Opinion
NO. 2013-CA-001197-MR
05-22-2015
HERBERT LEE JR. APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Darrell A. Cox Covington, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Ken W. Riggs Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM PENDLETON CIRCUIT COURT
HONORABLE JAY DELANEY, JUDGE
ACTION NO. 12-CR-00027
OPINION
AFFIRMING
BEFORE: DIXON, JONES AND VANMETER, JUDGES. JONES, JUDGE: Herbert Lee Jr. appeals from a Pendleton Circuit Court judgment sentencing him to serve a total of fifteen years on two charges of criminal attempt to commit first-degree rape (victim less than twelve years of age) and five charges of first-degree sexual abuse. Lee entered a plea of guilty to the charges conditioned on his right to appeal the trial court's denial of his motions to suppress incriminating statements he made to the police. For the reasons more fully explained below, we AFFIRM.
I. FACTUAL AND PROCEDURAL BACKGROUND
On May 2, 2012, State Trooper Evan Guilfoyle was dispatched to investigate a sexual assault complaint. Trooper Guilfoyle spoke to two minor children regarding the complaint. The children told Tropper Guilfoyle that, several years before, their step-grandfather, Lee, had sexually assaulted them on numerous occasions. Guilfoyle took written statements from the children.
Twenty-two days later, Trooper Guilfoyle and Trooper Ryan Roessler went to Lee's residence to investigate the allegations. They found Lee sitting on his porch and engaged him in conversation for about eighty minutes. In the course of the conversation, which the officers recorded, Lee made self-incriminating remarks regarding sexual activities with one of the children. The following day, he was arrested and charged with two counts of rape in the first degree and five counts of sexual abuse in the first degree.
Lee filed a motion to suppress his statements. He argued that the statements violated his right against self-incrimination because the police did not give him a Miranda warning. Following a hearing, the trial court entered an order denying the motion on the ground that Lee was not in custody when he made his statements to the police.
Lee then filed a motion to reconsider. As part of his motion to reconsider, Lee made the additional argument that the trial court should suppress his statements because they were not voluntary due to his intoxication at the time the police interviewed him. Lee included an affidavit from his neighbor, Linda Schoonover, to support his motion. Schoonover averred that she had observed Lee drinking heavily and smoking marijuana all day prior to the arrival of the police.
The trial court conducted a supplemental suppression hearing. It ultimately denied Lee's motion after concluding that Lee was not so intoxicated as to render his statements unreliable or involuntary.
Lee then entered a conditional guilty plea. As part of the plea, Lee reserved the right to challenge the trial court's refusal to suppress his statements to police. 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. at 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 ."
A. Absence of Miranda Warnings
Lee argues that he was "in custody" at the time he made his self-incriminating statements to police, and therefore, the Commonwealth should not be allowed to rely on those statements because police did not give Lee the required Miranda warnings before the officers questioned him.
Determination of whether a suspect is in custody for purposes of a Miranda warning is based upon the totality of the circumstances. Wilson v. Commonwealth, 199 S.W.3d 175, 180 (Ky. 2006). The proper inquiry is explained in Smith v. Commonwealth, 312 S.W.3d 353 (Ky. 2010):
[c]ustody does not occur until police, by some form of physical force or show of authority, have restrained the liberty of an individual. The test is whether, considering the surrounding circumstances, a reasonable person would have believed he or she was free to leave. The United States Supreme Court has identified factors that suggest a seizure has occurred and that a suspect is in custody: 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 would be compelled. Other 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 (internal citations and footnotes omitted).
The two state troopers arrived at Lee's home at approximately ten-thirty in the evening. Lee was seated on his porch, where the subsequent interview was conducted. The officers did not enter Lee's home or ask to do so. There is no evidence that the officers physically restrained Lee or touched him in any hostile or aggressive manner. After asking Lee whether he had "anything like drugs" inside the house, the following exchange took place:
Guilfoyle: So like I said before, we're just here to talk and get - get your side of the story, okay?
Lee: Yeah. You're going to have to speak up because I can't hear very good because -
Guilfoyle: Okay. Mind if I sit here?
Lee: Nope. Go ahead.
Guilfoyle: Alright. We're here - like I said, we just need to get your side of the story, okay? If at any time you don't want to talk to us, you're free to, you know, tell us to go, okay? You understand that?
Lee: Yes sir.
The interview was lengthy; it lasted approximately just over seventy-eight minutes. Lee stated several times throughout the interview that he felt "nervous." However, Lee never indicated that he wanted the officers to leave his front porch or that his liberty was being restrained. The tone of the officers' voices was conversational. Lee smoked a cigarette during the interview. Moreover, the officers did not indicate that Lee was under arrest; they repeatedly told him that they are just there to get his side of the story.
Certainly, any questioning by a police officer can make a suspect nervous, especially where the questioning lasts more than a few minutes. However, this does not mean a suspect is in custody simply because the police attempt to initiate conversation in the course of an investigation. Here, the two officers spoke to Lee on his front porch, they asked his permission before sitting down on the porch, and they told him that he was free to tell them to go away. The officers did not restrain Lee in any manner and they conversed with him in a normal tone.
Having reviewed the record, we conclude that the trial court correctly determined that Lee was not in custody when the police questioned him. Substantial evidence supports the trial court's conclusion that a reasonable person in Lee's position would have believed that he could refuse to answer the police officers' questions and terminate the interrogation. Peacher v. Commonwealth, 391 S.W.3d 821, 848 (Ky. 2013) ("Because in these circumstances a reasonable person would have felt free to terminate the interview and to leave, they do not add up to custody under Miranda."). Under these circumstances, a Miranda warning was not required.
Lee also argues that his self-incriminating statements to the police were made while he was under the influence of drugs and alcohol, and were consequently involuntary.
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).Smith v. Commonwealth, 410 S.W.3d 160, 164 (Ky. 2013).
There are two instances, however, when a defendant's level of intoxication may lead to suppression of evidence:
First, intoxication may become relevant because a "lesser quantum" of police coercion is needed to overcome the will of an intoxicated defendant. Hill v. Anderson, 300 F.3d 679, 682 (6th Cir.2002) (quoting United States v. Sablotny, 21 F.3d 747, 751 (7th Cir.1994)) ("When a suspect suffers from some mental incapacity, such as intoxication or retardation, and the incapacity is known to interrogating officers, a 'lesser quantum of coercion' is necessary to call a confession into question."); United States v. Haddon, 927 F.2d 942, 946 (7th Cir.1991) ("[W]hen the interrogating officers reasonably should have known that a suspect is under the influence of drugs or alcohol, a lesser quantum of coercion may be sufficient to call into question the voluntariness of the confession."); Jones v. Commonwealth, 560 S.W.2d 810, 814 (Ky.1977) (intoxication may be a factor that, "under certain circumstances," could cause a confession to be suppressed for lack of voluntariness). Thus, trial courts must consider a defendant's level of intoxication when considering whether police coercion has overborne a defendant's will so as to render the confession involuntary for purposes of the Due Process Clause.Smith v. Commonwealth, 410 S.W.3d 160, 164-65 (Ky. 2013).
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." Halvorsen v. Commonwealth, 730 S.W.2d 921, 927 (Ky.1986) (quoting Britt, 512 S.W.2d at 499); Peters, 403 S.W.2d at 688. Under those circumstances, suppression may be warranted not because the confession was "coerced" but because it is unreliable. Britt, 512 S.W.2d at 500 (quoting Marshall & Steiner, The Confessions of a Drunk, 59 ABAJ 497 (1973)) ("[W]hen intoxication reaches the state in which one has hallucinations or 'begins to confabulate to compensate for his loss of memory for recent events'... the truth of what he says becomes strongly suspect.").
Lee and Schoonover both testified that before the police arrived at Lee's home, he had been drinking heavily all day and smoking marijuana. Lee contends that the recorded statement shows that he was intoxicated and confused because he misunderstood many of their questions and needed clarification of simple questions. According to Schoonover, when she returned to check on Lee after the police left, she found him even more intoxicated, and also observed more empty beer cans. She testified that Lee drank heavily as a matter of routine, describing him as an alcoholic who drank three beers per hour and also smoked marijuana.
Trooper Guilfoyle testified that he was trained to recognize the signs of intoxication, and he did not believe Lee was impaired, although he did see a beer can on the porch. He described Lee's speech as clear and not slurred, and stated that he had no sense that Lee had any trouble understanding his questions. While in the presence of the troopers, Lee did not drink any alcohol or consume illegal drugs, nor did he smell like marijuana smoke.
The trial court held that, even if all the evidence presented by Lee was true, there was no evidence that he was not in sufficient possession of his faculties to make a reliable statement, or that his cognitive abilities had been affected to the extent that his statement was involuntary. We agree.
Lee's recorded answers to the troopers' questions were at times evasive, and he claimed a lack of memory which he attributed to his use of alcohol and drugs at the time the events at issue took place. And, certainly, as he indicated at the beginning of the interview, Lee had some difficulty hearing. However, there is nothing to suggest that Lee was intoxicated to the point of insanity or even intoxicated to the point where he would be more easily coerced into giving a confession. His answers tracked the questions. He appeared coherent and well-oriented to time, place and day. He also appeared to understand the gravity of the allegations against him and the consequences that would follow if they were proven true as he discussed his desire not to spend the rest of his life in prison.
Overall, the record does not support Lee's claim that he was confused, that he misunderstood the police questions, or that police took advantage of his intoxicated state to coerce an involuntary confession. Nor is there evidence that Lee was so intoxicated, to the point of hallucinating or being unable to understand the meaning of his statements, as to cast doubt on the reliability of what he told the police.
Thus, neither of the exceptions to the rule that there is no constitutional provision protecting a drunken defendant is applicable in this case, as there is no evidence that Lee's purported intoxication enabled the police to obtain a coerced and hence involuntary confession, or that his confession was the product of intoxication so severe as to render it unreliable.
IV. CONCLUSION
For the foregoing reasons, the orders of the Pendleton Circuit Court denying Lee's suppression motions are AFFIRMED.
ALL CONCUR. BRIEF FOR APPELLANT: Darrell A. Cox
Covington, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Ken W. Riggs
Assistant Attorney General
Frankfort, Kentucky