Opinion
NO. 2015-CA-001874-MR
05-05-2017
MICKIE SHELTON APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Shannon Dupree Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky M. Brandon Roberts Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM CUMBERLAND CIRCUIT COURT
HON. DAVID WILLIAMS, JUDGE
INDICTMENT NO. 15-CR-00015 OPINION
AFFIRMING
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BEFORE: DIXON, JOHNSON AND MAZE, JUDGES. DIXON, JUDGE: Mickie Shelton appeals from the Cumberland Circuit Court's judgment and sentence entered October 22, 2015, following his conviction at jury trial. We affirm.
Homer Grider's barn in Cumberland County, Kentucky, burned to the ground on the night of January 6, 2015. The barn, located next to a curvy and hilly road, was completely engulfed in flames by the time emergency responders arrived on the scene at approximately 10:00 pm. Police could see a truck within the barn, but, due to the fire's extreme heat, were unable to approach to determine if anyone was inside the vehicle. The fire department was eventually able to pull the truck from the barn and found no one inside. The barn and all of its contents, valued in excess of one thousand dollars, were completely destroyed by the fire. The truck was likewise a complete loss.
Trooper Kenny Brown, of the Kentucky State Police, was on the scene of the barn fire. No witnesses saw the truck crash into the barn, nor were any suspects observed leaving the scene. In the process of his investigation, he determined that the truck's license plate and vehicle identification number (VIN) were both damaged to the point where they could not be used to determine ownership of the truck. However, he was aware of the existence of "confidential VINs," which could conceivably be recovered from other parts of the vehicle. In an attempt to deter the illegal industry involving automotive thefts for their parts (colloquially known as "chop shops"), automobile manufacturers frequently stamp VINs on less accessible parts of a vehicle and do not publish the locations of these VINs to anyone besides specially-trained law enforcement officers. Trooper Brown knew that Trooper David Long had undergone this specialized training. Trooper Brown called Trooper Long, who was able to locate the confidential VINs on the truck. Using this information, the troopers determined that the truck belonged to the appellant, Mickie Shelton.
At some point during the evening of the barn fire, Chekiesha Dickens received a telephone call from her sometime paramour, Mickie Shelton. Shelton used his cellphone to contact Dickens and asked her to come and pick him up at a spot approximately one-half mile from Homer Grider's barn. Dickens drove to the location, where she saw Shelton and his friend, George Claborn, on the side of the road. Shelton appeared to have injuries to his mouth and jaw. According to Dickens, Shelton had informed her that he and Claborn had been in the process of tearing down a trailer when a cable came loose and hit them. Claborn was carrying a few beers under his arm. Despite the fact that Dickens picked up the two men in Cumberland County, she drove them to Wayne County Hospital in Monticello, Kentucky, for treatment. George Claborn later testified he did not remember a barn fire, but he did remember crashing into the barn. He also testified Shelton was driving the truck at the time of the crash, and that they elected to go to the more distant hospital in Monticello in an attempt to prevent law enforcement from finding out about their involvement.
Meanwhile, Trooper Brown attempted to locate Shelton that evening and eventually was able to speak with him by telephone. Shelton was slurring his words and sounded as though he may have been intoxicated. He declined to give Trooper Brown his location, but agreed to meet with him the next morning to answer some questions. At the meeting, Trooper Brown noted that Shelton's jaw was swollen, there was blood on his lip, and he was walking with a limp. Shelton told the trooper he had been involved in a logging accident. Shelton denied going to a hospital the previous evening, and also denied any knowledge of the barn fire. When Trooper Brown inquired about his truck, Shelton claimed the vehicle had been stolen.
On April 23, 2015, the Cumberland County grand jury indicted Shelton for second-degree arson, first-degree criminal mischief, and leaving the scene of an accident. The arson charge was dismissed by agreement of the parties prior to trial. George Claborn was originally charged as a co-defendant, but reached a plea agreement with the Commonwealth in which he agreed to testify against Shelton. Following a two-day trial, the jury found Shelton guilty of first-degree criminal mischief and leaving the scene of an accident. The jury subsequently fixed his sentence at three years' imprisonment and a fine of one hundred dollars. The circuit court entered sentence in accord with the jury verdict. This appeal follows.
Kentucky Revised Statutes (KRS) 513.030, a Class B felony.
KRS 512.020, a Class D felony.
KRS 189.580(1), charged here as a Class A misdemeanor.
Shelton brings five issues on appeal. He first argues the circuit court abused its discretion by not granting a continuance. Shelton found out two days before trial that Claborn executed a plea agreement with the Commonwealth, and therefore asked the court to grant time to investigate his former co-defendant. Shelton also argued that insurance settlement and release papers had just been produced through discovery, and so the defense needed time to examine those documents. The circuit court had previously expressed its concern in a pretrial conference that Shelton and Claborn were "playing games" with the court. Upon being presented with Shelton's motion to continue the case, the court denied the motion, finding the insurance papers would not be admissible. The court also denied the motion on grounds it was foreseeable for a co-defendant to plead guilty, and so defense counsel had the responsibility to investigate Claborn earlier in the process.
"The trial court's discretion under [RCr 9.04 ] is very broad, and the denial of a motion for a postponement or continuance does not provide grounds for reversing a conviction 'unless that discretion has been plainly abused and manifest injustice has resulted.'" Bartley v. Commonwealth, 400 S.W.3d 714, 733 (Ky. 2013) (quoting Hudson v. Commonwealth, 202 S.W.3d 17, 22 (Ky. 2006)). "[A] trial court abuses its discretion when its decision is arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Sargent v. Shaffer, 467 S.W.3d 198, 203 (Ky. 2015) (citing Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999)). The Supreme Court of Kentucky has held a trial court should consider a number of factors in this exercise of discretion:
Kentucky Rules of Criminal Procedure (RCr) 9.04 provides, in part, that a court may grant a postponement of a hearing or trial, upon motion and sufficient cause shown by either party, and the grant of such a continuance is within the sound discretion of the trial judge.
...length of delay; previous continuances; inconvenience to litigants, witnesses, counsel and the court; whether the delay is purposeful or is caused by the accused; availability of other competent counsel; complexity of
the case; and whether denying the continuance will lead to identifiable prejudice.Snodgrass v. Commonwealth, 814 S.W.2d 579, 581 (Ky. 1991), overruled on other grounds by Lawson v. Commonwealth, 53 S.W.3d 534 (Ky. 2001). The factor regarding "identifiable prejudice" has recently received particular emphasis by our Supreme Court in analyzing continuance questions:
Identifiable prejudice is especially important. Conclusory or speculative contentions that additional time might prove helpful are insufficient. The movant, rather, must be able to state with particularity how his or her case will suffer if the motion to postpone is denied.Bartley, 400 S.W.3d at 733. For his part, Shelton relies heavily on Eldred v. Commonwealth, 906 S.W.2d 694 (Ky. 1994), supporting his argument that a continuance should have been granted. However, Eldred "was a capital case, with the death penalty possible, which makes the case qualitatively different." Id. at 699.
Purely on the basis of the Snodgrass factors, it is a close question as to whether a continuance should have been granted. Shelton requested a continuance of merely thirty days, and this was his first request for a continuance. The first two Snodgrass factors therefore favor Shelton. Rescheduling this matter a day before trial would have been decidedly inconvenient to the court, counsel, witnesses, and litigants; therefore, this factor weighs in favor of the Commonwealth. Although the reason for delay, Claborn's plea, was not directly due to any action by Shelton, the circuit court's reasoning on the matter of the plea is sound. It is foreseeable for a co-defendant to enter a plea, or even that he may elect to testify without a plea, and the defense should have been prepared for those possibilities. Thus, we find this Snodgrass factor does not weigh heavily in either direction. The next factor involves complexity of the matters presented. This was not a complex case. The trial involved only six witnesses, none of whom were presented by the defense. The facts were straightforward and derive primarily from police testimony, with additional testimony from Dickens and Claborn placing Shelton at or near the scene of the crash. In addition, the trial was very brief, beginning after 3:00 p.m. on the first day and ending before lunch on the second day. We find the complexity factor weighs heavily in favor of the Commonwealth.
After some consideration, we believe the final factor, regarding whether the denial of a continuance led to identifiable prejudice, also weighs in favor of the Commonwealth. Shelton is vague as to how a further thirty days' investigation into Claborn would have aided the defense. "Conclusory or speculative contentions that additional time might prove helpful are insufficient." Bartley, 400 S.W.3d at 733. Even without the continuance, defense counsel was able to elicit testimony from Claborn on cross-examination regarding how he was a convicted felon, as well as how he was given a favorable plea in exchange for agreeing to testify against the appellant. Shelton was therefore able to adequately cross-examine for bias and motivations underlying Claborn's testimony. It is speculative at best to assert a continuance would have allowed the defense to discover any additional relevant information, and so we find there was no identifiable prejudice to Shelton from the circuit court's ruling. Given the particular emphasis on prejudice pursuant to Bartley, as well as the balance of the other Snodgrass factors, we do not find the circuit court abused its discretion in its denial of the motion to continue.
Shelton next argues the circuit court erred in denying him a directed verdict on the charge of criminal mischief.
When ruling on a motion for a directed verdict, a trial court "must draw all fair and reasonable inferences from the evidence in favor of the Commonwealth." Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991). It must "assume that the evidence for the Commonwealth is true, but reserv[e] to the jury questions as to the credibility and weight to be given such testimony." Id. A directed verdict should not be granted "[i]f the evidence is sufficient to induce a reasonable juror to believe beyond a reasonable doubt that the defendant is guilty." Id. And only if the reviewing court determines "under the evidence as a whole, it would be clearly unreasonable, for a jury to find guilt," will a defendant be entitled to a directed verdict of acquittal on appeal. Id.McGruder v. Commonwealth, 487 S.W.3d 884, 887 (Ky. 2016). Furthermore, "[t]o defeat a directed verdict motion, the Commonwealth must only produce 'more than a mere scintilla of evidence.'" Lackey v. Commonwealth, 468 S.W.3d 348, 352 (Ky. 2015) (quoting Benham, 816 S.W.2d at 187). Finally, a "[c]onviction can be premised on circumstantial evidence of such nature that, based on the whole case, it would not be clearly unreasonable for a jury to find guilt beyond a reasonable doubt." Graves v. Commonwealth, 17 S.W.3d 858, 862 (Ky. 2000).
Here, Shelton argues the Commonwealth failed to prove the requisite mens rea for the offense. An individual is guilty of first-degree criminal mischief "when, having no right to do so or any reasonable ground to believe that he has such right, he intentionally or wantonly defaces, destroys or damages any property causing pecuniary loss of $1,000 or more." KRS 512.020(1). Shelton contends there is no evidence of intentional or wanton behavior, and so a directed verdict was appropriate in this case. We disagree.
Seldom is there direct evidence of a defendant's state of mind, but direct evidence is not required. As we recently reiterated in Rogers v. Commonwealth, 315 S.W.3d 303 (Ky. 2010), state of mind - intent in that case - may be established by circumstantial evidence. That evidence includes the defendant's "actions preceding and following the charged offense," Commonwealth v. Suttles, 80 S.W.3d 424, 426 (Ky. 2002), as well as the defendant's knowledge and the surrounding circumstances. Marshall v. Commonwealth, 60 S.W.3d 513 (Ky. 2001).Quisenberry v. Commonwealth, 336 S.W.3d 19, 36 (Ky. 2011). "Wanton" conduct is defined by being "aware of and consciously disregard[ing] a substantial and unjustifiable risk that the result will occur or that the circumstance exists," and the risk is such that "disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation." KRS 501.020(3). The question thus becomes whether there were enough facts presented to the jury, even by means of circumstantial evidence, to show intentional or wanton behavior.
Despite Shelton's arguments to the contrary, there is enough evidence to show wanton conduct. George Claborn testified that he was with Shelton when Shelton crashed the truck into the barn. The two men left without alerting Mr. Grider, the authorities, the fire department, or anyone else about the crash, despite the fact that they had an operable cellphone - the same one which they used to call Chekiesha Dickens to transport them from the scene. Shelton then sought to conceal his involvement in the crash by traveling to a remote hospital for treatment and providing inconsistent stories to third parties regarding the origin of his injuries. There was sufficient evidence in this case to show a conscious disregard for the risk to Mr. Grider's property caused by Shelton's crash into the barn, as well as a gross deviation from the conduct one would expect from a reasonable person. Based on the evidence as a whole, it was not "clearly unreasonable for a jury to find guilt." Benham, 816 S.W.2d at 187. Therefore, we find no error in the circuit court's denial of Shelton's motion for directed verdict.
In Shelton's third argument, he contends the Commonwealth benefited from an improper bolstering, thereby depriving him of a fair trial. During Trooper Brown's direct examination, the prosecutor asked him what Shelton said in his second statement. The trooper replied that Shelton had essentially reiterated his previous denial, that he was not driving the truck. Trooper Brown then stated as follows: "At that time I knew the truth. I knew what had happened." Shelton immediately objected and moved for a mistrial. The circuit court denied the motion, but admonished the jury to disregard the statement, telling them that it is the province of the jury to decide what the truth is. Shelton argues this testimony was so prejudicial that an admonition was not sufficient to cure it. We disagree. "A jury is presumed to follow an admonition to disregard evidence and the admonition thus cures any error." Dunlap v. Commonwealth, 435 S.W.3d 537, 570 (Ky. 2013) (citing Johnson v. Commonwealth, 105 S.W.3d 430, 441 (Ky. 2003) overruled on other grounds by Padgett v. Commonwealth, 312 S.W.3d 336 (Ky. 2010)). Furthermore,
[t]here are only two circumstances in which the presumptive efficacy of an admonition falters: (1) when there is an overwhelming probability that the jury will be unable to follow the court's admonition and there is a strong likelihood that the effect of the inadmissible evidence would be devastating to the defendant; or (2) when the question was asked without a factual basis and was "inflammatory" or "highly prejudicial."Id. (quoting Johnson, 105 S.W.3d at 441) (citation omitted). We do not believe either of the quoted circumstances are applicable here. Trooper Brown made an unsolicited comment in the course of his testimony, in which he indicated he had formed a belief as to the truth of the matter under investigation. An objection and admonition followed, without Trooper Brown ever providing specifics to the jury as to what he believed. We find there was no reasonable likelihood the jury was unable to disregard the admonition.
For his fourth argument, Shelton argues the circuit court erred by permitting the jury to hear a taped interview between Chekiesha Dickens and Trooper Brown which contained unduly prejudicial information. The Commonwealth requested admission of the tape in order to impeach Dickens' testimony. Shelton objected to admission of the tape because it contained speculation and hearsay. The circuit court's initial ruling was to allow only those portions that impeach Dickens, expressing its understanding that Shelton did not want the recording played in its entirety. Defense counsel immediately disputed this, saying, "Judge, I do want it played in its entirety." The court replied, "Well, then there's no issue here."
During the playback of the recorded interview, the jury heard Trooper Brown and Dickens make several unfavorable references to Shelton as an adulterer and a liar. Furthermore, the recording indicated that Shelton may have been drinking on the night of the barn fire when Dickens picked him up. When Dickens states in the recording that Shelton was also a convicted felon, Shelton finally raised an objection to the contents, and counsel approached the bench to confer on the matter. The court pointed out the only reason the statement was heard by the jury was because the defense declined the court's offered redaction and elected to let the jury hear the entire recording. The court nonetheless recessed for the day to allow counsel time to review the recording and suggest redactions for the next day of the trial. The court also denied Shelton's motion for a mistrial.
Although the taped interview certainly contained objectionable material, Shelton effectively invited this error by asking the court to play the entire interview for the jury, and therefore we may not consider arguments based on the interview's contents. "[I]nvited errors that amount to a waiver, i.e., invitations that reflect the party's knowing relinquishment of a right, are not subject to appellate review." Quisenberry v. Commonwealth, 336 S.W.3d 19, 38 (Ky. 2011), cited with approval in Thornton v. Commonwealth, 421 S.W.3d 372, 376-77 (Ky. 2013). "Therefore, '[g]enerally, a party is estopped from asserting an invited error on appeal.'" Mullins v. Commonwealth, 350 S.W.3d 434, 439 (Ky. 2011) (quoting Quisenberry, 336 S.W.3d at 37). Accordingly, we treat this alleged error as waived and decline to examine it on the merits.
Finally, Shelton contends the circuit court erred by permitting the Commonwealth to question Claborn about whether it was coincidence that he and Shelton both told hospital personnel the same narrative regarding the origin of their injuries. Shelton objected at trial, arguing this was an improper attempt to question Claborn about something of which he would have no knowledge - the contents of Shelton's medical records. The trial court overruled the objection, finding the medical records were in evidence and thus the Commonwealth could ask Claborn about them.
"As a general rule, a competent witness may testify concerning matters of which he has personal knowledge, including events he has personally observed and perceived." Ruiz v. Commonwealth, 471 S.W.3d 675, 683 (Ky. 2015) (citing KRE 602). Purported evidentiary errors are subject to harmless error analysis, wherein the test for harmlessness is whether the error substantially swayed the verdict. Winstead v. Commonwealth, 283 S.W.3d 678, 689 (Ky. 2009) (citing Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)). In examining the trial testimony, it is clear the Commonwealth's questioning was not a genuine attempt to get Claborn to attest to the contents of Shelton's medical records, but instead was a rhetorical device for asking Claborn whether he and Shelton had collaborated on a fabricated story regarding the origin of their injuries. Claborn answered the Commonwealth's questions in the negative. We do not believe the Commonwealth's question was improper. However, even if error could be shown, Claborn's answer did not prejudice Shelton's defense. At most, the question and resulting testimony would therefore amount to harmless error.
Kentucky Rules of Evidence. --------
For the foregoing reasons, we affirm the Cumberland Circuit Court's order of judgment and sentence, entered October 22, 2015.
ALL CONCUR. BRIEFS FOR APPELLANT: Shannon Dupree
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky M. Brandon Roberts
Assistant Attorney General
Frankfort, Kentucky