CHARLES H. WHALEY, III V. COMMONWEALTH OF KENTUCKYAnnotate this Case
NOT TO BE PUBLISHED OPINION
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RENDERED : JANUARY 20, 2011
NOT TO BE PUBLISHED
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CHARLES H . WHALEY, III
ON APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE JAMES M. SHAKE, JUDGE
NO . 08-CR-001678
COMMONWEALTH OF KENTUCKY
MEMORANDUM OPINION OF THE COURT
On the morning of April 15, 2008, Appellant, Charles H . Whaley, III,
entered the Oaks Smokes Tobacco store in Louisville, Kentucky . Appellant,
wearing a hoodie sweatshirt, walked to the back of the store to get a soft drink.
Moments later, Appellant went to the counter and asked the cashier, Sheryl
Rourke, for a package of Swisher Sweets blunts . After placing the blunts on
the counter, Appellant asked Rourke for the money in the register . At first,
Rourke refused to open the cash register, but did so after Appellant pointed a
handgun at her. Appellant then took approximately $150 from the register and
left the building. Rourke immediately called the police.
Four days later, on April 19, 2008, Appellant returned to the Oaks
Smokes Tobacco store. Appellant, brandishing a handgun, entered the
building and yelled at Rourke : "Bitch, get on your knees ." Appellant then
walked behind the counter, put the handgun to Rourke's head, and cocked the
weapon. Rourke reached up and opened the register . As Appellant left the
store with approximately $400, he stated: "This is what you get for being a
smart ass the first time."
On the evening of April 30, 2008, Appellant entered Waldman's Liquor
store in Louisville, Kentucky . Bruce Dansby, an employee, was stocking
shelves when he felt a handgun being placed to his side. Appellant then
demanded that Dansby walk to the register and give him the cash . Appellant
took approximately $275-$300, as well as several bottles of liquor.
Approximately three weeks later, on May 21, 2008, Appellant entered
Oak Street Hardware in Louisville, Kentucky . Appellant asked Sally Taylor, the
cashier, if she could -give him change for a dollar. After Taylor opened the
register, Appellant walked around the counter and sat on a stool next to her.
Seconds later, Appellant shot Taylor in the leg and took approximately $80
from the register .
Appellant was arrested on May 22, 2008, and a three-day jury trial
commenced on July 6, 2009. Appellant was convicted in the Jefferson Circuit
Court of four counts of first-degree robbery, one count of first-degree assault,
and one count of first-degree wanton endangerment . The jury recommended a
sentence of ten years for each robbery conviction, twelve years for the assault
conviction, and one year for the wanton endangerment conviction . The jury
recommended that the sentences for three of the robbery counts and the
wanton endangerment count be served concurrently with one another. The
jury also recommended that the sentences for the remaining count of robbery
and the assault charge be served concurrently with one another . Both sets of
sentences were ordered to be served consecutively to one another for a total of
twenty-two years imprisonment. Appellant now appeals the final judgment
entered as a matter of right. Ky. Const. § 110(2)(b) .
Appellant raises six allegations of error on appeal: (1) the trial court erred
in denying his request for an instruction on assault in the second-degree based
on wanton conduct; (2) a directed verdict should have been granted on the
first-degree assault charge; (3) identifications should have been suppressed
due to the unduly suggestive identification procedure; (4) the trial court erred
in denying an instruction on eyewitness identification ; (5) his statements to the
police following his arrest should have been suppressed ; and (6) the trial court
erred in denying his request to introduce additional portions of his statement
to the police .
Additional facts will be set out as necessary later in this opinion .
Instruction on second-degree assault for wanton conduct
Appellant argues that the trial court erred in failing to submit to the jury
an instruction he tendered for second-degree assault based upon wanton
conduct. According to Appellant, the jury could have reasonably believed from
the evidence that his actions were not intentional . Specifically, Appellant
points to the fact that Sally Taylor never saw the gun, that the location of her
wound was not typical for robbery, and that it was consistent with the robber
"fooling around" and the gun accidentally discharging. Additionally, Appellant
argues that his mental state was based entirely upon circumstantial evidence
and, thus, the trial judge should have instructed on every possible mental state
for an assault-type offense.
Kentucky law requires instructions "applicable to every state of case
covered by the indictment and deducible from or supported to any extent by
the testimony." Commonwealth v. Collins, 821 S .W.2d 488, 491 (Ky. 1991)
(quoting Lee v. Commonwealth, 329 S.W .2d 57, 60 (Ky. 1959)) . See also RCr
9 .54(l) . A defendant is entitled to an instruction on any lawful defense that he
has, including the defense that he is guilty of a lesser included offense of the
crime charged. Slaven v. Commonwealth, 962 S.W .2d 845, 856 (Ky. 1997) . An
instruction on a lesser included offense is required if the evidence would permit
the jury to rationally find the defendant not guilty of the primary offense, but
guilty of the lesser offense . Commonwealth v. Wolford, 4 S.W .3d 534, 539 (Ky .
1999) . A trial court's rulings on instructions are reviewed under an abuse of
discretion standard. Ratliff v. Commonwealth, 194 S .W.3d 258, 274 (Ky. 2006)
(citing Johnson v. Commonwealth, 134 S.W .3d 563, 569-70 (Ky. 2004)) .
Although the prosecution in a criminal case has the burden of proving
every element of the defendant's guilt beyond a reasonable doubt, we have long
held that mens rea, specifically intent, may be inferred from circumstances .
McClellan v. Commonwealth, 715 S .W.2d 464, 466 (Ky. 1986) ; Commonwealth
v. Phillips, 655 S .W.2d 6 (Ky. 1983), Wilson v. Commonwealth, 601 S.W .2d 280
(Ky. 1980) . In the instant case, the Commonwealth offered evidence that
Appellant told Taylor he would shoot her, thus informing her that he possessed
a handgun; and that he subsequently fired that handgun, resulting in an
injury to her leg. The fact that Taylor may not have seen the weapon does not
necessarily change the mens rea to a lesser degree than intentional . No
testimony was offered at trial that Appellant accidentally discharged his
weapon . Instead, testimony from defense witnesses consistently maintained
that Appellant was not at the hardware store at the time of the robbery .
Simply put, there was no evidentiary foundation for the requested instruction.
See Houston v. Commonwealth, 975 S .W.2d 925, 929 (Ky.1998) .
Based upon the evidence presented in this case, we do not believe the
trial court abused its discretion in denying Appellant's request for an
instruction on assault in the second-degree based on wanton conduct .
Directed verdict on first-degree assault
Appellant tendered a motion for a directed verdict on the first-degree
assault count, claiming that the evidence was insufficient as a matter of law to
support the statutory elements set out in KRS 508 .010 . Specifically, Appellant
contends that the Commonwealth failed to prove that the injury suffered by
Sally Taylor constituted a "serious physical injury."
On motion for a directed verdict, the trial judge must draw all fair and
reasonable inferences from the evidence in favor of the Commonwealth.
Commonwealth v. Benham, 816 S .W.2d 186 (Ky. 1991) . The standard for
appellate review of a denial of a motion for a directed verdict based on
insufficient evidence is if, under the evidence as a whole, it would be clearly
unreasonable for a jury to find the defendant guilty, then he is entitled to a
directed verdict of acquittal. Commonwealth v. Sawhill, 660 S .W.2d 3 (Ky.
KRS 508 .010(1)(a) provides that a person is guilty of first-degree assault
when "[h]e intentionally causes serious physical injury to another person by
means of a deadly weapon or a dangerous instrument." "Serious physical
injury" is defined under KRS 500 .080(15) as "physical injury which creates a
substantial risk of death, or which causes serious and prolonged
disfigurement, prolonged impairment of health, or prolonged loss or
impairment of the function of any bodily organ." "KRS 500 .080(15) sets a fairly
strict level of proof which must be met by sufficient evidence of injury, medical
and/or non-medical . . . ." Prince v. Commonwealth, 576 S .W.2d 244, 246 (Ky.
App. 1978) . The seriousness of a physical injury depends upon the nature of
the injury, as well as the victim's characteristics . See, e.g., Johnson v.
Commonwealth, 926 S.W .2d 463 (Ky.App. 1996) ; Cooper v. Commonwealth, 569
S .W.2d 668 (Ky. 1978) .
According to Appellant, the gunshot wound sustained by Taylor did not
create a substantial risk of death, as no major blood vessels were injured and
she was released from the hospital after only nine hours. While we agree that
the wound did not create a substantial risk of death, Taylor testified that, due
to her injury, she now feels "shooting pains" in her leg and has developed
problems walking. In order to alleviate some of this pain, Taylor has been
prescribed medication. As this Court stated in Parson v. Commonwealth, 144
S .W .3d 775, 787 (Ky. 2004), "[i]f the pain is substantial, but not prolonged, it
constitutes a `physical injury;' but if it is prolonged, then it is a `serious
physical injury."' At trial, Taylor indicated that these symptoms have persisted.
Thus, the pain that Taylor felt had continued for at least a period of one year
when the trial began.
In Parson, it was held that prolonged headaches, numbness, and neck
pain were sufficient to constitute "serious physical injury" pursuant to KRS
500 .080(15) . Id. at 786-87 . When considering the evidence from this case in
the light most favorable to the Commonwealth, it seems clear that the jury
could have reasonably inferred . that the partial loss of functionality in her leg,
as well as the shooting pains Taylor described, and the duration of those effects
for at least a period of one year, constituted a "prolonged impairment of
health." Accordingly, we find no error by the trial court.
Suppression of identifications
On May 22, 2009, a suppression hearing was conducted in response to
Appellant's motion to suppress the out-of-court identifications and to exclude
any evidence based upon those "tainted" identifications. Specifically, Appellant
argued that the photo-pack used by Detective Steven Presley was unduly
suggestive. The trial court subsequently denied his motion.
Our standard of review of a decision of the trial court on a suppression
motion following a hearing is twofold. First, the factual findings of the trial
court are conclusive if they are supported by substantial evidence. RCr 9 .78;
Canler v. Commonwealth, 870 S.W .2d 219, 221 (Ky . 1994) . Second, when the
findings of fact are supported by substantial evidence, the question then
becomes whether the rule of law as applied to the established facts is violated.
Adcock v. Commonwealth, 967 S .W.2d 6-, 8 (Ky. 1998) : Thus, we conduct a de
novo review to determine whether the court's decision was correct as a matter
of law. Roberson v. Commonwealth, 185 S.W.3d 634, 637 (Ky. 2006) .
In examining a pre-trial identification, we must "first determine whether
the confrontation procedures employed by the police were 'suggestive."' Wilson
v. Commonwealth, 695 S.W .2d 854, 857 (Ky . 1985) . If we conclude that the
procedures were not suggestive, then the analysis ends. King v.
Commonwealth, 142 S.W .3d 645, 649 (Ky.2004) . If we conclude that the
procedures were suggestive, then we must determine "whether under the
totality of the circumstances the identification was reliable even though the
confrontation procedure was suggestive ." Neil v. Biggers, 409 U.S . 188, 199
(1972) (internal quotations omitted) .
We do not believe that the photo-pack used in this case was "unduly
suggestive ." According to the testimony of Detective Presley, in creating the
photo-pack, the officers took the identifiers of Appellant; namely, age, height,
weight, and skin color, and placed that information into the Mugs Plus
computer program. This program gives the officers other mug shots to select
from based on the similarity of the physical traits to those of the suspect. Five
such similar mug shots are then placed with the suspect's photo to create the
photo-pack, and the photos themselves are identified by number . Additionally,
the three witnesses were separated when the identifications took place .
Appellant claims that the photo-pack was unduly suggestive for three
reasons : (1) Appellant is the only individual shown with a scar on his lip; (2)
Appellant appears to be slimmer than any of the other individuals ; and (3) the
victims were told that the photos were taken from the Mugs Plus system,
thereby making it more likely that the victims would make an identification .
Upon extensive review of the photo array, we can find no error by the trial
judge in his decision that the photo-pack was not unduly suggestive. All six
photos are of African-American males; all are pictured in substantially similar
surroundings; and it is clear that all were in custody at the time the
photographs were taken . In addition, the police officers expressly informed the
victims that the suspect may or may not be in the photo-pack, and that it was
okay if they could not make a proper identification .
As to Appellant's argument that no other individual from the photo-pack
had a scar above his lip, we do not believe that this alone is sufficient to make
the pack unduly suggestive. The men in the photographs do not closely
resemble one another, but all loosely fit the description the victims gave the
detective . Nothing distinguishes one individual from another, except for the
differing facial features . Each of the victims had an opportunity to observe
Appellant in good light and each selected his photograph from the photo-pack .
In a situation such as this, the accuracy of the witness's identification must be
assessed by a jury. Stephens v. Commonwealth, 489 8 .W.2d 249 (Ky . 1972) .
The photographic line-up was not made impermissibly suggestive merely
because the individuals in the photo-pack did not closely resemble one
another. Therefore, we hold that the trial court did not err in denying
Appellant's motion to suppress. the victims' identifications of him .
Instruction on eyewitness identification
Appellant next argues that the trial court erred in denying his instruction
on the questions surrounding the reliability of eyewitness testimony. We
disagree . As this Court made clear in Evans v. Commonwealth, 702 S .W.2d
424 (Ky. 1986) (internal citations omitted) :
An instruction on eyewitness identification is not
required in Kentucky . Such an instruction would give
undue emphasis to a particular aspect of the evidence .
The substance of the requested instruction was
encompassed by the reasonable doubt instruction
given by the trial court.
Here, Appellant had the opportunity to offer evidence of the problems
inherent in eyewitness testimony in the form of expert opinion. Appellant
chose instead to insist that the trial judge instruct the jury about the risks of
such evidence . The trial judge refused to grant Appellant's request for this
instruction. This decision was proper and we will not disturb the trial judge's
Suppression ofAppellant's statements to police following arrest
Appellant next argues that the trial court erred in failing to suppress his
statements given to police following his arrest. According to Appellant, these
statements were involuntary and the product of coercive techniques on the part
of the police.
At the suppression hearing on July 6, 2009, Detective Lawrence Zehnder
testified that Appellant was informed of his Miranda rights prior to questioning,
and that Appellant signed a waiver of those rights . Detective Zehnder indicated
that he interviewed Appellant for approximately ninety minutes, and at no
point did Appellant request an attorney or that the questioning cease.
Detective Zehnder stated on cross-examination that other detectives questioned
Appellant throughout the night, but he was unable to recall which officers did
the questioning or how long the questioning continued. Appellant claims the
police used sleep deprivation as a tactic to coerce statements from him .
As noted earlier, on appellate review of an order denying a motion to
suppress evidence, we first review the trial court's findings of fact under the
clearly erroneous standard, and then we review de novo the application of the
law to those facts. Welch v. Commonwealth, 149 S .W.3d 407, 409 (Ky. 2004) .
The trial court found Appellant's statements to have been voluntarily made.
After a review of the record, we find no evidence to substantiate Appellant's
claims concerning sleep deprivation, nor any evidence that the questioning was
in any way coercive. The trial court properly denied Appellant's motion to
Introduction of additional portions of Appellant's statement
As to Appellant's final argument, we find this issue to be without merit.
Appellant maintains that the trial court erred in not allowing evidence
contained within his statement to police after his arrest. Appellant alleges he
consistently denied being involved in the events giving rise to the current
charges . After reviewing the record, it is clear that Appellant's denial of
involvement was elicited during an avowal made by Detective Zehnder, as well
as during defense counsel's cross-examination of that witness . Defense
counsel specifically asked Detective Zehnder if Appellant ever admitted to
engaging in these actions, to which Detective Zehnder replied in the negative .
Therefore, the jury was fully aware of Appellant's defense. Accordingly, we find
no error, harmless or otherwise.
For the foregoing reasons, the judgment of the Jefferson Circuit Court is
hereby affirmed .
All sitting. All concur.
COUNSEL FOR APPELLANT:
Thomas More Ransdell
Assistant Public Advocate
Department of Public Advocacy
100 Fair Oaks Lane, Suite 302
Frankfort, KY 40601
COUNSEL FOR APPELLEE:
Michael John Marsch
Assistant Attorney General
Office of Criminal Appeals
Attorney General's Office
1024 Capital Center Drive
Frankfort, KY 40601