Opinion
NO. 2017-CA-001753-MR NO. 2018-CA-000310-MR
06-28-2019
CHAD M. MERIDA APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Douglas G. Benge London, Kentucky Cessna Benge London, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General Thomas A. Van De Rostyne Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEALS FROM LAUREL CIRCUIT COURT
HONORABLE GREGORY A. LAY, JUDGE
ACTION NOS. 14-CR-00374 AND 14-CR-00384 OPINION
AFFIRMING
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BEFORE: COMBS, NICKELL, AND K. THOMPSON, JUDGES. COMBS, JUDGE: In this criminal case, Appellant, Chad Merida (Merida), appeals from a jury verdict and from a conditional guilty plea and sentence in these consolidated appeals. At issue is whether the trial court erred in ruling to deny the appellant's motion to suppress. After our review, we affirm.
On December 19, 2014, a Laurel County grand jury returned two separate indictments against Merida: No. 14-CR-0374, one count of robbery in the first degree at a GameStop on November 6, 2014; and No. 14-CR-00384, one count of robbery in the first degree at a Dollar General Store on October 25, 2014.
The issues raised by Merida on appeal center around his motion to suppress his audio recorded statement made to FBI Special Agent S.A. Nguyen and other law enforcement officers on December 8, 2014, while Merida was incarcerated in Florida. In his April 14, 2017, suppression motion, Merida argued that his confession was involuntary, having been "made against his will based on direct and implied promises of S.A. Nguyen." Merida asserted that Nguyen promised Merida that if he confessed to a string of robberies from Kentucky to Florida, the agent would consolidate their prosecutions into one federal case in Florida. Merida also contended that "[a]s a result of . . . that promise and the concern . . . of facing multiple criminal charges in Kentucky, Georgia, and Florida," Merida made a recorded statement confessing to the string of robberies -- although he claimed that he did not commit the robberies in Kentucky.
On July 20, 2017, the trial court conducted a hearing. The Commonwealth submitted the December 8, 2017, audio recording as well as copies of emails reflecting that Merida's counsel advised FBI counsel on July 14, 2017, that they would "forego having Agent Nguyen appear" at the hearing.
After the audio recording was admitted, defense counsel argued that the Commonwealth had failed to meet the requirements of Tabor v. Commonwealth, 613 S.W.2d 133 (Ky. 1981); i.e., that the Commonwealth must affirmatively establish that the confession was voluntary by a preponderance of the evidence and that police officers present at the confession must be called to testify at the hearing or have their absence accounted for. The court found: (1) that the Commonwealth had accounted for the absence of any witness at the suppression hearing in light of multi-jurisdictional issues and out-of-state witnesses and (2) that the tape itself satisfied the Commonwealth's burden of going forward for purposes of the hearing. The court explained it was not deciding the final, threshold issue of voluntariness of the confession until it heard all the evidence.
Merida then took the stand. Merida testified that when he met with S.A. Nguyen, Nguyen explained that he would consolidate all the state cases into one federal case if Merida cooperated. Thus, he would have only one bond. Merida testified that he was "led to believe" that if he admitted to the robberies, he would receive a bond. He also testified that he would not have confessed to the crimes in Kentucky but for the conversations he had had with Nguyen and the promises that he had made. According to Merida, a Kyle Gaffney committed the robberies in Kentucky. Merida admitted that he lied on the recorded statement because he was not responsible for the crimes in Kentucky. Merida denied having asked the officers to meet with him as indicated at the beginning of the tape. Merida testified that a deal was offered to him by FBI Special Agent Nguyen. Merida testified that he did not contact any of the officers, that he told them that he did not want to speak to them, and that he wanted an attorney. According to Merida, Nguyen came back to him and said he would pick up all the cases if Merida would take the blame for them. Merida acknowledged that he was Mirandized in the audio recording and that "nowhere" on the tape did he ask to speak to an attorney.
At the close of the hearing, the trial court directed the parties to submit briefs.
On August 14, 2017, the Commonwealth filed a motion requesting that it be allowed to present additional testimony from Nguyen. The Commonwealth explained that prior to the suppression hearing, defense counsel asserted that he planned to have Nguyen attend; therefore, the Commonwealth did not arrange for its other witnesses, Detective Norris and Detective Hathcox, to attend. Shortly before the hearing date, defense counsel alerted the Commonwealth that he would not have Nguyen present after all -- leaving the Commonwealth without sufficient time to procure his attendance.
The court heard the motion on August 31, 2017. Although the court agreed that it should be reluctant to re-open suppression hearings, the court was interested in getting to the truth of the matter and in hearing all of the testimony relevant to the issue to be accomplished with as little delay as possible. The court granted the Commonwealth's motion and set aside time on the morning of trial to present the additional witness, reserving its ruling on the defense's pre-trial motion as to voluntariness until the morning of trial.
On September 6, 2017, Nguyen testified before the trial commenced. He received notification from Detective Hathcox that Merida wanted to speak with the investigators about a series of robberies. Nguyen's understanding was that Merida provided a note to the deputy sheriff at the detention facility, which was later given to Nguyen by Detective Hathcox. Nguyen identified the note dated December 6, 2014, which prompted the December 8, 2014, interview. The note indicated that Merida wanted to speak to Detective Hathcox about his case. A handwritten attachment to the note detailed robberies in three states and their locations.
Both documents were admitted for purposes of the hearing only as Exhibits 1 and 2, respectively, and are attached to the Commonwealth's Brief as Appendix 1.
Nguyen was present when Merida was given his Miranda warnings at the December 8, 2014, interview; Nguyen identified the Tampa Police Department Miranda warning which Merida signed. Nguyen testified that nothing was promised to Merida regarding the consolidation of these cases into one case for purposes of prosecution. He made no such promise to Merida.
The form, Exhibit 3, is also included in Appendix 1 to the Commonwealth's brief.
Nguyen testified that there had been an earlier interview on November 24, 2014. Merida invoked his right to counsel, the interview stopped, and Nguyen left. Before Merida asked for counsel, Nguyen and Detective Hathcox had been attempting to interview Merida about a bank robbery.
Between November 24, 2014, and December 8, 2014, Nguyen did not discuss with Merida the potential penalty he faced for violation of the Hobbs Act. Nguyen did not recall discussing the potential time-frames for resolving all of the criminal cases with Merida. He never went back to see Merida between November 24, 2014, and December 8, 2014. Nguyen did not remember discussing bonds with Merida, and he testified that "that's not my lane, that's not my responsibility." Nguyen believed that he became aware that Kentucky detectives were investigating other robbery cases on December 2 or 3, 2014. After that, Nguyen did not attempt to obtain an interview with Merida regarding the Kentucky robberies.
18 U.S.C.A. § 1951. The federal anti-rackeetering statute criminalizing extortion, violence, or robbery in the context of creating an impediment to interstate commerce.
After Nguyen testified, Merida took the stand again. His mother, Amy Meredith, also testified.
Following oral argument, the court issued its ruling from the bench. The court explained that it was unrefuted that when Nguyen and Detective Hathcox first met with Merida on November 24, 2014, at some point he refused to answer questions and requested an attorney. The investigation stopped summarily - the appropriate police response.
The court concluded that it was possible under the constitution for Merida to waive his previously invoked right to counsel. The court explained that Moran v. Burbine, 475 U.S. 412, 106 S. Ct. 1135, 89 L. Ed. 2d 410 (1986), was instructive, finding that Merida's invocation of the right to counsel occurred before there was an adversary proceeding. The court also noted Oregon v. Bradshaw, 462 U.S. 1039, 103 S. Ct. 2830, 77 L. Ed. 2d 405 (1983), holding that a defendant can waive his right to counsel after it was invoked. Rather than timing, the issue is whether the defendant himself initiated the follow-up interrogation. If so, the question is whether it was "knowingly, voluntarily and intelligently made."
Where "events that led to the inculpatory statements preceded the formal initiation of adversary judicial proceedings, we reject the contention that the conduct of the police violated his rights under the Sixth Amendment." Moran, 475 U.S. at 432.
The court found that it was not disputed that Merida was read his rights and signed a waiver of them at the December 8, 2014, interview. Through the written note to jail personnel, the court determined that Mr. Merida initiated the December 8, 2014, interrogation. The court explained that the test for voluntariness of a confession is: (1) whether there has been coercive police activity; (2) if objectively coercive, whether it was sufficient to overbear the will of the accused; and (3) whether the coercive activity was the crucial motivating factor in the defendant's decision to offer a statement. Henson v. Commonwealth, 20 S.W.3d 466, 470 (Ky. 1999). Courts must also consider totality of the circumstances, which the trial court did.
After listening to the December 8, 2014, audio statement, the court explained that Merida was "not lacking" in intelligence and that "he seems to know what he's doing." Instead of evidence of coercion, the court said that it heard "a young man who is voluntarily, knowingly telling his story." The court found it significant that nothing in the recorded interview or exhibits referenced or corroborated a proposed deal to wrap everything up as Merida's motivation.
The court noted that the Commonwealth had the burden of proving by a preponderance of the evidence that the confession was voluntary. The court stated that it had "two diametrically-opposed versions of events." Merida testified that he was promised a wrap-around deal. On the contrary, Nguyen testified that in his dealings with Merida, he did not promise "any such thing." The court specifically found that Nguyen's testimony was credible and that Merida's testimony was not credible on this issue. Thus, the court denied Merida's pre-trial motion to suppress his confession.
The case proceeded to trial. As to indictment No. 14-CR-00374, the jury found Merida guilty of robbery in the first degree and sentenced him to eleven years in prison. Merida subsequently pled guilty to robbery, first degree, in indictment No. 14-CR-00384 and was also sentenced to eleven years on that charge -- to be served concurrently with the first sentence. He reserved his right to appeal.
Merida appeals from the judgments of conviction in both cases. By Order of this Court entered on June 27, 2018, the appeals were consolidated for all purposes, including briefing.
An appellate courts standard of review of the trial courts decision on a motion to suppress requires that we first determine whether the trial court's findings of fact are supported by substantial evidence. If they are, then they are conclusive. Based on those findings of fact, we must then conduct a de novo review of the trial court's application of the law to those facts to determine whether its decision is correct as a matter of law.Commonwealth v. Neal, 84 S.W.3d 920, 923 (Ky. App. 2002) (footnotes omitted). "At a suppression hearing, the ability to assess the credibility of witnesses and to draw reasonable inferences from the testimony is vested in the discretion of the trial court." Pitcock v. Commonwealth, 295 S.W.3d 130, 132 (Ky. App. 2009).
On appeal, Merida first argues that the Commonwealth:
failed to meet its burden by relying solely on the audio recording of the defendant's confession. Further, that the Commonwealth failed to provide an officer who was
present for the confession . . . [and] failed to provide an accounting as to the failure of an officer to appear for testimony at the suppression hearing. . . .(Appellant's brief at p. 4). Merida relies upon Tabor, 613 S.W.2d at 135, which holds that:
[A]t a hearing on a motion to suppress pursuant to RCr 9.78, the prosecution must affirmatively establish the voluntariness of a confession by a preponderance of the evidence. Police officers present when the confession was given should be called to testify at the hearing, or their absences must be accounted for.
Kentucky Rules of Criminal Procedure.
RCr 9.78 was deleted effective January 1, 2015, and was superseded by RCr 8.27. As our Supreme Court explained in Simpson v. Commonwealth, 474 S.W.3d 544, 547 (Ky. 2015), RCr 8.27 does not specifically address an appellate standard of review as did its predecessor. However, application of CR 52.01 leads to the identical standard, and the standard of review for a pre-trial motion to suppress as stated in Neal, supra, remains substantively unaffected.
We agree with the Commonwealth that Merida's argument lacks merit. As the Commonwealth notes, Merida fails to address the noteworthy fact that the trial court refrained from ruling on the suppression motion until after Nguyen testified on September 6, 2017.
The caption of Merida's second argument is that his "confession was not voluntary and was made in violation of his constitutional right to counsel." In Cummings v. Commonwealth, 226 S.W.3d 62, 65-66 (Ky. 2007), our Supreme Court explained as follows:
In order to use statements, whether exculpatory or inculpatory, made by a defendant subjected to custodial interrogation, the prosecution must demonstrate that the Appellant was advised of his Fifth Amendment rights, including the right to remain silent and the right to an attorney. Miranda v. Arizona, 384 U.S. at 444, 86 S.Ct. at 1612, 16 L.Ed.2d 694. These rights may be waived and the statements may be used against the defendant if the waiver is knowing, voluntary, and intelligent. Id. Once an accused has expressed a desire to deal with the police only through counsel, he is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police. Edwards v. Arizona, 451 U.S. 477, 484-485, 101 S.Ct. 1880, 1885, 68 L.Ed.2d 378 (1981).
. . .
To determine, pursuant to Edwards, if the accused has waived the right to counsel after initiating conversation, the court must determine whether (1) the inquiries or statements were intended to initiate a conversation with authorities and (2) there was a waiver of the right to counsel which was voluntary, knowing, and intelligent given the totality of the circumstances. Oregon v. Bradshaw, 462 U.S. 1039, 1045-1046, 103 S.Ct. 2830, 2835, 77 L.Ed.2d 405 (1983).
In the case before us, the trial court found that through the written note to jail personnel, Merida himself initiated the December 8, 2014, interrogation. He had been Mirandized, and the court found that he was a young man not lacking in intelligence who was "voluntarily, knowingly telling his story."
Merida's only argument on appeal appears to be that Commonwealth failed to refute his testimony. As stated at page 13 of his brief, "Merida does not dispute that his Miranda rights were read to him, and that he understood his rights at the time of his statement on December 8, 2014. Further . . . the confession sounds as though given without . . . threat or other overt attempts of coercion." Nonetheless, Merida persists in contending that the coercion resulted from promises that were made: -- "S.A. Nguyen['s] . . . implied promise stemmed from [Merida's] being able to receive a reasonable bond pretrial, resolving the entirety of the robberies in a combined prosecution, and avoiding the unwanted delay and cost of addressing each potential charge individually." Appellant's brief at p. 14.
Again, Merida disregards the facts. Although Merida claimed that he was promised a wrap-around deal, Nguyen testified he did not promise any such thing. Nguyen also testified he did not recall ever discussing bonds with Merida. As was its prerogative, the court believed Nguyen and found that Merida's testimony was not credible on that issue.
"When the trial court is faced with conflicting testimony regarding the voluntariness of a confession, its determination, including its evaluation of credibility, if supported by substantial evidence, is conclusive." Henson, 20 S.W.3d at 469. The trial court's determination is supported by substantial evidence, and the court properly applied the law to the facts as found. We find no error.
Merida's third argument is that "[t]he Commonwealth should not be allowed to reopen the suppression hearing or present any new witnesses concerning the confession." Merida cites several federal cases. Among them is United States v. Blankenship, 775 F.2d 735 (6th Cir. 1985), which Merida quotes for the proposition that "court's [sic] should be extremely reluctant to grant re-openings." Id. at 740. Actually, the sentence in its entirety reads: "The decision on reopening is committed to the sound discretion of the trial judge and this court has stated that courts should be extremely reluctant to grant reopenings." Id. (internal quotation marks and citation omitted).
As the Commonwealth notes, RCr 9.04 provides that "the granting of a continuance is in the sound discretion of the trial judge." See Couch v. Commonwealth, 256 S.W.3d 7, 12 (Ky. 2008) (trial court well within its ability to re-open case after closing arguments to permit additional evidence); Louisville & N.R. Co. v. Jolly's Adm'x, 232 Ky. 702, 23 S.W.2d 564 (1930) (Reopening for further testimony rests in trial court's discretion and appellate court will not interfere unless discretion palpably abused.). The trial court agreed that it should be reluctant to re-open suppression hearings, but it noted that it wanted to get to truth and hear all relevant the testimony which could be accomplished without delaying the proceedings. We find no abuse of discretion in the case before us.
Therefore, we AFFIRM the ruling of the Laurel Circuit Court.
ALL CONCUR. BRIEF FOR APPELLANT: Douglas G. Benge
London, Kentucky Cessna Benge
London, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General Thomas A. Van De Rostyne
Assistant Attorney General
Frankfort, Kentucky