Opinion
NO. 2013-CA-000082-MR
03-21-2014
FRANK MAYS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Julia K. Pearson Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Heather M. Fryman Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE CHARLES L. CUNNINGHAM, JR., JUDGE
ACTION NO. 10-CR-003294
OPINION
AFFIRMING
BEFORE: CAPERTON, COMBS, AND THOMPSON, JUDGES. CAPERTON, JUDGE: The Appellant, Frank Mays, was convicted of three counts of sexually abusing his step-granddaughter, for which he was sentenced to three concurrent terms of five years. Mays now appeals to this Court as a matter of right, arguing that the confession he made to police was given in a coercive atmosphere. Mays also makes arguments concerning witness competency, and what he asserts was improperly excluded evidence vital to his defense. Upon review of the record, the arguments of the parties, and the applicable law, we affirm.
On October 28, 2010, the Jefferson County Grand Jury indicted Mays on three counts of sexual abuse occurring between January 1, 2009, and June 30, 2010. The indictment was later modified to indicate that the dates of the three charges were actually between January 1, 2008, and October 10, 2010. Due to medical problems, Mays was placed on a home incarceration program.
During the course of trial below, it was established that Annie, a working single mother, left her daughter, Sally, in Mays's care for the period of time in which Sally came home from school, until Annie returned home from work in the evening. Annie had moved to a home next door to Debra, her mother, and Mays, and this arrangement had been in place for approximately one year. On October 7, 2010, Annie arrived home from work, but her daughter did not come home as she usually did. Annie called Mays's house, and Sally informed Annie that she wanted to tell her something. When Sally arrived home, she told Annie that Mays had been touching her in a sexual way.
In its brief to this Court, the Appellant has used the aliases "Annie" and "Sally" to refer to the mother and the victim in this case respectively. We shall continue to refer to the mother and the victim by those names herein.
Upon hearing this information, Annie called her mother, Debra, who had been married to Mays for eight years at that time. Debra stated that she talked to her granddaughter, the victim, and tried to "impress" upon her the importance of telling the truth. Based upon the sexual abuse described by her granddaughter, Debra moved out of the home she shared with Mays. During the course of the trial, defense counsel objected to Debra's statement and the trial court sustained the objection. The defense then asked for a mistrial "for the record," but requested no other form of relief. Debra stated that she did not coach Sally or tell her what to say. On cross-examination, Debra stated that Sally referenced the time frame during which the abuse occurred by indicating what grade she was attending in school.
Sally testified about the incidents at issue during trial, providing specific and detailed accounts of the incidents during which Mays made her engage in inappropriate sexual behaviors with him. Mays confessed to these incidents, telling Detective Lawless of the Louisville Police Department that the abuse had occurred twice in his bedroom. During the suppression hearing, Detective Lawless described the interview stating that Mays set up an appointment, drove himself to the interview, and voluntarily appeared. Detective Lawless advised Mays on the recording that the interview was recorded, that he was not in custody and that he could leave without restraint. Mays was not arrested on the day of the interview and he drove himself home afterward. The entire interview lasted one hour and ten minutes.
Mays testified below, stating that Sally was angry with him because he ignored her and yelled at her due to his own difficulty in dealing with a recent death in the family. Mays also testified that he could not have an erection between 2008 and 2012, though he later revised this testimony to state that sometimes he did have erections during that time frame. Mays stated that he told the detective that the abuse occurred because he was simply agreeing with whatever the police told him.
On August 10, 2011, Mays filed a motion to suppress his aforementioned confession to Detective Lawless. That motion was overruled in a March 26, 2012 order entered by the trial court, wherein the court found that: (1) Mays appeared for a scheduled interview; (2) The interview occurred in an interview room; (3) Detective Lawless informed Mays that he was free to leave at any time but that he was shutting the door for privacy; and (4) The interview lasted for an hour and ten minutes.
Debra testified during the course of trial and stated that during her marriage to Mays, they had sexual relations and he was able to achieve erections and to ejaculate between 2008 and 2010. Prior to the beginning of trial, Mays's counsel requested a continuance to continue to search for medical records about Mays's ability to achieve an erection based upon Mays's supposed "recent" discovery of a 2004 letter from a physician concerning this issue. The trial court ruled that this issue had been known, that there was ample opportunity to obtain medical records, and that the 2004 letter did not pertain to the time frame at issue.
During the course of the trial below, Mays's counsel asked Annie if she had ever talked to Sally about the "birds and bees," following that line of questioning with an inquiry as to whether Annie had ever allowed Sally to view pornographic material. Annie responded that she had not. At a bench trial immediately following this question, defense counsel tried to explain the question by stating that in her statement, Sally had once mentioned seeing a topless woman. The trial court determined that from that statement alone, one could not appropriately extrapolate that she had been looking at pornography and therefore determined that there was no basis for the question.
As noted, following deliberation the jury found Mays guilty of three counts of sexual abuse in the first degree. Mays received a sentence of five years for each count to be served concurrently. It is from this conviction and sentence that Mays now appeals to this Court.
As his first basis for appeal, Mays argues that he was placed in a coercive environment when he made his confession and that, accordingly, the trial court should have suppressed his statement to the police. While Mays concedes that detectives advised him that his appearance was completely voluntary, and that he was told he was free to leave when he wanted, he nevertheless asserts that the detectives made him feel as if this were not the case. Mays argues that the detectives used the "Reid technique" to interview him, a technique which Detective Lawless said that he used for all of his suspect interviews in which the first portion of the interview was "rapport building," and the last portion was "more accusatory". Mays asserts that he was in fact in custody because he did not feel free to leave the room based upon the arrangement of the furniture therein, and the interviewing techniques and demeanor of Detective Lawless.
Mays states that he was directed to sit in a chair in the corner of the room, bounded on the back and the left by walls, and on the right by a table. Mays asserts that this arrangement made him feel as if he were not free to leave the room voluntarily.
In response, the Commonwealth argues that the trial court correctly denied Mays's motion to suppress. The Commonwealth argues that the trial court was correct in finding that Mays voluntarily appeared at the station, voluntarily consented to an interview with detectives, and voluntarily made a confession. Accordingly, the Commonwealth asserts that Mays's argument that the confession was coerced and is therefore invalid, is without merit.
In reviewing the arguments of the parties on this issue, we note that a trial court's conclusion that an Appellant was not "in custody" at the time that his statements were made is an issue of mixed law and fact that is reviewed de novo. Commonwealth v. Lucas, 195 S.W.3d 403 (Ky. 2006). Though we review the court's determination on custody de novo, the decision of the court below was made on the basis of its findings of fact made subsequent to the motion to suppress. Those findings of fact are binding as long as they are supported by substantial evidence. RCr 9.78. Harris v. Commonwealth, 793 S.W.2d 802 (Ky. 1990).
We note that in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the United States Supreme Court held that the prosecution may not use any statements:
[W]hether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been takenMiranda, 384 U.S. at 444. Accordingly, a Miranda warning need not be issued in the absence of a custodial interrogation. Mays asserts that he was indeed "in custody" at the time of his interview with Detective Lawless. We disagree.
into custody or otherwise deprived of his freedom in a significant way.
In determining whether an individual was in custody, a court must examine all of the circumstances surrounding the interrogation but the ultimate inquiry is simply whether there was a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest. Stansbury v. California, 511 U.S. 318, 322, 114 S.Ct. 1526, 1529, 138 L.Ed. 2d 293 (1994). This is a determination based on objective circumstances; neither the subjective belief of the defendant or the officers is relevant. Id. at 323. Thus, when determining whether a person is in custody, the court must examine all of the circumstances surrounding the interrogation but the relevant inquiry is how a reasonable man in the suspect's position would have understood the situation. Id. at 322.
Below, the trial court found that: (1) Mays appeared for a scheduled interview; (2) The interview occurred in an interview room; (3) Detective Lawless informed Mays that he was free to leave but that he was shutting the door for privacy; (4) Mays was free to leave the room if he desired; and (5) The interview lasted one hour and ten minutes. Based upon these factual findings made by the trial court, we are in agreement with the trial court that Mays went to the police station voluntarily, and was not in custody until he was arrested after voluntarily making inculpatory statements. Upon review of the facts and applicable law, we believe that a reasonable man in Mays's situation would have felt that he was free to leave. Accordingly, we decline to reverse on this basis and affirm the trial court.
As his second basis for appeal, Mays argues that the trial court erred by refusing to grant him a continuance for the purpose of gathering exculpatory evidence. In support of this argument, Mays states that one of the sex abuse allegations was that the victim fondled Mays to erection and ejaculation. Mays, however, asserts that he had a physician's letter detailing damage to the nerves in and around his penile area. Mays asserts that after searching for the letter, he found it and gave it to counsel very close to trial. Mays states that on the morning trial began his counsel requested a continuance which was denied. Mays asserts that the court's decision to deny his request for a continuance was a violation of his due process rights under the Sixth and Fourteenth Amendments to the United States Constitution, and requests this Court to reverse.
In response, the Commonwealth argues that the trial court did not abuse its discretion in denying Mays's motion for continuance. It asserts that for nearly two years until the day of the criminal trial, the record documents that the defense was aware that Mays had several physical and medical issues. The Commonwealth states that it was not until the morning of trial that Mays's counsel first produced a medical record that might substantiate the claim. The Commonwealth asserts that the court correctly noted that Mays had known about the trial for a long time and that the physical claim had always been an issue. Further, it asserts that the letter was dated 2004, well before the dates at issue and therefore did not speak to his condition during the timeframe of the allegations. The Commonwealth argues that the trial court was well within its discretion to deny Mays's motion for a continuance, and that doing so did not violate his due process rights.
It has long been established that a trial court has the discretion to deny the request for a continuance. Fannin v. Commonwealth, 331 S.W.2d 726 (Ky. App. 1960). The test for abuse of discretion is whether the trial court's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles. Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999). A conviction will not be reversed for failure to grant a continuance unless the trial court's discretion has been plainly abused and manifest injustice has resulted. Taylor v. Commonwealth, 545 S.W.2d 76, 77 (Ky. 1976). When reviewing a claim that a continuance is needed, the trial court must evaluate (1) the unique facts and circumstances of the case including length of delay, previous continuances, inconvenience to litigants, witnesses, counsel, and the court, (2) whether the delay is purposeful or is caused by the accused, availability of other competent counsel, complexity of the case, and (3) whether denying the continuance will lead to identifiable prejudice. Snodgrass v. Commonwealth, 814 S.W.2d 579, 581 (Ky. 1994), overruled on other grounds by Lawson v. Commonwealth, 53 S.W.3d 534 (Ky. 2001).
Upon review and after consideration of the foregoing factors, this Court is of the opinion that Mays has failed to identify any undue prejudice or manifest injustice that he suffered as a result of the court's denial of his request for a continuance. A review of the record reveals that Mays himself testified about his defense, describing his erectile dysfunction as occurring sometimes and other times not occurring which was substantiated by the testimony of Mays's ex-wife. This was also consistent with the victim's testimony, wherein she stated that Mays had ejaculated on only one of the three occasions during which she was abused. Accordingly, this Court is of the opinion that the denial of the continuance did not cause any identifiable prejudice, and we decline to reverse on this basis.
As his third basis for appeal, Mays argues that the trial court erred in refusing to allow his counsel to ask the victim's mother, Annie, about her daughter's access to pornography. During the course of the trial, Mays's counsel asked Annie if she had ever talked to Sally about the "birds and bees." Counsel then asked Annie if her daughter had access to pornography. Annie replied that she did not, and the trial court called counsel to the bench at which time it asked defense counsel what its basis was for the question. The defense counsel noted that the victim had mentioned previously seeing a topless woman and that the victim's mother had stated, "I be finding these kind of magazines all over the house." The Commonwealth argued against the line of questioning on the basis of the KRE 412 "rape shield" rule, and also on the basis that it did not have a proper foundation. The court stated that the magazines at issue could just as easily have been National Geographic magazines and determined that counsel had no basis for asking that question, that it had no probative value, and was prejudicial. Accordingly, it sustained the objection and instructed the jury to disregard counsel's question.
Mays now argues that this evidence was not offered to prove that the victim engaged in other sexual behavior or to prove her sexual predisposition and was therefore not within the purview of KRE 412. Accordingly, Mays asserts that the evidence was otherwise relevant and should not have been barred by KRE 412. Alternatively, Mays argues that even if it is found that the evidence is covered by KRE 412, its admission is required in order to preserve Mays's right to present a defense and confront witnesses.
Mays and his counsel argued that this information was relevant because it identified as source from which the victim might have learned the details of masturbation and/or other sexual acts, and upon which she may have based her allegations against him.
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In response, the Commonwealth argues that the question at issue was both irrelevant and prejudicial, and that the trial court's ruling squarely conformed to KRE 403. Upon review of the record and applicable law, we agree. KRE 403 provides that, "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of undue prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence." The trial court found that it was an improper extrapolation to determine on the basis of that statement concerning the topless woman and the magazines, that the victim had been viewing pornography. We agree. We find that the question lacked foundation, and would certainly have been prejudicial. Accordingly, we affirm.
As his fourth basis for appeal, Mays argues that the trial court allowed improper bolstering. As noted, during her testimony, Debra stated that she talked to the victim and tried to "impress upon her" the importance of telling the truth. Mays's counsel objected to that statement, and the trial court sustained the objection. Mays's counsel then asked for a mistrial which the court denied. Mays asserts that the court erred in denying his motion for a mistrial, as the damage caused by the statement could not be remedied. He argues that the issue is whether the victim made her statement on the basis of her own memory, or whether her mother and grandmother influenced her to testify as she did.
In response, the Commonwealth argues that the trial court properly denied Mays's motion for a mistrial. The Commonwealth notes that Debra specifically stated that she did not coach the victim or tell her what to say. The Commonwealth asserts that throughout the trial, the defense had suggested that the victim made up the allegations because she was angry at Mays. The Commonwealth further asserts that on cross-examination the defense made this matter an issue by suggesting that Debra told the victim to "stick to her story." Accordingly, the Commonwealth argues that the court erred in ruling that the testimony was inadmissible and that through its questioning of witnesses and suggestions that the allegations were fabricated, the defense opened the door to this type of statement. Thus, the Commonwealth asserts that pursuant to KRE 801A, otherwise inadmissible testimony became relevant and admissible in order to rebut an express or implied suggestion that the charge has been fabricated or is otherwise the result of an improper motive. The Commonwealth thus argues that the trial court was correct in denying the motion for mistrial, as it is an extreme remedy which would not have been appropriate in this case, and urges this Court to affirm.
Upon review of the record, the arguments of the parties, and the applicable law, we are in agreement with the Commonwealth that a mistrial was not warranted. We note that a mistrial is an extreme remedy, and should be resorted to only when there appears in the record a manifest necessity for such action or an urgent or real necessity. Bray v. Commonwealth, 177 S.W.3d 741, 752 (Ky. 2005), overruled on other grounds by Padgett v. Commonwealth, 312 S.W.3d 336 (Ky. 2010). A manifest necessity is defined as an "urgent or real necessity" that is determined on a case by case basis. Commonwealth v. Scott, 12 S.W.3d 682, 684 (Ky. 2000). The standard for reviewing denial of a mistrial is abuse of discretion. Woodard v. Commonwealth, 147 S.W.3d 63, 68 (Ky. 2004). While we believe the court correctly sustained Mays's objection to the statement, we do not find that the statement rose to the level of urgent or real necessity required for a mistrial, particularly in light of the other evidence at issue, and the assertions made by the defense. We affirm.
As his fifth basis for appeal, Mays argues that the Commonwealth was allowed to change the dates that the incidents occurred. Mays notes that at a pre-trial hearing his counsel asked for a more specific Bill of Particulars, in part because the indictment stated that the incidents had occurred between January 1 and June 30, 2009, while the first page of discovery gave the dates as November 2009 through June of 2010. However, on the afternoon of voir dire, the government moved to amend the indictment to include the dates between January of 2008 through October of 2010. The trial court allowed the amendment. Mays's counsel asked for a continuance, asserting that the amendment created a burden and further impaired his right to present his defense as planned which he had constructed with an 18-month period in mind instead of two years. Mays asserts that he was prejudiced because his counsel had inadequate time to investigate and present a defense following the amendment. The Commonwealth disagrees and asserts that the amendment was proper and in accordance with RCr 6.16.
In addressing this issue, we note that RCr 6.16 states, in pertinent part, that "The court may permit an indictment .... To be amended any time before verdict or finding if no additional or different offense is charged and if the substantial rights of the defendant are not prejudiced." Pursuant to this rule, it is clear that the prosecution can amend the indictment to conform to the proof. Wolbrecht v. Commonwealth, 955 S.W.2d 533 (Ky. 1997). We find that the Commonwealth's actions were consistent with RCr 6.16, we do not find that the amendment changed the substance of the allegations in any way, Mays's defense to the allegations for the eighteen-month period were the same as those for the twenty-four month period, and we find no error in the court's decision to allow the amendment. Accordingly, we affirm.
As his sixth and final basis for appeal, Mays argues that the trial court improperly allowed the jury to know that the Commonwealth's Attorney's Office had reviewed this matter before presenting it to the grand jury. Mays stated that during cross-examination, the Commonwealth asked Mays whether Detective Lawless had told him that regardless of what Mays said, the case would be presented to the Commonwealth's Attorney for review. While acknowledging that his counsel did not object to those statements, Mays nevertheless asserts that his rights were affected by this evidence. He argues that the evidence bolstered the victim's testimony and the Commonwealth's case and was not probative of whether or not he actually abused the victim. Secondly, Mays asserts that this was an instance of one witness improperly bolstering another and was a violation of his due process rights including his right to a fair trial.
In response, the Commonwealth asserts first that this argument is unpreserved as there was no objection made before the trial court. Moreover, it asserts that contrary to Mays's assertions the jury did not receive any inappropriate information. The Commonwealth asserts that any juror with a basic understanding of civics would have understood that a charging decision would have been made by someone in the Commonwealth in order to bring charges against Mays. With respect to both of the Commonwealth's arguments, we agree. Finding that this issue was unpreserved and that no palpable error review was requested, and that no palpable error occurred in any event, we affirm.
Wherefore, for the foregoing reasons, we hereby affirm the December 10, 2012, judgment of conviction and sentence after jury trial entered by the Jefferson Circuit Court, the Honorable Charles L. Cunningham, presiding.
ALL CONCUR. BRIEFS FOR APPELLANT: Julia K. Pearson
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Heather M. Fryman
Assistant Attorney General
Frankfort, Kentucky