Opinion
NO. 2014-CA-000580-MR
01-29-2016
EDWARD LEVERICH APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Kathleen Schmidt Julia Pearson Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Nate T. Kolb Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE JUDITH E. MCDONALD-BURKMAN, JUDGE
ACTION NO. 12-CR-003633 OPINION
AFFIRMING BEFORE: DIXON, JONES AND THOMPSON, JUDGES. JONES, JUDGE: Following a conditional guilty plea, the Appellant, Edward Leverich, brings this appeal in which he asserts that the trial court acted erroneously when it refused to suppress a statement he made to police without receiving Miranda Warnings. For the reasons more fully explained below, we affirm the ruling of the Jefferson Circuit Court.
I. FACTUAL AND PROCEDURAL BACKGROUND
On November 16, 2012, Edward Leverich's daughter, Amber Leverich, reported to school personnel that her father had been touching her inappropriately. The school notified authorities, and Detective Jennifer Lucas was assigned to investigate the matter. Later that day, Detective Lucas called Leverich and asked him if she could come and talk to him at his home. Leverich agreed.
Amber is a pseudonym for the victim in this case. --------
Detective Lucas arrived at Leverich's home with Detective Jennifer Boyer, and Michelle Eichem, a social worker from Child Protective Services. The interview took place at Leverich's kitchen table. Before the interview began, Detective Lucas informed Leverich that he was not under arrest. She also informed Leverich that, if at any point he wanted them to leave, all he had to do was say so, and they would leave. Detective Lucas did not give Leverich Miranda warnings prior to the interview.
The interview lasted approximately forty-five minutes. During the interview, Leverich made several incriminating statements. After the interview, Detective Lucas, Detective Boyer, and Eichem left Leverich's home. The officers did not arrest Leverich.
On November 29, 2012, the Jefferson County Grand Jury returned an indictment charging Leverich with three counts of Sexual Abuse in the First Degree. After being indicted, Leverich filed a motion to suppress his statement, arguing that the officers obtained it in violation of his Miranda rights. The circuit court held a suppression hearing at which Detective Lucas and Leverich each testified. Following a hearing and a review of the recorded statement, the circuit court denied Leverich's motion. The court found that because Leverich was not in custody at the time of the interview, he was not entitled to Miranda warnings.
Thereafter, Leverich entered a conditional guilty plea, reserving his right to appeal the circuit court's ruling regarding his statement. This appeal followed.
II. STANDARD OF REVIEW
When reviewing a trial court's denial of a motion to suppress, we consider its factual findings to be conclusive if supported by substantial evidence in accordance with Kentucky Rules of Criminal Procedure (RCr) 9.78. If these findings are supported, we conduct a de novo review of the trial court's application of the law to those facts to determine whether its decision was correct as a matter of law. Buster v. Commonwealth, 406 S.W.3d 437, 439 (Ky. 2013).
However, as determined in Commonwealth v. Lucas, 195 S.W.3d 403, 405 (Ky. 2006):
This Court has used a de novo standard of review in deciding whether the Fifth Amendment protection against self-incrimination is applicable to a particular situation. See Welch v . Commonwealth, 149 S.W.3d 407 (Ky.2004). Both the U.S. Supreme Court and the Sixth Circuit Court of Appeals have held that the question of whether a defendant is in custody is a mixed question of law and fact to be reviewed de novo. See Thompson v . Keohane, 516 U.S. 99, 116 S.Ct. 457, 133 L.Ed.2d 383 (1995) and United States v . Salvo, 133 F.3d 943 (6th Cir.1998). We also recognize that the findings of the trial judge are conclusive if supported by substantial evidence and the decision must have been demonstrated to have been clearly erroneous. See
Clark v . Commonwealth, 868 S.W.2d 101 (Ky.App.1993) citing RCr 9.78 and Harper v . Commonwealth, 694 S.W.2d 665 (Ky.1985), cert. denied 476 U.S. 1178, 106 S.Ct. 2906, 90 L.Ed.2d 992 (1986).
With these standards in mind, we now turn to the issues Leverich raises on appeal.
III. ANALYSIS
Leverich argues that the trial court committed reversible error by failing to suppress the statements he made to the officers during the interview at his home. Leverich maintains that these statements were made as part of a custodial interrogation and should have been preceded by a proper Miranda warning.
Miranda warnings are only necessary prior to custodial interrogations. Callihan v. Commonwealth, 142 S.W.3d 123, 126 (Ky. 2004) (citing Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.E.2d 694 (1966)). The procedural rules of a custodial interrogation as set forth in Miranda are well-established:
We hold that when an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way, and, is subjected to questioning, the privilege against self-incrimination is jeopardized. Procedural safeguards must be employed to protect the privilege and unless other fully-effective means are adopted to notify the person of his right of silence and to assure that the exercise of the right will be scrupulously honored, the following measures are required. He must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires. Opportunity to exercise these rights must
be afforded to him throughout the interrogation. After such warnings have been given, and such opportunity afforded him, the individual may knowingly and intelligently waive these rights and agree to answer questions or make a statement. But unless and until such warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation can be used against him.Id. at 478-479, 86 S.Ct. at 1630. See also, Wells v. Commonwealth, 892 S.W.2d 299 (Ky. 1995).
In this case, it is undisputed that no one gave Leverich any Miranda warnings at any point. Further, the parties agree that Leverich was interrogated. Therefore, the question before us is whether Leverich was in custody during the time he spoke with the officers at his home.
Miranda warnings are only required when the suspect being questioned is in custody. Lucas, 195 S.W.3d at 405. "The inquiry for making a custodial determination is whether the person was under formal arrest or whether there was a restraint of his freedom or whether there was a restraint on freedom of movement to the degree associated with formal arrest." Id. Custody does not occur until police, by some form of physical force or show of authority, have restrained the liberty of an individual. Smith v. Commonwealth, 312 S.W.3d 353, 358 (Ky. 2010). To determine whether someone is in custody, the court employs a totality of the circumstances test to ask "whether, considering the surrounding circumstances, a reasonable person would have believed he or she was free to leave." Id. The determination of whether the defendant is in custody at the time of questioning is based on objective circumstances, not the subjective belief of the defendant or the officers. Stansbury v. California, 511 U.S. 318, 323, 114 S.Ct. 1526, 1529, 128 L.Ed.2d 293 (1994).
The proper inquiry is explained in Smith v . Commonwealth, 312 S.W.3d 353 (Ky. 2010):
Custody does not occur until police, by some form of physical force or show of authority, have restrained the liberty of an individual...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).
At the suppression hearing, Detective Lucas testified about the interview that took place at Leverich's home. Detective Lucas testified that after being contacted by the victim's school, she obtained Leverich's phone number from his wife, and asked him if they could come speak with him at his home. Leverich agreed to speak with Detective Lucas along with another Detective and a Social Worker. Upon arrival, Detective Lucas informed Leverich that he was not under arrest and that he could end the interview at any point. Detective Lucas specifically stated: "Like I told you on the phone, we're just going to be chatting, you're not under arrest if you want us to leave at any time, we'll get up and go." Leverich responded, "No, I want to get this over with." Leverich was not handcuffed or restrained in any way. The interview lasted roughly forty-five minutes and was recorded. Throughout the interview Detective Lucas's tone was conversational. Detective Lucas testified that Leverich was cooperative throughout the interview and was open to speaking with her. At no point did Leverich ask the officers to leave or indicate that he no longer wished to speak with them.
Leverich also testified at the suppression hearing. During cross-examination, Leverich confirmed that Detective Lucas had told him that he was not under arrest and that he could end the interview at any time. Leverich argues that although Detective Lucas told him he was free to end the interview at any time, he did not believe he could just get up and leave his own home. Leverich testified that he was fearful if he had tried to leave, he would have been arrested. However, the relevant inquiry for a determination of custody depends on the objective circumstances of the interrogation, not on the subjective views harbored by either the interrogating officers or the person being questioned. See Stansbury, 511 U.S. at 323, 114 S.Ct. at 1529. As such, whether Leverich himself believed he was free to leave or otherwise terminate the interview, is not determinative. Rather, the question is how a reasonable person under the circumstances would have felt.
We find that the facts of this case are analogous to Cecil v. Commonwealth, 297 S.W.3d 12 (Ky. 2009). In Cecil, the court found that the defendant was not in custody when he voluntarily appeared at the police station for the interview, police told him the interview was voluntary and that he could leave at any time; only one officer interviewed the defendant; the defendant was not handcuffed; and the defendant left after the interview ended. Here, much like the circumstances in Cecil, Appellant voluntarily spoke with police and he was expressly told that he was free to leave or end the interview at any time.
While there were two officers and one social worker present, we do not believe that this amounts to a "police dominated atmosphere" as Leverich argues. Detective Lucas conducted the majority of the interview and the social worker, Mrs. Eichem, only asked a few questions toward the end of the interview. There have been instances where the number of officers present has been found so numerous as to create a "police-dominated atmosphere," which contributes to a finding that the interrogation was custodial. The number of officers on the scene in those cases far surpasses the number at issue here. After reviewing the recording of the interview, we find that there is no evidence that Leverich felt dominated by the police presence. To the contrary, at the end of the interview Detective Lucas asked if she had any further questions if it would be okay if she called him. Leverich responded that she could call him anytime. As such, the number of officers present, especially in light of the other circumstances of this interview, is not sufficient in itself to render Leverich's interview custodial.
Further, Leverich was not physically touched or restrained in any way. The officers were sitting around a kitchen table in Leverich's own home. Leverich testified that there were available exits behind him and to his left. Leverich testified that he was able to walk freely through his home and had everyone come to the living room at one point of the interview. This shows that Leverich's freedom of movement was not restrained in any way.
In sum, we agree with the trial court's conclusion that Leverich was not in custody during the interview at his house. He had not been arrested. He voluntarily agreed to speak with the detectives at his home. He was expressly informed that he was free to end the interview and leave at any time. He was not handcuffed or restrained in any way, and even got up to walk through his house into the living room to demonstrate where some of the alleged activity had occurred. When the interview ended, the detectives left his home. In light of these circumstances, a reasonable person would have believed he or she was free to leave. The trial court correctly concluded that Leverich was not in custody, and therefore, no Miranda warnings were required.
IV. CONCLUSION
For the foregoing reasons, the Order of the Jefferson Circuit Court denying Appellant's motion to suppress is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Kathleen Schmidt
Julia Pearson
Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky Nate T. Kolb
Assistant Attorney General
Frankfort, Kentucky