DEVERON SHIVELY V. COMMONWEALTH OF KENTUCKY

Misty Shirley had been staying with her fian:ce's daughters, Courtney and

Carrie. Courtney's boyfriend, D.J., had been in an altercation with Misty's

fiance after he and two unidentified males entered Courtney and Carrie's

apartment looking for pills. After the altercation, Misty decitj.ed to leave

Courtney and Carrie's apartment and s_tay with other friends. D .J. called Misty

numerous times, and Misty finally answered the phone the following day. D.J.

put Appellant (his friend) on the phone, and Misty told Appellant she planned

to walk to Walgreens.

When Misty exited her friends' apartment to walk to the drugstore, she

saw Appellant emerge from the building next door, where D.J. was staying.

Appellant offered to walk with Misty to Walgreens, and Misty agreed. The two

did not go directly to the drugstore, but, instead, went to Appellant's mother's

house, as Appellant indicated he needed to get his license. While on the street

~here Appellant's mother lived, Misty and Appellant were joint!d by two

unidentified men. The four then continued. their trek to Walgreens on the

railroad tracks, heading toward a field at the back of the store.

When Misty started to step off the tracks and into the field, someone

struck her in the back of the head with a gun, knocking her down. When she

got up, Appellant faced her, with one of the unidentified men ·on either side.

Misty testified that both Appellant and one of the unidentified men had guns.

One of the men shot in Misty's direction and the three demanded money and

drugs. They finally asked Misty to call someone to "set them up." When Misty

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failed to contact anyone from whom the three could obtain drugs, the

unidentified man with a gun said, "Kill the bitch," and Appellant shot her in·

the mouth. Misty was shot a second time in her back, with this bullet exiting

through her side.

When Misty regained consciousness, she crawled across the field, and

ma9.e her way inside Walgreens. When Misty reached the front of the store,

she stood up in an effort to keep her grandmother, whom Misty was meeting at

Walgreens, from being scared. Misty told the cashier she had been shot before

collapsing in the floor.

The two detectives who spoke with Misty in the ambulance and at the

hospital both testified she said the nickname of the individual who shot her

was "Man." One of the two detectives knew Appellant's nickname was "Man,"

and gave Appellant's name to Detective Shannon Reedus, the lead detective on

the case. Reedus put together a photographic lineup and presented it to Misty.

Misty identified Appellant's photograph, and told Reedus Appellant was the

shooter.I She told Reedus she had known Appellant for a few days and had

been with him on the day of the shooting.

Appellant was arrested about three weeks after the shooting. Reedus

testified Appellant signed a rights waiver and agreed to speak to the police.

1 Misty also identified another of the pictures as being one of the men who was with Appellant. However, the individual in that photograph was in another county jail at the time of the shooting and could not have been with Appellant.

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Appellant was indicted for criminal attempt to commit murder, first

degree robbery, and possession of a handgun by a convicted felon related to

Misty's shooti~g.2 Later, the Commonwealth obtained another indictment

related to the shooti~g, adding first-degree assault (as a lesser-included offense I

of attempted_murder) and tampering with physical evidence. The indictments

were subsequently amen9-ed to add complicity. The handgun charge was

severed from the other charges, and heard separately by the same jury. The

jury found Appellant guilty of criminal attempt to commit murder, posses'sion

of a handgun by a co_nvicted felon, and tampering with physical evidence. The

trial court sentenced Appellant to serve twenty, seven, and three years'

imprisonment, respectively, and ordered those sentences to 111n con9urrently.

This appeal followed.

II. ANALYSIS

A. Appellant's Statement to Police

Appellant first argues that his statement to police was involuntary; as it

was induced and coerced. After his arrest, he was placed in an interview room

at the police station. Before Appellant was interviewed by police, he asked a

detective if he could speak to Officer Dale (the officer who had executed the

warrant). Appellant p~ovided Dale with the location of an individual wanted for

another crime. Dale told Appellant he should "be straight" and. "be honest"

2 The indictment also included charges for an unrelated incident: 'possession of a handgun by a convicted felon,. tampering with physical evidence, illegal possession of a controlled suqstance, and illegal use or possession of drug paraphernalia. These charges were later dismissed.

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"when they come in here," and that Appellant should "start taking

responsibility."

Appellant told Dale that he (Appellant) "was hurting his family" and was.

"scared for their safety." Dale responded that there were "people looking for

you," and fold Appellant the "big wigs" at the department had met about

"what's being said between these groups anq. how they're putting hits on

people, it's serious. Because usually that person ends up dead. So I was •,

warning your parents, your mom, keep away from the windows, just be careful,

cause the word's out." Appellant asked if the officers had determined who put

the hit out, and Dale responded that they had not as of yet, but that they were

working on· it. Dale told Appellant the department "had cars there [at

Appellant's mother's house] to protect you, to protect your mom, to.protect that

fa~ily." Dale reassured Appellant that he would "look out for [his] family." The

two exchanged a fist bui;np before Dale left. Reedus, who had watched the

interview from behind one-way glass, entered the interview room several . '

minutes ·after Dale left Appellant alone.

Reedus read Appellant his Miranda rights and then interrogated him

about Misty's· shooting. Appellant spoke with her and did not demand an

attorney. He gave Reedus a lengthy statement. Appellant objected to the

admission of this statement at trial, arguing the initial "interrogation" by Dale

coerced Appellant into giving the statement to Reedus.

We first note that the interaction between Dale and Appellant was not an

interrogation, as framed by Appellant: "Interrogation has been defined to

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include 'any ~ords or actions on the part of police (o~her than those normally

attendant to arrest and -custody) that the ~olice should know are reasonably·

likely to ~licit an incriminating response from the suspect ... focus[ing] I primarily upon the percept~ons of the suspect, rather than the intent of the

police." Smith v. Commonwealth, 312 S.W.3d 353, 359 (Ky. 2010) (quoting

Rhode Island v. Innis, 446 U.S. 291, 301 (1980)). In Miranda v. Arizona, the

Supreme Court of the United States said.: "By custodial interrogation, we mean

questioning initiated by law enforcement officers after a person has l?een triken

into custody or otherwise deprived of his freedom of action in any significant

way." 384 U.S. 436, 444 (1966) (emphasis added).

Appellant does not argue that he was entitled to his Miranda warnings

before speaking with Dale. In fact, Appellant does not deny that he initiated

the conversation. Dale did not question Appellant during their conversation

about Misty's shooting. While he· did encourage Appellant to be forthcoming

and honest in the subsequent interrogation regarding the shooting, he did not

hinge his protection of Appellant's family upon that honesty; much to the

contrary, Dale said, "I'll look out for your family. I give you my word on that ...

\ . Nothillg's gonna change from now on out, okay?" The trial court found that

"[a]t no point did Officer Dale undertake to· elicit 'an incrimi~ating response

from the· suspect.,,;

While Appellant did admit to being close to his mother's house on the ' day of the shooting, and did make some inconsistent statements during his

statement to Reedus, he firmly denied any participation in Misty's shooting.

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. . Appellant argues h1s statement amounted to an involuntary c~nfession. He

points out that the Supreme Court of the United States has h

For the reasons stated herein, we affirm the trial court.