dale left. Reedus, who had watched the
interview from behind one-way glass, entered the interview room several . '
minutes ·after Dale left Appellant alone.
Reedus read Appellant his Miranda rights and then interrogated him
about Misty's· shooting. Appellant spoke with her and did not demand an
attorney. He gave Reedus a lengthy statement. Appellant objected to the
admission of this statement at trial, arguing the initial "interrogation" by Dale
coerced Appellant into giving the statement to Reedus.
We first note that the interaction between Dale and Appellant was not an
interrogation, as framed by Appellant: "Interrogation has been defined to
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include 'any ~ords or actions on the part of police (o~her than those normally
attendant to arrest and -custody) that the ~olice should know are reasonably·
likely to ~licit an incriminating response from the suspect ... focus[ing] I primarily upon the percept~ons of the suspect, rather than the intent of the
police." Smith v. Commonwealth, 312 S.W.3d 353, 359 (Ky. 2010) (quoting
Rhode Island v. Innis, 446 U.S. 291, 301 (1980)). In Miranda v. Arizona, the
Supreme Court of the United States said.: "By custodial interrogation, we mean
questioning initiated by law enforcement officers after a person has l?een triken
into custody or otherwise deprived of his freedom of action in any significant
way." 384 U.S. 436, 444 (1966) (emphasis added).
Appellant does not argue that he was entitled to his Miranda warnings
before speaking with Dale. In fact, Appellant does not deny that he initiated
the conversation. Dale did not question Appellant during their conversation
about Misty's shooting. While he· did encourage Appellant to be forthcoming
and honest in the subsequent interrogation regarding the shooting, he did not
hinge his protection of Appellant's family upon that honesty; much to the
contrary, Dale said, "I'll look out for your family. I give you my word on that ...
\ . Nothillg's gonna change from now on out, okay?" The trial court found that
"[a]t no point did Officer Dale undertake to· elicit 'an incrimi~ating response
from the· suspect.,,;
While Appellant did admit to being close to his mother's house on the ' day of the shooting, and did make some inconsistent statements during his
statement to Reedus, he firmly denied any participation in Misty's shooting.
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. . Appellant argues h1s statement amounted to an involuntary c~nfession. He
points out that the Supreme Court of the United States has h<(ld that a
confession must be "the product of arational intellect and a free will" in order
to be properly admitted. at trial. Blackbum v_. Alabama, 361 U.S. 199, 208
( 1960). Thq.t Court has recognized, "the general rule that the confession must
be free and yoluntary-that is, not produced by inducements engendering
either hope or fear .... " Bram v. United States, 168 _U.S. 532, 557-58 (1897).
This Court has held that "[t]o determine whether a confession is the
result of coercion, one must look at the total~ty of the circumstances to assess
whether police obtaine~ evidence by overbearing the defendant'~ will through
making credible threats." Henson v. Commonwealth, 20 S.W.3d 466, 469 (Ky.
1999). We;; went on to explain that "[t]he three criteria used to assess
voluntarfness are 1) whether the police activity was 'objectively coercive;' 2) .
whether the coercion oyerbore the will of the defendant; and 3) whether the
defendant showed that the coercive police activity was the 'crucial motivating
factor' behind the defendant's confession." Id. (quoting Morgan v.
Commonwealth, 809 S.W.2d 704, 707 (Ky. 1991)).
In its written order denying Appellant's suppression motion, the trial·
court noted that Appellant asked to speak with Dale. Dale did not question
Appellant about the crime, though he did encourage him to tell the truth.
When Appellant stated he (Appellant) was harming his family, Dale confirmed
that he had been protecting his mother's home and had spoken with her about
the danger. Dale never threatened to remove police protection if Appellant did
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not cooperate. The trial ~ourt found that Appellant's waiver was not obtained
through coercive tactics. The trial court pointed out that the conversation
never touched on the subject of Misty's shooting. That court also noted that
Appellant was calm throughout his conversation with Dale. Therefore, the trial
court found that Dale's conversation with Appellant "was not objectively
coercive, and that [Appellant's] will was at no point overcome."
In reviewing a trial court's ruling on a motion to suppress, "[f]irst, we
review the trial court's findings of fact under a clearly erroneous
standard. Under this standard, the trial court's findings of fact will be
conclusive if they are supported by substantial evidence. We then conduct
a de novo review of the trial court's application of the law to the facts to
determine whether its decision is correct as a matter of law." Simpson v.
Commonwealth, 474 S.W.3d 544, 547 (Ky. 2015) (internal citations and
quotation marks omitted).
Here, the trial court's findings of fact were supported by substantial
evidence and were, thus, not clearly erroneous. The trial court also applied the
proper law to those facts. We agree that Dale's actions were not objectively
coercive, for the reasons identified by the trial court. Since the actions were
not objectively coercive, our analysis need go no further. Therefore, we affirm
the trial court's denial of Appellant's suppression motion.
B. Misty's Criminal History
Appellant argued at trial he should be allowed to introduce evidence that,
at the time of her testimony, Misty had three pending charges and was on
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probation. The defens€ theory was that Misty's pending charges and criminal
history indicated that she had a motive to please the Commonwealth in hopes
of favorable treatment in her ,pending cases. Appellant asked for Misty to be
required to present avowal testimony and the trial court denied that motion.
J Appellant argues this denial violated his Sixth Arn!endment right to confront a
witness in his trial.
' This Court has stated: "An essential aspect of the Sixth Amendment
Confrontation Clause is tile right to cross-examine witnesses. Douglas v.
Alabama, 380 U.S. 41~, 418 ... (1965). Additionally, 'the exposure of
/" a witness' motivation in testifying is a proper and: important function of the
, constitutionally protected right of cross-examination.' Davis. v. Alaska, 415
U.S. 308, 316 ... (1974)." Davenport v. Commonwealth, 177 S.W.3d 763, 767'
(Ky. 2005). However, the right to cross-examination is not unlimited. In
Delaware v. Van Arsdall, the Supreme Court of t~e United States held "trial
judges retain wide latitude insofar as the Confrontation Clause is concerned to
impose reasonable limits on such cross-examination based on concerns· about, .
among other things, harassment, prejudice, confusion of the issues, the
whness' safety, or interrogation that is repetitive or only marginally relevant."
475 U.S. 673, 679 (1986)_. This Court has quoted the First Circuit with
approval in stating "'[s]o long as a reasonably complete picture of the witness'
veracity, bias and motivation is developed, the judge enjoys power and ,
discretion to set appropriate boundaries."' Commonwealth v. Maddox, 955
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S.W.2d 718, 721 (Ky. 1997), (quoting U.S. v. Boylan, 898 F.2d 230, 254 (1st
Cir.19~0)) ..
Appellant argues that he was not allowed.to present a "reasonably
complete picture" of Misty's veracity and motivation, and was prevented from
presenting facts that would have sfiown a possible influence on Misty.
·Appellant argues that the fact that the jury heard that Misty was a convicted
felon was not sufficient to safeguard his Six.th Amendment right to cross
examination. He insists the fad that Misty was facing current criminal charges
in Jefferson County (where Appellant's trial also took place) "would have given
her a natural motivation to please" the Commonwealth's Attorney. However,
we agree with the Commonwealth that Appellant had no basis to demonstrate
that Misty would gain the Commonwealth's favor through her testimony.
Misty was the victim in this case and her statements to ·police were made
before any of the pending misdemeanor charges against her were brought.
• r Misty's counsel in her pending cases assured the trial court that he had no ' .
knowledge of any deal between the Commpnwealth and his client regarding her
testimony in Appellant's trial. Furthermore, Misty's pending charges were an·
misdemeanors-and, therefore, would not be prosecuted by the
Commonwealth's Attorney's office, which prosecu!~d Appellant's case.
This Court has held:
The cross-examination must, at.the threshold level, be appropriate, in that it must elicit testimony of such a nature as to reasonably call into question the witness's reliability. There must exist somepractical connection between the evidence sought to be introduced and the alleged implication of bias. Specifically, the evidence should have some proclivity to demonstrate impropriety or
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partiality· beyond abject speculation. When it does not, the trial court is well within its purview in limiting evidence that does not support such an inference of bias.
Holt v. Commonwealth;250 S.W.3d 647, 653 (Ky. 2008) (internal citations
omitted.) Here, the evidence had no "proclivity to demonstrate 'impropriety or
partiality beyond abject speculation." Therefore·, we hold that the trial court
did not abuse its discretion by denying Appellant's request to question Misty
regarding potential bias brought about for her pending misdemeanor charges.
C. Mistrial Motion
Appellant objected and moved for a mistrial due to Detective Reccius's
testimony~ Specifically, Recci:us testified that Appellant.told her he was notthe
perpetrator, but that he had seen two people walking across the field in
question when he was at his mother's house on the day of the shooting. The
Commonwealth asked Reedus "What else did [Appelant] say about seeing those
two individuals?" Reccius responded:
I think at one point iri the conversation, it was two individuals that turned into three. Umm. I do remember him saying something about he heard two shots. And that at one point in the conversation, I believe he told one detective that was in the interview with me that he didn't see good far away. So, I was· getting mixed signals on-i mean, clearly he was trying to hide some~hing from me.
The Commonwealth argued that Reccius's comments were made in the context
of her explanation of why she had conducted her investigation in a particular
way and why she had moved from one subject to another in questioning
Appellant. The trial court denied Appellant's motion for a mistrial and his
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· request for the jury to be admonished that a witness cannot "give an opinion
about whether someone is being truthful or not."
We have held, "it is generally improper for a witness to characterize the
testimony of another witness a~ 'lying' or otherwise." Lanham v.
Commonwealth, 171 S.W.3d 14, 23 (Ky. 2005). Iri Moss v. Commonwealth, this
Court quoted a decision from a sister state in reaching our holding: "A
witness's opinion about the truth of the testimony of another witness is not
. I permitted. Neither expert nor lay witnesses may testify that another witness or
a defendant is lying or faking. That determination is within the exclusive
province of the jury." 949 S.W.2d 579, 583 (Ky. 1997) (quoting State v.
James, 557 A.2d 471, 473 (R.I.1989)). Here, the trial cour~ stated that
Reccius's comment that she was getting conflicting information from Appellant
was not tantamount to saying Appellant was lying during the interrogation. We .
note that "hiding something'' and "sending mixed signals" are not necessarily
an -indication that someone is "lying." A.person can "hide something" by
omission or byav.oiding the subject in controversy. While Reccius's testimony
may have indicated~ that Appellant was hiding things during the interrogation, '·
she testified neither that "people who hide things are often lying," nor that she ·
"thought Appellant was lying because he was hiding things from her." She was
testifying in the context· of her investigation about her investigatory techniques
and why her questions shifted. Simply put, she did not characterize
Appellant's statements as lies or opine that he was lying.
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r ' Appellant argues that "[t]his Court has consistently held that a witness
may not express an opinion to the jury as to the defendant's guilt." However,
even if Reccius's statement were a comment on Appellant's truthfulness, she
never gave her opinion as to Appellant's ~ilt or innocence: Appellant also poi~ts us to Ordway v. Commonwealth, 391 S.W.3d 762, 776 (Ky. 2013), iri
which we held: "The determination of an individual's guilt or innocence must
) ,(/
be based upon the evidence of the particular act in question;. it cannot be _.1
extrapolated from an opinion, that his behavior after the event comports with
some standardized perception of how the 'typical' suspect behaves." Again, thi~
is simply inapplicable to the case at bar. Here, based upon Reccius's interview
with Appellant, the detective testified that she wa~ gettihg mixed signals and
that Appellant was trying to hide something. She did not testify tha,t Appellant . . '
behaved in a way that guilty people usually behave. Rather, she testified as to
the manner in which Appellant's story changed and her belief that he was
hiding something from her based upon those changes. She linked his behavior
neither to his guilt, nor to the behavior typical of guilty parties.
This Courthas held that."[a] mistrial is an extreme remedy and should
be resorted to only when there appears in the record a manifest necessity_ for
such an action or an urgent or real necessity .. " Bray v. Commonwealth, 177
S.W.3d 741, 752 (Ky. 2005) overruled on other grounds by Padgett v.
Commonwealth, 312 S.W.3d 336 (Ky. 2010). "The occurrence complained of
:r:nust be of such character and magnitude that a litigant will be denied a fair
and impartial trial and the prejudicial effect can be removed in no other way."
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Gould v. Charlton Co., 929 S.W.2d 734, 738 (Ky. 1996). Furthermore, '~[i]t is
well established that the decision to.grant a mistrial is within the trial court's
discretion, and such a ruling will not be disturbed absent a showing of an
abuse of that discretion." Woodard v. Commonwealth, 219 S.W.3d 723, 727
(Ky. 2007), overruled on other grounds by Commonwealth v. Prater, 324 S.W.3d
393 (Ky. 2010). "The test for abuse of discretiOn is whether the trial judge's
decision was arbitrary, unreasonable, unfair, or unsupport~d by sound-leg~
principles." Commonwealth. v. English, 993 S.W.2d 941, 945 (Ky. 1999).
Reccius's comments were made in the context of explaining her
investigatory techniques and why she shifted her questioning of Appellant from
one subject to another during the interview. She made no comment on her
opinion as to Appellant's guilt or innocence during the course of her testimony.
She merely explained what Appellant had told her, and stated that she was
getting mixed signals from him and that he was hiding something. We cannot
say that the trial court abused its discretion in denying Appellant's motion for
the extreme remed~ of a mistrial, as· there was no manifest necessity to grant
such a motion.
- Appellant requested .that the trial court admonish the jury that witnesses
cannot "give an opinion about whether someone is being truthful or not." He
now asserts that, at the very least, the trial court should have granted his
request for an admonition. An admonition is not such an extreme remedy as a
mistrial, and trial courts often admonish juries to disregard improper evidence
\ in lieu of the harsher remedy of a mistrial. However, Reccius's comments
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while they may have come close-did. not run afoul of our precedent. While she
stated that Appellant was hiding something, that does not necessarily indicate
that, in her opinion, he was lying. Again, a person can "hide something" by
omission or by avoiding the subject. Her testimony regarding the course of the
interrogation did not amount to her giving "an opinion about whether someone
is being truthful or not." The members of this Court may have exercised their
discretion differently and opted to grant the admonition to guard against jurors
interpreting Reccius's testimony as a comment on Appellant's veracity.
However, based on our precedent, we cannot say the trial court abused its
discretion in denying Appellant's requested admonition.
Furthermore, even if we were to hold that the denial of the admonition
amounted to an abuse of discretion, any such error would be harmless. The
jury heard testimony regarding Appellant's statement-and the shifting story
he gave during his interrogation. The victim identified Appellant in a
photographic lineup as her shooter, and testified that she had known Appellant
for a few days before the shooting. Reccius's statement in question was a
fleeting part of her comprehensive testimony. Any error in the trial court
failing to admonish the jury that witnesses cannot "give an opinion about
whether someone is being truthful or not" would be harmless.
D. Unanimous Verdict
Finally, Appellant argues that the jury's verdict finding him guilty of
being a felon in possession of a handgun lacked unanimity. He admits this
alleged error is unpreserved and requests palpable error review under RCr
15
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10.26. Appellant's complaint arises fr.pm the fact that the instruction allowed
the jury to find he was convicted of a felony on "l) D~cember 15, 2011;
AND/OR 2) Septembe.r 24, 2013." He insists that our cases forbidding
duplicitous instructions prohibit such an ·instruction, and, therefore, tJ:ie jury's
verdict on this charge must be overturned. Under Appellant's reasoning, some
of the jurors may have believed he was convicted of a felony in 2011, while
others may have believed the conviction came in 2013, and still others may
have believed pe was conviCted on both dates. We.find his argument ·
unpersuasive.
This Court has-stat~d:
A duplicitous count, whether appearing in an indictment or jury instructions, presents multiple constitutionalproblems, including that the jury verdict is not unanimous, whieh is the issue raised in this case. "The courts have stated. that two of the reasons for rejecting duplicitous indictments are that 'a general verdict' of guilty does not distlose whether the jury found the defendant guilty of one crime or both' and that 'there is no way of knowing .. . whether the jury was unanimous with respect to either."' [Johnson v. United.States,, 398 A.2d 354, 369-70 (D.C.1979) (quoting United States v. Starks, 515 F.2d 112, 116-17 (3d Cir.1975)).
Johnson v. Commonwealth, 405 S.W.3d 439, 454 (Ky. 2013). We went on to
state, ."[w]hen it is the jury instruction for a single count that covers two
different instances of the crime, '[t]hese principles apply with equal force."' Id.
(quq_ting Johnson, 398 A.2d at 370). Furthermore, in Kingrey v.
Commonwealth, we held: "A general jury verdict based on an instruction
including two or more separate instances of a criminal offense violates the
requirement of a unanimous verdict." 396 S.W.3d 824, 831 (Ky. 2013). ·
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Appellant relies on this line of cases in arguing that the jury instruction
in his case ran afoul of his right to a unanimous verdict. However, his
attempted analogy between 11.is case and those he cites misses the mark.
Johnson and Kingrey are simply not applicable here. In Johnson, the jury
could have convicted the defendant for criminal abuse based on evidence of two
separate injuries suffered on different dates. '405 S.W.3d at 448. This Court
held that, because the jury instructions did ,not differentiate betw~en the
separate acts of abuse, Johnson did not receive a unan'imous verdict.
However, unlike the jury in Johnson, the jury here was not asked to
determine if a- particular act occurred-and. given evidence of multiple
occurrences of that act without differentiation in the jury instructions. Here,.
the jury was merely asked to determine Appellant.'s status as a convicted felon.
He do·es not dispute that the prior felony convictions were valid, but only
argues that the jurors may not ,have all agreed as to the date on which he was' . . ' . convicted. Unlike the John$on and Kingrey line of cases, the jury was not
asked to find that Appellant committed a particular act on a particular date.
The instructions did not "include[e] two or more separate instances of a ·
'criminal offense." Here, the jury instructions specified the date Appellant
allegedly possessed a handgun. After making the determination that Appellant
had possessed the handgun, the jury was merely asked to determine his status
as a convicted felon~ The fact that he had more than one felony conviction does
-' not create a unanimity problem. The jury merely had to determine his status
17
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as a convicted felon. It was immaterial whether the jury believed he was
convicted in 2011, 2013, or both.
This Court considered a similar issue in Conrad v. Commonwealth, 534
S.W.3d 779, 784 (Ky. 2017). While that case dealt with a persistent felony
offender charge, the same reasoning applies. ·There, we stated:
Conrad argues that the jury did not reach a unanimous verdict . because his conviction could have been based on a litany of his prior convictions, and the instruction did not require that the jury specify which prior convictions formed the basis of their decision to convict him of being a first-degree persistent felony offender. But, combination instructions are·not forbidden .in the Commonwealth. And a "conviction of the same offense under either of two alternative theories does not deprive a defendant of his right to . -a unanimous verdict if there is evidence to support a conviction under either theory." [Miller v. Com., 77 S.W.3d 566, 574 (Ky. 2002) .] For Conrad, the jury could have concluded he was a persistent felony offender first-degree based on any two or all of the prior convictions given in the instruction.
We hold that Appellant's right to a unanimous verdict was not violated

Outcome: For the reasons stated herein, we affirm the trial court.

Plaintiff's Experts:

Defendant's Experts:

Comments: