MICHAEL MERRALL SHEPHERD V. COMMONWEALTH OF KENTUCKY
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APPELLANT
MICHAEL MERRALL SHEPHERD
ON APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE JAMES D. ISHMAEL, JR., JUDGE
NO . 04-CR-001468-003
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION OF THE COURT BY JUSTICE ABRAMSON
AFFIRMING
Michael Shepherd appeals as a matter of right from a May 25, 2006 Judgment of
the Fayette Circuit Court convicting him, in accord with the jury's verdict, of intentional
murder, first-degree robbery, and tampering with physical evidence . Following his
conviction, Shepherd was sentenced to Life without the Benefit of Probation or Parole
for twenty-five years in the state penitentiary. In the joint trial of Michael Shepherd and
Robert Miller, the Commonwealth alleged and the jury found that on the evening of
September 15, 2004, Michael Shepherd, Robert Miller, and Patrick Cook robbed
eighteen-year-old Megan Liebengood outside of her Lexington apartment. When
Liebengood refused to get into the trunk of her car, Shepherd fatally shot her in the
head . Shepherd now contends that the trial court erred by (1) not granting his motion
for a separate trial ; (2) admitting Elisha Epps' prejudicial testimony ; (3) allowing the
Commonwealth to mention unfairly prejudicial evidence during its closing argument; (4)
." ;D. c.
not granting his motion for a mistrial after a police sergeant testified about Shepherd's
prior bad conduct; (5) denying his motion to strike certain jurors and his motion for a
mistrial after the Commonwealth tainted the jury pool ; (6) failing to suppress Shepherd's
taped police interview; (7) not excluding the penalty of life without the possibility of
parole as a sentencing consideration ; (8) allowing parts of Tim McCann's police
interview to be entered into evidence and read to the jury; and (9) denying his motion
for a new trial after the Commonwealth withheld Devan Jones's potentially exculpatory
police interview. Although we agree with Shepherd that the trial court erred in including
life without the possibility of parole in its sentencing instructions, we conclude that this
error was harmless. Finding that Shepherd's second and third arguments were not
preserved for review and that the trial court did not err with respect to Shepherd's other
claims, we affirm.
RELEVANT FACTS
On September 15, 2004, Michael Shepherd, Robert Miller, and Patrick Cook
were "hanging out" on the corner of Woodhill and Codell Drive, near the Ashford Place
Apartments in Lexington, drinking and smoking marijuana . Cook and Miller, who had
grown up together, shared an Ashford Place apartment with Elisha Epps, who is Cook's
cousin and the mother of Miller's child . Both Shepherd and Miller were sixteen years
old at this time, while Cook was seventeen . At some point during the afternoon, Miller
and Shepherd agreed that they needed some money and should "hit a lick," meaning
find someone to rob . Later in the evening, Miller went into his apartment and retrieved
his revolver and a holster. Shepherd, who wanted to hold the gun, got a belt, put the
holster on, and placed the gun in the holster . Cook, who was the only eyewitness to
testify at trial, stated that Shepherd was carrying the gun when the three-some entered
the English Manor apartment complex . After walking around the parking lot for awhile,
the three boys saw eighteen-year-old Liebengood unloading groceries from her car and
decided to rob her. They sneaked up on Liebengood, and Shepherd ordered her to
give him her money. Liebengood responded that she had no money. Miller then found
Liebengood's purse in her car and took it. Next, Shepherd ordered Liebengood to give
him her keys and get in the trunk of her car. After Liebengood refused, Miller grabbed
her arm and struggled with her at the edge of her trunk. Then, Shepherd hit
Liebengood in the face and she fell to the ground . Cook testified that things were
getting out of hand at this point so he started to walk away toward the grass . Before
leaving, however, Cook saw Shepherd standing over Liebengood, pointing the gun
down at her, and heard Shepherd ask if he "should shoot this bitch?" Cook stated that
he then saw Shepherd shoot Liebengood . After seeing two shots, Cook ran away and
headed back toward his and Miller's apartment. Shepherd and Miller also fled the
scene after the shooting .
Elisha Epps testified at trial that when Miller returned to their apartment, he
seemed upset . After asking him what was wrong, Miller replied, "Your boy Mike
[Shepherd] is crazy." Elisha then helped Miller get rid of Liebengood's purse by
throwing it over the fence behind their apartment. Elisha also testified that when
Shepherd returned to the apartment, he still had the holster in his hand, was wiping it
with his shirt, and kept saying, "I killed that white bitch ."
The next day, on September 16, 2004, the police arrested Shepherd and brought
him to the police station for questioning . Shepherd first denied knowing anything about
the murder. Then, he blamed the shooting on Josh Champagne, which Shepherd later
admitted doing because he did not like Josh . Eventually, Shepherd confessed to the
police that he and Cook were the ones who tried to put Liebengood into her trunk, but
she was fighting and screaming and would not go in the trunk. Shepherd stated that it
was Miller who then shot the victim. Shepherd also admitted to throwing both the gun
and the keys to Liebengood's car in a dumpster on the way back to Miller's apartment.
The following day, Cook and Miller were also brought in for questioning and
subsequently arrested . On December 7, 2004, Shepherd, Miller, and Cook were
indicted for murder and first-degree robbery. Before the trial began, Cook pled guilty to
the first-degree robbery charge and agreed to testify at trial, naming Shepherd as the
shooter. Cook was eventually sentenced to ten years in prison for the robbery and the
murder charge against him was dismissed . The joint trial of Miller and Shepherd began
on March 6, 2006, and lasted approximately two weeks . At trial, the Commonwealth
introduced the statements Miller and Shepherd had given to the police shortly after the
offense, each of which was redacted to eliminate any reference to the other defendant.
Neither defendant testified at trial nor put forth a defense after the close of the
Commonwealth's case. Instead, in their respective closing arguments, each defendant
admitted to being present during the robbery, but contended that his co-defendant
committed the murder.
The jury found Shepherd guilty of intentional murder, first-degree robbery, and
tampering with physical evidence, while the jury found Miller guilty of complicity to
murder, complicity to first-degree robbery, and tampering with physical evidence . On
March 25, 2006, in accordance with the jury's recommendation, the Fayette Circuit
Court sentenced Shepherd to life without the possibility of parole for twenty-five years
for the intentional murder, twenty years for the robbery, and five years for the tampering
conviction . This appeal followed .
ANALYSIS
I. The Trial Court Did Not Err in Denying Shepherd's Motion for a Separate Trial.
On March 1, 2006, Shepherd filed a written motion with the trial court to sever his
and Miller's joint trial, arguing that he was unduly prejudiced by both his and Miller's
redacted statements . The trial court, however, denied his motion for a separate trial,
correctly noting that conflicting versions of what happened "is a reason for rather than
against a joint trial." Caudill v. Commonwealth , 120 S .W .3d 635, 651 (Ky. 2003). On
appeal, Shepherd argues that this denial resulted in numerous trial court errors, the
cumulative effect of which exposed Shepherd to undue prejudice, ultimately affecting
the outcome of the trial . We disagree .
We review a trial court's decision to deny a motion for a separate trial for abuse
of discretion. Schrimsher v. Commonwealth, 190 S.W .3d 318, 323 (Ky. 2006) .
Although a trial court has broad discretion over this matter, the court is required to sever
a joint trial if the defendant shows, in a pretrial motion, that he will be unduly prejudiced
by the joinder. RCr 9 .16 ; Humphrey v . Commonwealth , 836 S.W .2d 865, 868 (Ky.
1992) . The basis of Shepherd's pretrial severance motion was twofold : first, he argued
that his own redacted statement prevented him from presenting a complete defense ;
second, Shepherd stressed that Miller's redacted statement unerringly inculpated him
as the shooter. After reviewing the trial court record and applicable law, we find that
both of Shepherd's arguments are without merit. Therefore, we affirm the trial court's
decision to deny Shepherd's severance motion.
We disagree with Shepherd's first argument that the redaction of his own
statement warranted a severance. When the Commonwealth introduced Shepherd's
police statement, which was read by Detective Schoonover, the trial court correctly
redacted all references to Miller . Shepherd contends that this redaction prevented him
from being able to name Miller as the shooter, thus hindering his ability to present a
complete defense. However, this Court has held that merely deleting a non-testifying
co-defendant's name from the appellant's confession does not prevent the appellant
from being able to present a complete defense. Dillard v. Commonwealth , 995 S.W .2d
366, 372 (Ky. 1999) . As in Dillard , nothing restricted Shepherd in his joint trial from
cross-examining Detective Schoonover, calling his own witnesses, or testifying on his
own behalf. Id. Even though Shepherd chose not to put forth a defense at trial, that
does not negate the fact that he had ample opportunity to do so. Therefore, Shepherd
was not prejudiced from the joint trial in this regard .
Shepherd also claims that he was unduly prejudiced by the joint trial because
Miller's redacted statement expressly implicated him as the shooter. The relevant part
of Miller's confession that was presented to the jury is as follows :
Miller: So uh, she, so she screamed a little. So me and Pat [Cook], we
started running, you feel me. And then we looks back . . . I just turned
around and started running again, you see . And then all 1 heard was
gunshots.
Det . Schoonover : How many shots did you hear?
Miller: Three or Four.
In Bruton v. U .S . , 391 U .S. 123, 126, 88 S . Ct. 1620, 1622, 20 L. Ed . 2d 476 (1968), the
Supreme Court held that in a joint trial, the use of a non-testifying co-defendant's
confession that "expressly implicated" the other defendant constitutes a violation of the
Confrontation Clause of the Sixth Amendment . In accordance with Gray v. Maryland ,
523 U .S . 185, 195, 118 S . Ct. 1151, 1156, 140 L. Ed . 2d 294 (1998) and Stanford v.
Parker, 266 F.3d 442, 457 (6t" Cir. 2001), this Court has extended slightly the
protections of Bruton , holding that redacted confessions which merely delete the name
of the other defendant or insert the phrase "other party" or "deleted" also constitute a
Bruton violation because the statements still facially incriminate the co-defendant .
Barth v. Commonwealth, 80 S .W .3d 390, 395 (Ky. 2001). However, in Shepherd's
case, when the trial court redacted Miller's statement, it did not simply delete
Shepherd's name or replace his name with "the other party." Rather, Miller's redacted
statement, on its face, neither refers to Shepherd nor implicates him in the shooting of
Liebengood . Miller's redacted statement does, however, link Shepherd to the murder
when it is heard in light of the other evidence introduced against Shepherd at trial .
The Supreme Court addressed this type of redacted confession in Richardson v.
Marsh , 481 U .S . 200, 202, 107 S . Ct . 1702, 1704, 95 L. Ed . 2d 176 (1987), holding that
when the defendant is "linked to the confession by evidence properly admitted against
him at trial," there is no Confrontation Clause violation if the confession is redacted to
eliminate all references to the defendant's existence . Because Miller's statement never
referred to Shepherd and only incriminated him when viewed in light of the other
evidence, no Bruton violation occurred .
Furthermore, even if Miller's redacted statement is viewed as being prejudicial
towards Shepherd, a joint trial that utilizes an improperly redacted statement "is not
Before Miller's redacted statement was read to the jury, Patrick Cook had
already testified that as he walked away from the scene, Shepherd was standing over
Liebengood holding the gun.
reversible error where the proof against the nonconfessing codefendant is so
overwhelming that no possible prejudice resulted ." Cosby v. Commonwealth , 776
S.W.2d 367, 370 (Ky. 1989), overruled on other grounds by St. Clair v. Roark, 10
S.W.3d 482, 487 (Ky. 1999) . In this case, the evidence presented to the jury that
implicated Shepherd as the shooter included : Cook testified that he saw Shepherd
shoot Liebengood; Elisha Epps testified that she saw Shepherd wiping down the holster
after the shooting and that Shepherd told her he had "killed that white bitch ;" Tim
McCann testified that he recalled telling the police that Shepherd had shot Liebengood ;
Jolisa Jones, Heather Pratt, and Arlene Hill testified that Shepherd was carrying the gun
in a holster prior to the robbery; and Shepherd admitted to throwing the gun in a
dumpster after the shooting . Due to the ample proof in this case that Shepherd shot
Liebengood, Miller's redacted statement did not unduly prejudice Shepherd and the trial
court's decision to deny Shepherd's motion for a separate trial did not amount to
reversible error.
Shepherd argues that he was further prejudiced by the joint trial because one of
his statements was so heavily redacted that it confused the jury and because the
Commonwealth referred to improper evidence in its closing argument. These
assertions arose after the trial court denied Shepherd's motion for a separate trial and
are irrelevant to whether the court erred in denying the pretrial severance motion. In
addition, Shepherd did not object to either claim of error at trial, rendering these issues
not properly preserved for appellate review. In short, the trial court did not err in
denying Shepherd's motion for a separate trial .
II. Shepherd Did Not Object to Elisha Epps's Testimony At Trial and Thus His
Claim of Error Is Not Preserved For Appeal.
During trial, Elisha Epps, who lives with both Cook and Miller and is the mother
of Miller's child, testified for the Commonwealth . On direct examination, Elisha testified
that after Miller returned to their apartment on the night of the shooting, Miller told her,
"Your boy Mike [Shepherd] is crazy." Shepherd did not object to this testimony at trial .
Rather, after Elisha made this statement, the Commonwealth asked to approach the
bench, where it requested that the court tell Elisha not to discuss what Miller or Cook
had said to her about Shepherd . Shepherd's counsel agreed, the court instructed
Elisha accordingly, and the questioning resumed . Shepherd now argues that because
this testimony inculpated him in the murder of Liebengood, it violates the prohibition in
Bruton, 391 U .S. at 131, 88 S. Ct. at 1625, and justifies the grant of a new trial .
Although this testimony may have been prejudicial towards Shepherd, he neither
objected to this statement at trial nor moved for a mistrial after its admission.
Therefore, this claim was not properly preserved for appellate review. RCr 9.22 ;
Edmonds v. Commonwealth , 906 S .W .2d 343, 346 (Ky. 1995) .
Absent extreme circumstances amounting to a substantial miscarriage of justice,
an appellate court will not engage in palpable error review pursuant to RCr 10 .26 unless
such a request is made and briefed by the appellant . See Thomas v. Commonwealth ,
153 S .W .3d 772, 782 (Ky. 2004) ; Bray v. Commonwealth , 177 S .W .3d 741, 752 (Ky.
2005). Although Shepherd did not request palpable error review of this argument in his
original brief, in the first section of his reply brief, Shepherd "ask[ed] this Court to
analyze each failure of Shepherd's trial counsel to object to the errors found on appeal
as palpable errors subject to review under RCr 10 .26." Despite this cursory request, in
the section of his reply brief where Shepherd specifically discussed Elisha Epps's
testimony, he neither mentioned palpable error nor cited to RCr 10.26. Rather, it
appears that Shepherd intended for the broad request made in the first section of his
reply brief to cover all instances of unpreserved errors without specifically stating which
individual errors amounted to palpable error under RCr 10.26 or how they rose to
manifest injustice . We find that such a general request is not adequate to invoke
palpable error review under RCr 10.26. Therefore, having determined that Shepherd
failed to argue specifically that Elisha Epps's testimony constituted palpable error and
that his vague request did not constitute a sufficient request for review under RCr
10.26, we decline to address this argument on appeal.
111 . Shepherd Did Not Object to Any Part of the Commonwealth's Closing
Argument and Thus His Claim of Error Is Not Preserved For Appeal.
During the Commonwealth's closing argument, the prosecutor reminded the jury
about Elisha Epps' testimony, stating "You heard Epps also say that when Miller came
home, he said `Shep's crazy' or `Mike's crazy."' No objection was made after this
remark or at any point during the Commonwealth's closing argument. Shepherd now
argues that the Commonwealth committed reversible error by referring to inadmissible
evidence in its closing argument that the trial judge had already excluded . Since
Shepherd did not object to this conduct at trial, this argument is not preserved for
appellate review . RCr 9.22 ; Edmonds, 906 S.W.2d at 346 . However, as mentioned
above, even though no request for palpable error was made in Shepherd's original
brief, he did make a general request for palpable error in his reply brief. Nonetheless,
in the particular section of his reply brief dealing with the Commonwealth's closing
argument, Shepherd neither mentions "palpable error" nor cites to RCr 10.26. Applying
the same rationale as above, since Shepherd never specifically requested that the
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Commonwealth's statement in its closing argument be reviewed for palpable error and
never specifically argued that this error be reviewed under RCr 14.26, this Court will not
engage in such review on appeal.
IV. Sergeant Fleischer's Testimony About Shepherd's Prior Conduct Was Not
Unduly Prejudicial and Did Not Establish Manifest Necessity For A Mistrial .
During its case in chief, the Commonwealth called Sergeant Dan Fleischer, who
was one of Shepherd's arresting officers. After the prosecutor asked Fleischer what
occurred on the day of Shepherd's arrest, Fleischer gave a lengthy description of
locating Shepherd on the steps of an Ashford Place apartment and effectuating his
arrest. During this narrative, Fleischer made several prejudicial remarks, including that
his unit was originally dispatched to Ashford Place Apartments for a narcotics
complaint, in which one of the subjects of the complaint was Michael Shepherd ; he
recognized Shepherd through other contact he had had with him ; and he thought
Shepherd might be a flight risk because he had previously run from officers . Fleischer
went on to describe how when he and the other officers attempted to arrest Shepherd,
Shepherd slipped between them and ran off. Shepherd led the officers on a chase
through the apartment complex, over fences, and onto an adjoining street, where
Shepherd was finally apprehended . No objections were made while Fleischer
described these events . However, at the conclusion of Fleischer's narrative,
Shepherd's counsel approached the bench, objected to Fleischer's testimony, and
moved for a mistrial . The trial court denied Shepherd's motion for a mistrial, but offered
to admonish the jury. Shepherd's counsel denied the court's offer, arguing that an
admonition would only highlight the prejudicial statements . Shepherd's counsel did,
however, request an admonition to the witness outside of the presence of the jury. At
this point, the trial court called Fleischer to the bench and instructed him not to refer to
any other investigations involving the defendants, any prior contacts with the
defendants, or that either defendant was seen as a flight risk. After this instruction, the
parties did not ask Fleischer any more questions, and he was dismissed .
The parties discussed this issue for a second time the following morning, where
again, Shepherd's counsel declined the court's offer to admonish the jury and the trial
court denied Shepherd's motion for a mistrial . In its denial, the trial court noted that
Fleischer's remarks were insignificant compared to the other evidence presented
against Shepherd, i.e. , that he regularly used drugs and alcohol, he did in fact run from
the police on the day he was arrested, he carried the gun that killed the victim, he
discussed whether to kill the victim, and he threw the murder weapon in a dumpster
after the shooting . Shepherd now contends that this denial constituted reversible error,
arguing that Fleischer's remarks were extremely prejudicial, the prejudice could not
have been cured through an admonition, and a mistrial was warranted .
A trial court's decision to grant or deny a mistrial will not be disturbed on appeal
unless an abuse of discretion is shown . Neal v. Commonwealth , 95 S .W .3d 843, 852
(Ky. 2003). It is well-established that before granting a mistrial, the trial court must find
that there is a "manifest necessity" for such an extreme remedy . Skaqgs v .
Commonwealth , 694 S .W .2d 672, 678 (Ky. 1985), habeas corpus granted on other
grounds by Skaqgs v. Parker, 235 F.3d 261, 275 (6th Cir. 2000). In order to constitute
manifest necessity, the alleged error must be so severe that it results in an incurable
amount of prejudice and precludes the defendant from having a fair and impartial trial .
Bray, 177 S .W .3d at 752 . We agree with the trial court that in light of the other
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evidence presented against Shepherd, Fleischer's testimony was not devastatingly
prejudicial and did not prevent Shepherd from having a fair and impartial trial.
Fleischer first testified that he had been dispatched to the Ashford Place
Apartments in response to a narcotics complaint . However, prior to Fleischer's
testimony, Patrick Cook had testified that he, Miller, and Shepherd were smoking
marijuana and drinking alcohol on the afternoon Liebengood was killed . Therefore,
since the Commonwealth had already presented evidence to the jury that Shepherd
smoked marijuana, he was not unduly prejudiced by Fleischer's remark. Fleischer also
stated that when he first walked up to the apartment complex, he recognized Shepherd
from other contact he had had with him. Although no evidence was introduced to
mitigate the prejudicial nature of this statement, the Commonwealth's proposed
admonition explained that the jury should not hold this comment against Shepherd
because Fleischer patrolled Shepherd's neighborhood often and was trained to be
familiar with the people living there. Even though Shepherd declined the proposed
admonition, if it had been offered, it would have cured any potential prejudice. When
an admonitory cure is possible, a mistrial is not required . Graves v. Commonwealth , 17
S .W .3d 858, 865 (Ky. 2000) (holding if the admonition would have cured the prejudice,
there is no necessity for a mistrial even if the appellant declined to request an
admonition) .
Lastly, Fleischer testified that he and the other arresting officers tried to corner
Shepherd because he knew that Shepherd might be a flight risk. Although this
comment by itself obviously would have been prejudicial, Fleischer later testified that
Shepherd did in fact run from the police, leading them on a chase through the
13
apartment complex and the adjoining neighborhood. In light of the direct evidence that
Shepherd did flee from the police, Fleischer's remark was not devastating to Shepherd
and did not establish a manifest necessity for a mistrial . In short, Fleischer's testimony
did not prevent Shepherd from having a fair and impartial trial .
V. The Commonwealth's Statements During Voir Dire Regarding the Youth of the
Defendants Did Not Warrant a Mistrial .
During the voir dire stage of Shepherd's trial, the Commonwealth's attorney
asked the potential jurors if they believed that the defendants deserved extra sympathy
because they were young and if age would be a factor for any of them. One juror
approached the bench and commented that he had two boys of similar age as the
defendants and he would be more lenient when it came to sentencing. Miller's counsel
then made a motion for a mistrial, in which Shepherd also joined, arguing that the
Commonwealth had led the jury to believe that it is wrong to consider age even though
age is a designated mitigating factor for sentencing . The trial court overruled Miller's
motion and stated that counsel should clarify this issue for the jury pool . The
Commonwealth then told the jury that age was a mitigating factor they could consider
during the sentencing phase and it would be explained fully in their jury instructions .
After the Commonwealth finished, Miller's counsel asked the jurors how many of them
believed that they could not consider the age of the defendants in their deliberations .
After twenty-eight jurors raised their hands, Miller's counsel further clarified this issue.
She stressed that the jurors who raised their hands would need to change their minds
because the statute mandates that age can be a mitigating factor in the penalty phase.
Miller's counsel also pointed out that if there was a conviction, the judge would instruct
them to consider the age of the defendants in their sentencing recommendation . When
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Miller's counsel asked the jurors if anyone had any questions about this issue, no one
responded .
Once Shepherd's counsel finished his voir dire, a juror approached the bench
and stated that she was not clear on why they should consider age. The trial court
again explained that age would only be a factor in the sentencing phase, where it could
be introduced as a mitigating circumstance. After this question, Miller's counsel
renewed her motion for a mistrial, which the trial court overruled . Then, while the
parties were moving to strike jurors for cause, Shepherd's counsel moved to strike the
twenty-eight jurors who had raised their hands and originally agreed that they could not
consider the age of the defendants . Miller's counsel joined that motion . In denying this
joint motion, the trial court noted that it believed the issue had been cleared up by
counsel's thorough explanation and that the jury would receive further instructions as
needed. Shepherd now argues that the trial court erred by denying his and Miller's
motion to strike the twenty-eight jurors and by overruling their joint motion for a mistrial.
Finding that the trial court did not abuse its discretion, we reject Shepherd's argument.
A trial court has broad discretion in denying motions to strike jurors for cause,
and these decisions will not be disturbed absent an abuse of discretion . Mills v.
Commonwealth , 95 S .W .3d 838, 842 (Ky. 2003). If there is "reasonable ground to
believe that a prospective juror cannot render a fair and impartial verdict on the
evidence, that juror shall be excused as not qualified ." RCr 9 .36(1) . Shepherd
contends that the Commonwealth's early statements during voir dire prevented several
members of the jury pool from being fair and impartial in their decision-making .
However, after the Commonwealth's statement about not giving the defendants extra
15
sympathy due to their age, this issue was addressed again by the Commonwealth,
Miller's counsel, and the trial court, all of whom told the jury that they could consider the
defendants' youth during sentencing. In the end, the jury members declined to raise
their hands when asked if they had any questions regarding this matter. Moreover, in
the sentencing phase, the jury instructions expressly identified as a mitigating
circumstance "[t]he youth of the Defendant, Michael Shepherd, at the time of the
crime." Because this issue was adequately clarified for the jury, there is no reasonable
ground to believe that the jury was prevented from rendering a fair and impartial
sentencing recommendation and the trial court did not err. Since Shepherd was not
prejudiced in this instance, the trial court also did not err in denying his motion for a
mistrial. Bray, 177 S .W.3d at 752 .
VI . A Technical Violation of KRS 610 .220(2) Does Not Render Shepherd's
Confession Inadmissible Where It Is Otherwise Found to Have Been Given
Voluntarily .
During Shepherd's trial, redacted portions of his recorded police interview were
introduced by the Commonwealth . Prior to trial, Shepherd had moved to suppress this
evidence, arguing that the length of his police interview violated KRS 610.220(2),
making his statements the fruit of a poisonous tree. During the suppression hearing on
October 4, 2005, the trial court found that Shepherd properly understood his Miranda
rights, was not under the influence of any substance that would impair his judgment,
and was not physically abused or coerced by the police. The court also ruled that a
possible technical violation of KRS 610.220(2) did not necessarily require the
suppression of an otherwise voluntary statement. Using the totality of the
circumstances approach, the trial court concluded that Shepherd's statement was given
16
voluntarily and was admissible . Shepherd now contends that the trial court erred by
admitting portions of his police interview, arguing that the interview was coercive as a
matter of law because he was held in custody longer than the statutory limit set forth in
KRS 610 .220(2). Agreeing with the trial court's totality of the circumstances approach,
we affirm .
KRS 610.220(2) states that "a child may be held in custody pursuant to this
section for a period not to exceed two (2) hours, unless an extension of time is
granted ." At the suppression hearing, there was a discrepancy regarding what time
Shepherd was originally brought to the police station . Sergeant Williams testified at the
hearing that based on the information he had been given, Shepherd was arrested on
September 16, 2004, at approximately 6:10 p .m. and brought to the station at 6:30 p.m.
Detective Cain, however, testified that Shepherd had arrived at the police station at
5:26 p.m . At 8:06 p.m ., Sgt. Williams telephoned a court-designated worker to extend
Shepherd's time in custody, which was granted. At 9 :54 p .m ., Sgt. Williams called the
court worker again to request a half-hour extension so that Shepherd could be
photographed and fingerprinted . After this half-hour extension, Shepherd's mother
arrived at the police station and spoke with Shepherd before he was transferred to the
Juvenile Intake facility .
The trial court declined to make a finding of fact regarding when Shepherd was
actually brought to the police station . Rather, the court treated a potential violation of
KRS 610.220(2) as one factor in deciding whether Shepherd's statement, as a whole,
was given voluntarily. Although there are no published Kentucky cases dealing with
violations of KRS 610.220, this Court held in Murphy v. Commonwealth , 50 S.W.3d
17
173, 184-185 (Ky. 2001), that when there is every indication that a confession is given
voluntarily, a technical violation of KRS 610.200 does not automatically make the
statement inadmissible . KRS 610.200 requires a peace officer who takes a child into
custody to notify the child's parents or guardian . In Murphy, the police made no attempt
to notify the appellant's parents, which violated the statute. Id. a t 185 . However, since
the appellant never raised the issue of the voluntariness of his statement and properly
received and waived his Miranda rights, this Court held that the defendant's confession
was admissible despite the statutory violation . Id. In his concurring opinion in Murphy,
Justice Keller, while agreeing that a technical violation of KRS 610.200 should not
automatically result in the suppression of a confession, stressed that trial courts should
nonetheless consider "compliance with the provisions of KRS 610.200 as an important
variable in determining whether a juvenile's confession was given voluntarily ." Id . at
187 (Justice Keller, concurring) .
We agree with this analysis and find that it should also apply to violations of KRS
610 .220. Although a police officer's failure to comply with these protective statutes is a
serious infringement, the violation by itself does not necessarily justify suppressing the
confession . Rather, trial courts should treat a violation of KRS 610 .220 as an important
factor in the overall determination of whether a juvenile defendant gave his statement
voluntarily . In Shepherd's case, although the police officers may have been tardy in
complying with the statute's two-hour requirement, they did not disregard the statute nor
did they greatly exceed the statutory time limit. Moreover, we agree with the trial court
that since Shepherd was given his Miranda rights, was found to have adequately
understood them, was not under the influence of drugs or alcohol, and was not abused
18
or coerced by the police, Shepherd's taped police statement was given voluntarily and
was admissible at trial.
VII. It Was Improper to Include Life Without the Benefit of Probation or Parole in
Shepherd's Penalty Phase Jury Instructions But Shepherd Was Not Prejudiced By
This Error.
During the penalty phase of Shepherd's trial, the trial court instructed the jury
that they could consider the following possible punishments for Shepherd's intentional
murder conviction:
(1) Imprisonment for a term of not less than 20 years nor more than 50
years ;
(2) Imprisonment for life;
(3) Imprisonment for life without the benefit of probation or parole until the
defendant has served a minimum of 25 years of his sentence;
(4) Imprisonment for life without the benefit of probation or parole .
The jury ultimately recommended that Shepherd be sentenced to life without the benefit
of probation or parole for a minimum of twenty-five years. Shepherd now contends that
the trial court erred by including the sentencing consideration of life without the benefit
of probation or parole, a sentencing option in violation of KRS 640.040(1). Agreeing
that the trial court erred with respect to this instruction, but finding that the error was
harmless, we affirm on this issue.
KRS 640.040(1) states in relevant part :
A youthful offender convicted of a capital offense regardless of age may
be sentenced to a term of imprisonment appropriate for one who has
committed a Class A felony and may be sentenced to life imprisonment
without benefit of parole for twenty-five (25) years .
KRS 532.060(2)(a) states that someone who commits a Class A felony may be
sentenced to "not less than twenty (20) years nor more than fifty (50) years, or life
imprisonment ." Although KRS 532 .030(1) does allow a person convicted of a capital
19
offense to also be sentenced to life without parole, the trial court classified Shepherd as
a youthful offender pursuant to KRS 640.010. Thus, the youthful offender chapter
governs his appropriate sentencing considerations . According to KRS 640 .040,
Shepherd's statutorily authorized penalties were twenty to fifty years, life in prison, or
life without parole for twenty-five years . Since the trial court included the fourth option
of life without the possibility of parole, it erred in the penalty phase jury instructions .
However, the Commonwealth argues that even if this instruction was given in error,
Shepherd was not prejudiced since he ultimately received a statutorily authorized
sentence, i.e. , life without parole for twenty-five years . Due to the prior opinions of this
Court, we must agree with the Commonwealth .
This Court has held that when the trial court instructs the jury as to an improperly
high maximum penalty, but the jury recommends a sentence within the statutory
guidelines, a defendant must be able to point to actual prejudice to justify a reversal .
Matthews v. Commonwealth , 997 S.W.2d 449, 453 (Ky. 1999), overruled on other
grounds by Hayes v. Commonwealth, 58 S .W .3d 879 (Ky . 2001). Shepherd's only
allegation of prejudice is that the jury may have relied on the entire sentencing scheme
during their penalty deliberations. However, this assertion does not amount to actual
prejudice . Like the appellant in Matthews , Shepherd "has failed to demonstrate how he
was prejudiced by an instruction upon which the jury did not rely." Id. Since the jury
recommended that Shepherd be sentenced to a term authorized by KRS 640 .040(1),
the instruction error was harmless and did not prejudice Shepherd.
VIII. Tim McCann's Taped Police Interview Was Admissible Pursuant to KRE
801A(a)(1) and Thus The Trial Court Did Not Err In Allowing It to be Entered as
Evidence.
20
During Shepherd's trial, the Commonwealth called Tim McCann, who was
Shepherd's cousin and had been living with him for several months . The police had
interviewed McCann on September 16, 2004, the day after the robbery and murder of
Liebengood . During that interview, McCann told the police that on the afternoon of the
robbery, he heard Miller and Shepherd say they needed some money and wanted to
rob someone . McCann also revealed that he had heard from friends in the
neighborhood that Shepherd had shot Liebengood. However, McCann's testimony at
trial was either very different from this interview or he could not recall what he had told
the police originally, prompting the trial court to make a finding that McCann was
evasive and hostile . After discussing it with counsel, the trial court permitted the
Commonwealth to play the portions of McCann's recorded police interview that were
inconsistent with his trial testimony on direct examination .
Soon after McCann's testimony, the Commonwealth called Detective Matt
Brotherton, who had taped McCann's police interview. After Brotherton authenticated
the tape, the Commonwealth moved to enter it into evidence . Shepherd's counsel
objected to this motion and asked to approach the bench . During the bench
conference, the Commonwealth noted that if the jury wanted to hear the tape again,
everyone would be called back into the courtroom and only those portions that had
been played during trial would be heard again . The trial court concluded that the tape
could be admitted into evidence, but its admittance would be subject to further
discussion if the jury requested to have it replayed . The trial record reveals that the
jury
never made such a request . Shepherd now contends that the trial court erred by
admitting McCann's taped interview into evidence, arguing its admission violated KRE
21
803(5). Finding no error, we affirm.
KRE 803(5) states that a writing or record can be used to refresh a witness's
memory, but "if admitted, the memorandum or record may be read into evidence but
may not be received as an exhibit unless offered by an adverse party." Shepherd
argues that since McCann's interview was introduced to refresh his memory at trial, this
rule prohibited the trial court from admitting the interview into evidence . However, since
McCann himself never allowed his memory to be refreshed at trial and never actually
testified about what he originally told the police, his taped interview was not introduced
pursuant to KRE 803(5) to refresh his memory. Rather, his interview was introduced
pursuant to KRE 801A(a)(1) to reveal his prior inconsistent statements .
KRE 801 A(a)(1) states that a prior inconsistent statement of a witness is
admissible as long as the defendant has an opportunity to cross-examine the witness at
trial regarding the prior statement and a proper foundation is laid. Similarly, this Court
has held that prior inconsistent statements can be admitted not just to impeach
witnesses, but also as substantive evidence . Manning v. Commonwealth , 23 S .W .3d
610, 613 (Ky. 2000); Brock v. Commonwealth , 947 S.W.2d 24, 30-31 (Ky. 1997) .
Since the Commonwealth provided a proper foundation and Shepherd had ample
opportunity to cross-examine McCann regarding his police interview, the trial court did
not err by admitting this evidence .
IX. Since Devan Jones's Taped Police Interview Was Not Material To Shepherd's
Guilt or Innocence, No Brady Violation Occurred .
After the conclusion of Shepherd's trial, the parties became aware of an
interview between the police and Devan Jones, a friend of Shepherd's . During the
22
interview, which was conducted on May 12, 2005, Jones revealed information about the
murder of Liebengood . After learning of this interview, Shepherd made a motion for a
new trial based on the premise that the interview included exculpatory evidence and the
Commonwealth violated Brady v. Ma land , 373 U .S. 83, 83 S . Ct. 1194, 10 L. Ed . 2d
,215 (1963), by withholding it. In denying Shepherd's motion, the trial court stated that
Jones's interview was "rambling, inconsistent, confusing, and practically worthless for
any substantial use in this case." Agreeing that Jones's interview was not material to
Shepherd's guilt or innocence, we affirm.
Eight months after the robbery and murder of Liebengood, the police questioned
Devan Jones about an unconnected robbery involving a utility worker. During this
interview, the officers learned that Jones had information about the Liebengood murder .
Jones revealed that he had known Michael Shepherd for about two years . He stated
that Shepherd would brag to him about beating up "these white boys or these
Mexicans" and that Shepherd would often pick people out on the sidewalks to rob when
he needed money. Regarding the night of Liebengood's murder, Jones stated that he
was with Shepherd, Miller, and Cook before they left for the English Manor Apartments .
Jones said that Robert Miller came out of his apartment with a gun and then gave it to
Shepherd . Shepherd then stated that they should "hit a lick," Miller agreed, and Miller
appeared to be following in Shepherd's footsteps . After the robbery and murder, Jones
said that he spoke with Patrick Cook at the detention center where Cook was being
held . According to what Cook told Jones, Miller was egging Shepherd on to "put that
bitch in the trunk or something . . . ." Jones was not completely clear on what Cook
said happened next, but either Cook started walking away after Shepherd pulled the
23
trigger, or Shepherd pulled the trigger and then Cook headed home . Jones also stated
that he did not know why the boys wanted to put the victim in the trunk or if Miller ever
wanted Shepherd to shoot Liebengood . At the conclusion of Jones's interrogation,
Detective Cain, the officer who recorded his statement, booked Jones's interview under
an incorrect case number and as evidence under the utility worker robbery, which
explains why neither party had knowledge of the interview prior to trial.
Shepherd argues that since Jones's interview contradicts part of Cook's
testimony and shows that Miller took a commanding role in the robbery, it was crucial to
his defense and not disclosing it constituted a violation of Brady v. Maryland, supra . In
order to prevent a due process violation, Brady requires the prosecution to provide the
defense with all evidence, whether requested or not, that is material either to the
defendant's guilt or punishment . Id . at 87; U.S . v. Agurs , 427 U .S. 97, 106-107, 96 S .
Ct. 2392, 2398-2399, 49 L. Ed . 2d 342 (1976). Furthermore, "evidence is material only
if there is a reasonable probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been different . A'reasonable
probability' is a probability sufficient to undermine confidence in the outcome ." U .S . v.
Bagley, 473 U .S . 667, 682, 105 S. Ct. 3375, 3383, 87 L. Ed. 2d 481 (1985). Thus,
reversal based on a Bradv violation is only justified by an appellate court if such a
reasonable probability exists. Bowling v. Commonwealth , 80 S .W .3d 405, 410 (Ky.
2002) .
Although Jones's police interview may have been relevant in Shepherd's case, it
certainly does not constitute material evidence that would affect Shepherd's guilt or
innocence. First, a large portion of Jones's interview is harmful to Shepherd's case,
24
such as Jones's assertion that it was Shepherd's idea to "hit a lick" the night of the
murder, that Miller was following in Shepherd's footsteps, and that Shepherd pulled the
trigger and killed Liebengood . The only potentially helpful statement by Jones was
what Patrick Cook told him about Miller . During his police interview, Jones stated, "I
think Patrick [Cook] told me uh, that Robert [Miller] said put that bitch in the trunk or
something . . . put that bitch, get that bitch out of the front seat and put her in the trunk.
He said something ." Although this statement does portray Miller as being involved in
the robbery, Patrick Cook had already testified during the joint trial that Miller grabbed
Liebengood's arm and struggled with her on the edge of the trunk before she was shot .
Thus, there was evidence introduced during trial that Miller played an active role in the
robbery and did want to put Liebengood in the trunk. Since the only helpful portion of
Jones's interview is cumulative to the other evidence introduced at Shepherd's trial, no
reasonable probability exists that the result of Shepherd's trial would have been
different if the Commonwealth had disclosed the interview. Therefore, we affirm the
trial court's denial of Shepherd's motion for a new trial.
CONCLUSION
During the joint trial of Shepherd and Miller, since Miller's confession was
properly redacted and did not expressly implicate Shepherd as the shooter, no Bruton
violation occurred . Although the trial court erred with respect to Shepherd's penalty
phase jury instructions, this error was harmless since Shepherd received a statutorily
authorized sentence. With regard to Shepherd's other allegations of error, we find that
the trial court did not err and Shepherd has no grounds for relief. Thus, the May 25,
2006 Judgment of the Fayette Circuit Court convicting Michael Shepherd of intentional
25
murder, first-degree robbery, and tampering with physical evidence is affirmed .
All sitting . All concur.
COUNSEL FOR APPELLANT:
Fred E. Peters
John Lindsay Tackett
226 East High Street
P.O. Box 2043
Lexington, KY 40588-2043
COUNSEL FOR APPELLEE :
Jack Conway
Attorney General
Susan Roncarti Lenz
Assistant Attorney General
Office of the Attorney General
1024 Capital Center Drive
Frankfort, KY 40601
,SixprBme ~vurf of itufurhV
2006-SC-000450-MR
MICHAEL MERRALL SHEPHERD
V.
APPELLANT
ON APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE JAMES D. ISHMAEL, JR ., JUDGE
NO. 04-CR-001468-003
COMMONWEALTH OF KENTUCKY
APPELLEE
ORDER DENYING PETITION FOR REHEARING AND
MODIFYING OPINION ON THE COURT'S OWN MOTION
The petition for rehearing filed by Appellant, Michael Shepherd, is DENIED . The
Opinion of the Court by Justice Abramson, rendered on February 21, 2008, is
MODIFIED on its face by substitution of the attached opinion in lieu of the original
opinion. Said modifications does not affect the holding .
All sitting . All concur.
ENTERED : May 22, 2008.
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