Opinion
NO. 2012-CA-000954-MR
06-28-2013
JOSEPH KILUBA APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Karen Shuff Maurer Assistant Public Advocate Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky J. Hays Lawson Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE PAMELA R. GOODWINE, JUDGE
ACTION NO. 10-CR-01429
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE; CLAYTON AND MOORE, JUDGES. MOORE, JUDGE: The appellant, Joseph Kiluba, appeals a decision of the Fayette Circuit Court denying his motion to suppress evidence. Kiluba avers that an in-person identification made by the victim should be excluded because it was impermissibly suggestive. Further, that statements made by him subsequent to his apprehension were the product of an unmirandized custodial interrogation and must be excluded. We disagree and affirm the decision of the circuit court.
On the afternoon of September 17, 2010, Kenneth Miller was in his home woodshop when he was approached from behind and put in a choke hold. A struggle ensued and Miller was sprayed in the face with mace, his gold watch was stolen, and his attacker fled. Miller immediately called 911. Officer Howard, who arrived first at the scene, testified that Miller indicated he fought back against the attacker and came face to face with his attacker when he forced him to the floor and proceeded to punch and kick him.
After the attacker fled, Miller gathered himself and stepped out of the woodshop. Miller saw the face of his attacker a second time when he ran back past the shop after hitting a dead end when trying to flee. Officer Howard further testified that, upon his arrival, Miller immediately described his attacker as a black male, around six feet tall, 190 pounds, and wearing a white t-shirt, black pants, and a small knapsack on his back with strings at the top. Officer Howard then broadcast a description of the attacker as an attempt to locate (ATL).
Shortly after the ATL was issued, Officer Welch spotted Joseph Kiluba and identified him as fitting the description of the ATL. When Officer Welch approached Kiluba, he fled and was pursued on foot. Officer Welch caught Kiluba while he was trying to climb a fence and the two tumbled to the ground. Officer Welch did not have his handcuffs, but Kiluba no longer resisted and was escorted to the patrol car. It is unclear whether Officer Welch held Kiluba by the arms or the hands as they returned to the patrol car. When they reached the car, Officer Welch noticed that he had blood all over his arms and uniform. He also noticed that Kiluba was bloody. Not sure where the blood came from, or from whom, Officer Welch asked Kiluba if he was cut by the fence. Kiluba informed him that he was "cut in the old man's garage."
Officer Welch then contacted Officer Howard to inform him that the suspect had been apprehended. Approximately thirty to forty minutes later, Officer Howard arrived with Miller at the location where Kiluba was detained. Officer Howard told Miller he was taking him to identify the suspect and instructed him to take his time making the identification and make sure he was 100% sure that Kiluba was his attacker. After viewing Kiluba at a relatively close distance, from the passenger seat of Officer Howard's patrol car, Miller confirmed that Kiluba was his attacker. At the time of the identification, Miller was still recovering from the pepper spray and Kiluba was cuffed and surrounded by uniformed officers. Officer Howard's testimony confirmed that Kiluba matched the description given by Miller when he arrived at the scene.
Prior to entering a conditional guilty plea, Kiluba filed two motions to suppress. One sought to suppress the fruits of the show-up identification, which Kiluba asserts was impermissibly suggestive. The second motion, sought to exclude the statements Kiluba made regarding the blood, arguing that they were the product of an unmirandized custodial interrogation. After a hearing on both motions, the circuit court declined to suppress the show-up identification and the statements. The court subsequently denied his motion to reconsider.
Kiluba entered a conditional guilty plea reserving the suppression issues for appeal. Kiluba was ultimately sentenced to fifteen years on one count of robbery in the first degree and fifteen years on one count of burglary in the first degree. The sentences were ordered to run concurrently for a total of fifteen years. This appeal followed.
We will not disturb the circuit court's findings of fact subsequent to a hearing on a motion to suppress if they are supported by substantial evidence. Drake v. Commonwealth, 222 S.W.3d 254, 256 (Ky. App. 2007). However, the circuit court's legal conclusions are reviewed de novo. Id. With this standard in mind, we turn to Kiluba's first argument.
Kiluba avers that the in-person identification made by Miller after he was apprehended was impermissibly suggestive. The circuit court determined that the identification was suggestive, but not impermissibly suggestive. Thus, the central question is "whether under the 'totality of the circumstances' the identification was reliable even though the confrontation procedure was suggestive." Neil v. Biggers, 409 U.S. 188,199, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). When looking to the totality of the circumstances,
the relevant factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level ofId. at 199-200.
certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.
First, we find that the factual findings of the circuit court are supported by substantial evidence. Indeed, the parties do not dispute the suggestiveness of the identification, but merely dispute its reliability. However, the identification was not so impermissibly suggestive as to be unreliable under the totality of the circumstances in this case which include: Miller's ability to view his attacker and provide a detailed description of his appearance; the short length of time between the crime and the identification; the witness's certainty at the identification; and perhaps most importantly, the consistency between Miller's description of his attacker and Kiluba's appearance at the time he was apprehended.
Kiluba next asserts that his statement regarding the blood on himself and Officer Welch was the product of an unmirandized custodial interrogation. We agree with the circuit court that the critical determination in this case revolves around whether or not Kiluba was interrogated. "Simply being in custody is not sufficient to trigger the safeguards of Miranda." Anderson v. Commonwealth, 352 S.W.3d 577, 584 (Ky. 2011). "[T]he definition of interrogation can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response." Rhode Island v. Innis, 446 U.S. 291, 302, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980). In this case, Officer Welch did not question Kiluba about the crime. Instead, he asked "are you cut, did you get cut on the fence?" In response to this question, Kiluba freely made an incriminating statement.
For the reasons set forth above, the circuit court's decision to deny Kiluba's motion to suppress is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Karen Shuff Maurer
Assistant Public Advocate
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
J. Hays Lawson
Assistant Attorney General
Frankfort, Kentucky