Sutton v. Commonwealth

• Citation: 627 S.W.3d 836
• Decision Date: 26 August 2021
• Docket Number: 2019-SC-0648-MR
• Court: United States State Supreme Court (Kentucky)
• Parties: Shawn SUTTON, Appellant v. COMMONWEALTH of Kentucky, Appellee

627 S.W.3d 836

Shawn SUTTON, Appellant

v.COMMONWEALTH of Kentucky, Appellee

2019-SC-0648-MR

Supreme Court of Kentucky.

AUGUST 26, 2021

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.

OPINION OF THE COURT BY JUSTICE KELLER

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, 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 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 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 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, 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.

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.

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