Shawn T. Sutton v. Commonwealth of Kentucky

RENDERED: AUGUST 26, 2021
TO BE PUBLISHED
Supreme Court of Kentucky
2019-SC-0648-MR
SHAWN SUTTON APPELLANT
ON APPEAL FROM MCCRACKEN CIRCUIT COURT
V. HONORABLE TIMOTHY KALTENBACH, JUDGE
NO. 18-CR-00329
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION OF THE COURT BY JUSTICE KELLER
AFFIRMING
Shawn Kelly Sutton was convicted of first-degree assault, attempted
murder, first-degree wanton endangerment, two counts of first-degree burglary,
theft by unlawful taking of firearms, and theft by unlawful taking of property
valued in excess of $500 but less than $10,000, as well as four misdemeanor
offenses, as a result of events surrounding the home invasion of his ex-
girlfriend Jennifer Davis’s trailer on February 11, 2018.1 Consistent with the
jury’s recommendation, the McCracken Circuit Court directed that Sutton’s
assault sentence run consecutively to the remaining sentences which were to
be run concurrently, for a total of thirty-five years’ imprisonment. On appeal,
1 After the events of February 11, 2018, Jennifer Davis married Troy Risley, the
victim of Sutton’s assault. For clarity, we will refer to Jennifer by the name Davis
rather than her new married name Risley in this Opinion.
Sutton claims the trial court committed five errors. First, the trial court erred
by not granting a directed verdict on the burglary charge relating to Davis’s
trailer. Second, in the alternative, the trial court erred in not providing the jury
a mistake of fact instruction as to the burglary of Davis’s trailer. Third, the trial
court erred in its failure to grant Sutton’s request for a self-protection
instruction. Fourth, the trial court erred in permitting the jury to view the first
arriving officer’s body camera video of the scene. Lastly, the court erred in
denying Sutton’s motion for a mistrial on sentencing based on the jury
changing its initial verdict that all the sentences run concurrently, to one
running the assault consecutively to the remaining sentences. For the following
reasons, we affirm the McCracken Circuit Court.
I. FACTS
On February 11, 2018, Sutton initiated a violent home invasion of
Davis’s residence during which he shot her new boyfriend, Troy Risley. A
McCracken County grand jury indicted Sutton for first-degree assault of Risley;
attempted murder of Risley; attempted murder of Davis; four counts of wanton
endangerment of the children present; first-degree burglary of Davis’s
residence; first-degree burglary of the landlord, Norman Burkey’s residence;
receiving stolen property valued at $10,000 or more for being in possession of a
stolen truck; four counts of theft by unlawful taking of firearms from Burkey’s
residence; theft by unlawful taking of property valued at more than $500 for
stealing money from Burkey’s residence; two counts of possession of a firearm
by a convicted felon; two counts of possession of a handgun by a convicted
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felon; theft by unlawful taking of property valued at $500 or more for stealing
an automobile; and theft by unlawful taking of property valued at less than
$500 for stealing gasoline from a convenience store. Before trial, the
Commonwealth elected to proceed on the first-degree assault of Risley and
moved to dismiss the count of attempted murder as to Risley. The prosecutor
also moved to dismiss the count of receiving stolen property relating to the
stolen truck and elected to proceed on a single count of theft by unlawful
taking of a firearm for the theft from Burkey’s residence. On agreed motion, the
parties moved to sever the four counts relating to possession of firearms and a
handgun by a convicted felon. The trial court granted these requests and the
trial proceeded on the charges of first-degree assault of Risley, attempted
murder of Davis, four counts of wanton endangerment, first-degree burglary of
Davis’s trailer, first-degree burglary of Burkey’s home, theft by unlawful taking
of the firearms, theft by unlawful taking of property valued at $500 or more for
the automobile, and theft by unlawful taking of property valued at less than
$500 for stealing gasoline.
Trial testimony revealed the following: Sutton and Davis met in June
2017, and shortly thereafter, he moved in with her and her three children, T.J.,
A.D., and Y.K.2 That July, they moved into a trailer on Gordon Drive in Kevil,
Kentucky. The landlord, Norman Burkey, agreed to let them live rent-free in the
trailer for a year on Sutton’s promise to make improvements on the trailer.
Burkey lived across a creek from the trailer. Sutton testified that Davis did not
2 To preserve the privacy of the minor children, we will use their initials.
3
allow him to drink or use drugs, something Sutton stated he needed “in his life
at the time.”
In November 2017, Sutton took Davis’s car, went out drinking and fell
asleep at a friend’s house in Illinois. Davis was angry, and Sutton stated they
nearly split up, but Davis gave him another chance. Davis’s recounting of the
event included Sutton moving out briefly in November and only returning after
Sutton told her he had nowhere else to go. She permitted his return in
December 2017. However, Davis testified that on Sutton’s return they did not
resume a romantic relationship, and Sutton moved out again shortly after
returning. Davis testified that Sutton took his belongings, leaving behind only a
couple of pairs of jeans and a shirt. Sutton claimed the opposite, that he only
took two pairs of pants and a shirt and left everything else behind.
On the stand, Sutton stated he left because Davis cheated on him and
claimed to have no money when he left. Sutton was arrested in Kansas shortly
after his departure from Kentucky for stealing gasoline, resulting in his
spending ten days in jail. The day after his release, Sutton said he found a job
in construction in Kansas. Both Sutton and Davis testified they spoke daily, or
almost daily, while Sutton was in Kansas. Sutton tried to persuade her to move
to Kansas, but she refused and stated she was unwilling to uproot her
children. Davis testified that during one of their conversations, Sutton told her
that just before he left, he had stood over her with a lead pipe as she slept and
had considered killing her but did not want to wake the children. Davis
testified that Sutton told her that “if he couldn’t have her, no one could,” a
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phrase he repeated on more than one occasion, according to Davis. Sutton
denied making those statements, testifying that he loved Davis too much to tell
her that.
Davis began dating Troy Risley within a month of Sutton’s leaving. Risley
began staying at the trailer a couple of days before the incident in question.
Risley testified that Davis had told him about Sutton and that he knew Davis
was communicating with Sutton. Davis testified she never told Sutton of Risley,
and Sutton testified he was unaware of Davis’s relationship with Risley.
The parties’ testimony conflicted as to why Sutton returned to Kentucky.
Sutton claimed he returned to help Davis because he believed she was
struggling financially. To support this point, Sutton testified Davis told him she
would sleep with the landlord, Burkey, to pay the rent. Davis denied that she
told Sutton this or ever considered doing it. During his testimony, Burkey said
that he wintered in Florida and was not in Kentucky during the period in
question. Burkey stated he went to Florida in November 2017 and would
usually have returned in mid-March if not for the break-in. The Commonwealth
introduced testimony from Stacy Hines, another ex-girlfriend of Sutton, that
Sutton called her shortly after the events of February 11, 2018. She claimed
Sutton told her he shot a man and had done so because when he called Davis’s
phone from a number Sutton usually did not use, a man answered and cursed
at Sutton.
Regardless of the reason, Sutton returned to Kentucky on February 11,
2018. That night, Davis, Risley, her three children, and a friend of the children,
5
K.B., watched a movie in the trailer's living room. Davis’s daughter, A.D., sat
on one end of the couch, Risley sat next to her, and Davis on the other side of
Risley. Davis’s son, T.J., and their guest, K.B., lay on the floor while Davis’s
youngest son, Y.K., was asleep on a chair. All the witnesses indicated that the
only significant light source in the room was the television.
Sutton testified that when he arrived in the neighborhood, he first went
to the trailer, looked in the window, and saw Davis sitting on a man’s lap in the
dark. Sutton claimed to believe the man was Burkey, and that sent him into a
rage. Sutton testified, “I saw red.” Sutton stated that at this point, he went to
Burkey’s house to vandalize it. Sutton broke in and began rummaging through
drawers and closets in an effort to destroy Burkey’s property but denied that he
was looking for anything specific. However, while in the home, Sutton
discovered guns and beer and admitted that he took Burkey’s beer, shotgun,
rifle, and ammunition. He put the shotgun, rifle, and ammunition into the back
of the pickup truck he had driven from Kansas. Sutton also took Burkey’s .357
revolver from the house, but he denied taking it intentionally. Instead, he
stated it fell from a case of beer that he was loading into the pickup. Burkey
testified, on the other hand, that the revolver was stored in its holster in the
closet, a holster found by investigators on Burkey’s bed inside the ransacked
house. Burkey also testified that about $600 had been removed from an
envelope he kept hidden in his freezer. Sutton denied taking any money from
Burkey’s residence.
6
After placing the items in his truck, Sutton walked to Davis’s trailer with
the revolver in his hand. Sutton forced his way through the trailer’s front door,
striking the door twice. The Commonwealth introduced photographs of the door
showing that it was forced open with such violence that the top hinge was
broken, as was the lock’s strike plate. Witnesses stated, and Sutton admitted,
he came through the open door with the .357 in his hand. Risley stated that he
started to rise from the couch, and Sutton shot him twice. The first round
struck Risley in the face and the second in his left elbow.
In addition to Davis and Risley, the three older children each testified.
Davis and K.B. testified that Sutton waved the gun around the room toward
everyone. The children all agreed that after shooting Risley, Sutton pointed the
gun at Davis. Davis testified that in the moments after Sutton shot Risley, she
was on her knees, with her face down in a chair and with Sutton pointing the
gun at her head. She and the children begged Sutton not to shoot. K.B.
testified that Sutton’s index finger moved as though he was trying to pull the
trigger, while T.J. and A.D. testified that Sutton actually pulled the trigger. For
whatever reason, the gun did not fire, and Sutton let Davis get up.
Sutton admitted during his testimony that he pointed the gun at Risley’s
face and shot him twice. He denied that he pointed the gun at anyone else or
that he forced Davis to her knees. Sutton claimed that once he realized the
children were present, he lowered the gun and walked out. Sutton returned to
the truck in Burkey’s driveway and backed up at a high rate of speed, losing
control and getting stuck in a muddy field across the street. He abandoned the
7
truck, leaving the rifle, shotgun, and beer inside, and fled through the fields.
Less than a mile away on Sunrise Drive, he stole a car from a residence and
drove toward Illinois. During the drive, he stopped at a convenience store, put
gasoline in the car, and drove off without paying for the gasoline.
Sutton fled to Stacy Hines’s home in Karnak, Illinois. The McCracken
Sheriff’s Department alerted the Illinois State Police of his possible location.
The Illinois State Police spotted the stolen car at Hines’s residence and
observed it until they saw Sutton leave. Once Sutton left, the Illinois State
Police initiated a felony stop and arrested Sutton as he drove away in the stolen
car. Burkey’s .357 revolver and the cash were never recovered. Sutton denied
that he took the cash and claimed to have thrown the gun under Burkey’s
house after the shooting. However, Hines testified Sutton told her he threw it
into a lake.
Doctors testified that the gunshot wound to Risley’s face endangered his
life, and the wound to Risley’s elbow resulted in multiple surgeries and months
of physical therapy. The elbow wound left him with limited function in his left
arm, and his doctor testified that Risley would require additional surgery and
long-term therapy, but the resulting nerve damage is likely permanent and
would impair his arm function.
At the close of the Commonwealth’s proof, and at the close of all proof,
defense counsel moved for directed verdicts as to the assault, attempted
murder, first-degree wanton endangerment, burglary of Davis’s trailer, burglary
of Burkey’s home, and the theft by unlawful taking of the firearms, gasoline,
8
and car. The trial court rejected both motions stating that viewing the evidence
in the light most favorable to the Commonwealth, the Commonwealth had
presented sufficient evidence of all the charges to constitute a question for the
jury. Before instructing the jury, the trial court provided copies of the proposed
instructions to both parties. The trial court noted they were essentially the
Commonwealth’s proposed instructions, modified to add an extreme emotional
distress element to the first-degree assault instruction. The court then asked if
there were any objections or requested changes.
The Commonwealth asked for the wanton endangerment instruction for
Davis and A.D. to be modified to permit the jury to find guilt due to the
proximity of Davis and A.D. to Risley when Sutton fired. Sutton’s defense
counsel had no objection to this request. Sutton’s counsel then, for the record,
made a general objection to the instructions and specifically requested a self-
protection instruction be added to the first-degree assault instruction. The trial
court questioned Sutton’s basis for including the instruction, and defense
counsel stated a reasonable juror could find based on Sutton's testimony that
Risley came toward Sutton and Sutton’s actions were in self-defense. The
Commonwealth objected, stating Sutton was the initial aggressor and was not
entitled to a self-protection instruction. The court said, “I am not going to give
that instruction,” without any additional explanation.
Defense counsel then asked for a mistake of fact instruction to be added
to the first-degree burglary instruction of Davis’s trailer. Counsel argued that
the evidence supported an inference that Sutton had reason to believe he was
9
not unlawfully present in the trailer. Defense counsel emphasized that there
was confusion about the state of the relationship between Sutton and Davis
and whether Sutton was entitled to be in the trailer. The court noted that the
actual burglary instruction already required the Commonwealth to prove
beyond a reasonable doubt that Sutton “knew that he did not have such
permission” to be in the trailer. Counsel argued this was not adequate, that the
existence of the mistake of fact statute is evidence that simply having
“knowledge” as part of the principal instruction is insufficient. The
Commonwealth stated it could find no cases where the mistake of fact
instruction is added when it duplicated an element of the offense. The court
agreed with the Commonwealth, stating it had conducted its own research on
the question and found no case law requiring the separate instruction when it
is duplicative. The court then said the requested instruction would be
duplicative of Subsection B of the first-degree burglary instruction which
required the jury to find that when Sutton entered the trailer, “he knew he did
not have such permission[,]” and declined to add specific mistake of fact
language.
The jury rejected Sutton’s mitigating defense of extreme emotional
disturbance and found him guilty of first-degree assault of Risley; attempted
murder of Davis; first-degree wanton endangerment of A.D.; first-degree
burglary of Davis’s residence; first-degree burglary of Burkey’s residence; theft
by unlawful taking of Burkey’s firearms; theft by unlawful taking of property
valued at more than $500 in the theft of the car; theft by unlawful taking of
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property valued at less than $500 in the theft of gasoline; and the lesser
included offenses of menacing as to T.J., K.B., and Y.K.
During the misdemeanor penalty phase, the jury imposed the maximum
penalties for the misdemeanor offenses. During the felony penalty phase, the
Commonwealth introduced evidence that Sutton was previously convicted of
theft by unlawful taking of property valued at more than $500 and second-
degree arson. The jury fixed his penalties at twenty years’ imprisonment for
first-degree assault; fifteen years’ imprisonment for attempted murder; five
years’ imprisonment for first-degree wanton endangerment; ten years’
imprisonment for each of the two first-degree burglary counts; five years’
imprisonment for theft by unlawful taking of the firearms; and two years’
imprisonment for theft by unlawful taking of the automobile. When the trial
court read the jury's verdict about whether the sentences should run
concurrently or consecutively, it noted an error in how the jury had completed
the verdict form.
Verdict Form 8 gave the jury three choices: (1) run the sentences
concurrently; (2) run the sentences consecutively; or (3) run some sentences
concurrently and some sentences consecutively. The form itself had blanks in
each of the options where the jury was to write in the instruction numbers to
which it was to apply. When the jury returned with their initial verdict, they
had put a checkmark in the blank for concurrently contained in option 1
rather than writing in the instruction numbers. The trial court stated, “I think I
know what you want,” but asked the jury to return to the jury room and “fill in
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the instruction numbers as well.”3 Defense counsel did not object to the court's
direction to the jury. When the jury returned approximately ten minutes later,
the checkmark had been scratched out, and the blanks for the combination of
consecutive and concurrent sentences (option 3) had been completed. The
resulting recommendation ran the assault sentence (Instruction 2)
consecutively to the remaining sentences for a total of thirty-five years’
imprisonment. The trial court asked the parties if they would like the jury
polled.
Defense counsel asked to approach and made a motion for a mistrial as
to sentencing. Counsel argued there were reasonable grounds to believe that
the jurors were confused on what they decided, and it was reasonable to
construe they had initially recommended a total of twenty years’ imprisonment
for all charges. Defense counsel further argued that the change in
recommendation after the jury was sent back showed a structural issue with
the verdict. The trial court deferred the ruling on this motion, instead again
asking defense counsel whether he wanted the jury polled. The court stated it
would take up the mistrial motion after it had dismissed the jury. Defense
counsel asked for the jury to be polled, and all jury members acknowledged the
verdict as their verdict.
3 We note that a review of the video record shows the trial court made no
expression of what it thought the jury meant by its verdict or any indication that a
concurrent sentence would be an incorrect result. It only stated that the jury had to
return to the jury room and fill in the spaces correctly.
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Once the jury was excused, the court addressed Sutton's motion for a
mistrial on sentencing. The Court stated for the record that the original jury
form was incomplete. The jury had placed a checkmark in the blank where the
instruction numbers were supposed to be written rather than the numbers
themselves. When the jury came back, that mark was crossed out and a
checkmark was placed next to the third subparagraph and the blanks were
filled in with Instructions 3–8 to run concurrently, and Instruction 2, assault,
to run consecutively with the other sentences for a total of thirty-five years’
imprisonment. The court noted it was not the first-time jurors had had
difficulty filling in that form correctly. The Commonwealth objected to any
mistrial, emphasizing the jury was polled and all jurors agreed the verdict was
their verdict. The trial court denied the motion for mistrial.
Sutton now appeals his convictions as a matter of right. KY. CONST. §
110. Sutton argues: (1) he was entitled to a directed verdict for the burglary
charge for Davis's trailer; (2) the trial court erred by not including a mistake of
fact instruction as to the burglary of Davis's trailer; (3) the trial court erred in
denying Sutton's request for a self-protection instruction; (4) the trial court
erred by permitting the jury to view body camera video of the scene; and (5) the
trial court erred in permitting the jury to correct the error in its sentence
recommendation on Verdict Form 8.
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II. ANALYSIS
A. Sutton was not entitled to a directed verdict on the charge of first-
degree burglary of Davis’s trailer.
Sutton argues that the Commonwealth failed to prove each element of
the burglary count regarding Davis’s trailer. Therefore, the trial court
committed reversible error in denying his directed verdict motion. The
Commonwealth asserts that the issue is not properly preserved. Specifically,
the Commonwealth argues Sutton’s failure to object to the giving of the
burglary instruction waived the issue. We recently clarified the process
required to preserve a directed verdict issue. Ray v. Commonwealth, 611
S.W.3d 250 (Ky. 2020), petition for cert. filed, No. 20-8236 (U.S. Jan. 29. 2021).
In Ray, we held that jury instruction issues and directed verdict issues are
distinct for purposes of appeal. Id. at 266. A criminal defendant may preserve a
directed verdict issue for appeal by:
(1) mov[ing] for a directed verdict at the close of the
Commonwealth's evidence; (2) renew[ing] the same directed verdict
motion at the close of all the evidence, unless the defendant does
not present any evidence; and identify[ing] the particular charge
the Commonwealth failed to prove, and [identifying] the particular
elements of that charge the Commonwealth failed to prove.
Id. The record shows Sutton made the appropriate directed verdict motion on
the burglary count at the conclusion of the Commonwealth’s presentation of its
evidence, and he renewed that motion at the conclusion of his own evidence.
Therefore, the issue is preserved.4
4 We note that we rendered Ray six days after the Commonwealth submitted its
brief in this case. Therefore, our clarification on the rules of preservation contained in
Ray were unavailable to the Commonwealth.
14
The standard of review for denial of a motion for directed verdict is as
follows:
On motion for directed verdict, the trial court must draw all fair
and reasonable inferences from the evidence in favor of the
Commonwealth. If the evidence is sufficient to induce a reasonable
juror to believe beyond a reasonable doubt that the defendant is
guilty, a directed verdict should not be given. For the purpose of
ruling on the motion, the trial court must assume that the
evidence for the Commonwealth is true, but reserving to the jury
questions as to the credibility and weight to be given to such
testimony.
On appellate review, the test of a directed verdict is, if under the
evidence as a whole, it would be clearly unreasonable for a jury to
find guilt, only then the defendant is entitled to a directed verdict
of acquittal.
Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991). Under KRS
511.020(1):
A person is guilty of burglary in the first degree when, with the
intent to commit a crime, he knowingly enters or remains
unlawfully in a building, and when in effecting entry or while in the
building or in the immediate flight therefrom, he or another
participant in the crime:
(a) Is armed with explosives or a deadly weapon; or
(b) Causes physical injury to any person who is not a participant in
the crime; or
(c) Uses or threatens the use of a dangerous instrument against
any person who is not a participant
Furthermore, KRS 511.090(1) provides that “[a] person ‘enters or remains
unlawfully’ in or upon premises when he is not privileged or licensed to do so.”
With these rules in mind, we now address the trial court’s denial of Sutton’s
directed verdict motion.
15
Sutton argues the Commonwealth failed to introduce evidence that he
did not have permission to enter the trailer. Admittedly, both parties
acknowledge that Sutton was once a tenant in the trailer. While his status as a
former tenant may provide Sutton some credibility on this issue, the question
on a directed verdict motion is not necessarily what evidence supporting the
defendant was solicited, but rather what evidence the Commonwealth
produced in support of its burden of proof. The Commonwealth established
that Sutton had moved out and lived in Kansas until the day of the attack.
While evidence indicated he had moved out on at least one prior occasion and
returned to the trailer, Davis’s testimony was that Sutton had requested
permission to return on that prior occasion. Davis and Sutton both testified
that while they communicated after Sutton’s move to Kansas, Sutton's goal was
to convince Davis to move to Kansas. There was no testimony that Sutton
asked to return, or made known an intention to return, to Kentucky. Lastly,
and perhaps most importantly, he did not use his key to open the door when
he returned. Sutton burst through the door with such violence that he broke
one of the hinges and the strike plate on the latch and did so while holding a
.357 revolver. Viewing the evidence in the light most favorable to the
Commonwealth, we hold that it was not clearly unreasonable for a jury to find
that Sutton was guilty of burglary. Therefore, the trial court did not err in
denying Sutton's motion for a directed verdict as to the burglary of Davis’s
trailer.
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B. The trial court did not err in finding a specific mistake of fact
instruction would be duplicative of the court’s proposed instruction.
Sutton’s second argument on appeal is that he was entitled to a mistake
of fact instruction as part of the jury instruction regarding the burglary of
Davis’s trailer. A trial court is required to instruct on “every state of the case
deducible or supported to any extent by the testimony.” Taylor v.
Commonwealth, 995 S.W.2d 355, 360 (Ky. 1999) (citing RCr5 9.54(1); Kelly v.
Commonwealth, 267 S.W.2d 536, 539 (Ky. 1954)). Whether the evidence
warranted a requested instruction is viewed in the light most favorable to the
requesting party. Thomas v. Commonwealth, 170 S.W.3d 343, 347 (Ky. 2005)
(citing Ruehl v. Houchin, 387 S.W.2d 597, 599 (Ky. 1965)). “A decision to give or
to decline to give a particular jury instruction inherently requires complete
familiarity with the factual and evidentiary subtleties of the case that are best
understood by the judge overseeing the trial from the bench in the courtroom.”
Sargent v. Shaffer, 467 S.W.3d 198, 203 (Ky. 2015). Ordinarily, “[b]ecause such
decisions are necessarily based upon the evidence presented at the trial, the
trial judge's superior view of that evidence warrants a measure of deference
from appellate courts that is reflected in the abuse of discretion standard.” Id.(footnote omitted).
However, in this case, the trial court seemed to agree that Sutton had
presented sufficient evidence to warrant a mistake of fact instruction. The trial
court’s actual decision was that the its contemplated instruction for burglary,
5 Kentucky Rules of Criminal Procedure.
17
which already included a “knowing” element, permitted Sutton’s argument and
that Sutton’s proposed separate mistake of fact instruction would be
duplicative. Because the trial court’s decision on this issue was not based on
its assessment of the facts but rather its assessment of the law, we review the
trial court’s denial of the requested jury instruction in this case de novo.
Conyers v. Commonwealth, 530 S.W.3d 413, 424 (Ky. 2017) (citing Sargent,
467 S.W.3d at 204). We examine jury instructions in their entirety, and where
the instruction accurately states the law there is no error. Fields v.
Commonwealth, 274 S.W.3d 375, 415 (Ky. 2008) (citing Bills v. Commonwealth,
851 S.W.2d 466, 471 (Ky. 1993)), overruled on other grounds by Childers v.
Commonwealth, 332 S.W.3d 64 (Ky. 2010). Jury instructions should not
explain evidentiary matters, evidentiary presumptions, or contain unnecessary
detail. Meyers v. Chapman Printing Co., Inc., 840 S.W.2d 814, 824 (Ky. 1992).
Erroneous instructions to the jury are presumed to be prejudicial, and an
appellee claiming harmless error bears the burden of showing affirmatively that
no prejudice resulted from the error. Sargent, 467 S.W.3d at 212 (citing
McKinney v. Heisel, 947 S.W.2d 32, 35 (Ky. 1997)).
Sutton relies on Cheser v. Commonwealth for the proposition that even
when the general instruction addresses the requisite mental state, a specific
mistake of fact instruction must be given if the evidence supports it. 904
S.W.2d 239, 243 (Ky. App. 1994), overruled on other grounds by Walker v.
Commonwealth, 127 S.W.3d 596 (Ky. 2004). We acknowledge a trial court is
required to instruct the jury on affirmative defenses if the evidence would
18
permit a juror reasonably to conclude that the defense exists. Fredline v.
Commonwealth, 241 S.W.3d 793, 797 (Ky. 2007); Nichols v. Commonwealth,
142 S.W.3d 683, 687 (Ky. 2004). A mistake of fact instruction is only justified
if: (1) evidence is presented at trial that would allow the jury to infer that the
defendant's actions resulted from a reasonable and bona fide mistake of fact;
and (2) the mistake negates the applicable mental state of the charged offense.
Cheser, 904 S.W.2d at 242. “[M]istake of fact is governed by a subjective
standard and there is no requirement to show that a mistake of fact be
reasonable for this defense to be available.” Mullikan v. Commonwealth, 341
S.W.3d 99, 107 (Ky. 2011) (citing Walker, 127 S.W.3d at 608; KRS 501.070).
The Commonwealth agreed that it bore the burden of proving that Sutton
entered Davis’s trailer knowing that he did not have permission to be there.
When Sutton’s counsel requested the mistake of fact instruction, the trial court
asked whether Subsection B of the proposed instruction did not already
provide for that mistake, as it required the Commonwealth to prove beyond a
reasonable doubt Sutton knew he was in the trailer unlawfully. Jury
Instruction 23 dealt with the first-degree burglary of Davis’s trailer on Gordon
Drive. The instruction in its entirety read:
You will find the Defendant, Shawn K. Sutton, guilty of First-
Degree Burglary under this Instruction if, and only if, you believe
from the evidence beyond a reasonable doubt all of the following:
A. That in this county on or about February 11, 2019 and before
the finding of the Indictment herein he entered or remained in a
building (4420 Gordon Drive) rented by Jennifer Davis without
the permission of Jennifer Davis or any other person authorized
to give such permission;
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B. That in so doing, he knew he did not have such permission;
C. That he did so with the intention of committing a crime therein;
AND
D. That when effecting entry or while in the building or in
immediate flight therefrom, caused physical injury to Troy
Risley, and Troy Risley was not a participant in the crime.
If you find the Defendant guilty under this Instruction you shall
not fix his punishment but shall state only in your verdict that you
have found the Defendant guilty of this offense and return your
verdict to the Court without deliberating on the question of
punishment.
(emphasis added).
The Commonwealth agreed with the court that the tendered instruction already
permitted Sutton's argument, and a mistake of fact instruction would be
duplicative of the language already contained in the burglary instruction.
KRS 501.070, in pertinent part, provides, “(1) A person’s ignorance or
mistake as to a matter of fact or law does not relieve him of criminal liability
unless: (a) Such ignorance or mistake negatives the existence of the culpable
mental state required for commission of an offense . . . .” As noted above,
knowledge was a necessary element of the offense. The general rule is that
where the general instructions are “couched in such language as the ordinary
layman, who sits upon the jury, can easily and readily understand and
comprehend, and its negative completely and adequately covers the defense of
the accused, it is unnecessary to give an affirmative instruction on the theory.”
20
Duvall v. Commonwealth, 225 Ky. 827, 10 S.W.2d 279, 281 (1928).6 Sutton
relies on Cheser’s statement that where a mistake of fact defense negates the
existence of a statutorily required mental state, it is an abuse of discretion for a
trial court not to give this instruction. 904 S.W.2d at 242. “[W]here a defendant
proves facts or circumstances to excuse his or her act which would otherwise
in and of itself be a crime, or the specific issue is one of criminal intent such as
mental capacity, an affirmative instruction should be given.” Id. (citing Grigsby
v. Commonwealth, 299 Ky. 721, 187 S.W.2d 259, 261 (1945)).
Cheser was a Court of Appeals decision, and we have not directly
addressed whether a general instruction may sufficiently address a defendant’s
viable statutory mistake of fact defense. States are divided on whether a
general instruction, adequately addressing the defendant’s culpable mental
state, can sufficiently express a defense of mistake of fact.7 We have said it is
See also Stafford v. Commonwealth, 490 S.W.2d 738, 741 (Ky. 1973); Owens v.
6
Commonwealth, 487 S.W.2d 897, 900 (Ky. 1972), overruled on other grounds by
Commonwealth v. Roberts, 122 S.W.3d 524 (Ky. 2003).
7 See People v. Ellison, 466 N.E.2d 1024 (Ill. App. 1984) (rejecting state's claim
that general jury instruction on elements of theft and burglary were sufficient when a
mistake of fact has been adequately raised); State v. Freeman, 267 N.W.2d 69 (Iowa
1978) (holding courts have a duty to specifically instruct on a mistake of fact even
where requisite criminal intent is part of the general instruction); General v. State, 789
A.2d 102 (Md. 2002) (holding the general instruction on intent is insufficient when a
mistake of fact defense is supported by the evidence); Scott v. State, 44 So. 803 (Miss.
1907) (holding the instruction setting forth the elements of the crime must be modified
to incorporate the affirmative defense when the affirmative defense is supported by
evidence); Commonwealth v. Hamilton, 766 A.2d 874 (Pa. 2001); Hill v. State, 765
S.W.2d 794 (Tx. Crim. App. 1989); Stagner v. State, 842 P.2d 520 (Wy. 1992) (holding
general instruction was inadequate where sufficient evidence was asserted justifying
mistake of fact instruction); but see, e.g., State v. Singleton, 974 A.2d 679 (Conn. 2009)
(holding separate jury instruction not required when instruction on the intent is
sufficient to permit the defendant's defense); Murray v. State, 782 S.E.2d 694 (Ga.
App. 2016) (holding separate mistake of fact instruction is not required where
instructions as a whole fairly present the defendant’s defense); Palmer-Hall v. State,
21
error for a trial court to refuse to provide a voluntary intoxication instruction
when the evidence justified it, Fredline v. Commonwealth, 241 S.W.3d 793, 797
(Ky. 2007),8 a self-protection instruction when supported by the evidence,
Hilbert v. Commonwealth, 162 S.W.3d 921, 925 (Ky. 2005), or an innocent
possession instruction when warranted, Commonwealth v. Adkins, 331 S.W.3d
260, 263 (Ky. 2011). We note each of these statutory defenses is qualitatively
different from a mistake of fact. In each example, the defendant is acting in a
way that a person would otherwise know is illegal and the Commonwealth can
prove the requisite elements. However, statutes provide exceptions allowing the
defendant to argue an inability to form the requisite criminal intent
(intoxication), justification (self-protection), or a policy exception (innocent
possession). A separate instruction in those instances is rationally required to
effectively inform the jury of the exception and delineate its bounds.
“Knowing” has a much more ordinary meaning to a jury when it is
assessing whether the defendant was simply wrong in his understanding of the
situation, and he did not knowingly act in a proscribed manner. Kentucky has
long employed the use of “bare bones” jury instructions, avoiding an
abundance of detail and providing only a framework of the applicable legal
principles. Olfice, Inc. v. Wilkey, 173 S.W.3d 226, 229 (Ky. 2005). ‘“Bare bones’
instructions are proper if they correctly advise the jury about ‘what it must
138 N.E.3d 968 (Ind. App. 2019) (holding mistake of fact is adequately covered by an
appropriate intent instruction).
8 But see Fields, 274 S.W.3d at 415 (holding that when read in its entirety, the
primary instruction accurately stated the law and the effect of voluntary intoxication
on the offense of intentional murder).
22
believe from the evidence in order to return a verdict in favor of the party who
bears the burden of proof’ on that issue.” Id. (citing Meyers, 840 S.W.2d at
834).9 “Trial courts are called upon to engage in a balancing effort to ensure
that jury instructions in Kentucky provide only the bare minimum necessary to
ensure that the jury understands the ultimate issue of fact to be decided in any
case, but still provide enough law and background knowledge so that the jury
comes to a decision that is supported by law.” Norton Healthcare, Inc. v.
Disselkamp, 600 S.W.3d 696, 723 (Ky. 2020). We have explained that the “bare
bones” of the jury instruction can be “fleshed out by counsel in their closing
arguments if they so desire.” Cox v. Cooper, 510 S.W.2d 530, 535 (Ky. 1974).
Apart from Adkins, the cases cited by Sutton deal with a decision of a
trial court as to whether to give an instruction. Only in Adkins did we squarely
address the question of whether a specific instruction was required if the
general instruction expressed the requisite mental state. 331 S.W.3d at 264.
Adkins was indicted for possession with intent to distribute methamphetamine.
Id. at 261–62. Adkins asserted an innocent possession defense based on his
confiscation of the items from a third party and evidence he had tried to call
police only a couple hours prior. Id. at 262. Adkins sought modification of the
instruction related to his possession of the methamphetamine to include the
word “unlawfully.” Id. The trial court refused, finding the portion of the
instruction requiring the Commonwealth to show Adkins’s intent to distribute
was adequate to permit his innocent possession defense. Id. In Adkins, we said
9 See also Crabtree v. Commonwealth, 455 S.W.3d 390, 413 (Ky. 2014).
23
that the court’s general instruction for intent was insufficient to permit
Adkins’s full defense and he was entitled to an affirmative instruction
embodying his innocent possession defense. Id. at 266. Notably, while we
outlined a recommended instruction that completely encompassed the
innocent possession defense, we said that Adkins’s request to simply add the
word “unlawfully” to the possession portion of the instruction was one way to
allow for the statutory defense. Id.10 For this reason, where the general
instruction sufficiently places the burden on the Commonwealth to prove the
defendant knew his conduct was unlawful and permits the defendant to
affirmatively and effectively argue his mistake of fact, a separate mistake of fact
instruction is not required.
As outlined above, Subsection B of the burglary instruction already
captured Sutton’s mistake of fact defense. Although not as verbosely or
emphatically as Sutton would have preferred, the instruction appropriately
placed the burden on the Commonwealth to introduce evidence from which the
jury could conclude that Sutton entered the property knowing he was doing so
unlawfully. The instruction permitted Sutton to affirmatively argue the mistake
as a counter to the Commonwealth’s evidence. The trial court found Sutton
could argue the mistake and that the argument was adequately expressed in
Subparagraph B of the burglary instruction. Unlike Adkins where it was
10 The more complete instruction outlined by this Court added the word
“unlawfully” to the possession instruction and provided a specific statutory definition
of “innocent possession.” We note in the Adkins context, “innocent possession” had a
very specific meaning and like self-protection or intoxication may not have lent itself to
an ordinary meaning easily and readily understood by the jury.
24
reasonable to conclude the court needed to explain the legal definition of
innocent possession, here the reasonable juror can understand the phrase “he
knew he did not have such permission.” Because the instructions permitted
Sutton to place his mistake of fact defense squarely in front of the jury and the
burden was on the Commonwealth to establish the requisite knowledge
element, we hold that the trial court did not err in determining Sutton’s offered
instruction was duplicative of the court’s instruction. For this reason, the court
did not abuse its discretion in denying Sutton’s request for a separate, specific
mistake of fact instruction.
C. The trial court did not abuse its discretion in denying Sutton’s
request for a self-protection instruction.
Sutton’s third claim of error was the trial court’s denial of a self-
protection instruction. “Instructions must be based upon the evidence, and
they must properly and intelligibly state the law.” Howard v. Commonwealth,
618 S.W.2d 177, 178 (Ky. 1981) (citing Simpson v. Commonwealth, 313 Ky.
599, 233 S.W.2d 118, 120 (1950)). Because the trial court’s denial of Sutton’s
request for a self-protection instruction was based on its view of the evidence,
we review the decision for abuse of discretion. Exantus v. Commonwealth, 612
S.W.3d 871, 888 (Ky. 2020) (citing Ratliff v. Commonwealth, 194 S.W.3d 258,
274 (Ky. 2006)). KRS 503.050 provides that a person may use physical force,
including deadly physical force, if he believes that such force is necessary to
protect against death or serious physical injury by the other person. A
defendant’s otherwise justifiable use of physical force is improper if the
defendant is the initial aggressor. KRS 503.060(3). A jury instruction on self-
25
defense “is necessary once sufficient evidence has been introduced at trial
which could justify a reasonable doubt concerning the defendant’s guilt.”
Hilbert v. Commonwealth, 162 S.W.3d 921, 925 (Ky. 2005) (citations omitted).
We recently addressed a trial court’s decision on whether to include jury
instructions regarding the right to use deadly force and the initial aggressor
limitation in Downs v. Commonwealth, 620 S.W.3d 604 (Ky. 2020). In Downs,
we stated that:
[W]e have made clear that there must be sufficient evidence in the record
to substantiate the instruction:
The criterion is whether movant, in good faith, believed it
was necessary to exercise extreme force in saving his own
life. It is not every assertion of such belief that is adequate to
support a plea of self-defense. It is the whole circumstances
which surround the incident that must be considered by the
trial judge in deciding whether an instruction on self-defense
is proper or whether an instruction on self-defense with
limitations is proper. We have held that before such
qualifying instructions are proper there must of course be
evidence to justify it. In other words, the trial judge must
find as a matter of law that there is sufficient evidence to
justify such limitations before instructing the jury.
Id. at 614 (quoting Stepp v. Commonwealth, 608 S.W.2d 371, 374 (Ky. 1980)).
While Downs assessed the trial court's inclusion of an initial aggressor
limitation to the self-protection instruction, id., the question is the same. Is
there sufficient evidence to justify the requested instruction?
In denying Sutton’s request for a self-protection instruction, the trial
court never stated whether it agreed with the Commonwealth's argument that
the instruction was unwarranted because Sutton was the initial aggressor. The
court succinctly stated, “I am not going to give that instruction.” We note the
26
Commonwealth's initial aggressor argument for denying the instruction is an
incomplete statement of law. Whether a defendant is the initial aggressor is a
limiting instruction included within the self-protection instruction, not an
absolute bar to a self-protection instruction. The initial aggressor limitation is
added to a self-protection instruction if: (1) the facts support a self-protection
instruction; and (2) there are facts that would support a juror’s belief that the
defendant was the initial aggressor. See, e.g., Conley v. Commonwealth, 599
S.W.3d 756, 775–76 (Ky. 2019). As we stated in Downs and Stepp, “[i]t is the
whole circumstances which surround the incident that must be considered by
the trial judge in deciding whether an instruction on self-defense is proper[.]”
Id. Some of the same facts that support an initial aggressor instruction may
also be relevant to the issue of whether the defendant had a subjective belief
that deadly force was necessary in the first place.
Here, Sutton broke through the door with a .357 revolver in his hand.
Risley stood up or attempted to stand up quickly from the couch. Sutton
testified that Risley lifted his arm, and witnesses indicated Risley’s sole action
was to say, “don't do it.” Sutton stated at this point, “I got scared,” and shot
Risley twice. Risley was across the room from Sutton at the time Sutton fired.
Sutton never indicated he saw, or thought he saw, a weapon or otherwise
stated that he believed that he was in danger of death or serious physical
injury. A nonspecific statement of fear is insufficient; the evidence must
support the defendant’s belief that deadly force “is necessary to protect himself
against death [or] serious physical injury.” KRS 503.050(2). Thus, even fully
27
accepting Sutton’s version of events, none of Risley’s actions, or Sutton’s
statements, indicate a subjective fear by Sutton necessitating the use of
deadly force sufficient to find the trial court acted in a way that was arbitrary,
unreasonable, unfair, or unsupported by sound legal principles in denying the
instruction. We hold the trial court did not abuse its discretion by denying a
self-protection jury instruction.
D. The trial court did not abuse its discretion in permitting the jury to
view the body camera video.
Sutton next argues the trial court erred in permitting the jury to view the
body camera video from the first officer to arrive on the scene. The video was
played during the officer’s testimony to support his commentary. The entire
video was approximately five minutes, about half of which was the officer
applying first aid to Risley. Lastly, the low level of light in the trailer resulted in
a video that was subdued and lacking in detail.11
“A trial judge's decision with respect to the relevancy of evidence under
KRE 401 and 403 is reviewed under an abuse of discretion standard.” Love v.
Commonwealth, 55 S.W.3d 816, 822 (Ky. 2001) (citations omitted). Evidence is
relevant if it has any tendency to render the existence of any consequential fact
more or less probable, however slight that tendency may be. Springer v.
Commonwealth, 998 S.W.2d 439, 449 (Ky. 1999); KRE 401. KRE 403 limits the
admission of otherwise relevant evidence if the “probative value is substantially
11 As discussed, the video itself was not introduced as an exhibit. Therefore, our
review of the video was limited to the version captured as part of the trial’s video
record. It is possible we did not see the images at the same fidelity as the jury viewed
them.
28
outweighed by the danger of undue prejudice.” The admission of videos and
photographs is subject to the balancing test of KRE 403. Hall v.
Commonwealth, 468 S.W.3d 814, 823 (Ky. 2015).
“[A] photograph, otherwise admissible, does not become inadmissible
simply because it is gruesome and the crime is heinous.” Funk v.
Commonwealth, 842 S.W.2d 476, 479 (Ky. 1992). When ruling on the
admissibility of a gruesome photograph, the trial court should consider
whether there are alternatives that would prove the fact at issue without
comparable risk of prejudice. Old Chief v. United States, 519 U.S. 172, 184–85
(1997); Norris v. Commonwealth, 89 S.W.3d 411, 416 (Ky. 2002); Fields v.
Commonwealth, 12 S.W.3d 275, 279 (Ky. 2000) (affirming admission of graphic
crime scene video detailing victim’s wounds if “proper foundation is laid”).
However, the evidence must be highly inflammatory and prejudicial to
compel a party to employ an alternative. Ratliff v. Commonwealth, 194 S.W.3d
258, 271 (Ky. 2006) (emphasis added).
Sutton argues the introduction of the video was needlessly cumulative of
other testimony, designed to evoke bias and sympathy from the jurors, and
compares the video in this case to the photographs we said should have been
excluded in Hall. The Commonwealth, in Hall, introduced a ten-minute police
video documenting the crime scene and a total of forty-three crime scene and
autopsy photographs. 468 S.W.3d at 820. Twenty-eight of the photos were
admitted over objection. Id. We acknowledged that admission of photos to
establish the elements of the offense and the devastating nature of the victims’
29
wounds was allowed, but the Commonwealth’s introduction of twenty-eight
photos, over the defendant’s objection, was needlessly cumulative when
balanced against the danger of inflaming the jury. Id. at 826. We found
particularly problematic the extended presentation of two enlarged images of
one of the victim’s wounds. Id. We stated that Hall represented “the rare
instance of an abuse of the trial court's discretion under Rule 403 in admitting
gruesome photographs.” Id. at 827 (emphasis added).
The Commonwealth contends the video in question was relevant on its
own and was not unnecessarily cumulative of subsequent witness testimony.
We agree. A crime scene video is admissible even if gruesome, Young v.
Commonwealth, 50 S.W.3d 148, 169 (Ky. 2001), and may represent a more
accurate depiction of the scene than testimony alone. Baumia v.
Commonwealth, 402 S.W.3d 530, 542–43 (Ky. 2013). The video provided the
jury a pictorial representation of the layout of the room in which the events
occurred, helping it understand subsequent witness testimony as well as
providing the only visual evidence of Risley’s injuries.
Unlike in Hall, except for one screenshot,12 the video itself was not
introduced as an exhibit. Therefore, the video was not available to the jury
during deliberations. The video itself appeared much less gruesome than the
video described in Rucker which we held was appropriately admitted. While the
12 A single frame capture from the video was introduced as an exhibit. The
image showed the chair that Davis would later testify she was kneeling against when
Sutton held the gun to her head. There was no objection to the introduction of this
single image.
30
video was undoubtedly prejudicial to Sutton’s case, as any relevant evidence
would be, it was not so highly inflammatory or prejudicial as to be one of the
rare instances compelling the Commonwealth to use an alternative. Therefore,
we hold the trial court did not abuse its discretion in denying Sutton’s motion
to exclude the presentation of the video.
E. The trial court did not err in permitting the jury to correct a
mistake in form on Verdict Form 8 or imposing a thirty-five-year
sentence.
Sutton’s final allegation is that the trial court erred in denying his
mistrial motion as to the sentencing phase of his trial, or in the alternative, in
accepting the jury’s thirty-five-year sentence recommendation. Sutton’s basis
for his sentencing issues revolves around the jury’s recommendation that
Sutton’s assault sentence run consecutively to his other sentences. Sutton
asserts the change represented a substantive change to the verdict, a
structural error amounting to manifest injustice, and a judicial infringement on
Sutton's Sixth Amendment right to a trial by jury.13 At trial, Sutton moved for a
mistrial as to sentencing, but to this Court he requests relief in the form of
reversing and remanding the sentencing with an order to impose a twenty-year
maximum sentence.
As noted previously, when the jury returned from sentencing
deliberations, the judge detected an error in how the jury completed Verdict
Form 8, the jury’s recommendation as to whether the sentences should be
served concurrently or consecutively. The jury had placed a checkmark in the
13 U.S. CONST. amend. VI, cl. 2.
31
blank where the instruction numbers for the sentences to be run concurrently
were supposed to be listed. The trial court stated, “I think I know what you
want,” but asked the jury to return to the jury room and “fill in the instruction
numbers as well.” Defense counsel did not object to the court’s direction to the
jury. When the jury returned approximately ten minutes later, the checkmark
had been scratched out, and the blanks for the combination of consecutive and
concurrent sentences had been completed. The resulting recommendation ran
the assault sentence consecutive to the remaining sentences for a total of
thirty-five years’ imprisonment.
For a mistrial to be granted, “the record must reveal a manifest necessity
for such an action or an urgent or real necessity.” Ross v. Commonwealth, 531
S.W.3d 471, 479 (Ky. 2017) (citing Skaggs v. Commonwealth, 694 S.W.2d 672,
678 (Ky. 1985)). We review a trial court’s denial of a mistrial for an abuse of
discretion. Slone v. Commonwealth, 382 S.W.3d 851, 858 (Ky. 2012) (citing
Bray v. Commonwealth, 68 S.W.3d 375, 383 (Ky. 2002)). Where correctly
instructed, if a jury returns a verdict correct in form, it may not be resubmitted
to the jury for substantive change. Jackson v. Commonwealth, 303 Ky. 25, 196
S.W.2d 865, 866 (1946). Where the mistake is one of form, apparent on the
face of the verdict, the court may point out the error and “require the jury to
return a verdict consistent with the instructions.” Bush v. Commonwealth, 839
S.W.2d 550, 556 (Ky. 1992) (quoting Bogie v. Commonwealth, 467 S.W.2d 767,
769 (Ky. 1971)).
32
Sutton relies on Jackson, asking us to find the verdict was substantively
changed and asking we direct the trial court to impose the sentences
concurrently for a sentence of twenty-years’ imprisonment. In Jackson, the
defendant pleaded guilty to warehouse breaking, an offense with a maximum
five-year sentence. 196 S.W.2d at 865. Despite the plea, a jury was empaneled
to conduct sentencing, and the jury agreed to a one-year sentence. Id. The
Commonwealth’s Attorney objected, stating in open court that he had an
agreement with the defendant for a five-year sentence in exchange for not filing
other charges he had available. Id. The Commonwealth’s Attorney then stated
that if the jury did not reconsider, he would file the charges, and the trial court
permitted the jury to retire and reconsider the sentence. Id. The jury returned
with a revised verdict imposing the five-year sentence. Id. We said where a
properly instructed jury returns a verdict that is proper in form and substance,
it is too late for reconsideration of the verdict. Id. at 866.
We note that Jackson is easily distinguishable. First, we acknowledged in
Jackson that where the verdict is improper in form or substance, the trial court
is within its authority to direct the jury to correct the form. Id. at 865–66.
Second, the Jackson jury was considering the sentence for a single offense
rather than recommending how the defendant should serve multiple sentences.
Sutton’s jury had already agreed to guilt in a prior phase, and during the
sentencing phase, agreed to the individual sentences for his offenses on Verdict
Forms 2–7. Verdict Form 8 dealt specifically with the jury’s recommendation
as to whether his multiple offenses should be served concurrently or
33
consecutively. Kentucky law places the authority to determine the maximum
sentence for an individual offense with the jury, KRS 532.060, but vests with
the trial court the final authority as to whether sentences for multiple offenses
are to be served concurrently or consecutively. KRS 532.110. A jury’s
recommendation does not bind the trial court as to whether such sentences are
to be imposed consecutively or concurrently. See Benet v. Commonwealth, 253
S.W.3d 528, 534 (Ky. 2008); Swain v. Commonwealth, 887 S.W.2d 346, 348–49
(Ky. 1994); Dotson v. Commonwealth, 740 S.W.2d 930, 931 (Ky. 1987).
Reviewing the record, the trial court immediately recognized an error in
either form or substance on Verdict Form 8. The trial court directed the jury to
return to the jury room to make appropriate corrections to the form. We
detected nothing in the trial court’s direction that would have swayed a jury to
change anything to which they had previously agreed. The jury was gone a
total of approximately ten minutes to correct the form. Most importantly,
nothing in the original, or corrected, version of the form was binding on the
trial court. Accordingly, there was no manifest need for a mistrial, and the trial
court did not abuse its discretion in denying Sutton’s motion for a mistrial.
Regarding Sutton’s Sixth Amendment claim, as noted, the trial court
provided no basis on which we could infer that it invaded the jury’s province. It
provided instructions to complete the form correctly, with no direction as to the
substance of completing the form. Furthermore, whether the defendant serves
sentences consecutively or concurrently is not the province of the jury, but a
decision made by the court after a recommendation from the jury. Therefore,
34
the trial court did not abuse its discretion in denying Sutton’s mistrial motion
and the trial court was within its authority to impose a consecutive sentence
for assault.
III. CONCLUSION
For the foregoing reasons, we affirm the McCracken Circuit Court’s
judgment and sentence of Shawn Sutton.
All sitting. All concur.
COUNSEL FOR APPELLANT:
Kathleen Kallaher Schmidt
Assistant Public Advocate
Steven Nathan Goens
Assistant Public Advocate
COUNSEL FOR APPELLEE:
Daniel J. Cameron
Attorney General of Kentucky
James Daryl Havey
Assistant Attorney General
35