WADE G. SHEELEY v. COMMONWEALTH OF KENTUCKY
Annotate this Case
Download PDF
RENDERED: APRIL 8, 2005; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-001786-MR
WADE G. SHEELEY
v.
APPELLANT
APPEAL FROM MEADE CIRCUIT COURT
HONORABLE ROBERT A. MILLER, JUDGE
ACTION NO. 00-CR-00117
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING IN PART, REVERSING IN PART AND REMANDING
** ** ** ** **
BEFORE:
BUCKINGHAM, DYCHE, AND GUIDUGLI, JUDGES.
GUIDUGLI, JUDGE:
Wade G. Sheeley appeals from a judgment of the
Meade Circuit Court following a jury verdict of guilty on one
count of facilitating the manufacturing of methamphetamine.
He
contends that the trial court erred in denying his motion for a
directed verdict, that certain testimony was improperly
admitted, and that he was prejudiced when the jury was told that
his co-indictee had entered a guilty plea.
For the reasons
stated below, we affirm in part, reverse in part and remand for
further proceedings.
On September 7, 2000, the Meade County grand jury
indicted Sheeley on charges of manufacturing methamphetamine,
trafficking in a controlled substance, and possession of drug
paraphernalia enhanced by possession of a firearm.
The
indictment arose from a Kentucky State Police investigation,
which began when confidential informant, Darrell Hubbard, told
the police that he observed Sheeley and Russell Tim Pridham
manufacturing methamphetamine in Sheeley’s garage on July 22,
2000.
Based on this information, Detective Sergeant Gerald
Wilson obtained a search warrant of Sheeley’s property.
The search warrant was executed on July 24, 2000.
The
police found items including a jar allegedly containing red
phosphorus, an empty toluene can, a Pyrex pan, along with guns
and cash.
The matter went before the Meade County grand jury,
which returned an indictment on September 7, 2000, charging
Sheeley and Pridham with several charges related to the
manufacturing of methamphetamine.
Pridham later pled guilty to
manufacturing methamphetamine, first-degree trafficking in a
controlled substance, possession of drug paraphernalia, and
possession of marijuana.
The charges against Sheeley resulted in a jury trial
conducted on July 16, 2003.
Sheeley maintained that the
chemicals found in his garage were left over from his previous
employment as a pool installer.
After hearing all of the proof,
-2-
jury instructions as to both the manufacturing of
methamphetamine and facilitation to manufacture methamphetamine
were given.
On motion of the Commonwealth, the trafficking
charge was dismissed.
Sheeley was found guilty of facilitation
and received a sentence of three and one-half years in prison.
This appeal followed.
Sheeley first argues that the trial court erred in
overruling his motion for a directed verdict of acquittal.
He
maintains that he could not be found guilty of facilitating when
the Commonwealth failed to prove that Pridham committed the
underlying offense of manufacturing.
Without proving that
Pridham manufactured methamphetamine, he contends that there was
no legal basis for finding him guilty of facilitating, and that
that the trial court erred in failing to so rule.
He seeks an
order reversing the judgment and remanding the matter to the
circuit court.
We have closely examined this issue and find no error.
KRS 506.080(1) states,
A person is guilty of criminal facilitation
when, acting with knowledge that another
person is committing or intends to commit a
crime, he engages in conduct which knowingly
provides such person with means or
opportunity for the commission of the crime
and which in fact aids such person to commit
the crime.
-3-
Criminal facilitation requires knowledge that another intends to
commit the crime coupled with the means or opportunity for the
commission of the crime.1
In the matter at bar, not only did the testimony of
Hubbard and Detective Wilson support the Commonwealth’s
assertion that Sheeley intended to manufacture methamphetamine,
Hubbard testified that he observed Sheeley and Pridham
manufacturing the substance.
This evidence, taken alone, forms
a sufficient basis upon which the jury could reasonably conclude
that Sheeley either intended to commit or did commit a crime.
As the parties are aware, Commonwealth v. Benham2 sets
forth the standard for reviewing motions for a directed verdict.
It states that,
On motion for directed verdict, the
trial court must draw all fair and
reasonable inferences from the evidence in
favor of the Commonwealth. If the evidence
is sufficient to induce a reasonable juror
to believe beyond a reasonable doubt that
the defendant is guilty, a directed verdict
should not be given. For the purpose of
ruling on the motion, the trial court must
assume that the evidence for the
Commonwealth is true, but reserving to the
jury questions as to the credibility and
weight to be given to such testimony.
On appellate review, the test of a
directed verdict is, if under the evidence
as a whole, it would be clearly unreasonable
for a jury to find guilt, only then the
1
Skinner v. Commonwealth, 864 S.W.2d 290 (Ky. 1993).
2
816 S.W.2d 186 (Ky. 1991).
-4-
defendant is entitled to a directed verdict
of acquittal.[3]
When examining the evidence as a whole pursuant to
Benham, we cannot determine that it would be clearly
unreasonable for the jury to determine that Sheeley either
intended to commit a crime or did commit a crime.
Accordingly,
the evidence supported the jury’s conclusion that Sheeley
facilitated Pridham’s intended or actual criminal behavior, and
the trial court did not err in failing to so rule.
Sheeley next argues that the trial court erred when it
failed to sustain an objection to Wilson’s identification of a
substance as red phosphorus.
The substance, which was found in
Sheeley’s garage during the search, was intentionally destroyed
by the police prior to trial as it was believed to be a
hazardous material.
Sheeley contended at trial that Wilson was
not an expert witness, that he had no basis for stating to the
jury that the substance was red phosphorus, and that the
testimony should have been excluded.
He now argues that the
trial court erred in allowing Wilson’s testimony on this issue.
Sheeley relies in part on Kentucky Rule of Evidence
702, which addresses the admissibility of expert testimony.
This rule is not applicable to the instant issue, however, as
Wilson was not offered by the Commonwealth as an expert.
3
Benham, 816 S.W.2d at 187.
-5-
Rather, he was a lay witness who gave his opinion as to the
contents of the jar.
Conversely, Sheeley testified that the jar
contained red raspberries.
After considering Sheeley’s objection to the
introduction of Wilson’s statement, the trial court ruled that
it was a question of credibility for jury.
this conclusion.
We find no error in
KRE 701 states that, “[i]f the witness is not
testifying as an expert, the witness’ testimony in the form of
opinions or inferences is limited to those inferences which are:
(a) rationally based on the perception of the witness; and (b)
helpful to a clear understanding of the witness’ testimony or
the determination of a fact in issue.”
Wilson’s opinion as to
the jar’s contents was, in the language of KRE 701, rationally
based on his perception and helpful in the determination of a
fact at issue.
It is also worth noting that the jury members
were given a “missing evidence” instruction.
This instruction
told the jury it could infer that the destroyed evidence would
have been favorable to Sheeley’s case.
Since the jury was apprised that Wilson’s testimony
was mere opinion, and as it was told that it could infer that
the evidence would have been helpful to Sheeley had it not been
destroyed, we find no basis for tampering with the trial court’s
ruling on this issue.
-6-
Sheeley’s final argument is that he was prejudiced by
the introduction of Pridham’s guilty plea.
He maintains that
the Kentucky Supreme Court has consistently held that the
admission of a co-indictee’s entry of a guilty plea or
determination of guilt is so improper and prejudicial as to
require reversal.
Since it is uncontroverted that Pridham’s
conviction was made known to the jury, and as it was not
properly used for the purposes of impeachment, he argues that he
is entitled to a reversal of his conviction and a new trial.
We agree with Sheeley that evidence of Pridham’s
conviction was improperly admitted.
“It has long been the rule
in this Commonwealth that it is improper to show that a coindictee has already been convicted under the indictment.”4
This
is true whether the co-indictee pled guilty or was convicted at
trial.5
The only exception to this rule is if the information is
introduced to impeach the co-indictee.6
In the matter at bar,
Pridham’s conviction was not introduced to impeach his
testimony, and as such, was improperly admitted.
.
In his appellate brief, Sheeley states that the issue
was not preserved by a timely objection at trial.
However, a
review of the trial videos reveals that Sheeley did object to
4
Parido v. Commonwealth, 547 S.W.2d 125 (Ky. 1977), quoting Martin v.
Commonwealth, 477 S.W.2d 506 (Ky. 1972).
5
Parido, supra.
6
Id.
-7-
Pridham’s plea being introduced.
In fact, Sheeley objected and
argued that Pridham’s plea was immaterial and not relevant since
it did not mention any involvement or participation by Sheeley.7
The trial court overruled Sheeley’s objections and immediately
thereafter, admonished the jury as follows:
Ladies and gentlemen, the court has taken
judicial notice and you shall take notice of
the following facts: The indictment of
which Mr. Pridham plead guilty[], and he
plead guilty to, manufacture of
methamphetamine in violation of KRS
218A.1432, trafficking in a controlled
substance, methamphetamine, first-degree . .
. in violation of KRS 218A.1412; possession
of drug paraphernalia, in violation of KRS
218A.500(2); possession of marijuana, in
violation of KRS 218A.1422, alleged to have
occurred on Counts One and Two on or about
July 2000 in Meade county Kentucky and on
the possession of drug paraphernalia and
possession of marijuana July 24, 2000, in
Meade County, Kentucky. (Tape 2, 7/16/03,
16:09:58).
We believe the issue was preserved by Sheeley’s
objection, though his objection may have been based on the wrong
reasons.
But assuming that the issue was not properly preserved
as Sheeley contends, he now contends that it should be
considered as palpable error pursuant to RCr 10.26.
states:
A palpable error which affects the
substantial rights of a party may be
considered by the court on motion for a new
trial or by an appellate court on appeal,
7
Tape 2, 7/16/03, 16:08.
-8-
RCr 10.26
even though insufficiently raised or
preserved for review, and appropriate relief
may be granted upon a determination that
manifest injustice has resulted from the
error.
In Sherley v. Commonwealth,8 Justice Leibson, in a concurring
opinion, addressed when palpable error occurs.
He stated:
Thus, the one point made in the
Majority Opinion with which I agree is that
since no contemporaneous objection was made,
if we are to reverse this case it must be on
grounds of palpable error under RCr 10.26.
Contrary to the Majority Opinion, if there
is palpable error, a circumscribed legal
concept articulated in RCr 10.26, we are
duty bound to reverse.
But the palpable
error concept requires more than just an
error the appellate court can palpate and
more than what is reversible error if
preserved by contemporaneous objection. It
requires an unpreserved error “[so]
substantial . . . that manifest injustice
has resulted from the error.” RCr 10.26.
The key issue here is whether “manifest
injustice has resulted from the error.” The
constitutional error standard, a “harmless
beyond a reasonable doubt” review, applies
if the error were preserved, but it does not
control our hand when the problem is to
decide whether the error is of such
magnitude “manifest injustice has resulted.”
See Jackson v. Commonwealth, Ky.App., 717
S.W.2d 511 (1986). While the meaning of
“manifest injustice” as used in RCr 10.26,
has never been fully expounded in our
previous opinion, there is one case, Stone
v. Commonwealth, Ky., 456 S.W.2d 43
(1970)[,] explaining that it applies where
the appellate court “believes there may have
been a miscarriage of justice.”[9]
8
889 S.W.2d 794 (Ky. 1994).
9
Id. at 803.
-9-
In the case before us, not only was the admission of
evidence of the co-indictee’s plea error but we believe, under
the standard set forth above, it was palpable error.
The
Commonwealth had little evidence of Sheeley’s involvement in
manufacturing methamphetamine.
The search warrant revealed
sparse physical evidence – a jar allegedly containing red
phosphorus, an empty toluene can, and a Pyrex pan – which had
been destroyed prior to trial.
It had the testimony of a
confidential informant who had been charged by Sheeley with
theft and sued civilly for monetary damages and thus, had a
motive for implicating Sheeley.
The Commonwealth examined
Pridham not on Sheeley’s involvement in the manufacturing of the
illegal drug but merely on the fact that he pled guilty to
identical charges.
Without the admission of Pridham’s guilty
plea, the Commonwealth’s case against Sheeley relied primarily
on the credibility of Hubbard, a convicted felon and
confidential informant.
Added to the impact of admitting
Pridham’s plea is the fact that the trial court admonished the
jurors that it had taken judicial notice of Pridham’s plea.
Also, during closing argument, the Commonwealth emphasized
Pridham had pled guilty and that he had been indicted along with
Mr. Sheeley.
Another factor to consider herein is that the jury
instructions, as to facilitation, specifically referenced
-10-
Pridham’s activities of manufacturing methamphetamine.
Lastly,
it must be noted that the jury deliberated for over 1½ hours
during which they sent two notes to the judge.
The first
question concerned the photographs admitted into evidence, but
the second inquiry was whether they could see the indictment
against Pridham.
Following that question, the jury returned a
verdict against Sheeley on the charge of facilitation.
Upon a review of the entire case, we believe it to be
clear that the court erred in admitting the plea of a coindictee and that manifest injustice resulted.
In Tipton v.
Commonwealth,10 the Court addressed a similar argument that such
evidence was inadmissible by stating:
It should be noted that Parido, supra, left
open the possibility that evidence of the
plea could be introduced to impeach the coindictee. However, the Commonwealth in this
case has made no such argument. Indeed, the
Commonwealth did not appear concerned with
Hodge’s credibility because in large part he
said exactly what the Commonwealth wanted to
hear. It was the meaning of his testimony,
the inference that both he and Tipton were
guilty, that the Commonwealth attempted to
bolster by reference to the guilty plea.
Therefore, the admission of evidence
concerning the co-indictee’s guilty plea and
the potential penalty was reversible error.
We believe the same situation occurred in this case and that the
admission of evidence concerning the co-indictee’s guilty plea
resulted in reversible error.
10
640 S.W.2d 818, 820 (Ky. 1982).
-11-
For the foregoing reasons, we affirm in part and
reverse in part the judgment of the Meade Circuit Court, and
remand this matter for further proceedings consistent with this
opinion.
DYCHE, JUDGE, CONCURS.
BUCKINGHAM, JUDGE, CONCURS AND FILES SEPARATE OPINION.
BUCKINGHAM, JUDGE, CONCURRING:
I concur with the
majority opinion, but I wish to write separately concerning the
reason that we have reversed the conviction and remanded the
case for further proceedings.
At the trial the Commonwealth
attempted to prove that Sheeley committed the offenses by
introducing testimony from his co-defendant, Russell Tim
Pridham, who had earlier pled guilty to the offenses.
However,
when the Commonwealth began to question Pridham concerning
whether he had been at Sheeley’s residence on the date in
question, Pridham stated, “Not that I know of.”
Thereafter, the
Commonwealth was permitted to introduce evidence that Pridham
had pled guilty to manufacturing methamphetamine, trafficking in
a controlled substance, possession of drug paraphernalia, and
possession of marijuana.
There is no question that the Commonwealth had the
right to impeach Pridham by any prior inconsistent statements.
Likewise, the Commonwealth could use his guilty pleas to the
offenses to impeach his testimony if such pleas did, in fact, do
-12-
so.
Unfortunately for the Commonwealth, it does not appear that
Pridham’s guilty pleas impeached his testimony that he was not
at the Sheeley residence on the date in question.
The situation in this case presents the continuing and
difficult problem that prosecutors face when one co-defendant
pleads guilty, is used as a witness at the trial of the other
co-defendant, and then testifies that the co-defendant on trial
was not involved in the crime.
Only when the prior guilty plea
of the testifying co-defendant implicates the co-defendant on
trial may the plea be used for impeachment purposes under
circumstances such as these.
Sheeley and Pridham were indicted under separate
indictments, although the Commonwealth’s case indicated that
they were jointly involved in the crimes.
The Sheeley
indictment made no mention of Pridham, and the Pridham
indictment made no mention of Sheeley.
Furthermore, from what
we know of the record of Pridham’s guilty pleas, no mention was
made of any involvement by Sheeley and no mention was made of
the crime having occurred in Sheeley’s garage.11
Very simply,
Pridham pled guilty to various offenses while “acting alone or
in complicity with others.”
From what we know of the record in
Pridham’s guilty plea proceedings, Sheeley was not implicated in
any manner.
Had Pridham testified at his guilty plea
11
Neither Pridham’s written plea agreement nor the plea colloquy was made a
part of the record in this case.
-13-
proceedings, or had the plea agreement stated, that the crimes
were committed in Sheeley’s garage, then Pridham’s pleas could
have been used to impeach his testimony in this case.
However,
I agree with the majority that the lack of specificity
prohibited the Commonwealth from using Pridham’s pleas in the
manner that it did and that such amounted to palpable error if
it was unpreserved.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Margaret Foley Case
Appellate Branch Manager
Department of Public Advocacy
Gregory D. Stumbo
Attorney General
Linda Roberts Horsman
Department of Public Advocacy
Frankfort, KY
George G. Seelig
Assistant Attorney General
Frankfort, KY
-14-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
