Opinion
NO. 2013-CA-001247-MR
07-11-2014
JASON WAYNE GREGORY APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Joshua M. Reho Bruce P. Hackett Louisville, Kentucky ORAL ARGUMENT FOR APPELLANT: Joshua M. Reho Louisville, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General David W. Barr Assistant Attorney General Frankfort, Kentucky ORAL ARGUMENT FOR APPELLEE: David W. Barr Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE JUDITH MCDONALD-BURKMAN, JUDGE
ACTION NO. 12-CR-002007
OPINION
AFFIRMING
BEFORE: JONES, STUMBO, AND THOMPSON, JUDGES. JONES, JUDGE: Appellant Jason Wayne Gregory seeks review of the Jefferson Circuit Court's February 8, 2013, order denying his motion to suppress a custodial confession he made to police following his arrest. For the reasons more fully explained below, we affirm.
I. Factual and Procedural Background
Police arrested Gregory on the evening of June 21, 2012, following a police chase wherein Gregory was found in possession of a stolen automobile. Gregory was placed in a police cruiser and transported to the police station. Upon arrival at the station, officers removed Gregory from the cruiser and escorted him into an interrogation room.
Shively Police Sergeant Ronnie Vittitoe and Shively Police Officer Brad Walker joined Gregory in the interrogation room. They informed Gregory that they wanted to question him regarding the events in question, but needed to review Gregory's rights with him before doing so. Sergeant Vittitoe then read a statement of rights aloud to Gregory and presented him with the waiver form, which Gregory signed. Thereafter, the officers questioned Gregory for approximately twenty-six minutes.
Sergeant Vittitoe took the lead in questioning Gregory. He first asked Gregory about his drug problem. Gregory told the officers that he was addicted to both crack and heroin; he further indicated that he had last used drugs the previous evening. Sergeant Vittitoe then asked Gregory to explain the events that led up to his arrest that evening. Gregory admitted that he stole a car from a woman earlier in the day and then cashed some of the checks he found in the stolen vehicle. He indicated that he was driving the vehicle when the police first attempted to stop him. The officers thanked Gregory for his honesty and expressed that they would do what they could to help him because of it. They then questioned Gregory about some additional criminal activity on June 18-19, 2012. Gregory admitted to stealing another car, cashing some additional forged checks, and breaking into a home the previous Saturday. Sergeant Vittitoe and Officer Walker concluded their interview by "promising" Gregory that they would "try to help him out" when he went to court.
Immediately thereafter, two Louisville Metro Police officers entered the room and questioned Gregory regarding an envelope of cash police located on his person when they arrested him. Gregory admitted that he obtained the cash by cashing a forged check from the stolen car at a local bank. The officers counted the money out in front of Gregory and asked him if their calculations were correct. Gregory indicated that their calculations were correct and signed a document as to the amount of cash in the envelope.
Throughout the interview, Gregory expressed fear that that he was going to go to prison for a very long time because of his crimes. The officers assured Gregory that he would not get a "life sentence" for his crimes and that his willingness to surrender the money and admit his crimes would go a long way toward the Commonwealth making him a favorable plea offer. The officers also discussed Gregory's drug addiction with him and urged him to focus on getting clean instead of how much time he was going to receive for his crimes. At the conclusion of the interview, Gregory told the officers that he was "starving" as he had not eaten all day. The officers responded by telling Gregory that they would attempt to locate some food for him. This concluded the approximately thirteen-minute interview.
One week later, a Jefferson County Grand Jury indicted Gregory on two counts of first-degree burglary; one count of possession of a handgun by a convicted felon; two counts of second-degree criminal possession of a forged instrument; two counts of first-degree robbery; one count of first-degree wanton endangerment; one count of fleeing or evading police; one count of receiving stolen property over $500, but less than $10,000; and one count of resisting arrest.
On September 5, 2012, Gregory filed a motion to suppress his June 21, 2012, confession, arguing that it was not the product of a free, voluntary, intelligent, non-coerced choice. The trial court conducted a suppression hearing on February 6, 2013. Officer Walker was the sole witness at the hearing. He testified that he was present when Sergeant Vittitoe read Gregory's rights to him. He testified that Gregory then voluntarily signed the waiver form. He further testified that he had no reason to suspect that Gregory was intoxicated during the interview and believed Gregory to be alert, present, and able to communicate. The Commonwealth further introduced the signed waiver form. Upon agreement of counsel, the audio/video recording of the interviews was also submitted to the trial court for review.
The hearing was first scheduled for October 2012, but was twice continued due to scheduling issues.
By order entered February 8, 2013, the trial court denied Gregory's motion on the ground that Gregory "knowingly, voluntarily, and intelligently waived his right to remain silent and provided the statement at issue."
Thereafter, Gregory entered into a conditional plea agreement with the Commonwealth. Gregory pleaded guilty to two counts each of first-degree burglary; first-degree robbery; and second-degree criminal possession of a forged instrument, and one count each of possession of a handgun by a convicted felon; first-degree wanton endangerment; first-degree fleeing or evading police; receiving stolen property; and resisting arrest. Gregory was sentenced to fifteen years' imprisonment. Gregory's plea was conditioned on his right to appeal the trial court's ruling on his motion to suppress.
This appeal followed.
II. Standard of Review
This Court reviews a trial court's decision on a motion to suppress by applying a two-step analysis. Goncalves v. Commonwealth, 404 S.W.3d 180, 189 (Ky.2013). First, we must determine if the trial court's findings of fact are supported by substantial evidence. Id. (citing Adcock v. Commonwealth, 967 S.W.2d 6 (Ky.1998); Peyton v. Commonwealth, 253 S.W.3d 504 (Ky.2008)). If so, the factual findings are conclusive. Id. Next, we conduct a de novo review of the trial court's application of the law to the facts to determine if the suppression decision was correct as a matter of law. Goncalves, 404 S.W.3d at 189.
III. Analysis
The Fifth Amendment, which applies to the states via the Fourteenth Amendment, provides that "[n]o person ... shall be compelled in any criminal case to be a witness against himself." U.S. Constitution, Fifth Amendment. "The United States Supreme Court's decision in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), announced a prophylactic means of protecting the privilege against self-incrimination by mandating that certain warnings be recited to a criminal suspect before being subjected to a custodial interrogation." Baumia v. Commonwealth, 402 S.W.3d 530, 536 (Ky. 2013). Under Miranda, police must warn a suspect before conducting a custodial interrogation that, "he has the right to remain silent, [and] that anything he says can be used against him in a court of law [.]" Id. at 479, 86 S.Ct. 1602. The waiver of one's right to remain silent and to refuse to make incriminating statements must be knowing, voluntary, and intelligent.
Kentucky's Constitution contains a similar right. Section 11 states, in pertinent part: "In all criminal prosecutions the accused ... cannot be compelled to give evidence against himself."
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Additionally, the police cannot use unwarranted coercive tactics to obtain a confession. In Bailey v. Commonwealth, 194 S.W.3d 296, 300 (Ky. 2006), our Supreme Court outlined the law concerning involuntary confessions:
The Due Process Clause of the Fourteenth Amendment prohibits the admission of involuntary confessions: "[if the defendant's] will has been overborne and his capacity for self-determination critically impaired, the use of [the] confession offends due process." Schneckloth v. Bustamonte, 412 U.S. 218, 225-26, 93 S.Ct. 2041, 2047, 36 L.Ed.2d 854 (1973). "The voluntariness of a confession is assessed based on the totality of the circumstances surrounding the making of the
confession." Mills v. Commonwealth, 996 S.W.2d 473, 481 (Ky.1999). However, the threshold question to a voluntariness analysis is the presence or absence of coercive police activity: "coercive police activity is a necessary predicate to the finding that a confession is not 'voluntary' within the meaning of the Due Process Clause of the Fourteenth Amendment." Colorado v. Connelly, 479 U.S. 157, 167, 107 S.Ct. 515, 522, 93 L.Ed.2d 473, 484 (1986).
Id.
We use three criteria to assess the voluntariness of a confession: 1) whether the police activity was objectively coercive; 2) whether the coercion overbore the will of the defendant; and 3) whether the defendant showed that the coercive police activity was the crucial motivating factor behind the defendant's confession. Henson v. Commonwealth, 20 S.W.3d 466, 469 (Ky.1999).
"Pursuant to RCr [Kentucky Rules of Criminal Procedure] 9.78, a trial court must conduct an evidentiary hearing when a defendant files a motion to suppress a confession." Grady v. Commonwealth, 325 S.W.3d 333, 350 (Ky. 2010). At the hearing, the Commonwealth bears the burden of demonstrating "by a preponderance of the evidence" that the defendant's confession or incriminating statement was voluntary. Galloway v. Commonwealth, 424 S.W.3d 921, 928 (Ky. 2014). The defendant is then entitled to introduce evidence to counter that offered by the Commonwealth. Grady, 325 S.W.3d at 350.
A. Commonwealth's Burden
Relying on Tabor v. Commonwealth, 613 S.W.2d 133, 135 (Ky. 1981), Gregory argues that the Commonwealth did not meet its burden of proof during the suppression hearing because it called only one of the four officers who questioned Gregory. We disagree.
The facts in Tabor involved a movant who signed a typewritten confession following non-recorded interactions and interviews with officers. The Commonwealth did not present any evidence at Tabor's suppression hearing to contradict Tabor's version of the circumstances surrounding the confession. The only evidence offered at the hearing was Tabor's testimony that he was coerced into signing a confession, and the testimony of Cornell Johnson, a counselor at the Jefferson County jail, that he observed bruises and puncture marks on Tabor's body and that Tabor told him the police had beat him up. The Tabor court ultimately concluded that the Commonwealth failed to meet its burden of proof with respect to proving that Tabor's confession was voluntary. It held:
We conclude that at a hearing on a motion to suppress pursuant to RCr 9.78, the prosecution must affirmatively establish the voluntariness of a confession by a preponderance of the evidence. Police officers present when the confession was given should be called to testify at the hearing, or their absences accounted for. In the present case, the Commonwealth offered no evidence to prove the voluntariness of the confession. Tabor's motion to suppress should have been granted because the Commonwealth failed to meet its burden of proof at the hearing.Id. at 135.
Tabor is factually quite different than the case at hand. Gregory's entire interview was recorded and presented as evidence to the trial court. In addition, Officer Walker testified at the suppression hearing and Gregory's signed waiver form was admitted into evidence. Tabor has never been interpreted to require the Commonwealth to present the testimony of every officer involved in questioning a defendant; and, we decline to extend it. The Commonwealth satisfied Tabor by calling one of the officers that initially interrogated Gregory and was present when he was read and waived his Miranda rights.
Additionally, our Supreme Court has held that Tabor is not implicated where the existence of a recording makes the facts virtually undisputed and at least one officer involved in the interrogation testified. Henson v. Commonwealth, 20 S.W.3d 466, 468-69 (Ky. 1999). The existence of the interview recordings in this case, much like in Henson, makes the facts virtually undisputed. Furthermore, Gregory did not offer anything to rebut the evidence contained on the tapes or call Officer Walker's account of the events into question.
Finally, we observe that even if we did believe that the Commonwealth failed to satisfy its burden under Tabor, it would not warrant automatic reversal. The Grady court explained as follows:
But, where error regarding these types of hearings is alleged on appeal, specifically where an evidentiary hearing is denied in some manner, we have held that reversal or remand is not automatically required. Lewis, 42 S.W.3d at 611 (citing Procunier v. Atchley, 400 U.S. 446, 451, 91 S.Ct. 485, 27 L.Ed.2d 524 (1971)). In Lewis v. Commonwealth, we were persuaded by federal jurisprudence that required an appellant to show more than shortcomings in the procedures applied when he is denied an evidentiary hearing addressing the voluntariness of an alleged confession and adopted that approach. 42 S.W.3d at 611. Indeed, after Lewis, we have required an appellant to show "that his version of events,Grady, 325 S.W.3d at 349.
if true, would require the conclusion that his confession was involuntary", i.e., indicating the involuntariness of his confession. Id. (quoting Procunier, 400 U.S. at 451, 91 S.Ct. 485). Importantly, however, courts employing the Procunier standard of appellate review have also stated that the facts asserted in these instances must be more than "conclusory and wholly devoid of specifics." Hoskins v. Vasquez, 883 F.2d 1024, 1024 (9th Cir.1989) (citing Boehme v. Maxwell, 423 F.2d 1056, 1058 (9th Cir.1970); Bashor v. Risley, 730 F.2d 1228, 1233 (9th Cir.1984)).
Since the interviews were recorded and Gregory adduced no additional proof, there is in essence only one version of the facts. Having reviewed the record, we do not believe that the facts indicate or suggest that Gregory's confession was involuntary.
B. Miranda Waiver
Gregory's next argument to this Court is that the motion to suppress was improperly denied because he was intoxicated and/or paid little attention to the Miranda warnings and signed the waiver form without reading it.
Standing alone, intoxication does not prevent a defendant from being able to voluntarily and knowingly waive his Miranda rights. Smith v. Commonwealth, 410 S.W.3d 160, 164 (Ky. 2013). To warrant suppression, the defendant's intoxication must be to "the degree of mania," causing hallucination, rendering the defendant "functionally insane," or otherwise causing him to be "unable to understand the meaning of his statements." Id.
Having reviewed the video/audio recordings of the interviews, we do not believe that the trial court erred in concluding that Gregory's waiver was knowing, intelligent and voluntary notwithstanding his alleged intoxication. The video portrays Gregory as listening, engaged, and comfortable throughout the interview. He engages in small talk with Sergeant Vittitoe and is able to properly articulate the circumstances and thought process behind the execution of his crimes.
Additionally, Gregory's failure to read the Miranda warning does not eviscerate his waiver. The recordings show that Sergeant Vittitoe read the waiver to Gregory and then presented it to Gregory to read and sign. There is no evidence the officers rushed Gregory or prevented him from reading the document over again had he so desired. Gregory signed the document of his own free will after having been orally warned and then provided an opportunity to review the warning in writing. The police were not required to persuade Gregory to read the waiver word for word. They were simply required to give the warning and to refrain from obstructing his ability to exercise his own decision in the matter.
C. Coercion
Gregory further argues that officers coerced him into a confession by holding him in a hot car prior to his interview, keeping him handcuffed and shoeless during his interview, and withholding food. He further argues that he was in a suicidal, intoxicated state during the interview and that the interviewing officers made numerous promises which coerced his admission.
Physical pressures to confess, such as violence, the threat of violence, or deprivations of food, sleep or medical attention, have been held impermissible. And undue psychological pressures, such as holding suspects incommunicado for lengthy periods or subjecting them to unduly long or repeated interrogation sessions, have also been condemned.Stanton v. Commonwealth, 349 S.W.3d 914, 917 (Ky. 2011), (citing Colorado v. Connelly, 479 U.S. 157, 167, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986)). In support of its order denying Gregory's motion to suppress, the trial court made the following findings and conclusions:
[t]he recording of Defendant's statement clearly demonstrates he was Mirandized, that he agreed to give a statement, that he never asked to stop the questioning or for any attorney.
He was handcuffed and clearly in custody. There is no indication that he was coerced or threatened to speak. He admitted to using narcotics the prior evening, but exhibited no indicia of intoxication, incoherence, or confusion.
Based upon the evidence submitted, the Court finds Defendant knowingly, voluntarily, and intelligently waived his right to remain silent and provide the statement at issue.
We have reviewed the record and we find no error with the trial court's conclusion that Gregory was not coerced. When Gregory and Sergeant Vittitoe first entered the interrogation room, Gregory sat down while Sergeant Vittitoe opened a soda and handed it to Gregory. The two then commented on the heat in the police cruiser and made small talk. Only in the final few minutes of the interview, after the confession had concluded, did Gregory mention that he was hungry and had not eaten that day. The officers then readily indicate that they are willing to find some food for him. There is absolutely no indication that Gregory was purposefully kept in uncomfortable, distressing circumstances in order to entice him to confess. Gregory never requested food, shoes, or to have his handcuffs removed. He appeared comfortable and relaxed, albeit somewhat nervous, during the brief interview and shook hands with Sergeant Vittitoe at the interview's conclusion.
Gregory further argues that the crucial motivating factor behind his confession was his delicate mental and emotional state coupled with the promises made to him by Sergeant Vittitoe. While Gregory discussed his drug use, desire to end his life, and his grandmother's death with the officers, there is certainly no indication that Gregory was emotionally unstable or that the officers preyed upon some vulnerable mental state. Gregory does not cry, shake, or otherwise indicate that he is in serious mental distress. He even once questions officers regarding the whereabouts and fate of the wallet that was removed from him during booking.
Finally, Gregory maintains that he was coerced by the officers' promises to help him out if he confessed to the crimes. Our review of the interview reveals no evidence that Gregory was coerced into waiving his rights or providing the confession he did by the officers' statements to him. A mere promise or assurance by police interrogators that they will try to help the defendant out is not sufficient to establish coercion. Peak v. Commonwealth, 197 S.W.3d 536, 542 (Ky. 2006) ("[Officer's] representation that he would inform prosecuting authorities of [defendant's] cooperation does not render the confession involuntary.") Certainly, there is no evidence to suggest that Gregory's will was overcome by any offers to help by the Commonwealth. Gregory began confessing before the officers even offered to help him out and at the conclusion of the interview, after being commended for his honesty, Gregory stated "there's no point in lying; I'm already caught."
IV. Conclusion
For the foregoing reasons, the February 8, 2013, order of the Jefferson Circuit Court is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Joshua M. Reho
Bruce P. Hackett
Louisville, Kentucky
ORAL ARGUMENT FOR
APPELLANT:
Joshua M. Reho
Louisville, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General
David W. Barr
Assistant Attorney General
Frankfort, Kentucky
ORAL ARGUMENT FOR
APPELLEE:
David W. Barr
Frankfort, Kentucky