Opinion
NO. 2015-CA-001012-MR
05-12-2017
DONOVAN BROWN APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Steven J. Buck Assistant Public Advocate Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Julie Scott Jernigan Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FAYETTE CIRCUIT COURT
HON. KIMBERLY BUNNELL, JUDGE
INDICTMENT NO. 12-CR-00827 OPINION
AFFIRMING
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BEFORE: KRAMER, CHIEF JUDGE; ACREE AND JOHNSON, JUDGES. JOHNSON, JUDGE: Donovan Brown appeals from the Fayette Circuit Court's judgment and sentence of imprisonment entered March 13, 2014, subsequent to the court's order denying his motion to suppress. After reviewing the record in conjunction with the applicable legal authorities, we AFFIRM.
BACKGROUND
At approximately one o'clock in the morning on May 16, 2012, Officer Jason Wallace was in his cruiser watching traffic near Transylvania University in Lexington, Kentucky. He observed a vehicle speeding near his location, traveling at about eleven miles per hour over the posted speed limit. Officer Wallace followed the vehicle on North Broadway and witnessed the vehicle pull into the parking lot of an apartment complex. Upon backing into a parking space, the vehicle's passenger door opened almost immediately. Officer Wallace would later testify that he radioed dispatch for assistance at this point, because "something wasn't just right" about the situation. As the officer got out of his cruiser and approached the passenger side of the vehicle, he noticed a strong odor of marijuana. Officer Wallace asked the vehicle's two occupants if they knew anything about the presence of marijuana or other drugs. The passenger denied any drug involvement. The driver of the vehicle, Donovan Brown, admitted he "smoke[d] some."
Officer Wallace was in the process of temporarily detaining the two men, by removing them from the vehicle and placing them in handcuffs, when officers arrived on the scene to assist. Based upon the plain smell of marijuana, the officers searched the vehicle and found cocaine scattered on the back seat, as well as a handgun underneath the driver's seat. The officers also discovered a folded one dollar bill in the parking lot, which contained a small quantity of cocaine.
Officer Wallace returned to the handcuffed suspects and gave both men their Miranda warnings. He asked if they understood those rights, to which both men said "yes." The other officers on the scene would later testify that they heard Officer Wallace provide the Miranda warnings. Brown denied all knowledge of the discovered cocaine, stating the vehicle was not his, but acknowledged smoking marijuana. Officer Wallace then smelled alcohol coming from Brown and realized this situation may also involve the possibility of an individual driving under the influence (DUI). At this point, the officer turned on his personal recording device. Officer Wallace would later testify he did not wish to have Brown perform the standard field sobriety tests, because this would require him to remove Brown's handcuffs. Instead, the officer asked Brown questions with the object of assessing his level of intoxication. Brown declined Officer Wallace's request to recite the alphabet, but he seemed to be coherent answering the officer's questions and asking about his pending charges.
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
Officer Wallace arrested Brown and was transporting him to the detention center, when he noticed the pervasive smell of marijuana within his vehicle. He asked Brown if he was carrying marijuana, and Brown admitted to possessing a quantity of that substance in his boxer shorts. Officers at the detention center searched Brown and recovered the marijuana. Pursuant to usual procedure, Officer Wallace then placed Brown under observation before conducting an Intoxilyzer breath test. While waiting and talking to the officer during this observation period, Brown admitted to purchasing the handgun discovered in the vehicle for twenty dollars. He also admitted to being drunk, although the breath test only produced a result of 0.05 Blood Alcohol Concentration level (BAC). When Officer Wallace asked Brown if he would consent to a blood test, because a breath test would not detect controlled substances, Brown declined to do so. Officer Wallace would later discover that the handgun had been reported stolen and that Brown was a convicted felon.
Blood Alcohol Concentration (BAC) is referenced under Kentucky Revised Statutes (KRS) 189A.010(1)(a), which states "[a] person shall not operate or be in physical control of a motor vehicle anywhere in this state... [h]aving an alcohol concentration of 0.08 or more as measured by a scientifically reliable test or tests of a sample of the person's breath or blood taken within two (2) hours of cessation of operation or physical control of a motor vehicle[.]" "[O]nce law enforcement has reasonable cause to believe that a driver is operating a motor vehicle under the influence of drugs or alcohol, that officer may utilize a breath, blood, or urine test, or a combination thereof, in order to uncover the driver's BAC." Commonwealth v. Duncan, 483 S.W.3d 353, 356 (Ky. 2015).
The Fayette County grand jury indicted Brown on the following charges: being a convicted felon in possession of a handgun—a Class C felony, receiving stolen property (firearm)—a Class D felony, first-degree possession of a controlled substance—a Class D felony, operating a motor vehicle while under the influence of alcohol or drugs, possession of marijuana, driving eleven miles over the speed limit, being a first-degree persistent felony offender (PFO 1st), and being a second-degree persistent felony offender (PFO 2nd). Alleging a violation of his Miranda rights, Brown filed a motion to suppress his statements upon arrest in Fayette Circuit Court. Following a hearing, the circuit court denied the suppression motion in a written order entered January 9, 2014.
Brown thereafter negotiated a conditional guilty plea with the Commonwealth, reserving the right to appeal his suppression issue. Under the negotiated plea, the Commonwealth agreed to amend the receiving stolen property and possession of a controlled substance charges to the criminal attempt to perform those acts. Furthermore, the Commonwealth agreed to recommend dismissal for the marijuana possession, speeding and PFO 1st charges. The Fayette Circuit Court entered final judgment pursuant to this plea agreement on March 13, 2014. Brown was sentenced to five years' imprisonment for the handgun possession charge, enhanced to ten years by his PFO 2nd status; twelve months' incarceration on each of the two criminal attempt charges; and thirty days' incarceration for driving under the influence. The court ordered all charges to run concurrently, for a term of ten years to serve. The court also ordered Brown to pay fines, costs, and service fees, in addition to suspending his driver's license for forty-five days. This appeal follows.
KRS 506.010(4)(d). The criminal attempt statute assigns a lesser degree of culpability for attempts than for completed offenses. Because Brown's charges for first-degree possession of a controlled substance and receiving stolen property were Class D felonies, amending the charges to criminal attempt of the underlying offenses reduced them to Class A misdemeanors. --------
STANDARD OF REVIEW
Brown's sole issue on appeal stems from the denial of his motion to suppress his statements to the police. "In reviewing a trial court's ruling on a suppression motion, an appellate court must first determine if the trial court's factual findings are not clearly erroneous and are supported by substantial evidence. . . . A de novo review of the trial court's application of the law to the facts completes the analysis." Nunn v. Commonwealth of Kentucky, 461 S.W.3d 741, 745 (Ky. 2015) (quoting Frazier v. Commonwealth, 406 S.W.3d 448, 452-53 (Ky. 2013)).
ANALYSIS
Brown contends his statements to police should have been suppressed because they were made in violation of his Fifth Amendment right against self-incrimination. The United States Supreme Court has ensured the protection of this right by holding as follows:
[T]he prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. . . . The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently.Miranda, 384 U.S. at 444, 86 S.Ct. at 1612. These "procedural safeguards" under Miranda ensure police will inform an individual of his or her rights protecting against self-incrimination and ask whether the individual understands these rights. "Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture." Dickerson v. United States, 530 U.S. 428, 443, 120 S.Ct. 2326, 2336, 147 L.Ed.2d 405 (2000).
During the suppression hearing, police officers testified that Officer Wallace provided Brown with the required Miranda warnings. Officer Wallace testified he asked Brown and his passenger whether they understood these rights, and they said they did. Following these warnings, the Commonwealth argues Brown waived his rights by making incriminating statements regarding, inter alia, his ownership of the handgun found in the vehicle he was driving at the time of his arrest. Here, the issue is whether Brown's waiver of his Miranda rights was made "voluntarily, knowingly and intelligently." Brown argues he did not give an effective waiver, because he was under the influence of marijuana and alcohol, and the Commonwealth did not prove that he knowingly and intelligently waived his rights while in that condition. "The Commonwealth's burden in showing a proper waiver is a heavy one, though it is not more than the burden to establish waiver by a preponderance of the evidence." Dillon v. Commonwealth, 475 S.W.3d 1, 14 (Ky. 2015) (citation and internal quotation marks omitted).
The Supreme Court of Kentucky has recently reaffirmed the traditional stance that an intoxicated defendant may nonetheless be found to have waived his or her Miranda rights:
Generally speaking, no constitutional provision protects a drunken defendant from confessing to his crimes. "The fact that a person is intoxicated does not necessarily disable him from comprehending the intent of his admissions or from giving a true account of the occurrences to which they have reference." Peters v. Commonwealth, 403 S.W.2d 686, 689 (Ky. 1966). As noted by Justice Palmore in Britt v. Commonwealth, "[i]f we accept the confessions of the stupid, there is no good reason not to accept those of the drunk." 512 S.W.2d 496, 500 (Ky. 1974). "We are not at all persuaded that it would make sound law to hold that the combination of intoxication and police custody must add up to a violation of due process." Id. at 501.Smith v. Commonwealth, 410 S.W.3d 160, 164 (Ky. 2013). However, the Court also found two circumstances in which intoxication may play a role in suppression:
First, intoxication may become relevant because a "lesser quantum" of police coercion is needed to overcome the will of an intoxicated defendant. . . .Id. at 164-165 (citations and some quotation marks omitted).
Second, a confession may be suppressed when the defendant was intoxicated to the degree of mania or was hallucinating, functionally insane, or otherwise unable to understand the meaning of his statements. Under those circumstances, suppression may be warranted not because the confession was "coerced" but because it is unreliable.
Neither of the Smith exceptions apply to the case sub judice. Brown's argument in his brief relies upon the "lesser quantum of coercion" language to argue that he was unable to properly waive his rights. However, Brown conceded during the suppression hearing that police did not engage in any coercive behavior. In addition, there was no evidence presented to the court indicating Brown suffered from hallucinations or delusions during interrogation. Testimony from Officer Wallace and the recorded interviews indicate that Brown was coherent during questioning. In denying the motion to suppress, the circuit court relied on officer testimony to find that police properly advised Brown of his Miranda rights, and that Brown said he understood those rights. The circuit court also listened to the recorded interviews and, as a result, found that Brown was able to make a knowing, intelligent, and voluntary waiver. Therefore, the court's findings were supported by substantial evidence and not clearly erroneous. We find no error in the court's denial of Brown's motion to suppress.
CONCLUSION
For these reasons, we affirm the Fayette Circuit Court Final Judgment Sentence of Imprisonment that was entered on March 13, 2014.
ALL CONCUR. BRIEF FOR APPELLANT: Steven J. Buck
Assistant Public Advocate
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Julie Scott Jernigan
Assistant Attorney General
Frankfort, Kentucky