Opinion
NO. 2014-CA-001980-MR
03-25-2016
WILLIAM J. DAY APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Jerry L. Wright Lexington, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Bryan D. Morrow Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM SCOTT CIRCUIT COURT
HONORABLE ROBERT G. JOHNSON, JUDGE
ACTION NO. 12-CR-00040 OPINION
AFFIRMING BEFORE: D. LAMBERT, MAZE, AND VANMETER, JUDGES. VANMETER, JUDGE: William J. Day appeals from a Scott Circuit Court judgment after entering a plea of guilty conditioned on his right to appeal the denial of his motion to suppress evidence.
The following facts were elicited at the suppression hearing: In September 2011, deputies at the Scott County Sheriff's Office began noticing that pills and money were missing from the narcotics safe. The deputies reported their concerns to Sheriff Tony Hampton. William Day and Jearl Porter were employed as the sheriff's lieutenants and served equally as his seconds-in-command. Sheriff Hampton learned that Day had approached one of the narcotics deputies to obtain the combination to the safe. He viewed surveillance video footage of the area where the safe is located which showed Day moving the surveillance camera away from its intended position on five separate occasions. After confirming that pills and money were missing from the safe, the sheriff contacted the Kentucky State Police to take over the investigation.
Lieutenant Porter called Day and told him to come to the office to meet with the sheriff. When Day arrived, the sheriff asked him to give him his gun, and told him that the state police detectives were there to speak to him about evidence. Day knew both detectives from working with them on an earlier case. He went into the office and was interviewed by the detectives, who did not give a Miranda warning. During the course of the interview, Day admitted that he took the narcotics and moved the surveillance camera on each occasion.
After the interview with the detectives, Sheriff Hampton and Lieutenant Porter came in. The interaction amongst these parties, who were all close friends, was much less formal. Sheriff Hampton returned Day's gun to him. He testified that they had an emotional conversation, and that Day apologized for what he had done. The sheriff also testified that neither he nor Lieutenant Porter asked Day any questions, and that they did not give him a Miranda warning.
Day was subsequently indicted for six counts of theft of a controlled substance and one count of theft by unlawful taking, value of $500 or more. He sought to suppress his statements. Following a hearing, the trial court denied his motion, and Day entered a conditional plea of guilty to one charge of theft of a controlled substance, first offense, less than $300 and received a sentence of five years. This appeal followed.
An appellate court's standard of review of the trial court's decision on a motion to suppress requires that we first determine whether the trial court's findings of fact are supported by substantial evidence. If they are, then they are conclusive. Based on those findings of fact, we must then conduct a de novo review of the trial court's application of the law to those facts to determine whether its decision is correct as a matter of law.Commonwealth v. Neal, 84 S.W.3d 920, 923 (Ky. App. 2002) (footnotes omitted).
At the hearing, Day relied on two grounds to seek the suppression of his incriminating statements: (1) a violation of Kentucky Revised Statutes (KRS) 15.520, the "Police Officer's Bill of Rights," and (2) a violation of his Fifth Amendment rights under Miranda.
Under Miranda, a warning regarding the right to remain silent and the right to counsel attaches only when a person is "in custody." "[O]nly statements made during custodial interrogations are subject to suppression pursuant to Miranda." Jackson v. Commonwealth, 187 S.W.3d 300, 305 (Ky. 2006), as amended (Mar. 29, 2006).
In its order denying the motion to suppress, the trial court found that KRS 15.520 was inapplicable to the facts of this case, and that Day was not entitled to a Miranda warning because he was not "in custody." On appeal, Day focuses solely on whether his rights under KRS 15.520(1)(d) were violated, and has expressly chosen not to address whether he was in custody for purposes of Miranda.
"KRS 15.520, often referred to as the 'police officer's Bill of Rights,' details specific procedural rights for police officers who are accused of misconduct and are facing the disciplinary processes administratively conducted by the police agency that employs them." Pearce v. Univ. of Louisville, 448 S.W.3d 746, 747 (Ky. 2014). The statute was recently amended, but at the time of Day's interview, subsection (1)(d) provided in pertinent part that
[i]f a police officer is under arrest, or likely to be arrested, or a suspect in any criminal investigation, he shall be afforded the same constitutional due process rights that are accorded to any civilian, including, but not limited to, the right to remain silent and the right to counsel, and shall be notified of those rights before any questioning commences.
Day argues that the statute entitled him to receive a Miranda warning prior to his meeting with the detectives and his colleagues, without a showing that he was in custody, because he was a suspect in a criminal investigation. This argument mischaracterizes the purpose and scope of KRS 15.520.
KRS 15.520 provides due process protections to police officers facing administrative discipline. Pearce, 448 S.W.3d at 750. As the Pearce court explained, a principal purpose of the statute is "to codify with clarity the due process rights of police officers in the event of an administrative disciplinary proceeding." Id. at 755. But the Pearce court also cautioned,
[i]f a police officer has violated a criminal statute, clearly the relevant prosecuting authority should be permitted to proceed with criminal charges regardless of how we interpret KRS 15.520. Though the due process rights contained in the statute expressly apply to criminal investigations, see KRS 15.520(1)(d), KRS 15.520 obviously is not intended to provide police officers with any sort of shield or immunity against criminal prosecutions not available to the general public.Id. at 754.
If, as Day argues, the due process protection provided by KRS 15.520(1)(d), requiring a Miranda-type warning for a police officer who is "likely to be arrested" or is "a suspect in a criminal investigation," was extended to the suppression of his statements in the criminal proceeding before the Scott Circuit Court, Day would indeed be provided with a shield against criminal prosecution that is not available to the general public. The remedy for a violation of the Police Officers' Bill of Rights does not extend to the suppression in a criminal proceeding of statements made without a Miranda warning unless a showing is made that the officer was "in custody" when he made the statements.
As we have stated, Day has chosen not to make any arguments regarding a possible violation of his Fifth Amendment rights under Miranda, and he does not challenge the trial court's finding that he was not in custody when he was questioned by the KSP detectives, the sheriff and Lieutenant Porter. Consequently, any allegation of error in this regard is waived. Smith v. Commonwealth, 567 S.W.2d 304, 306 (Ky.1978); Philpot v. Commonwealth, 247 S.W.2d 499, 500 (Ky. 1952).
The judgment of the Scott Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Jerry L. Wright
Lexington, Kentucky BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky Bryan D. Morrow
Assistant Attorney General
Frankfort, Kentucky
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).