IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED “NOT TO BE PUBLISHED.” PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, RAP 40(D), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. RENDERED: FEBRUARY 20, 2025 NOT TO BE PUBLISHED
Supreme Court of Kentucky 2023-SC-0166-MR
STANFORD SHELTON APPELLANT
ON APPEAL FROM GRAVES CIRCUIT COURT V. HONORABLE TIMOTHY A. LANGFORD, JUDGE NO. 19-CR-00321
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
Stanford Shelton entered a conditional guilty plea to second-degree
manslaughter, complicity to attempted murder, being a convicted felon in
possession of a handgun, and being a first-degree persistent felony offender
(PFO 1st). As a condition to his guilty plea, he reserved the right to appeal the
issues raised herein. He also raises an alleged sentencing error. After review,
we affirm the circuit court’s rulings in all respects save for its classification of
Shelton as a violent offender pursuant to KRS 1 439.3401. We accordingly
vacate Shelton’s sentencing order and remand for entry of a sentencing order
consistent with this opinion.
1 Kentucky Revised Statute. I. FACTS AND PROCEDURAL BACKGROUND
Shelton entered his conditional guilty plea after the completion of both
the Commonwealth’s and the defense’s proof, but prior to closing arguments.
The evidence presented during trial is needed for context to address the issues
raised by Shelton on appeal and can be reasonably summarized as follows.
Shelton was a member of the Vice Lords, a street gang that originated in
Chicago, Illinois with active chapters throughout the United States. Shelton’s
maternal first cousin, Dimetri Ross, was also a member of the Vice Lords as
was Ross’ paternal first cousin, Jerrod Dale. 2 As is common in criminal
organizations, the Vice Lords have a rigorously adhered to pecking order. Dale
was a “chief,” making him the highest-ranking Vice Lord in Kentucky. Because
he was a chief, Dale’s rank within the gang was classified as “5 universal elite”
or “5UE.” Shelton was a “3UE,” meaning he had some authority over other
members of the gang but was still considered Dale’s subordinate. Ross’ rank
was “MOL” or “master of literature” meaning he was the person responsible for
ensuring that the members he associated with followed the Vice Lord’s code of
conduct. Ross was outranked by both Dale and Shelton.
During late spring 2019 Dale lived in a small house that had been
converted into a duplex on Lee Street in Mayfield, Kentucky. Dale lived in
apartment 704 on the right side of the duplex while the victim in this case,
Savannah Hancock, lived with her husband in apartment 702 on the left side
2 Jerrod Dale’s name is stated various ways throughout the record including
Gerrod Dale, Jerrod Powell, and Gerrod Powell.
2 of the duplex. Neither Savannah nor her husband had any affiliation with the
Vice Lords.
Several witnesses testified that sometime prior to May 2019, both
Shelton and Ross began having “beef” with Dale. Tayvon Carman and
Cameron Evans were both lower-ranking members of the Vice Lords that lived
at the Budget Inn in Mayfield. Tayvon spent a lot of time with both Shelton
and Dale. He claimed that Shelton and Dale began having issues when Dale
cut Shelton out of the gang’s drug trade after discovering that Shelton had
slept with a woman named Brandy. In addition, Dale told Tayvon that Shelton
was trying to kill him (Dale) so that Shelton could take his rank within the
gang. Tayvon stated that Ross’ issues with Dale were the result of Dale finding
out that Ross was hanging out with Shelton. Cameron maintained that the
issues between Shelton and Dale started after Dale and Ross took a trip to
Chicago in April 2019 to meet with Vice Lords that outranked Dale. During
that trip the powers that be within the gang informed Dale that he was in fact
not a chief and instructed him to stop claiming that he was; a power struggle
then ensued between Dale and Shelton. Cameron claimed Ross was also angry
with Dale upon discovering he was not a chief.
Gwynth Turner was friends with Shelton and Ross. She stated that
Shelton and Dale were fighting over Brandy and further asserted that Shelton
told her he wanted to kill Dale so that he could assume Dale’s status within the
gang. Hayden Dunigan, Ross’ then-girlfriend, believed the issues between
Shelton, Ross, and Dale were because Dale owed Ross money for drugs. Kayla
3 Troup, Shelton’s then-girlfriend, maintained that Shelton and Dale had several
arguments over Brandy and that they had many gang related issues because
Shelton felt he should have had a higher rank. Ross himself claimed that he
had problems with Dale because Dale made a pass at the mother of Ross’ child
and had attempted to pay her money to set Ross up. Ross further asserted
that Shelton and Dale were fighting over Brandy.
Whatever the reason for the disdain Shelton and Ross had for Dale, the
situation reached a breaking point on May 12, 2019. That night, Shelton and
Ross were partying at Gwynth’s home with her and Ashton Gipson, Gwynth’s
friend. Shelton asked Gwynth if she would take him to drop off diapers at his
child’s mother, Misty Shelton’s, house. The four of them took Hayden’s car 3;
Gwynth drove, Shelton was in the front passenger seat, Ashton was in the back
driver’s side seat, and Ross was in the back passenger side seat.
Instead of going to Misty’s house, they drove past Dale’s house. The first
time Gwynth drove past the house Shelton called her “a stupid b*tch” for
driving too fast and demanded that she drive past it again, but more slowly.
She circled the block and drove past the home again at which point Ross fired
shots at the house. It was undisputed that Shelton did not fire any shots
during the May 12 drive-by. However, Gwynth claimed that she saw Shelton
hand Ross a gun at some point while they were in the car. Ross disputed this
and claimed he directed Gwynth to go to Dale’s house, that Shelton did not
3 According to Hayden, Ross would often take her car without her consent.
4 know he intended to shoot at Dale’s house, and that Shelton did not provide
him with a gun. No one was injured during the May 12 shooting.
The next drive-by shooting occurred on or about June 15, 2019. 4 Marcia
Powell, an acquaintance of Shelton, Ross, and Dale, stated that on the night of
this shooting she went from the Budget Inn where she was living to the
Windhaven Apartments with several people. While she was there someone got
a call from Shelton who said he had a situation with Dale that he needed help
with. Marcia then went from the Windhaven Apartments to the 5th Street
Apartments and got into a car there with Shelton, Ross, and Jodeci Willie.
Marcia drove, Jodeci was in the front passenger seat, Shelton was in the
back driver’s side seat, and Ross was in the back passenger side seat. Marcia
was told they were either going to pick something up or drop something off at
Dale’s house, while Jodeci remembered them saying they were going “to pick
up” at Dale’s house. After Marcia drove by Dale’s house the first time Shelton
told her to slow down, so she turned around and drove past it a second time at
which point someone in the backseat began firing shots at the house. Marcia
did not know if Shelton or Ross fired the shots. Jodeci likewise did not know
who fired the shots, but believed it sounded like two different guns were being
fired. Ross denied any involvement with the June 15 drive-by. No one was
injured because of that shooting.
4 The Commonwealth conceded it could not pinpoint the precise date of this
incident, but knew that it occurred shortly before the June 18, 2019, shooting.
5 The final incidents at issue occurred on June 18, 2019. Late that
evening Hayden was babysitting for Robin Moxey at Robin’s home on South 6th
Street in Mayfield. Hayden was sitting in her car in front of Robin’s home
unsuccessfully attempting to break up with Ross over the phone. Shelton
drove up to Robin’s house, exited his vehicle, walked up to Hayden’s car, and
began talking to her. Within ten minutes of Shelton’s arrival, two individuals
in black ski masks began shooting at Shelton and Hayden. Hayden and
Shelton were both unharmed and left the scene in their respective vehicles
before the police arrived. Shelton picked up Kayla and Ross and then began
trying to get Hayden to meet him somewhere. Hayden was reluctant but
agreed to meet Shelton in a large parking lot between a McDonald’s and a
Pocket’s gas station.
When they arrived in the parking lot, Shelton and Ross got in the car
with Hayden. Hayden drove, Shelton was in the front passenger seat, and Ross
was in the back passenger seat. Hayden stated that Shelton was very angry
about being shot at and believed Dale was responsible for the shooting.
Hayden began driving towards Shelton’s home in Wingo with the hopes of
leaving him and Ross there when Shelton pulled a gun on her and told her to
drive to Dale’s house. The first time Hayden drove past Dale’s house she
intentionally drove too fast; Shelton became irate with her and told her to “turn
around and do it right.” She circled the block and drove past the house a
6 second time at which point Shelton fired at least four shots at it with a 9mm
handgun. 5
When Shelton fired shots at the duplex twenty-three-year-old Savannah
and her nine-year-old stepdaughter, Jane, 6 were in the living room at the front
of the apartment. Jane was sitting in the floor between Savannah’s legs while
Savannah braided her hair. One of the bullets Shelton fired went through the
apartment’s glass screen door and wooden front door and struck Savannah in
the neck. Upon hearing the loud noise of the bullet hitting the front door, Jane
ran to the back of the house. After Jane realized Savannah had not followed
her, she walked back into the living room and found Savannah alive but
bleeding from her neck and unable to communicate. Jane found Savannah’s
cellphone and called 911. Savannah was taken to a hospital in Indiana where
she died two days later. Both Ross and Hayden pled guilty to charges related
to their involvement in Savannah’s murder prior to Shelton’s trial. Shelton did
not testify on his own behalf.
Additional facts are discussed below as necessary.
II. ANALYSIS
A. The circuit court erred by finding that Shelton qualified for violent offender status.
Shelton first asserts that the circuit court erred by classifying him as a
violent offender pursuant to KRS 439.3401. The Commonwealth agrees and
5 The handgun was never found by law enforcement.
6 As Savannah’s stepdaughter is a minor, we utilize a pseudonym to protect her
anonymity.
7 has no objection to Shelton being resentenced properly. The violent offender
statute mandates that defendants who are convicted of or plead guilty to
certain offenses enumerated within the statute are ineligible for parole until
they serve eighty-five percent of their total sentence. See generally KRS
439.3401.
As noted above, Shelton entered a conditional guilty plea before the proof
in this case was submitted to the jury. The charges Shelton initially faced
under indictment 19-CR-321 7 were complicity to attempted murder for the May
12th shooting, attempted murder for the June 15th shooting, murder for the
June 18th shooting, possession of a handgun by a convicted felon, and PFO
1st. In exchange for his guilty plea, the Commonwealth agreed to amend his
murder charge to second-degree manslaughter and dismiss the count of
attempted murder for the June 15th shooting; the remaining charges remained
the same. He received a seventy-year sentence for the charges in 19-CR-321.
In addition, on the same day Shelton entered his conditional guilty plea,
he agreed to the Commonwealth bringing an indictment by information under
23-CR-014 for the charge of tampering with a witness. Shelton committed that
crime on December 19, 2021, while awaiting trial in this case. Shelton received
a five-year sentence for that charge, and the circuit court ordered that
7 As we discuss in Section II(C) below, the charges ultimately tried under
indictment 19-CR-321 were the consolidation of two separate indictments: 19-CR-321 and 20-CR-74.
8 Shelton’s five-year sentence under 23-CR-014 run consecutively to his seventy-
year sentence under 19-CR-321 pursuant to KRS 533.060(3).
The version of KRS 439.3401 that was in effect at the time Shelton was
sentenced 8 provided, in relevant part, that a “violent offender” was anyone who
pled guilty to the commission of a capital offense, a Class A felony, or “[a] Class
B felony involving the death of the victim or serious physical injury to a victim.”
KRS 439.3401(1)(a)-(c) (eff. July 12, 2022, to July 14, 2024).
Shelton pled guilty to complicity to attempted murder for the May 12th
drive-by. Complicity to attempted murder is a Class B felony, KRS
506.010(4)(b); KRS 507.020; KRS 502.020, but it was undisputed that no
victim suffered death or serious physical injury during the May 12th shooting.
Shelton also pled guilty to second-degree manslaughter for the June 18th
shooting that resulted in Savannah’s death, but second-degree manslaughter is
a Class C felony. KRS 507.040(2). Being a convicted felon in possession of a
firearm is likewise, under the facts of this case, a Class C felony, KRS
527.040(2)(a), while tampering with a witness is a Class D felony. KRS
524.050(2). Thus, Shelton did not plead guilty to any offense that would have
qualified him for violent offender status.
8 A revised version of KRS 439.3401 went into effect after briefing was
completed in this appeal. The current version of the statute provides that a violent offender is any person who is convicted of or pleads guilty to any felony involving the death of or serious physical injury to a victim. KRS 439.3401(1)(b)1. (eff. July 15, 2024).
9 It is clear to this Court from its review of the record that neither the
Commonwealth nor the defense anticipated that Shelton would be classified as
a violent offender under the terms of his plea agreement. But, during
sentencing, the circuit court twice stated that it was “going to designate this as
a violent offense.” In response, both the Commonwealth and defense counsel
attempted to explain to the court that Shelton did not qualify for violent
offender status. But the court rejected their attempts, stating: “I’m going to
sentence the way I see fit gentlemen. If y’all didn’t understand you couldn’t
bind this court’s hand in regard to that you should have considered that before
you entered the plea.”
No judge has the authority to sentence a defendant in violation of a
sentencing statute duly enacted by the General Assembly. Accordingly,
because Shelton did not plead guilty to an offense that qualified him for violent
offender status, we hereby vacate the Graves Circuit Court’s judgment and
sentence on a conditional plea of guilty in 19-CR-321 and remand. On
remand, the circuit court shall enter a judgment and sentence on a conditional
plea of guilty that is identical in all respects to the now vacated order except
that it shall not find that Shelton qualifies as a violent offender pursuant to
KRS 439.3401. Nothing in this Opinion shall be construed to alter the fact
that Shelton’s five-year sentence for tampering with a witness under 23-CR-
014 must run consecutive to his seventy-year sentence under 19-CR-321
pursuant to KRS 533.060(3).
10 B. The circuit court did not err by denying Shelton’s motion to dismiss indictment 19-CR-321.
Shelton next asserts that the circuit court erred by denying Shelton’s
motion to dismiss indictment 19-CR-321 based on what Shelton alleged were
four instances of false and misleading testimony by the lead detective before
the grand jury. This argument was properly preserved by Shelton’s motion to
dismiss the indictment which was denied by the circuit court. This Court
reviews a trial court’s ruling on a motion to dismiss an indictment for abuse of
discretion. Mitchell v. Commonwealth, 423 S.W.3d 152, 156 (Ky. 2014). We
will accordingly uphold the circuit court’s ruling unless we determine that it
was “arbitrary, unreasonable, unfair, or unsupported by sound legal
principles.” Commonwealth v. English, 993 S.W.2d 941, 945 (Ky.1999).
“Courts are extremely reluctant to scrutinize grand jury proceedings as
there is a strong presumption of regularity that attaches to such proceedings.”
Haney v. Commonwealth, 653 S.W.3d 559, 569 (Ky. 2022) (quoting
Commonwealth v. Baker, 11 S.W.3d 585, 588 (Ky. App. 2000)). Nevertheless,
this Court has recognized a trial court’s “supervisory power to dismiss an
indictment where a prosecutor knowingly or intentionally presents false,
misleading or perjured testimony to the grand jury that results in actual
prejudice to the defendant.” Haney, 653 S.W.3d at 569 (quoting Baker, 11
S.W.3d at 588). To be granted relief on this basis, a defendant must show that
there was “a flagrant abuse of the grand jury process” resulting in actual
prejudice to the defendant and that “the grand jury was deprived of
11 ‘autonomous and unbiased judgment.’” Id. And, at bottom, “no indictment
shall be quashed. . . on the ground that there was not sufficient evidence
before the grand jury to support the indictment.” RCr 9 5.10.
Although Shelton was charged under two different grand jury
indictments that were later consolidated (19-CR-321 and 20-CR-74) he argues
for reversal in relation to only the 19-CR-321 grand jury proceedings. Under
that indictment Shelton was charged in relation to the May 12th and June
18th shootings, being a felon in possession of a handgun, and being a PFO 1st.
Shelton first takes issue with the lead detective, Nathan Young,
mentioning that there had been five different shootings during the spring of
2019. Shelton argues this was misleading and inflammatory because Shelton
was only charged with two shootings under the indictment. We disagree. The
grand jury transcript clearly reflects that the two times Det. Young mentioned
there had been five shootings it was within the context of explaining that the
evidence may become confusing. The first time, he said:
It’s going to get kind of—a little difficult so—literally, in a matter of a few weeks, we had five shootings, so I’m going to have to kind of walk you through some of this. So if you get confused, tell me, stop me in the middle of it. Okay? We’ll start with the first one. It was May 12, 2019.
The second time, Det. Young was explaining his investigation into the June
18th shooting. He said:
Anyway, so based off of that, I—I got the—the warrants. Neither Dimetri Ross or Stanford Shelton would talk to me. They—they lawyered up as soon as I brought their warrants for the—for the
9 Kentucky Rule of Criminal Procedure.
12 murder. Hayden, obviously, went on a little travel for a couple months before she turned herself in. So we’re just going to kind of get a little muddy, so we’re—now, granted, you’re talking about Jodeci, Marcia, and Hayden who are all three drug addicts, who can’t keep up day to day what’s happening. You also have to realize we’ve had five shootings in like three weeks. Okay?
Nothing about this testimony constituted a flagrant abuse of the grand jury
process nor does it indicate in any way that the grand jury was deprived of
autonomous and unbiased judgment. Haney, 653 S.W.3d at 569.
The second instance of which Shelton complains is Det. Young’s
testimony about a television inside Robin’s house on South 6th Street being hit
with a bullet when the two unknown individuals shot at Shelton and Hayden
on June 18th. Shelton argues that this testimony would have confused the
grand jury and made it infer that Shelton was the perpetrator of that shooting
and not the victim. Again, the grand jury transcript clearly refutes this, as Det.
Young made it clear that Shelton was a victim of that shooting and that the
shooting that killed Savannah was in retaliation for it:
Det. Young: June 18th is the day of the actual homicide, okay? So at 9:30 p.m. we get a call of shots fired on South 6th Street. All right? A lady, Robin Moxey, a bullet had went through her residence, hit a TV. I think they found a—a shell casing out there, but that was it. No big deal. 10:30 [p.m.] is when we get the call of shots fired at 702 West Lee Street from the 11-year-old girl. 911 call says, “My mama’s been shot.”
...
Get back on track here. So Hayden says that, she said that—this is where the South 6th Street comes in. She stated she was at South 6th Street at the—basically at the intersection where Robin Moxey’s house was shot. She stated that Mr. Shelton was inside the window talking to her. And she stated that two black males came up—or started walking up from behind her and started shooting at Shelton, basically, and towards her. 13 ...
[T]hey think who—they think shot at them is [Dale], and they went over there to retaliate.
Grand Juror: So that was on the same night?
Det. Young: Within an hour.
Grand Juror: Okay.
Det. Young: The South 6th Street shooting and the West Lee Street happened within an hour.
It was accordingly made clear to the jury that Shelton was not the perpetrator
of the shooting at Robin’s house, and nothing about this testimony warranted
dismissal of the indictment.
The third piece of testimony Shelton challenges is Det. Young’s
explanation of where Jane was in relation to Savannah when the shooting
occurred. Det. Young explained:
Basically, this is how it happens. So Savannah is sitting on the couch. Which, unfortunately, she had just moved two days prior to where she was. She was—her daughter was sitting in her lap. She was braiding her daughter’s hair. Next thing you know, shots fired, hit her in the neck, she falls over. Her daughter, you know, miraculously—it had to have almost hit her hair when it hit her, when it hit her mom. So like I said, her daughter ran into another room, was hiding, and then called 911.
Shelton alleges this testimony was false because Jane told the police that she
was in a different room when Savannah was shot. 10 Jane’s trial testimony was
10 Shelton also argues before this Court that Det. Young identifying Jane as
Savannah’s daughter rather than her stepdaughter was grounds for dismissal. However, this argument was never made before the circuit court and is accordingly 14 that she was in the floor between Savannah’s legs getting her hair braided
when Savannah was shot and that she fled to the back of the house after the
shots had been fired. And, at any rate, where Jane was in relation to
Savannah had no bearing on any of the counts being presented to the grand
jury. Cf. Baker, 11 S.W.3d at 589-90. Shelton was not charged with any
crimes in relation to Jane, such as wanton endangerment, and the only issues
the grand jury was charged with addressing in relation to June 18th were
whether Shelton intentionally shot into Savannah’s home, thereby causing her
death, and whether he was a felon in possession of a handgun when he did so.
This testimony did not meet the standard for dismissal of the indictment.
The final portion of Det. Young’s testimony Shelton asserts warranted
dismissal of his indictment concerned video footage of the shootings. Prior to
any of the spring 2019 shootings, Dale had been under investigation by the
ATF. 11 As part of its investigation, the ATF had a video camera pointed at
Dale’s house. This Court was not provided with any of the ATF’s video footage,
nor was any of the footage played at trial. However, we discern from
statements made by both parties that the footage of the May 12th shooting
clearly showed the car from which the shots were fired as well as barrel flashes
from the gun. However, during the June 15th and June 18th shootings the
camera was, for whatever reason, zoomed in too close to see the road when the
unpreserved for our review and Shelton has not requested palpable error review of the argument. See RCr 10.26. 11 Bureau of Alcohol, Tobacco, Firearms, and Explosives.
15 shootings occurred. When discussing the June 18 shooting, Det. Young
testified before the grand jury as follows:
As far as the video, we actually got it on video. Now, you cannot see the car because, unfortunately, during one of the times we were looking at [Dale’s] house on our camera or the federal camera, you can zoom in, zoom out, we can get license plates, different things like that. It was zoomed in somewhat, so we couldn’t see the road. So you could see the car come by and—or you could see part—or the headlights come by, and you can see the flashes of the gun. You can’t see the exact car. And then you see, obviously her mom—or the little girl come out and everyone else when the police show up.
During the hearing on Shelton’s motion to dismiss, the Commonwealth
conceded that the footage from June 18th did not show the car coming by, the
car’s headlights, or the flashes from the gun, and Det. Young acknowledged
that he mistakenly gave the grand jury a description of the May 12th footage
while he was discussing the June 18th shooting. While this was a
misstatement of the evidence, we cannot hold it was a flagrant abuse of the
grand jury process or that it deprived the grand jury of its autonomous and
unbiased judgment. Haney, 653 S.W.3d at 569. Det. Young also detailed
Hayden’s statements to him regarding the June 18th shooting to the grand
jury, which were consistent with her trial testimony. There was therefore
sufficient evidence apart from the surveillance footage for the grand jury to
conclude a crime had been committed. See RCr 5.10.
Based on the foregoing, we cannot hold that the circuit court abused its
discretion by denying Shelton’s motion to dismiss indictment 19-CR-321 and
affirm the ruling of the trial court.
16 C. The circuit court did not err by denying Shelton’s motion to sever or by granting the Commonwealth’s motion to consolidate.
As previously noted, Shelton was initially charged under two separate
indictments: 19-CR-321 and 20-CR-74. The Counts charged under 19-CR-
321, issued in September 2019, were complicity to attempted murder for the
May 12th shooting, murder for the June 18th shooting, felon in possession of a
handgun, and PFO 1st. The sole count under 20-CR-74, issued in March
2020, was attempted murder for the June 15th shooting.
On March 24, 2020, the Commonwealth filed a motion to consolidate the
two indictments for the purposes of trial. Rather than filing a direct response
to the Commonwealth’s motion, Shelton filed a motion for the Counts under
19-CR-321 to be severed and tried separately. At a subsequent hearing on the
competing motions, defense counsel objected to the Commonwealth’s motion to
consolidate the two indictments for trial. The circuit court ultimately denied
Shelton’s motion to sever 12 and granted the Commonwealth’s motion to
consolidate.
This Court reviews a trial court’s ruling on both a motion to sever and a
motion to consolidate for abuse of discretion. Edmonds v. Commonwealth, 189
S.W.3d 558, 562 (Ky. 2006); Elam v. Commonwealth, 500 S.W.3d 818, 824 (Ky.
2016). We are accordingly without authority to reverse the circuit court’s
rulings unless we conclude that they were “arbitrary, unreasonable, unfair, or
unsupported by sound legal principles.” English, 993 S.W.2d at 945.
12 Except for the charge of felon in possession of a handgun.
17 RCr 6.18 permits joinder of two or more offenses under the same
indictment “if the offenses are of the same or similar character or are based on
the same acts or transactions connected together or constituting parts of a
common scheme or plan,” and RCr 9.12 permits a trial court to order the
consolidation of two or more indictments for trial if the indictments “could have
been joined in a single indictment[,]” i.e., if they meet one of RCr 6.18’s
requirements. As this Court discussed in the seminal case of Peacher v.
Commonwealth, the “same or similar character” requirement of RCr 6.18, and
by extension RCr 9.12, may be satisfied by crimes
such as similar rapes, Moreland v. Commonwealth, 322 S.W.3d 66 (Ky.2010); 13 Edmonds v. Commonwealth, 189 S.W.3d 558 (Ky.2006); Cannon v. Commonwealth, 777 S.W.2d 591 (Ky.1989); separate burglaries of the same residence and related offenses against the same victim, Roark v. Commonwealth, 90 S.W.3d 24, 28 (Ky.2002); or the closely proximate and similarly inflicted abuse and murder of the same child victim, Commonwealth v. Collins, 933 S.W.2d 811 (Ky.1996).
391 S.W.3d 821, 837 (Ky. 2013). We see no reason why “similar drive-by
shootings on the same residence with the same intended victim” could not be
included in this list. Furthermore, if the offenses in Peacher were similar
enough to warrant joinder, then the offenses at issue herein were certainly of
the same or similar enough character to warrant joinder and consolidation.
Peacher addressed the joinder of offenses related to the abuse of two different
toddler-aged children, Christopher and Wyatt. Id. at 829. While no amount of
13 Overruled on other grounds by Edmonds v. Commonwealth, 433 S.W.3d 309
(Ky. 2014).
18 child abuse is acceptable, the children suffered very different respective
injuries while in the temporary care of the defendants. Id. at 829-33. Wyatt
had bruising on the back of one of his ears. Id. at 833. A medical expert
testified the ears are a difficult area to bruise due to a lack of blood flow, and
the bruising therefore indicated Wyatt had “likely been dealt a sharp blow to
the side of the head.” Id. Christopher had similar bruising on and behind his
ears, but he also had numerous injuries indicating he had been violently
shaken, including brain hemorrhaging and swelling and bruising on the sides
of his neck; extreme blunt force trauma to the torso such that his only
unharmed organs were his heart and lungs; and extensive bruising to his
genitals and groin. Id. at 830. And Christopher’s injuries, unlike Wyatt’s, were
fatal. Id. The Peacher Court nonetheless held that “the abuse of Christopher
and Wyatt at the same place during the same two-day period and involving the
infliction of similar bruising to the ears of both children was sufficiently similar
to permit joinder under the ‘same or similar’ offenses portion of RCr 6.18.” Id.
at 837.
Here, in each of the three shootings, Shelton used either subterfuge or
coercion to get an otherwise unwilling female acquaintance to drive both
himself and Ross to Dale’s home. In each, the drivers were instructed to drive
by Dale’s house once, and then Shelton directed the driver to drive past it a
second time, at which point shots were fired at the home by either Shelton or
Ross. In each, Dale was the intended target, and each was motivated by the
animosity Shelton and Ross felt towards Dale, whether that hatred was entirely
19 motivated by gang-related issues, woman-related issues, or some combination
of the two. We accordingly hold that the May 12th shooting and the June 18th
shooting were of the same or similar character sufficient to justify joinder
pursuant to RCr 6.18 under indictment 19-CR-321 and further hold that the
June 15th shooting charged under indictment 20-CR-74 was of the same or
similar character to both the May 12th and the May 18th shooting such that
consolidation of indictments 19-CR-321 and 20-CR-74 for the purposes of trial
was proper.
Notwithstanding, our inquiry does not end there, as RCr 8.31 further
mandates that a trial court “shall order separate trials” if “it appears that a
defendant or the Commonwealth will be prejudiced by a joinder of separate
offenses. . .in an indictment. . . or by joinder for trial.” As the Peacher Court
discussed, due to the certain degree of prejudice inherent in the joinder of
offenses, “the ‘prejudice’ calling for severance or other relief under [RCr 8.31] 14
is ‘undue prejudice,’ i.e., prejudice that goes beyond the inherent prejudice to
that which is unnecessary and unreasonable.” 391 S.W.3d at 838. This Court
went on to say that “the risk of undue prejudice from joinder is particularly
acute when[,]” as in this case, “joinder is premised on the ‘same or similar’
offense rubric of the joinder rule.” Id. Accordingly, to determine whether
undue prejudice resulted from joinder, we ask “with KRE 15 404(b) particularly
14 Formerly RCr 9.16.
15 Kentucky Rule of Evidence.
20 in mind, ‘whether evidence necessary to prove each offense would have been
admissible in a separate trial of the other.’” Id.
KRE 404(b) provides that “[e]vidence of other crimes, wrongs, or acts is
not admissible to prove the character of a person in order to show action in
conformity therewith.” However, evidence of other crimes, wrongs, or acts may
be admissible “[i]f offered for some other purpose” such as “proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of
mistake or accident” or if the evidence is “so inextricably intertwined with other
evidence essential to the case that separation of the two (2) could not be
accomplished without serious adverse effect on the offering party.” KRE
404(b)(1)-(2). The Commonwealth argues that evidence of each of the three
shootings would have been admissible in separate trials for each because each
shooting demonstrated Shelton’s plan to kill Dale, his motives for wanting to do
so, and the evidence of each of the shootings was inextricably intertwined with
evidence of the other two shootings. We agree.
All three of the drive-by shootings took place with a thirty-seven-day
window of time. Each of the shootings had the common thread of being
motivated by both Shelton’s and Ross’ desire for Dale to die and Dale was the
intended target each time. To accomplish the goal of killing Dale, Dale’s home
was shot at in all three of the shootings. All three shootings were therefore
unsuccessful attempts to commit the same murder; they were not three
unrelated decisions to shoot at Dale or another individual for three unrelated
reasons. The only true differences between any of the shootings were the date
21 on which they occurred, the driver of the car, and the individuals present in
the car apart from Shelton and Ross. We therefore hold that the evidence of
each of the three shootings would have been mutually admissible in separate
trials for each pursuant to KRE 404(b) and that Shelton was not unduly
prejudiced by the joinder and consolidation of the offenses for trial.
Indeed, the only prejudice Shelton has articulated to this Court is that
“the Commonwealth [bolstered] their weak evidence to get a conviction.” See
Peacher, 391 S.W.3d at 837-38 (discussing that a defendant may be prejudiced
by the joinder of offenses by “the risk that evidence of one crime will be used
inappropriately as evidence of another, or that evidence will be used
cumulatively, a strong case bolstering a weak one”). But Shelton has not
explained which of the three shootings had weak evidence nor which of the
three had strong evidence that bolstered the evidence of one or both of the
other two. In any event, we disagree with his contention.
Regarding the May 12th shooting, two different witnesses, Gwynth and
Ross, testified that Shelton was in the car at the time of the shooting. And
although Shelton was not the shooter on that day, Gwynth testified that
Shelton was the reason they drove past Dale’s house and that he provided Ross
with a gun prior to the shooting. Concerning the June 15th shooting, two
different witnesses, this time Marcia and Jodeci, testified that Shelton was in
the car during the shooting although neither could say with certainty whether
Shelton, Ross, or both had fired shots. Finally, for the June 18th shooting,
both Hayden and Ross provided uncontroverted testimony that Shelton was the
22 one that fired shots at Dale’s house. This Court therefore fails to see how weak
evidence regarding one of these shootings was improperly bolstered by strong
evidence of one of the other shootings and, based on the foregoing, we affirm.
D. The circuit court did not err by denying Shelton’s motion to disqualify the Graves County Commonwealth’s Attorney’s Office.
Shelton next asserts that the circuit court reversibly erred by denying his
motion to disqualify the Graves County Commonwealth’s Attorney’s Office
(Commonwealth’s Attorney) from prosecuting this case on the basis that it
violated his Sixth Amendment right to counsel by inadvertently intercepting a
letter he sent to a member of his defense team. U.S. Const. amend. VI; U.S. v.
Rosner, 485 F.2d 1213, 1224 (2d Cir. 1973) (“[T]he essence of the Sixth
Amendment right is, indeed, privacy of communication with counsel.”).
After Shelton was arrested, he was housed for a time at the Christian
County Jail due to the Graves County Jail being destroyed by a tornado. On or
about November 4, 2022, the Commonwealth’s Attorney received information
that Shelton may have been sending letters that pertained to witnesses. The
Commonwealth’s Attorney accordingly requested that the jail intercept any
letters being sent by Shelton but specifically directed the jail not to intercept
letters being sent to or from members of Shelton’s defense team. On November
11, 2022, the jail inadvertently provided the Commonwealth’s Attorney with a
letter sent by Shelton to Ilker Onen who had recently been hired by the defense
as a mitigation investigator. The Commonwealth filed a notice of filing on
December 19, 2022, informing the circuit court and the defense that it had
received the letter and included the letter as an attachment to its filing. 23 Nine days later Shelton filed a combined motion to disqualify the
Commonwealth’s Attorney from prosecuting the case and to exclude the Ilker
letter from being admitted at trial. The circuit court denied the motion to
disqualify. It reasoned that the Commonwealth Attorney’s inadvertent
possession of the letter did not prejudice Shelton because it contained no
information pertaining to the crimes for which Shelton was being tried.
Notwithstanding, the court ruled that the Commonwealth was prohibited from
referencing or introducing the Ilker letter at trial.
Shelton’s argument that the circuit court erred by denying his motion to
disqualify is properly preserved for our review. This Court reviews a trial
court’s denial of a defendant’s motion to disqualify a prosecutor for abuse of
discretion. Ward v. Commonwealth, 587 S.W.3d 312, 319 (Ky. 2019). We will
accordingly reverse the circuit court’s ruling only if we find it to be “arbitrary,
unreasonable, unfair, or unsupported by sound legal principles.” English, 993
S.W.2d at 945.
“Any prosecuting attorney may be disqualified by the court in which the
proceeding is presently pending, upon a showing of actual prejudice.” KRS
15.733(3). Shelton’s appellant brief to this Court concedes that he “cannot
affirmatively show actual prejudice,” and argues prejudice should instead be
presumed. We decline to presume prejudice, as the case law of this Court and
the United States Supreme Court is clear that “even when the government does
purposefully intrude into the attorney-client relationship, prejudice to the
defendant must be shown.” Brown v. Commonwealth, 416 S.W.3d 302, 306
24 (Ky. 2013) (citing U.S. v. Morrison, 449 U.S. 361 (1981)). Instead, this Court
will continue to apply the well-established factors to be considered when
addressing an argument that the government has violated a defendant’s right
to counsel:
1) whether the presence of the informant was purposely caused by the government in order to garner confidential, privileged information, or whether the presence of the informant was the result of other inadvertent occurrences;
2) whether the government obtained, directly or indirectly, any evidence which was used at trial as the result of the informant's intrusion;
3) whether any information gained by the informant's intrusion was used in any other manner to the substantial detriment of the defendant; and
4) whether the details about trial preparations were learned by the government.
Brown, 416 S.W.3d at 306-07 (quoting U.S. v. Steele, 727 F.2d 580 (6th Cir.
1984)); accord Ward, 587 S.W.3d at 321; Weatherford v. Bursey, 429 U.S. 545,
554 (1977).
In this case, the “informant” was the jail personnel that intercepted
Shelton’s mail upon the request of the Commonwealth’s Attorney. However,
the Commonwealth’s Attorney explicitly directed jail personnel not to intercept
privileged, attorney-client material and its receipt of the Ilker letter was
accidental. The circuit court ordered that the Commonwealth was not
permitted to admit or reference the Ilker letter at trial, and the Commonwealth
obeyed that order. Moreover, the Commonwealth did not otherwise obtain any
evidence from the letter that was used against Shelton at trial, and there is no 25 evidence of record that the information contained in the Ilker letter has been
otherwise used against Shelton to his substantial detriment. Finally, without
revealing the contents of the letter, this Court can confidently state that it had
nothing to do with trial strategy or mitigation evidence. The defense’s trial
preparations were therefore clearly not revealed to the Commonwealth’s
Attorney from the letter.
The Commonwealth’s Attorney did not violate Shelton’s Sixth
Amendment right to counsel, Shelton was not prejudiced, and the circuit court
did not abuse its discretion by denying his motion to disqualify. We affirm.
E. The circuit court did not err by denying Shelton’s motion to exclude.
For his final assertion, Shelton argues that the circuit court reversibly
erred by denying his motion to exclude a different letter he wrote that was
intercepted by jail personnel after it was returned as undeliverable.
At some point during his pre-trial incarceration Shelton was moved from
the Christian County Jail to the McCracken County Jail. On January 5, 2023,
the Commonwealth filed a motion in limine seeking leave to reference a letter in
its opening statement that had been sent by Shelton to an individual identified
as “Bigfats” while he was incarcerated in the McCracken County Jail. The
letter had been returned to the jail as undeliverable and was opened and read
by jail staff upon its return. According to the Commonwealth’s motion in
limine, in the letter Shelton asked Bigfats to testify that Shelton was with him
on the night of the June 18 shooting.
26 During a hearing on the motion in limine, the Commonwealth clarified
that there were actually two letters for which it was seeking a ruling. This
Court was not provided with either of the letters in the record on appeal, but
we discern from the video record that one of the letters was the Bigfats letter
and the other letter was addressed to an April Galbraith. The Commonwealth
explained that both of the letters had been returned to McCracken County Jail
as undeliverable and that as they were coming in jail staff opened them, read
them, and turned them over to law enforcement on the basis that Shelton had
been trying to establish alibi witnesses in both letters. Law enforcement in
turn gave them to the Commonwealth. The Commonwealth expected both
letters to be admissible at trial and had filed its motion in limine to verify that
it would be permitted to reference both letters in its opening statements if it so
chose.
Defense counsel objected and argued that the letters should not be
admissible at trial because Department of Corrections (DOC) policies only
permit returned mail to be opened to determine if contraband is enclosed. The
defense contended that because Shelton’s attempt to establish an alibi witness
was not contraband, the jail had no right to confiscate the letters and give
them to law enforcement or the Commonwealth. The circuit court ruled that
the Commonwealth could not reference the letters in opening statements but
reserved ruling on their admissibility.
27 On the second day of Shelton’s trial, during Detective Lieutenant Rick
Farmer’s 16 testimony, he stated that in March 2020 he was contacted by an
officer at the McCracken County Jail who told him they had intercepted a
letter. Before he could testify further, defense counsel requested to approach
the bench. During a side bench the defense objected to the letter’s admission
on the basis that it had been illegally seized. Counsel reiterated his assertion
that DOC policy only allowed inspection of returned mail for contraband, that
Shelton’s attempt to establish an alibi was not contraband, and that the letter
should therefore have been returned to Shelton. The court asked whether
defense counsel had the McCracken County Jail’s policies regarding
undeliverable returned mail; he did not. The Commonwealth argued that, to
its understanding, the jail’s policy was to routinely open any incoming mail. It
further pointed out that jails routinely record inmate phone calls and that it
would be nonsensical to draw a distinction between writing a letter and making
a phone call. The court overruled the defense’s objection as follows:
Court: Your objection is noted and could be well-taken except for the fact that this is coming back into the jail and it’s my understanding that no one has a copy of their policies, McCracken’s policies—
Defense Counsel: Judge, the only policy I have is DOC’s policy as far as—
Court: Well that may be, but he wasn’t a DOC prisoner at the time was he?
16 At the time of his testimony, Officer Farmer was a school resource officer, but
at the time the Shelton’s crimes were being investigated he was a detective lieutenant with the Mayfield Police Department.
28 Defense Counsel: Judge I think it’s hard for them to make that distinction [inaudible].
Court: Well the distinction I’m making is this was coming back into the jail, and they have a right to inspect anything coming in whether it’s in the pocket of somebody or whether it’s in an envelope, or whatever it is just for safety. And once they discovered it, they contacted Mayfield PD. Alright, your objection is noted for the record.
When questioning resumed, Det. Lt. Farmer reiterated how he came to be
in possession of the letter and stated that he gave it to Det. Young. The
Commonwealth then asked him to open a sealed evidence envelope that was
ostensibly supposed to contain both the Bigfats letter and the April Galbraith
letter. However, to the Commonwealth’s obvious surprise, the envelope
contained only the Galbraith letter. The Galbraith letter was marked and
admitted into evidence; no part of it was read aloud. The Commonwealth then
asked to approach the bench and explained it was not able to locate the
original Bigfats letter at that time and wanted to introduce a copy of it instead.
Defense counsel objected on the basis of the best evidence rule. See KRE
1002. The Commonwealth withdrew its request and explained that Det. Young
was attempting to locate the original copy of the Bigfats letter, and that the
Commonwealth would question Det. Young about the letter if he was able to
locate it. However, when Det. Young later testified the Bigfats letter was
neither mentioned nor introduced into evidence.
Accordingly, Shelton’s argument before this Court that the circuit court
erred by denying his motion to exclude is preserved insofar as it concerns the
29 Galbraith letter. 17 A trial court’s ruling on the admissibility of evidence is
reviewed for an abuse of discretion. See, e.g., Meece v. Commonwealth, 348
S.W.3d 627, 645 (Ky. 2011). This Court is accordingly without authority to
reverse the circuit court ’s ruling on Shelton’s motion to exclude unless we
conclude it was “arbitrary, unreasonable, unfair, or unsupported by sound
legal principles.” English, 993 S.W.2d at 945.
Before this Court, Shelton has renewed his argument that the jail’s
seizure of the letter was violative of DOC policy and that the warrantless
seizure of the letter violated his Fourth Amendment rights. U.S. Const. amend.
IV. The Commonwealth responds that Shelton’s argument is directly
contradictory to this Court’s holding in Thurman v. Commonwealth, 975 S.W.2d
888, 989-99 (Ky. 1998) and, even if the admission of the letter was error, it was
harmless. For the reasons that follow, we agree with the Commonwealth.
First, as astutely noted by the circuit court, Shelton was not under a
DOC order of commitment at the time the letter was seized and was therefore
not a DOC inmate. See KRS 532.100. The DOC’s policies concerning returned
mail are therefore irrelevant, and the policies of the McCracken County Jail are
not in the record before us. Nevertheless, our jurisprudence is clear that the
practice of confiscating non-privileged inmate correspondence and providing it
17 Shelton also asserts that the circuit court abused its discretion by denying its
motion to exclude the letter Shelton sent to Ilker Onen. But, as we explained in Section II(D) of this Opinion, the circuit court granted Shelton’s motion to exclude the Ilker letter and the Commonwealth did not reference or attempt to introduce that letter at trial.
30 to the prosecution for use at trial does not violate the Fourth Amendment’s
proscription against unlawful search and seizure.
In Thurman, the defendant and two co-defendants were charged with
murder, kidnapping, and robbery. 975 S.W.2d at 890. Prior to trial, the
defendant, who was incarcerated, wrote a letter to one of his co-defendants
who was being housed at a different facility. Id. at 898. The letter was
intercepted by jail personnel at the co-defendant’s facility and given to the
prosecution and a portion of the letter was read to the jury at trial. Id. This
Court held that “the policy of providing seized correspondence to prosecuting
authorities [does not] violate the Fourth Amendment proscription against
unreasonable searches and seizures[]” and that the defendant’s “constitutional
rights were not violated by the interception, seizure and subsequent use at trial
of his. . . letter to his co-defendant.” Id. at 899.
In reaching its holding the Thurman Court relied upon the now over 100-
year-old U.S. Supreme Court opinion of Stroud v. U.S., 251 U.S. 15 (1919). 975
S.W.2d at 899. In Stroud, a prisoner at Leavenworth was convicted of the first-
degree murder of a guard. 251 U.S. at 16. At the prisoner’s trial, “[c]ertain
letters were offered. . . containing expressions tending to establish the guilt of
the accused.” Id. at 21. The letters were written by the prisoner after the
guard was murdered, and “under the practice and discipline of the prison were
turned over ultimately to the warden, who furnished them to the district
attorney.” Id. In concluding that there was no “unreasonable search and
seizure, in violation of his constitutional rights[]” the Stroud Court found it
31 determinative that the prisoner voluntarily wrote the letters, no threat or
coercion was used to obtain them, and that they were not seized without
process. Id. 21-22. Rather, “[t]hey came into the possession of the officials of
the penitentiary under established practice, reasonably designed to promote
the discipline of the institution.” Id. at 21.
Shelton attempts to distinguish the facts of Thurman on the basis that
the correspondence in Thurman was sent from one inmate to another inmate
while Shelton’s letter was sent to a civilian. This is a distinction without a
difference as the parties to a given correspondence are not the dispositive
factor. Indeed, there was no indication in Stroud that the seized letters were
inmate-to-inmate letters, nor was there any consideration of that fact in Yager
v. Commonwealth, 407 S.W.2d 413 (Ky. 1966). The Yager Court likewise held
that the defendant’s Fourth Amendment rights were not violated by the
Commonwealth’s introduction of a letter intercepted by jail personnel. Id. at
416. Additionally, the Court opined that, “Undoubtedly, the prison authorities
had the right to intercept appellant’s mail for security reasons[,]” and that the
“crucial question” was whether the introduction of the seized mail was
prejudicial. Id.
Thus, this Court holds that the admission of the Galbraith letter was not
error. And, even assuming the admission of the letter was error, it was
harmless. “A non-constitutional evidentiary error may be deemed harmless if
the reviewing court can say with fair assurance that the judgment was not
substantially swayed by the error.” Meyers v. Commonwealth, 381 S.W.3d 280,
32 285 (Ky. 2012). Shelton has asserted that the introduction of the letter into
evidence prejudiced him, but he has not explained how. In the letter, Shelton
was attempting to establish an alibi witness for the June 18 shooting that
resulted in Savanah’s death. As Shelton pled guilty before the case was
submitted to the jury, this Court has no way of knowing whether the jury
would have convicted Shelton in relation to the June 18 shooting, nor under
which theory of culpability. Nevertheless, assuming the jury found him guilty,
the introduction of the Galbraith letter would not have substantially swayed
that verdict.
Two witnesses that were in the vehicle with Shelton at the time of the
June 18 shooting, Hayden and Ross, both testified that Shelton had a motive to
harm Dale. Both Hayden and Ross also provided uncontradicted testimony
that Shelton was the shooter during the June 18 drive-by. In addition,
Shelton’s former girlfriend Kayla testified regarding a letter Shelton sent her
after he was arrested that she in turn gave to law enforcement. In the letter,
Shelton wrote: “I want you to ask my family, anybody you are cool with, for
fundraising for Savannah’s funeral. Help me right my last wrong, even if it’s
only twenty dollars.” Thus, Shelton’s letter to Galbraith attempting to establish
an alibi witness for the night of June 18 would have constituted only marginal
additional proof of his guilt. The circuit court’s denial of Shelton’s motion to
exclude the Galbraith letter was accordingly not arbitrary, unreasonable,
unfair, or unsupported by sound legal principles and we affirm.
33 III. CONCLUSION
Shelton’s convictions for second-degree manslaughter, complicity to
attempted murder, being a convicted felon in possession of a handgun, and
being a PFO 1st are affirmed. His sentencing order is hereby vacated and this
case is remanded for correction of his sentencing order in accordance with this
Opinion.
All sitting. All concur.
COUNSEL FOR APPELLANT:
Kayley Valentien Barnes Assistant Public Advocate Department of Public Advocacy
COUNSEL FOR APPELLEE:
Russell M. Coleman Attorney General of Kentucky
Jenny Lynn Sanders Assistant Attorney General