Opinion
NO. 2015-CA-001263-MR
03-24-2017
DAYARICK DEVON BOOKER APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Cassandra F. Kennedy Louisville, Kentucky REPLY BRIEF FOR APPELLANT: Elizabeth B. McMahon Louisville, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Susan Roncarti Lenz Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE BRIAN C. EDWARDS, JUDGE
ACTION NO. 13-CR-003130 OPINION
AFFIRMING
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BEFORE: KRAMER, CHIEF JUDGE; ACREE AND D. LAMBERT, JUDGES. ACREE, JUDGE: Dayarick Booker appeals from the Jefferson Circuit Court's final judgment of conviction and sentence after a jury verdict entered on July 20, 2015. Booker was sentenced to twelve years' imprisonment after being convicted of complicity to first-degree robbery. Booker also appeals the circuit court's May 6, 2015 opinion and order denying his motion to suppress statements made during interviews with detectives during the course of their investigation. We affirm.
I. Factual and Procedural Background
On October 29, 2012, Cynthia Johnson and Tera Lindsay Denny were robbed just outside Shorty's Food Mart in Louisville, Kentucky, by two individuals. Ms. Johnson was shot in the chest during the incident and died from her injuries. The two women were part of a group including three other women, who were walking roughly a block ahead. None of the women, including Ms. Denny, were able to identify either of the perpetrators, but collectively described two young, African-American males, one in a light-colored hooded sweatshirt and the other in a dark-colored hooded sweatshirt.
Yolanda Baker, the lead detective in the case, obtained surveillance video from Shorty's just before the robbery and homicide occurred. The footage showed several people in the store at the same time as the victims. Still pictures of the footage were made to help identify those appearing in the video. Detective Baker enlisted the help of patrol officers from the second division of the Louisville Metro Police Department (LMPD), who were familiar with the neighborhood and its residents, to identify persons in the surveillance video. The police identified Dayarick Booker. Detective Baker asked the police officers that if they saw Booker to ask him if he would be willing to speak with her.
The following day, Booker was located by the LMPD. As requested, the officers asked Booker if he would be willing to go to LMPD headquarters to speak with Detective Baker. Booker agreed. A patrol car transported Booker to the police station. He was not arrested, handcuffed or otherwise restrained.
When Booker arrived at the police station, Detective Baker advised Booker that she and Detective Miracle wanted to discuss the robbery and homicide that occurred the prior day outside Shorty's Food Mart. She further informed Booker that she believed he was a potential witness to the crime and not a suspect. The detectives were aware that Booker was a juvenile.
Booker was fifteen years old at the time. The patrol officers were familiar with Booker and his lengthy juvenile record.
During the interview, Booker identified himself in the still photos from Shorty's surveillance video, but denied knowing the person with whom he was seen walking. Booker was wearing the same sweatshirt at the interview as he was in the surveillance video. Detectives Baker and Miracle then left the interview room to discuss the case. When they returned, Detective Miracle read Booker his Miranda rights and explained each in detail. Detective Miracle then presented Booker with a rights waiver form and asked him if he would sign it. Booker refused to sign the form and advised the detectives that he did not want to answer any further questions. Booker then asked the detectives if they were going to take him home. He also asked if he could use the restroom. The detectives left the room to make arrangements for Booker to be taken home, and Booker was escorted to the restroom.
The remainder of the first interview does not appear in the interview video recordings provided to this Court. However, the circuit court's order denying Booker's motion to suppress made such findings as they were presented during the suppression hearing. Furthermore, Booker does not take issue with the circuit court's findings on appeal: "there is no 'clear error' in the trial court's factual findings following the suppression hearing[.]" (Appellant's brief p.7).
"Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed." Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 1612, 16 L. Ed. 2d 694 (1966).
Booker was then returned to the interview room by Detective Bill Shingleton. Detective Shingleton asked Booker to answer a few more questions. Again, Booker refused. When Detective Shingleton continued to attempt to ask Booker questions, Booker asked to leave. Detective Baker then drove Booker back to Shorty's at his request.
As the detectives continued to gather more information about the case, they decided they wanted to interview Booker again. Approximately one week after Booker's first interview, patrol officers in his neighborhood came across him and asked him if he would come in again to speak with Detectives Baker and Miracle. Booker agreed, and he was transported in a patrol car to LMPD headquarters. At this interview, the detectives informed Booker that there was an eye witness who claimed Booker was the shooter during the robbery. The detectives again presented and read to Booker a rights waiver form. Booker signed the form, and the detectives followed with questions. Afterward, Booker was taken home.
Nearly a year later, Booker was arrested and indicted on one count of complicity to first-degree robbery and one count of complicity to murder for the events that transpired outside Shorty's Food Mart on October 29, 2012. Booker initially appeared in Jefferson District Juvenile Court, but his case was subsequently transferred to Jefferson Circuit Court.
Prior to Booker's jury trial, he filed a motion to suppress statements made during the two interviews with Detectives Baker and Miracle. Booker argued that he was subject to a custodial interrogation prior to being given Miranda warnings during his first interview. During the second interview, Booker concedes that he was advised of his Miranda rights, but asserted he was kept in custody for more than two hours in violation of KRS 610.220(2). The second interview lasted for two hours and fourteen minutes. Booker argued that the amount of time he was held in custody affected the voluntariness of the statements he made to the detectives. He also contended that because he informed the detectives he did not wish to further discuss the events under investigation during the first interview, the rights waiver executed at the second interview just ten days later was invalid. The Commonwealth responded objecting to Booker's motion because he was not in custody during either interview and there was no evidence in the record that Booker's statements were not voluntarily made.
The statute mandates that a child may not be held in custody for a period of time not to exceed two hours unless permission is obtained. See KRS 610.220(2).
A hearing was held on Booker's motion. Detective Baker testified to the circumstances surrounding the two interviews and the investigation. The circuit court determined that Booker was not in custody during either of the interviews. The court found that because Booker made it clear that he wished to end the first interview it demonstrated that he knew he had the right to stop the questioning and request to leave. The circuit court also noted that Booker was not handcuffed or arrested, he was never told he was not free to leave, and at the time of the first interview, he was not even considered a suspect.
With regard to the second interview, the circuit court agreed with the Commonwealth that there was no evidence that Booker was at any time subject to coercion or distress in signing the rights waiver. The court also remarked that Booker was not arrested until nearly a year after providing his second interview further demonstrating that he was not in custody at the time the interview was given. Accordingly, the circuit court denied Booker's motion to suppress.
Booker's case proceeded to trial in May 2015. The jury heard testimony from numerous witnesses, including Detective Baker, and the several other women who were walking just ahead of the victims.
At the time of trial, Booker had reached eighteen years of age.
The group of women were all part of a recovery program and staying at a nearby halfway house. One of those women was Celissa Benton. Ms. Benton testified that she and the others were on their way to an AA meeting when they stopped at Shorty's Food Mart. She stated that when she and the others left the convenient store, two young men followed them outside and starting harassing Ms. Denny, who was talking on the telephone. Ms. Johnson intervened while the other women kept walking. Ms. Benton testified that when she looked back, one of the boys was pointing a gun at Ms. Denny. She stated they all panicked and ran, then heard a shot. The women saw Ms. Johnson on the ground and called 911.
Ms. Benton testified while viewing the surveillance video from Shorty's. She recognized Booker because he frequented the house next to the halfway house where she was staying. She also recognized the person with Booker in the store. Ms. Benton testified that when she first turned around she recognized that it was Booker and the person he was with at Shorty's next to Ms. Johnson. Ms. Benton told the jury that she met with the detectives and identified Booker in photographs. She stated that she recognized him because he was wearing a dark sweatshirt that had Waggener High School on it.
On cross-examination, Ms. Benton acknowledged that she had described the perpetrators to the police as one wearing a light-colored sweatshirt, and the other, a dark-colored sweatshirt. Upon further questioning, she stated that she did not specifically identify Booker as a participant in the robbery and homicide. However, she called the detectives a few times after the night of the crime and identified Booker as the perpetrator then.
At this point, defense counsel approached the bench. Counsel requested that any other statements made by Ms. Benton to the detectives be disclosed. The Commonwealth responded that it had no other statements from Ms. Benton and claimed no knowledge of such.
The circuit court then excused the jury and permitted defense counsel to continue questioning Ms. Benton. Ms. Benton clarified that she had identified Booker as having been at the convenient store, but had not identified him as having been involved in the robbery and homicide. However, she once more testified that she had called the detectives two or three times after she provided her initial statement. Ms. Benton testified that she remembered calling the detectives because she saw Booker out in the neighborhood and was scared. She contacted the detectives to find out why he was still on the street. Ms. Benton insisted that was when she identified Booker as being involved in the crime, but also insisted that she had picked his picture out of a photo pack the day after the crime occurred. Ms. Benton stated that she called the detectives a second time upon seeing Booker in the neighborhood again. She testified that she told Detective Baker that it was the same person she had previously identified.
Detective Baker acknowledged that she did receive this telephone call from Ms. Benton.
Defense counsel then moved for a mistrial. The circuit court denied the motion for a mistrial because Ms. Benton's statements were inculpatory. Defense counsel asked for an admonition. The circuit court admonished the jury as follows: "Please disregard the witness's last statement regarding communications made to law enforcement after she gave her October 29th and 30th statements." (VR 5/7/2015 04:34:35). Cross-examination of Ms. Benton resumed.
She explained that she had only seen Booker inside the store; she did not initially tell the detectives Booker was involved in the crimes. She also admitted that she could not see the logo of the perpetrator's dark-colored sweatshirt during the encounter with the victims.
On re-direct, Ms. Benton testified that she was scared to speak with law enforcement so she only identified Booker in the store.
In closing argument, defense counsel pointed out Ms. Benton's inconsistent testimony and reminded the jury that Booker denied knowing anything about the crimes in his interviews with the detectives. The case was submitted to the jury.
Booker was convicted of complicity to first-degree robbery and recommended a sentence of twelve years' imprisonment. The circuit court followed the recommendation of the jury after a sentencing hearing. Booker now appeals. Additional facts will be discussed as they become relevant.
II. Standard of Review
"When reviewing a trial court's denial of a motion to suppress, we utilize a clear error standard of review for factual findings and a de novo standard of review for conclusions of law." Jackson v. Commonwealth, 187 S.W.3d 300, 305 (Ky. 2006), as amended (Mar. 29, 2006); Bradley v. Commonwealth, 327 S.W.3d 512, 514 (Ky. 2010). As a result, "[w]e review the question of whether a defendant was in custody de novo." Smith v. Commonwealth, 312 S.W.3d 353, 357 (Ky. 2010).
The standard of review of a denial of a motion for mistrial is abuse of discretion. Gould v. Charlton Co., Inc., 929 S.W.2d 734, 741 (Ky. 1996).
III. Analysis
Motion to Suppress
Booker first argues he was in custody prior to the reading of his Miranda rights during his first interview with the detectives, and therefore, any statements made during that interview must be suppressed from evidence because the statements were made without informing him of his privilege against self-incrimination under the Fifth Amendment to the United States Constitution.
"Miranda warnings are only required when the suspect being questioned is 'in custody.'" Commonwealth v. Lucas, 195 S.W.3d 403, 405 (Ky. 2006) (citing Thompson v. Keohane, 516 U.S. 99, 116 S.Ct. 457, 133 L.Ed.2d 383 (1995)). Consequently, the issue before us is "whether the defendant was subject to a custodial interrogation at the time he claims he was denied any of his Miranda rights." Jackson, 187 S.W.3d at 305.
"Custody does not occur until police, by some form of physical force or show of authority, have restrained the liberty of an individual." Smith, 312 S.W.3d at 358; Lucas, 195 S.W.3d at 405. Custodial interrogation is "questioning initiated by law enforcement after a person has been taken into custody or otherwise deprived of freedom of action in any significant way." Lucas, 195 S.W.3d at 405. "The test is objective rather than subjective, and the determination is based on the totality of the circumstances." Id. (J. Cooper, dissenting)(citing Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 714, 50 L.Ed.2d 714 (1977)). Thus, we must ask ourselves whether a reasonable person in the position of the suspect would have believed they were free to leave under the circumstances. Id. at 406. In cases involving juveniles, the age of the minor "could carry increased weight when determining if a child is in custody." N.C. v. Commonwealth, 396 S.W.3d 852, 861 (Ky. 2013). Our Supreme Court made this statement in the context of discussing the U.S. Supreme Court's holding in J.D.B. v. North Carolina that:
so long as the child's age was known to the officer, or would have been objectively apparent to a reasonable officer, including age in the custody analysis is consistent with the Miranda test's objective nature. This does not mean that a child's age will be a determinative, or even a significant, factor in every case, but it is a reality that courts cannot ignore.564 U.S. 261, 131 S. Ct. 2394, 2398, 180 L. Ed. 2d 310 (2011)). In sum, "the constitutional privilege against self-incrimination is applicable in the case of juveniles as it is with respect to adults." Id. at 859 (citing In re Gault, 387 U.S. 1, 55, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967)).
In examining the totality of the circumstances, "[t]he United States Supreme Court has identified [several] factors that suggest [when] a suspect is in custody [including]: the threatening presence of several officers; the display of a weapon by an officer; the physical touching of the suspect; and the use of tone of voice or language that would indicate that compliance with the officer's request might be compelled." Smith, 312 S.W.3d at 358 (citing U.S. v. Mendenhall, 446 U.S. 544, 554-55, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980)). Additionally,
[o]ther factors which have been used to determine custody for Miranda purposes include: (1) the purpose of the questioning; (2) whether the place of the questioning was hostile or coercive; (3) the length of the questioning; and (4) other indicia of custody such as whether the
suspect was informed at the time that the questioning was voluntary or that the suspect was free to leave or to request the officers to do so, whether the suspect possessed unrestrained freedom of movement during questioning, and whether the suspect initiated contact with the police or voluntarily admitted the officers into the residence and acquiesced to their requests to answer some questions.Id. at 358-59 (citing U.S. v. Salvo, 133 F.3d 943, 950 (6th Cir. 1998)).
We now turn to the circumstances surrounding Booker's first interview with the detectives. At the time, Booker was fifteen years old and had notable prior experience in the juvenile justice system.
With regard to the first interview, Booker voluntarily agreed to speak with the detectives at police headquarters. And while interrogation at a police station may carry a strong presumption of custody, such an inference can be overcome by demonstrating "that the defendant was informed that he was not under arrest, that he was free to leave at any time, and that he did, in fact, leave at the conclusion of the interrogation." Lucas, 195 S.W.3d at 408 (J. Cooper dissenting) (citing State v. Clappes, 344 N.W.2d 141, 147 (Wis. 1984)).
Booker was never handcuffed or otherwise physically restrained; he willingly agreed to speak with the detectives. Detective Baker testified that the door to the interview room at the police station was left open while she and Detective Miracle spoke with Booker. Booker was initially informed that he was a potential witness in the matter, not a suspect. Also, the detectives were aware of Booker's age and obtained his birthdate during the interview. The tone of the interview was calm and conversational. After Booker identified himself in the still photos of the footage from Shorty's but generally denied knowing anything about the crimes, the detectives left him alone in the room to discuss the case. When they returned, Detective Miracle advised Booker of his rights. Although Booker was never explicitly informed that he could leave at any time, he clearly understood that he was free to end the interview when he refused to sign the rights waiver and requested to leave. Upon doing so, the detectives ceased questioning Booker and starting making arrangements for him to be taken home. In view of all of these circumstances and applying the relevant factors, we are convinced that Booker was not in custody during his first interview with the detectives.
Next, Booker challenges the voluntariness of his statements made at his second interview based upon his age and the impact of his previous encounter with the police just ten days prior when he gave his first interview.
For the second interview, Booker again voluntarily agreed to come to the police headquarters for questioning. He met with the same detectives, but this time Booker was advised that someone had identified him as one of the perpetrators of the crimes. He was again advised of his Miranda rights and presented with a rights waiver form. Booker signed the form, and he was questioned by the detectives. After questioning was concluded, Booker was taken home.
Booker now contends that the circuit court did not take his age nor the events surrounding the first interview into consideration when evaluating the totality of the circumstances of the second interview. He claims the first interview experience affected his ability to effectively execute a waiver of his Miranda rights in the second interview. He also challenges the voluntariness of statements he made to the detectives in the second interview. Booker likewise points to a technical violation of KRS 610.220 as affecting the voluntariness of his statements because his second interview exceeded by fourteen minutes the two-hour time limitation provided in the statute.
We must point out that whether Booker's statements were voluntary is a different question from whether he effectively waived his Miranda rights. Dillon v. Commonwealth, 475 S.W.3d 1, 13 (Ky. 2015). We begin with the voluntariness analysis. That issue has the potential for the broadest remedy for Booker as it could result in the complete suppression of his statements for all purposes. Id. at 10.
"The burden is on the Commonwealth to affirmatively establish by a preponderance of the evidence the voluntariness of the defendant's . . . incriminating statement." Lewis v. Commonwealth, 42 S.W.3d 605, 610 (Ky. 2001) (citations omitted). Voluntariness turns on "the presence or absence of coercive police activity." Commonwealth v. Bell, 365 S.W.3d 216, 224 (Ky. App. 2012) (citing Bailey v. Commonwealth, 194 S.W.3d 296, 300 (Ky. 2006)). "[B]oth the characteristics of the accused and the details of the interrogation are considered." Id. (citing Schneckloth v. Bustamonte, 412 U.S. 215, 226, 93 S.Ct. 2041, 2047, 36 L.Ed.2d 854 (1973)). Such characteristics of the accused include "age, education, intelligence, and linguistic ability." Bailey, 194 S.W.3d at 300. "Factors relevant to a characterization of the interrogation include the length of detention, the lack of any advice to the accused concerning his constitutional rights, the repeated or prolonged nature of the questioning, and the use of overtly coercive techniques such as the deprivation of food or sleep, or the use of humiliating tactics." Id. Naturally, "[u]se of a totality of the circumstances analysis embodies this belief that voluntariness cannot '[turn] on the presence or absence of a single controlling criterion' but rather a 'careful scrutiny of all the surrounding circumstances.'" Id. at 302.
At the suppression hearing, the Commonwealth pointed out that there was no evidence Booker was subjected to any coercion or duress in signing the rights waiver form. The circuit court agreed.
The circumstances surrounding the second interview were similar to the first. Booker voluntarily agreed to speak with the detectives at the police station; he was never handcuffed or physically restrained; he was taken back to his neighborhood at the end of the questioning. He did not appear to be intimidated by the detectives or their line of questioning. He appeared to understand their questions. Booker was interviewed by the same detectives with whom he had previously spoken. Based on these circumstances, it certainly follows that Booker was not in custody for purposes of his second interview. Furthermore, Booker does not point to any specific overbearing influence or inappropriate questioning techniques employed by the detectives during his interview. He was not arrested for participation in the robbery and homicide until almost a year later.
Booker claims that the first interview, specifically the tactics employed by Detective Shingleton, tainted his second interview with the detectives given his status as a minor. However, Booker's actions at the first interview demonstrate that he understood he was entitled to end the questioning and request to leave. There is nothing in the record indicating that Booker did not possess this same understanding at his second interview, undertaken under circumstances similar to the first interview, at which he was again advised of his rights.
Detective Shingleton did not participate in the second interview. --------
Booker further contends that the violation of the time constraint provided in KRS 610.220(2) should be considered in evaluating the voluntariness of his statements to the detectives. A violation of this statutory requirement does not automatically render any statement made by the child inadmissible, if it can be otherwise shown that the statement was given voluntarily. Murphy v. Commonwealth, 50 S.W.3d 173, 184-85 (Ky. 2001). The statute mandates that a child may not be held in custody for a period of time not to exceed two hours unless permission is obtained. KRS 610.220(2). As previously determined, Booker was not in custody during either of his interviews rendering the statute inapplicable in this case. Moreover, as explained above, Booker was advised of and properly understood his Miranda rights; he was not coerced or threatened by either of the detectives; and he voluntarily interviewed with them. The length of the interview, while just over two hours, bears no indication that the officers were attempting to wear down a young witness. Based on the foregoing, Booker's statements to the detectives were given voluntarily and any alleged technical violation of KRS 610.220(2) does not constitute grounds for suppressing statements made in his second interview.
Because Booker was not in custody, the detectives were under no obligation to advise Booker of his rights or obtain a waiver of those rights. In light of the fact that the record clearly establishes that Booker was advised of his rights prior to any questioning by the detectives, apparently from an abundance of caution, which Booker then waived, we cannot conclude any error occurred.
Motion for Mistrial
Booker next argues that the circuit court abused its discretion in failing to grant a mistrial after Celissa Benton testified inconsistently as to whether she had spoken with detectives on the night of the crime (or sometime shortly thereafter) to identify Booker as one of the perpetrators. Booker claims Ms. Benton's follow-up statements to law enforcement were not disclosed to his defense counsel, and therefore, prejudiced his ability to present a defense. We disagree.
"[A] mistrial is an extreme remedy and should be resorted to only when there is a fundamental defect in the proceedings and there is a 'manifest necessity for such an action.'" Woodard v. Commonwealth, 147 S.W.3d 63, 68 (Ky. 2004) (citing Bray v. Commonwealth, 68 S.W.3d 375, 383 (Ky. 2002)). "The occurrence complained of must be of such character and magnitude that a litigant will be denied a fair and impartial trial and the prejudicial effect can be removed in no other way." Gould v. Charlton Co., Inc., 929 S.W.2d 734, 738 (Ky. 1996) (citations omitted). The circuit court has broad discretion to determine whether to grant a mistrial. Matthews v. Commonwealth, 163 S.W.3d 11, 17 (Ky. 2005).
"A discovery violation justifies setting aside a conviction only where there exists a 'reasonable probability' that had the evidence been disclosed the result at trial would have been different." Weaver v. Commonwealth, 955 S.W.2d 722, 726-27 (Ky. 1997) (citing Wood v. Bartholomew, 516 U.S. 1, 5 116 S.Ct. 7, 10 133 L.Ed.2d 1 (1995)).
Upon the motion for the mistrial, the court excused the jury and permitted defense counsel to question Ms. Benton regarding her contact with the detectives on the case. The court then considered the motion outside the jury's and Ms. Benton's hearing. Because the statements were inculpatory, the court denied the motion. The circuit court further excluded any testimony regarding Ms. Benton's contact with the detectives following her initial statements. Additionally, the court admonished the jurors upon their return. The law presumes such an admonition cures any error because jurors are required to follow the court's instructions, unless (1) an overwhelming probability exists that the jury is incapable of following the admonition and a strong likelihood exists that the impermissible evidence would be devastating to the defendant; or (2) when the question was not premised on a factual basis and was exceptionally prejudicial. Johnson v. Commonwealth, 105 S.W.3d 430, 441 (Ky. 2003).
In this case, Booker was able to proceed with his original defense theory of the case due to the court's admonition and exclusion of certain parts of Ms. Benton's testimony. As a result, there is not a strong likelihood that the impermissible evidence was of a magnitude that was devastating to Booker's case. Booker has not provided any evidence that, had the Commonwealth known of and disclosed the statements, the result of the trial would have been different. Moreover, defense counsel took full advantage of Ms. Benton's inconsistent testimony in closing argument by assailing her credibility as a witness. The circuit court's corrective action was sufficient to eliminate any need for a mistrial in this case.
IV. Conclusion
For these reasons, the Jefferson Circuit Court's July 20, 2015 judgment of conviction and sentence is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Cassandra F. Kennedy
Louisville, Kentucky REPLY BRIEF FOR APPELLANT: Elizabeth B. McMahon
Louisville, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Susan Roncarti Lenz
Assistant Attorney General
Frankfort, Kentucky