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Shively v. Commonwealth

Supreme Court of Kentucky

March 22, 2018

DEVERON SHIVELY APPELLANT
v.
COMMONWEALTH OF KENTUCKY APPELLEE

          ON APPEAL FROM JEFFERSON CIRCUIT COURT HONORABLE MITCH PERRY, JUDGE NOS. 14-CR-000117 85 16-CR-000228

          COUNSEL FOR APPELLANT: Susan Jackson Balliet Assistant Public Advocate

          COUNSEL FOR APPELLEE: Andy Beshear Attorney General of Kentucky David Bryan Abner Assistant Attorney General

          OPINION

          WRIGHT, JUSTICE

         Appellant, Deveron Shively, was convicted by a Jefferson Circuit Court jury of criminal attempt to commit murder, possession of a handgun by a convicted felon, and tampering with physical evidence. For these crimes, the jury recommended sentences of twenty, seven, and three years, respectively, to be served concurrently. The trial court sentenced Appellant to twenty years' imprisonment in line with the jury's recommendation. Appellant now appeals to this Court as a matter of right. Ky. Const. § 110(2)(b). He asserts four claims of error in his appeal: (1) the trial court erred in denying his motion to suppress his statement to police, as that statement was coerced; (2) the trial court erred in refusing to allow certain cross-examination of the victim in order to show bias; (3) the trial court erred in denying Appellant's motion for a mistrial; and (4) the jury instructions on the possession of a handgun by a convicted felon charge deprived Appellant of his right to a unanimous verdict.

         I. BACKGROUND

         Misty Shirley had been staying with her fiance'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 decided to leave Courtney and Carrie's apartment and stay 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 where Appellant's mother lived, Misty and Appellant were joined 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 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 made 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 Reccius, the lead detective on the case. Reccius put together a photographic lineup and presented it to Misty. Misty identified Appellant's photograph, and told Reccius Appellant was the shooter.[1] She told Reccius 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. Reccius testified Appellant signed a rights waiver and agreed to speak to the police.

         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 shooting.[2] Later, the Commonwealth obtained another indictment related to the shooting, adding first-degree assault (as a lesser-included offense of attempted, murder) and tampering with physical evidence. The indictments were subsequently amended 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, possession of a handgun by a convicted 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 run concurrently. 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 provided Dale with the location of an individual wanted for another crime. Dale told Appellant he should "be straight" and "be honest" "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 told Appellant the "big wigs" at the department had met about "what's being said between these groups and 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 family." Dale reassured Appellant that he would "look out for [his] family." The two exchanged a fist bump before Dale left. Reccius, who had watched the interview from behind one-way glass, entered the interview room several minutes after Dale left Appellant alone.

         Reccius 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 Reccius a lengthy statement. Appellant objected to the admission of this statement at trial, arguing the initial ...


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