CHARLES O'DELL SHORES V. COMMONWEALTH OF KENTUCKY
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NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE
PUBLISHED." PURSUANT TO THE RULES OF
CIVIL PROCED URE PROMUL GA TED BY THE
SUPREME COURT, CR 76.28 (4) (c), THIS OPINION
IS NOT TO BE PUBLISHED AND SHALL NOT BE
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CASE INANY CO UR T OF THIS STA TE.
RENDERED : AUGUST 21, 2003
NOT TO BE PUBLISHED
2002-SC-0033-MR
CHARLES O'DELL SHORES
V.
APPEAL FROM WHITLEY CIRCUIT COURT
HONORABLE PAUL BRADEN, JUDGE
INDICTMENT NO . 98-CR-00055
COMMONWEALTH OF KENTUCKY
APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Appellant, Charles O'Dell Shores, was convicted of murder and first-degree
robbery following a jury trial in the Whitley Circuit Court . The jury recommended that
Appellant serve consecutive sentences of fifty years and ten years respectively. The
trial court entered its final judgment in accordance with the jury's recommendation and
sentenced Appellant to a term of imprisonment in the state penitentiary totaling sixty
years . He therefore brings this appeal as a matter of right . Ky. Const. ยง 110(2)(b) .
On the morning of April 14, 1998, Willis Knuckles, the victim, was found dead in
his Whitley County residence . He had suffered a gunshot wound to the head, which
was the apparent cause of death .
On June 8, 1998, Appellant was indicted for murder and robbery in the first
degree by the Whitley County grand jury . After approximately three years of pre-trial
proceedings, Appellant was brought to trial on the aforementioned charges in the
Whitley Circuit Court on September 25, 2001 .
At trial, the Commonwealth argued that Appellant went to the victim's residence
on either the late evening of April 13, 1998, or the early morning of April 14, and
murdered the victim while in the course of robbing him .
Appellant admitted to visiting the victim's residence, but argued that he did so in
order to obtain pills for his back pain . Appellant testified that he knocked on the door to
the victim's residence, but no one responded . However, something could be heard
coming from the home, perhaps a television or radio. He further testified that he
knocked repeatedly until the door eased open . Appellant then ventured inside the
residence calling out the victim's name, but still, no response was forthcoming .
Appellant testified that he found the victim shot in the head, and subsequently fled the
scene because he was frightened.
Following a three day trial, the jury returned guilty verdicts on both the murder
and first-degree robbery charges. The jury recommended Appellant receive a prison
term of fifty years on the murder charge and ten years on the robbery charge, to run
consecutively for a total of sixty years . At the sentencing hearing, the trial court adopted
the jury's recommendation and sentenced Appellant accordingly . Appellant then
brought this matter of right appeal .
Appellant presents the following four points of error in this appeal : I . whether the
trial court erred to Appellant's substantial prejudice by refusing to compel specific
performance of a plea agreement he had reached with the Commonwealth ; II . whether
the trial court abused its discretion when it refused to allow the avowal testimony of
witness Richard Adams before the jury; III . whether the trial court abused its discretion
when it allowed evidence of a spent bullet found at the crime scene to be presented at
trial ; and IV. whether the trial court committed reversible error when it denied
Appellant's motion for a directed verdict on the charge of first-degree robbery.
After considering the errors alleged and reviewing the record, we affirm for the
reasons set forth below.
f.
The Commonwealth and Appellant apparently struck a tentative plea agreement
where the murder charge would be amended to second-degree manslaughter and the
robbery charge would be dismissed. Appellant would enter a plea of guilty to second
degree manslaughter, and the Commonwealth would recommend a prison sentence of
six years . In an order dated November 16, 1999, the trial court ordered Appellant to
appear for a December 13, 1999, status conference regarding the Commonwealth's
plea offer. The order provided that Appellant had until November 13, 1999' to accept
the offer and further provided that the deadline could not be extended by agreement of
the parties . Appellant apparently did not accept the agreement by the date of the
scheduled status conference .
On January 10, 2000, Appellant signed the Commonwealth's plea offer.
Appellant was then scheduled to return to court on February 14, 2000, for entry of a
plea . However, after discussing the plea agreement with the victim's family and
learning that the family was not satisfied with it, the Commonwealth decided to withdraw
its offer to Appellant and, on February 11, 2000, moved the trial court to set a date for
trial . In response, Appellant objected to the Commonwealth's motion and moved the
Considering this order was dated November 16, 1999, and the next status conference
was scheduled for December 13, 1999, it is our view that the November 13, 1999,
deadline to accept the plea offer was written in error. Instead, we conclude that it
should have been entered as "December 13, 1999 ."
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trial court to enforce the terms of the plea agreement . On May 12, 2000, the trial court
ordered that the Commonwealth's plea offer be presented to it. In an order dated June
27, 2000, the trial court rejected the Commonwealth's offer. The index to the record
indicates that Appellant was released on bond and a trial was scheduled before the
court entered that order.
Appellant alleges that the trial court denied his rights to due process under both
the federal and state constitutions when it failed to enforce the plea agreement he had
reached with the Commonwealth . He seeks this Court to reverse his convictions and
instruct the trial court to specifically enforce the plea agreement . We decline to do so,
since we find that Appellant's constitutional rights have not been violated .
"A plea bargain standing alone is without constitutional significance; in itself it is a
mere executory agreement which, until embodied in the judgment of a court, does not
deprive an accused of liberty or any other constitutionally protected interest." Mabry v.
Johnson, 467 U .S . 504, 507, 104 S . Ct. 2543, 2546, 81 L. Ed. 2d 437, 442 (1984) . Here
the trial court never accepted the plea agreement, nor did Appellant enter a plea. Since
the plea agreement was never "embodied in the judgment" of the trial court, Appellant
cannot validly claim constitutional error. Therefore, the trial court did not err to
Appellant's substantial prejudice .
In addition, it is within the discretion of the trial court to accept or reject a guilty
plea . RCr 8 .08. If a trial court determines not to accept a defendant's guilty plea, this
Court will not disturb such, unless it is clear that there has been an abuse of discretion .
Skinner v. Commonwealth , Ky., 864 S.W .2d 290, 294 (1993) . Here there is no
evidence that the trial court abused its discretion in rejecting the plea agreement . The
trial court did not allow the Commonwealth to withdraw the plea bargain ; rather, the trial
court ordered that the motion to enter a guilty plea and the Commonwealth's offer be
presented to it.
Once an "offer is made by the prosecution and accepted by the accused, either
by entering a plea or by taking action to his detriment in reliance on the offer, then the
agreement becomes binding and enforceable ." Smith v. Commonwealth , Ky ., 845
S .W.2d 534, 537 (1993) . If the trial court had actually accepted a guilty plea pursuant to
a plea agreement from Appellant, and then allowed the Commonwealth to withdraw the
plea offer, then there is no question that a reversal of this case would issue. See, etc ..,
Matheny v. Commonwealth , Ky., 37 S.W .3d 756 (2001) (where this Court held that the
Commonwealth and the trial court were bound by the terms of the plea agreement after
it had been accepted by the trial court) . However, that is not the case in this matter
because the trial court never accepted a plea of guilty . Furthermore, as stated in Smith ,
supra, in order to enforce any agreement with the Commonwealth, Appellant must
demonstrate that he relied on the agreement to his detriment . Maschenik v. Goff, Ky.,
837 S .W.2d 891, 892 (1992) . Appellant has failed to so demonstrate.
Under the circumstances, we cannot say that the trial court abused its discretion
with regard to this issue .
It.
Richard Adams, Appellant's former stepson, was one of the witnesses presented
by the Commonwealth . During cross-examination, Appellant's defense counsel
attempted to question Adams regarding previous arrests and charges against him . The
trial court sustained the Commonwealth's objection to this line of questioning . The
testimony was not presented before the jury, but was put on the record by avowal. The
avowal testimony reveals that Adams was arrested in 1998 in Whitley County for armed
robbery . It appears that the charges against Adams were not submitted to the grand
jury and/or dismissed .
The gist of Appellant's argument is that the avowal evidence should have been
presented to the jury to show that Adams was testifying in order to curry favor with the
Commonwealth .
Generally, a witness may not be impeached by evidence of particular wrongful
acts . CR 43.07 provides that:
A witness may be impeached by any party, without regard to which party
produced him, by contradictory evidence . . . but not by evidence of
particular wrongful acts, except that it may be shown by the examination
of a witness, or record of a judgment, that he has been convicted of a
felony .
It is manifest that an exception exists to the general rule. For example, in Chesapeake
& Ohio Railway Co . v. Pittman , 283 Ky. 63,138 S .W.2d 962 (1940), where the plaintiff's
attorney was also the local prosecuting officer, our predecessor Court held that a
witness in a civil case, who had an indictment pending against her, could be impeached
by evidence of bias in order to show that her testimony was possibly influenced by a
desire to seek leniency from the plaintiff's attorney in his capacity as prosecutor . See
also, Spears v. Commonwealth , Ky. App ., 558 S .W.2d 641 (1977) (where it was held
that evidence of an indictment pending in the same court against the principal witness
for the Commonwealth was competent and admissible to show possible bias) ; Davis v.
Alaska, 415 U .S . 308, 94 S. Ct. 1105, 39 L. Ed . 2d 347 (1974) .
After reviewing the avowal evidence, we are not convinced that Adams gave his
testimony in order to garner favor from the prosecuting authority of Whitley County . The
Commonwealth stated that it had not entered into any deal with Adams in exchange for
his testimony . Adams also stated that he had not received any sort of deal. Moreover,
there is no indictment pending against Adams regarding the alleged robbery. In his
reply brief, Appellant argues that the Commonwealth could still submit the robbery
charge against Adams to the grand jury. However, this is mere speculation . Adams
was arrested in 1998, shortly after he reached his eighteenth birthday. Adams testified
at Appellant's trial almost three years later. There is simply nothing in the record to
suggest Adams was under any perceived threat of prosecution which encouraged him
to testify .
Accordingly, we hold it was not an abuse of discretion for the trial court to refuse
to allow the avowal evidence to be put before the jury.
In his brief, Appellant alleges that it was error for the trial court to admit a spent
bullet found at the crime scene into evidence, since it had not been properly identified .
The Commonwealth, in its brief, states that defense counsel's objection to the
introduction of the spent bullet was on the basis of relevancy . In his reply, Appellant
concedes that defense counsel made an objection referring to relevancy, but,
nonetheless, contends that it is clear that defense counsel was arguing that the
Commonwealth could not provide a proper foundation on which the spent bullet could
be admitted . We do not agree with this contention .
An examination of the record reveals that defense counsel not only objected on
the basis of relevancy before the first witness took the stand, he again objected to the
relevance of the spent bullet during the Commonwealth's direct examination of witness
Charles Lanham .
Defense Counsel : If your Honor, please, this is at the point right now I feel
that I must bring this up about the relevancy of this. I don't see any
relevancy to this examination .
Contrary to the Appellant's contention, the objection to the spent bullet was couched in
terms of relevancy .
In order for the spent bullet to be admissible as evidence pursuant to the
relevancy standard, it must have "any tendency to make the existence of any fact that is
of consequence to the determination of the action more probable or less probable than
it would be without the evidence ." KRE 401 . In our view the trial court allowed
evidence of the spent bullet to be admitted because its probative value outweighed its
prejudicial effect. KRE 403 . "It is a well-settled principle of Kentucky law that a trial
court ruling with respect to the admission of evidence will not be reversed absent an
abuse of discretion ." Commonwealth v . King , Ky., 950 S .W.2d 807, 809 (1997) . It was
within the sound discretion of the trial judge to determine whether the evidence was
relevant, and we hold that he did not abuse that discretion .
We agree with the views expressed in the opinion People v. Gonzalez , 193
A.D .2d 360, 361, 597 N .Y.S .2d 44, 46 (N .Y. App. Div. 1993), wherein it was written:
We reject defendant's argument that it was error to admit a spent bullet
found at the scene. It cannot be trivialized as mere coincidence that a
bullet was promptly recovered at the scene of an alleged shooting, and the
bullet was, thus, "sufficiently connected" with defendant to be relevant to
an issue in the case .
Here the spent bullet casing was promptly recovered at the crime scene and was
sufficiently connected to this case . Furthermore, Appellant's argument that no blood or
tissue was found on the spent bullet goes to the weight of the evidence, as opposed to
its admissibility. It was the role of the jury as fact-finder to weigh the spent bullet, along
with the other evidence submitted at trial, in reaching its decision .
We also note that, regardless of whether the objection was made on the basis of
relevancy or proper identification, the trial court did not commit error in overruling said
objection . The spent bullet was linked to the crime scene by place, time, and
circumstance .
Accordingly, we conclude that the trial court did not commit reversible error when
it permitted the spent bullet to be admitted as evidence .
IV.
Finally, Appellant asserts reversible error in the trial court's refusal to direct a
verdict of acquittal on the first-degree robbery charge .
The Commonwealth argued that during the commission of the robbery/murder
Appellant stole items from the victim, including, inter alia, a derringer pocket pistol, a .38
special pistol, and money. Roger Knuckles, the victim's brother and a key witness for
the Commonwealth on the prosecution of the robbery charge, testified that the abovementioned items were missing from the victim's residence . The Commonwealth also
introduced evidence that Appellant began paying numerous bills immediately following
the victim's death.
It appears that Appellant's central contention regarding this issue is that the
testimony of the victim's brother is too incredible to be believed . We are not persuaded .
"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 defendant is
entitled to a directed verdict of acquittal ." Commonwealth v . Benham, Ky., 816 S.W.2d
186, 187 (1991) . Additionally, whenever the trial court considers a defendant's motion
for a directed verdict, the trial court must assume that the evidence presented by the
Commonwealth is true. Id .
Whether the testimony given by the victim's brother is credible or not is a
question to be decided by the jury . Here the jury determined that Appellant was guilty of
first-degree robbery beyond a reasonable doubt . We cannot say that it was clearly
unreasonable for the jury to make that decision . Thus, we find no error.
Wherefore, for the reasons aforesaid, the judgment of the Whitley Circuit Court is
hereby affirmed .
All concur.
COUNSEL FOR APPELLANT :
Richard Hoffman
Assistant Public Advocate
Department of Public Advocacy
100 Fair Oaks Lane, #302
Frankfort, KY 40601
COUNSEL FOR APPELLEE:
A. B. Chandler, III
Attorney General
Capitol Building
Frankfort, KY 40601
George G. Seeling
Assistant Attorney General
Criminal Appellate Division
Officer of the Attorney General
1024 Capital Center Drive, Suite 200
Frankfort, KY 40601
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