Opinion
2012-SC-000796-MR
08-21-2014
CHARLES S. LEE APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
COUNSEL FOR APPELLANT: Karen Shuff Maurer Assistant Public Advocate COUNSEL FOR APPELLEE: Jack Conway Attorney General of Kentucky James Hays Lawson Assistant Attorney General
IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION.
NOT TO BE PUBLISHED ON APPEAL FROM GREENUP CIRCUIT COURT
HONORABLE ROBERT B. CONLEY, JUDGE
NO. 11-CR-00179
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Charles Lee appeals as of right from a Judgment of the Greenup Circuit Court convicting him of murder, in violation of KRS 507.020, and sentencing him to a maximum term of life in prison. The jury found Lee guilty of the March 2011 stabbing death of his wife, Leslie Lee. Lee makes two claims of reversible error. He first contends that a spontaneous reference by one of the Commonwealth's witnesses to his, the witness's, willingness to take a lie detector test necessitated a mistrial. He also contends that evidence that he confessed to the crime to a cellmate should have been suppressed, because the confession was tainted by an investigating officer's improper use of coercive allegations that Lee was the subject of death threats from friends of the victim. Finding no ground for reversal, we affirm the trial court's judgment.
RELEVANT FACTS
At 6:48 on the morning of March 4, 2011 Lee, who resided with his second wife, Leslie Lee, on East Main Street in Greenup, Kentucky, called the Greenup County 911 service and requested police assistance because his wife had been killed. He told the dispatcher that he had just returned home from "driving around" and had found his wife lying face down on the bed, her body stiff and apparently still bleeding. A few minutes later an apparently frantic Lee helped direct emergency medical technicians to the residence. The technicians, having confirmed that Ms. Lee was dead, contacted the coroner's office.
On the heels of the EMTs, officers of the Greenup County Sheriff's Department arrived and secured the scene. The officer in charge, Detective David Bocook, made a walk-through video and then took numerous photographs, including several of a bedroom wall where a crude diamond shape had been drawn, across which was written, in block letters, "Snitch U R next."
When the deputy coroner arrived, he and Detective Bocook turned Ms. Lee's body over, discovering what appeared to be, and what the medical examiner later confirmed to be, two stab wounds on the lower right side of the victim's neck. One of the stabs, the examiner eventually determined, cut the right subclavian artery. Ms. Lee died, the medical examiner found, from the consequent loss of blood. Also discovered when the body was turned over was an orange and black "Winter Hawk" glove that had been rolled up in the victim's shirt.
After his initial investigation of the scene, Detective Bocook sat with Lee in the detective's car and there had Lee describe what had happened. The audio recording of Lee's statement was played for the jury. Lee told the detective that he and Ms. Lee had gone to bed shortly after midnight; that he had been unable to sleep and so had gotten up to watch television, that Ms. Lee had gotten up and joined him briefly at about 2:30, but after just a few minutes had gone back to bed; and that he, still unable to sleep, had decided at about 4:30 or 5:00 to go for a drive in hopes that it would relax him. He described the route he took, including his having driven several miles out the AA Highway past the intersection with Route 7. From there he turned around, and, after having stopped to buy two bottles of Coke at a convenience store just across the bridge in West Virginia, made his way home.
He was surprised when he arrived, he told the detective, to find a door to the garage open, a door he remembered having closed the evening before when he took out the garbage. He was also surprised to find the door to the residence open, since he had closed it when he left, although he had left it unlocked. Once inside, Lee was again surprised to find his wife lying with her head toward the foot of the bed. He tried to wake her, he said, by touching her back and shaking her and then by trying to shake her by the arm, but her arm was unusually stiff, resisting his pull and springing back to its position when he released it. It was then, Lee told the detective, that he noticed the blood pooled on the mattress beneath his wife's body. He checked for her pulse and not finding it immediately called 911.
Lee denied having killed his wife and continued to deny it throughout a second interview (also played for the jury) conducted later that morning at the Sheriff's Department headquarters. In the course of the two interviews, Lee told the detective that some years previously his wife had been given a bulldog, Pandy, a dog he described as weighing some ninety pounds and as being very aggressive and protective of Ms. Lee. When he left for his drive that morning, he said, Pandy had been asleep in the kennel in the home. Pandy was not there when he got back, and he could not account for the dog's absence, he claimed, beyond supposing that Pandy had simply roamed off into the neighborhood. When confronted with the seemingly odd coincidence that he and the dog happened both to be absent at just the time the killer arrived, Lee asserted that the detective's insinuation "pisses me off," and he again insisted that he and Ms. Lee had a good relationship and that he had not killed her.
When the detective asked who else might have done so, Lee, a motorcycle rider, explained that he and Ms. Lee had been involved on the fringe of a West Virginia motorcycle club or gang called the Pagans. Some two years previously, according to Lee, a member of that gang, a person known to Lee only as "Little Joe," had accused him and Ms. Lee of being agents of the federal Drug Enforcement Agency. Since then, federal officials had conducted a large scale "bust" of the Pagans, but Lee claimed that "Little Joe" had escaped arrest. Lee said his wife had been very interested in the federal prosecution of the Pagans, had followed it on the internet, and had communicated about it with one of the convicted gang members, a Steven Bailey, who was a friend of the Lees. These circumstances together with the writing left on the bedroom wall—the diamond shape being a motorcycle-gang symbol—made Lee "curious," he said, about "Little Joe." Detective Bocook testified that he eventually interviewed Steven Bailey, who told him that "Little Joe" was one Joe Estep, but the detective had not been able to locate him. Steven Bailey testified that when Estep called Ms. Lee a "narc," he was not seriously accusing her of anything. He also testified that by the time Detective Bocook interviewed him he had had no contact with Estep for more than a year and did not know where he lived.
At trial, in addition to Lee's statements, the Commonwealth presented, among other evidence, testimony by Lee's ex-wife, his first wife, to the effect that during the three months immediately prior to the killing, she and Lee had been communicating and were planning to reunite. Lee, indeed, had arranged with her to meet on March 4, 2011, the day of the killing, and to spend the next couple of days together at a cabin in Tennessee. The Commonwealth presented testimony by Lee's neighbor, Kevin Skaggs, to the effect that had the dog, Pandy, been there, no stranger could have gotten into the house without arousing the dog's loud and ferocious resistance, but Skaggs had heard no barking the night of March 3 or the early morning of March 4. Skaggs also testified that about ten days after the killing he had found the missing and by then emaciated Pandy. He found her near the home of a friend who lived out the AA Highway past the Route 7 intersection, the area where, according to Lee's statement to Detective Bocook, he had turned around during his drive the morning Ms. Lee was killed. The Commonwealth presented evidence to the effect that neither Lee's DNA, that of his sons, that of Kevin Skaggs, nor that of a friend with whom Lee lived for a brief period soon after the killing, matched the DNA recovered from the glove found with Ms. Lee's body. But it also presented evidence to the effect that Lee's employer, the Norfolk & Southern Railroad, had, in February 2011, the month just prior to the killing, issued that same distinctive type of orange and black "Winter Hawk" gloves to its employees. The Commonwealth presented evidence, including Lee's statement, EMT testimony, and testimony by the medical examiner, to the effect that the degree to which rigor mortis had set in was not consistent with Lee's account of when the death occurred. Most damningly, the Commonwealth presented testimony by one of Lee's cellmates at the Greenup County Detention Center to the effect that Lee had admitted having killed his wife, had expressed confidence that the Commonwealth would not be able to prove it, and had regretted as a mistake his not having shot the dog.
It was the Commonwealth's theory that Lee had killed his wife and that he had attempted to give himself an alibi by taking his early morning drive, during which he had stopped at a convenience store where he likely would (and did, as Detective Bocook confirmed) appear on the store's security video; that he had attempted to doctor the crime scene by writing the gang symbol and apparent threat against himself on the wall, by planting the glove on Ms. Lee's body, and by leaving open the doors to the garage and the residence; and that he had done all that with the idea of implicating the illusive "Little Joe."
Lee countered by proffering testimony by other inmates of the Greenup County Detention Center to the effect that Lee's alleged confession to his cellmate was unlikely given the cellmate's reputation as a "snitch" and given the detention center's crowded conditions, conditions in which private conversations such as those alleged by the cellmate are hard to come by. Lee also sought to call into question the thoroughness of the Commonwealth's investigation, faulting in particular Detective Bocook's failure to locate and question "Little Joe."
As noted, the jury rejected Lee's defense. Lee now contends that his trial was rendered fundamentally unfair by the Commonwealth's use of what Lee characterizes as his coerced confession, and by Kevin Skaggs's—the neighbor who testified about finding Pandy—mention at the end of his direct examination that he had volunteered to take a lie detector test. We begin our discussion with this latter contention, since that is the one upon which Lee has placed greater emphasis.
ANALYSIS
I. A Witness's Spontaneous Assertion of Willingness to Take a Lie Detector Test Did Not Necessitate a Mistrial.
Late on the third day of the six-day trial, Skaggs, the Lees' next-door neighbor, testified for more than thirty minutes about Pandy's rare virtues as a watchdog, her protectiveness in particular of Ms. Lee, and the circumstances that led to his finding the missing dog some ten or so days after the killing. This testimony was consistent with Lee's own description of the dog and with testimony by other witnesses concerning when and where the dog was found. As a final question on direct exam, the Commonwealth asked Skaggs whether he had given., voluntarily, a DNA sample to Detective Bocook and had otherwise cooperated with the investigation. Skaggs answered that yes he had given a sample, had been eager to cooperate, and had even volunteered to take a lie detector test. At the mention of the words "lie detector," Lee immediately objected and moved for a mistrial. The trial court denied Lee's mistrial motion, but admonished the jury to disregard the "lie detector" remark and to remember that it alone was the judge of the witness's credibility. Lee contends that the court erred by not declaring a mistrial. We disagree.
As Lee correctly notes, this Court and our predecessor Court have long disapproved evidence not only about the results of polygraph exams, but even about offers or refusals to take them. Roberts v. Commonwealth, 657 S.W.2d 943 (Ky. 1983) (citing Penn v. Commonwealth, 417 S.W.2d 258 (Ky. 1967)). We have been concerned that polygraph results are not scientifically reliable and that mention of such exams poses a risk of misleading the jury. Ice v. Commonwealth, 667 S.W.2d 671 (Ky. 1984). The introduction of evidence that a defendant failed a polygraph exam, even evidence merely implying such a failure, we have held to be an error warranting a mistrial. Morgan v. Commonwealth, 809 S.W.2d 704 (Ky. 1991).
On the other hand, we have rejected claims that the mere mention of the word "polygraph" invalidates a trial. Phillips v. Commonwealth, 17 S.W.3d 870 (Ky. 2000) (citing Tamme v. Commonwealth, 973 S.W.2d 13 (Ky. 1998)). We have held, rather, that polygraph-related errors, like other evidentiary errors, may well be subject to admonitory cure and accordingly should be assessed under the usual mistrial standard; i.e., was the error so fundamental as to render the proceedings unjust and did it create a "manifest necessity" that the proceedings be aborted. Major v. Commonwealth, 177 S.W.3d 700, 709 (Ky. 2005) (citing Skaggs v. Commonwealth, 694 S.W.2d 672 (Ky. 1985)).
There was no such "manifest necessity" here. True enough, Skaggs's self-bolstering assertion that he was willing to take a lie detector test was improper, as the trial court recognized and as the Commonwealth readily conceded. The Commonwealth did not deliberately elicit that assertion, however, Skaggs volunteered it, and there was no suggestion that Skaggs actually took, much less passed, a polygraph exam. Skaggs's remark amounted to little more, then, than an assertion that he was telling the truth, and the trial court's admonition reminding the jury that it was to make that determination for itself adequately cured the error. Skaggs's testimony about finding the dog, moreover, while not insignificant given where he found it, was not earth shaking either and was corroborated to a large extent by other witnesses. The trial court did not abuse its discretion, therefore, when it concluded that Skaggs's lie-detector remark was not so prejudicial as to be beyond cure and did not render the proceedings manifestly unjust.
II. Lee Was Not Entitled to the Suppression of His Confession.
A. Lee's Confession Was Not Coerced.
Lee also contends that the trial court erred when it refused to suppress his confession. At the suppression hearing, Detective Bocook admitted that about a week after the March 4, 2011 killing, long before Lee's October 2011 indictment and arrest, he, hoping to induce Lee to take a polygraph exam, had attempted a ruse. He told Lee, falsely, that he, Bocook, had heard from FBI agents keeping tabs on certain motorcycle gangs and from gang members themselves that there were gang members eager to avenge Ms. Lee's killing and that Lee was being targeted as the likely killer. Only if he could tell these people that Lee had passed a polygraph exam, Bocook told Lee, could he hope to divert them and to protect Lee from their vengeance. The detective's ruse was unsuccessful because Lee steadfastly declined the offer of a polygraph exam.
In October 2011 Lee was arrested and housed in the Greenup County Detention Center. According to Detective Bocook's suppression-hearing testimony, Lee's cellmate told him, Bocook, in March 2012 that Lee had confessed in about January 2012. Lee maintained at the suppression hearing that the January 2012 confession to his cellmate was tainted somehow by the lingering effects of what he contended was Detective Bocook's coercive statements the previous March regarding death threats leveled against Lee. The trial court allowed that a contemporaneous confession to Bocook might well have been tainted by that threat. It found, however, that Lee had not been fooled, and it ruled that his confession several months later to a cellmate had nothing to do with Detective Bocook's ruse and had not been coerced. Lee's argument before us appears to be that Detective Bocook's ruse was so far beyond the pale that it should be deemed to have coerced any statement Lee made thereafter. That, however, is not the law.
We review a trial court's suppression ruling under a dual standard. "'[W]e utilize a clear error standard of review for factual findings and a de novo standard of review for conclusions of law."' Keeling v. Commonwealth, 381 S.W.3d 248, 267 (Ky. 2012) (quoting Jackson v. Commonwealth, 187 S.W.3d 300, 305 (Ky. 2006)). In the confession context, we defer to the trial court's findings with respect to underlying facts if those findings are supported by substantial evidence, but "the ultimate issue of Voluntariness' is a legal question" subject to de novo review. Miller v. Fenton, 474 U.S. 104, 110 (1985). The trial court's denial of Lee's motion to suppress his confession withstands this scrutiny.
As this Court noted in Bailey v. Commonwealth, 194 S.W.3d 296, 300 (Ky. 2006), "[t]he Due Process Clause of the Fourteenth Amendment prohibits the admission of involuntary confessions." A confession will be deemed involuntary if it was brought about by coercive police activity, such that the defendant's '"will [was] overborne and his capacity for self-determination critically impaired.'" Id. (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 225-26 (1973), and citing Colorado v. Connelly, 479 U.S. 157, 167 (1986)). In assessing the voluntariness of a confession, this Court has applied the following three-part test: (1) was the police activity objectively coercive; (2) did the coercion overbear the will of the defendant; and (3) was the coercive police activity the crucial motivating factor giving rise to the confession. Meece v. Commonwealth, 348 S.W.3d 627, 652 (Ky. 2011) (citing Henson v. Commonwealth, 20 S.W.3d 466 (Ky. 1999)). Coercive police activity alone, in other words, does not, as Lee would have it, create a presumption of involuntariness. The totality of the circumstances, rather, including the effect of the alleged coercion, or the lack thereof, must be considered.
It may well be in this case, as the trial court acknowledged, that the detective improperly attempted to induce Lee to submit to a polygraph exam by telling him that that was the only way the detective could protect him from vigilante violence. Cf. Arizona v. Fulminante, 499 U.S. 279 (1991) (holding that confession given in exchange for false promise of protection from fellow inmates was coerced); Payne v. Arkansas, 356 U.S. 560 (1958) (holding that confession given in exchange for false promise of protection from lynch mob was coerced). Even if the detective's ruse was improper, however, there was substantial evidence in support of the trial court's findings that the coercive police activity did not overbear Lee's will—he did not confess to the detective, after all, or submit to a polygraph—and that the ruse was not, eight or nine months later, the crucial motivating factor giving rise to Lee's confession to his cellmate. There is no claim, after all, or any suggestion in the record, that the cellmate could, or offered to, protect Lee from anything or anybody. Given these circumstances, the trial court did not err by deeming Lee's confession voluntary, notwithstanding what was likely an improper, albeit ineffective, ploy by the investigator.
B. Lee's Confession Did Not Amount to a Denial of His Right to Counsel.
Lee also presented testimony at the suppression hearing from an inmate at the Greenup County Detention Center to the effect that the cellmate to whom Lee confessed was a jail trustee well known to operate as an agent of the jailer. The United States Supreme Court has held that under the right-to-counsel provision of the Sixth Amendment to the federal Constitution, the state may not deliberately (such as by the use of undercover agents and hired inmate informants) elicit, in the absence of counsel, incriminating statements pertaining to charged offenses from persons in custody for those alleged offenses and then use the statements as direct evidence of the offenses at trial. Maine v. Moulton, 474 U.S. 159 (1985) (citing Massiah v. United States, 377 U.S 201 (1964) and United States v. Henry, 447 U.S. 264 (1980)). No constitutional violation occurs, however, when the state uses evidence that a charged inmate made unsolicited statements to another inmate, regardless of whether the informant had previously agreed to cooperate with officials or simply came forward voluntarily after the fact. Kuhlmann v. Wilson, 477 U.S. 436 (1986).
At the suppression hearing in this case, Lee did not raise a Sixth Amendment claim, and thus a record on that issue was not developed. The inmate to whom Lee confessed did not testify at the hearing, although he was available to do so. And the trial court expressly refrained from finding whether that inmate had been operating as an agent of the jailer, since such a finding was irrelevant to Lee's claim that his confession had been coerced. See Rlinois v. Perkins, 496 U.S. 292 (1990) (holding that federal Fifth Amendment does not preclude questioning by undercover cellmate).
Lee now belatedly invokes the Sixth Amendment, but because that claim was not preserved at trial our review is limited under Kentucky Rule of Criminal Procedure (RCr) 10.26 to asking whether the admission of Lee's confession constituted a palpable error. It did not. Lee's cellmate testified at trial that he had not been operating as an agent of the jailer, that no one had asked him to obtain statements from Lee, and that he had never questioned Lee, but rather Lee had always initiated their conversations and volunteered his confession without any prompting. There is thus no reason to suppose that had Lee raised his Sixth Amendment claim at the suppression hearing the result would or should have been any different. The use against him of his uncounseled confession, therefore, does not entitle Lee to relief. Cf. Winstead v. Commonwealth, 327 S.W.3d 386 (Ky. 2010) (holding that admission into evidence of jailhouse confession was not palpable error where there was no showing that the confession had been deliberately elicited by a state agent).
CONCLUSION
In sum, Lee was fairly tried and convicted. A witness's unsolicited expression of willingness to take a lie detector test was properly cured by admonition, and so did not necessitate a mistrial. Further, Lee's confession to his cellmate was not subject to suppression under either the Sixth or the Fourteenth Amendment. Accordingly, we hereby affirm the Judgment of the Greenup Circuit Court.
All sitting. All concur. COUNSEL FOR APPELLANT: Karen Shuff Maurer
Assistant Public Advocate
COUNSEL FOR APPELLEE: Jack Conway
Attorney General of Kentucky
James Hays Lawson
Assistant Attorney General