Opinion
NO. 2011-CA-002121-MR
04-05-2013
COMMONWEALTH OF KENTUCKY APPELLANT v. EDDIE GOODNIGHT APPELLEE
BRIEF FOR APPELLANT: Jack Conway Attorney General of Kentucky Heather M. Fryman Assistant Attorney General Frankfort, Kentucky BRIEF FOR APPELLEE: Thomas M. Ransdell Assistant Public Advocate Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM HOPKINS CIRCUIT COURT
HONORABLE JAMES C. BRANTLEY, JUDGE
ACTION NOS. 09-CR-00288 & 10-CR-00157
OPINION
AFFIRMING
BEFORE: MAZE, STUMBO AND VANMETER, JUDGES. STUMBO, JUDGE: The Commonwealth of Kentucky appeals from an Opinion and Order of the Hopkins Circuit Court granting the motion of Eddie Goodnight, Jr. to suppress an interview conducted by police in Meeker County, Minnesota. The Commonwealth contends that the circuit court erred in concluding that Goodnight unambiguously requested counsel, and that all questioning should have ceased thereafter. We find no error, and affirm the Opinion and Order on appeal.
Goodnight was indicted in Hopkins County, Kentucky on two counts of murder and one count of robbery in the first degree. He was later detained in Litchfield, Minnesota on unrelated charges. When Litchfield Detective Benjamin Aho learned that Goodnight was wanted in Kentucky, he delivered the Kentucky paperwork to the jail and Goodnight requested an attorney at that time. Detective Aho left the jail without questioning Goodnight.
A few hours later, Goodnight was delivered to open court for an extradition hearing. The record indicates that Goodnight made gestures to attract Detective Aho's attention, and then mouthed words that he wanted to talk to Aho. Detective Aho then made gestures to Goodnight to confirm if Goodnight wanted to speak to him, and Goodnight responded affirmatively.
Detective Aho brought Goodnight to the sheriff's office, brought coffee to Goodnight, and asked Goodnight if he came on his own initiative and free will. Goodnight responded affirmatively. Goodnight asked for a cigarette, and was told that the building was a "no smoking" facility. The Detective later took Goodnight outside to smoke.
The subsequent exchange between Goodnight and Detective Aho was videotaped. Detective Aho and another officer asked Goodnight if Goodnight was waiving his right to an attorney. Goodnight responded with a shrug and a laugh, and stated that, "No, I am not waiving my right to an attorney." One of the detectives then said "well . . ." and the other stated "[d]o you want to speak with us or not?" Goodnight then said, "yeah". The detectives then read the Miranda rights to Goodnight, who consented, and several hours of interrogation followed.
Goodnight later moved to suppress the interview alleging, inter alia, that the questioning was violative of the Fifth, Sixth and Fourteenth Amendments to the United States Constitution, as well as the guarantees set out in Miranda and its progeny. He argued that his unequivocal statement that, "No, I am not waiving my right to an attorney" was clear and not ambiguous, and should have served to cease all further questioning. In his view, because the questioning continued subsequent to his statement, it was violative of the constitutional rights enumerated above and must be suppressed.
A hearing on the matter was conducted, and the Hopkins Circuit Court considered the transcript of the exchange between Goodnight and the detectives. On September 6, 2011, the court rendered an Opinion and Order sustaining Goodnight's motion. As a basis for the ruling, the court determined that the dispositive issue was not whether Goodnight's answers to the questioning were voluntary, but rather whether Goodnight had unequivocally waived his right to counsel prior to questioning. The court answered that question in the negative.
The Commonwealth then moved for reconsideration, contending that the court needed to view the videotape rather than rely on the transcript of the interrogation in order to gain a complete understanding of the interchange between Goodnight and the detectives. The Commonwealth wanted the court to be fully aware of the laugh and gesture made by Goodnight while he stated, "No, I am not waiving my right to an attorney." It argued that the laugh and gesture, taken in concert with Goodnight's interaction with the detectives in open court, and his answer "yeah" to the question "do you want to speak with us or not?" was equivocal and not intended to invoke his right to counsel. The substance of the Commonwealth's argument was that all of Goodnight's language and actions, taken in concert, evinced his desire to speak to detectives without counsel, and that the trial court erred in failing to so rule.
The circuit court then viewed the video, resulting in another Opinion and Order rendered on November 3, 2011, sustaining Goodnight's motion to suppress. This appeal followed.
The Commonwealth now argues that the trial court erred in sustaining Goodnight's motion to suppress. It contends that after re-initiating contact with the officers, Goodnight did not make an unambiguous request for an attorney. The Commonwealth directs our attention to Davis v. United States, 512 U.S. 452, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994), for the proposition that if a suspect makes a reference to an attorney that is ambiguous or equivocal, and reasonably causing an officer to understand only that the suspect might be invoking the right to counsel, "our precedents do not require the cessation of questioning." Davis, supra, citing McNeil v. Wisconsin, 501 U.S. 171, 178, 111 S.Ct. 2204, 115 L.Ed.2d 158 (1991). The Commonwealth maintains that all of Goodnight's words and actions, taken in concert, at best are only an ambiguous reference to the right to counsel. It notes that in open court, Goodnight made a spontaneous and direct request to speak with the detectives; that after being removed, he stated that he was present for questioning of his own volition; that his statement of "I am not waiving my right to an attorney" was accompanied by a laugh and shrug, thus rendering it either a joke or not believable; and, that given the foregoing, the detectives' question of "do you want to speak with us or not" was reasonable under the circumstances. In sum, the Commonwealth argues that Goodnight did not unequivocally invoke his right to counsel; therefore, the questioning that followed was not constitutionally infirm. In response, Goodnight maintains that there was nothing equivocal about his statement invoking his right to counsel, and that the trial court properly sustained his motion to suppress the interrogation.
As the parties are well aware, in Miranda, supra, the United States Supreme Court established that before an accused may undergo custodial interrogation, he must be informed of his fundamental constitutional rights, including the right to remain silent, that any statement made may be used against him, that he has a right to counsel, and that counsel will be provided if he cannot afford one. Under Miranda, questioning must cease if the accused invokes his right to counsel. The accused may later waive this right, but the burden rests with the government to demonstrate from the totality of the circumstances that the waiver was made knowingly, intelligently and voluntarily. Id.
In examining the issue before it, the Hopkins Circuit Court cited Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), which established an express rule regarding an accused's right to counsel during custodial interrogation and the requirements for a waiver thereof:
we now hold that when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights. We further hold that an accused, such as Edwards, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.
In applying these principles to the instant facts, the Hopkins Circuit Court concluded that after Goodnight expressed his desire to retain counsel he was not subject to any further interrogation by authorities until counsel had been made available to him. We find no error in this conclusion. Goodnight stated in unambiguous terms that, "I am not waiving my right to an attorney", and Edwards operates to terminate all questioning at that time. The Commonwealth correctly notes that it was Goodnight who initiated contact with the detectives in the courtroom, that Goodnight shrugged and laughed when he said he was not waiving his right to an attorney, and that he later said "yeah" when asked if he wanted to speak without an attorney. Though it is true that Goodnight's actions and statements evinced his desire to speak with the detectives, what is not ambiguous is his statement that, "I am not waiving my right to an attorney." It is after this statement that questioning should have ceased.
Edwards provides that the standard to be employed under these circumstances is not whether the waiver was voluntary. Rather, the question is whether the accused made a knowing and intelligent waiver of his right to counsel. Edwards, 451 U.S. at 484. Based on his statement that, "I am not waving my right to an attorney", the Hopkins Circuit Court determined that Goodnight did not make a knowing and intelligent waiver of his right to counsel. This conclusion is supported by the record and the law.
On review of a trial court's ruling on a Motion to Suppress, we must determine if substantial evidence supports the trial court's findings of fact, and the application of the law to those facts is considered de novo. RCr 9.78; Jackson v. Commonwealth, 187 S.W.3d 300 (Ky. 2006); Commonwealth v. Neal, 84 S.W.3d 920 (Ky. App. 2002). We may reverse a ruling to include or exclude evidence only upon finding an abuse of discretion, Penman v. Commonwealth, 194 S.W.3d 237 (Ky. 2006) (overruled on other grounds by Rose v. Commonwealth, 322 S.W.3d 76 (Ky. 2010)), which is based on a determination of whether the trial court's decision was arbitrary, unreasonable, unfair or unsupported by sound legal principles. Commonwealth v. English, 993 S.W.2d 941 (Ky. 1999). We cannot conclude that the Hopkins Circuit Court abused its discretion in ruling that Goodnight did not waive his right to counsel, that all questioning should have ceased when he said "I am not waiving my right to an attorney", and that the fruit of the subsequent interrogation must be suppressed. Accordingly, we find no error on this issue.
The Commonwealth also argues that the trial court erred by implying that Goodnight spoke with the detectives as a result of their promise to take Goodnight outside and let him smoke a cigarette. It contends that because there was no testimony regarding Goodnight's thoughts or feelings, nor whether he was motivated or coerced to participate in questioning based on the promise that he could smoke a cigarette, it was improper for the trial court to draw conclusions as to Goodnight's motivation for speaking with the detectives. While acknowledging that the precedents governing coercion involve statements that were obtained through physical force, threats of physical force or psychological torture, the Commonwealth argues that we must look to the totality of the circumstances to find coercion. It maintains that the trial court erred in failing to examine the elements of coercion, instead merely implying that the promise of a cigarette overcame Goodnight's free will.
Given our conclusion above that the record and the law support the trial court's determination that Goodnight did not waive his right to counsel, we hold this argument as moot. Arguendo, even if the trial court improperly implied that the promise of a cigarette overwhelmed Goodnight's volition, it remains uncontroverted that he expressly stated he was not waiving the right to counsel. It is upon this statement - and not the promise of a cigarette - that the trial court determined that questioning should have ceased, and as such we find no error.
For the foregoing reasons, we affirm the Opinion and Order of the Hopkins Circuit Court.
ALL CONCUR. BRIEF FOR APPELLANT: Jack Conway
Attorney General of Kentucky
Heather M. Fryman
Assistant Attorney General
Frankfort, Kentucky
BRIEF FOR APPELLEE: Thomas M. Ransdell
Assistant Public Advocate
Frankfort, Kentucky
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).