Opinion
2023-CA-0896-MR
11-15-2024
C-BONESHA MERRIWEATHER APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Molly Mattingly Frankfort, Kentucky. BRIEF FOR APPELLEE: Russell Coleman Attorney General of Kentucky Jenny L. Sanders Assistant Attorney General Frankfort, Kentucky.
NOT TO BE PUBLISHED
APPEAL FROM MCCRACKEN CIRCUIT COURT HONORABLE WILLIAM ANTHONY KITCHEN, JUDGE ACTION NO. 20-CR-00026-001
BRIEFS FOR APPELLANT: Molly Mattingly Frankfort, Kentucky.
BRIEF FOR APPELLEE: Russell Coleman Attorney General of Kentucky Jenny L. Sanders Assistant Attorney General Frankfort, Kentucky.
BEFORE: COMBS, LAMBERT, AND MCNEILL, JUDGES.
OPINION
LAMBERT, JUDGE.
C-Bonesha Merriweather appeals from a judgment issued by the McCracken Circuit Court sentencing her to twelve-years' imprisonment for first-degree robbery. We affirm.
In 2019, Oscar Gonzalez came to Kentucky from Mexico to work and visit his family, including his uncle, Jose "Alfredo" Gonzalez. To avoid confusion, we shall refer to both persons with the surname Gonzalez as Oscar and Alfredo. Oscar arranged to buy a phone he saw on Facebook. Oscar and the seller arranged to meet in Paducah, so Alfredo stopped there on the way home from a job site in Missouri. Alfredo had two additional passengers besides Oscar, including another nephew, who goes by Justin. Justin and Oscar do not speak English fluently, but Alfredo does. Accordingly, Alfredo agreed to speak with the seller.
When Alfredo and his passengers arrived at the parking lot, a man and a woman walked toward them. The man was Jeon Quarles, and the woman was Merriweather. The man asked Alfredo to hand over the money whereupon Quarles would go inside a nearby apartment and then return with the phone. Quarles said the phone's owner could not come out of an apartment because he was in a wheelchair. Alfredo refused to hand over the money without receiving the phone. Merriweather then climbed onto a running board of Alfredo's vehicle and hit him in the face with a gun. A struggle ensued. Alfredo grabbed the gun and drove away, dragging Merriweather for a time. Oscar called 911 and, eventually, Alfredo and his passengers handed over the gun.
Quarles was identified as the man who approached Alfredo's vehicle. Several months later, Detective Jason Hicks learned that Quarles and Merriweather had been in a motor vehicle accident and Merriweather - Quarles's former girlfriend - was recuperating in a local facility. Det. Hicks interviewed Merriweather for over an hour at that facility without informing her of her Miranda rights or asking her if she wished to speak with him. The detective also told an orderly or nurse that she did not need to remain in the room. However, Det. Hicks told Merriweather early in their discussion that she was not under arrest, and he would not remove her from the facility. Det. Hicks asked some pointed questions, but his voice tone was consistently cordial and professional. He did not threaten Merriweather, touch her, or behave menacingly, such as by displaying his sidearm.
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
Det. Hicks recorded the conversation on his body camera. However, the audio footage is sometimes inaudible, especially Merriweather's soft-spoken statements. Also, Det. Hicks's jacket covers the camera at times, making Merriweather harder to hear and preventing a viewer from seeing if she responded nonverbally to some questions by nodding or shaking her head.
Merriweather initially gave Det. Hicks somewhat conflicting accounts of whether she believed Quarles was really planning to sell a phone or whether she knew the purported sale was actually a ruse designed to commit a theft. At one point, Merriweather told Det. Hicks that Quarles had asked her to be a lookout, and she was armed, because he feared he would be robbed while selling the phone. She also similarly stated that she thought she was going with Quarles to provide protection while he sold a phone. However, she contrarily told Det. Hicks that she did not believe Quarles ever intended to sell a phone and responded affirmatively when Det. Hicks asked if Quarles was going to take the money but not come back with a phone.
Merriweather told Det. Hicks that "everything went left" when Alfredo refused to hand over the money to Quarles without first receiving the phone. After a lengthy silence, Det. Hicks stated that he was under the impression that Quarles had nothing to do with the robbery and, instead, Merriweather made the decision to "do all this on your own." Eventually, Merriweather responded that "this was all his [Quarles's] idea." She stated Quarles "went there with this whole entire plan." But soon thereafter she stated she had believed she was only going along as a lookout when Quarles was selling a phone.
However, Merriweather then abandoned her more benign version of what she had expected to occur on the night in question. She said that after things went "left," Quarles said: "do it." Det. Hicks asked what went "left" and Merriweather responded that referred to Alfredo's refusal to give Quarles the money. When Det. Hicks then asked what Quarles meant by saying "do it," Merriweather softly responded with, as we understand her extremely quiet answer, "I think you know." When Det. Hicks asked Merriweather how she knew what Quarles meant by "do it," she responded that Quarles had told her a couple days before. Merriweather nodded when Det. Hicks asked if "that wouldn't have happened" (presumably, in context, a reference to Merriweather striking Alfredo with the gun) if Alfredo had given Quarles the money. Finally, Merriweather blamed Quarles for the entire interaction with Alfredo and the others, describing Quarles as a "puppet master."
Merriweather was indicted for robbery in the first degree. After numerous continuances, the case proceeded to a jury trial held in May 2023. The trial court denied Merriweather's request to suppress her interview with Det. Hicks, concluding Merriweather was not in custody and so the lack of Miranda warnings did not warrant suppressing the conversation. As a result, the jury viewed a large portion of the conversation between Merriweather and Det. Hicks.
The trial court denied Merriweather's request for an instruction on assault in the fourth degree as a lesser-included offense of robbery in the first degree. The jury found Merriweather guilty of robbery in the first degree and recommended a sentence of twelve-years' imprisonment. After the trial court sentenced Merriweather in accordance with the jury's verdict and recommended sentence, she filed this appeal.
Merriweather raises two arguments, which we shall examine in the opposite order she presents them. Because it potentially impacts her second argument, we shall first address Merriweather's contention that the trial court erred by denying her motion to suppress her conversation with Det. Hicks. Second, Merriweather argues the trial court erred by refusing to instruct the jury on assault in the fourth degree. We disagree with both arguments. We begin with the denial of Merriweather's motion to suppress.
Although our analysis is not always the same as that employed by the trial court or the Commonwealth, "it is well-settled that an appellate court may affirm a lower court for any reason supported by the record." McCloud v. Commonwealth, 286 S.W.3d 780, 786 n.19 (Ky. 2009).
"First, we determine whether the trial court's findings of fact are supported by substantial evidence." Bowman v. Commonwealth, 686 S.W.3d 230, 240 (Ky. 2024). Here, the trial court did not make explicit, written findings of fact. However, the relevant facts appear to be largely undisputed. Thus, we proceed to the second step of our review, which requires us to "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." Id. (internal quotation marks and citations omitted).
The overarching question in resolving the suppression issue is whether Merriweather was in custody. As our Supreme Court has explained:
The police are required to advise a person of his Miranda rights only where there has been such a restriction on a person's freedom as to render him in custody. In 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 [or woman] in the suspect's position would have understood the situation.Emerson v. Commonwealth, 230 S.W.3d 563, 568-69 (Ky. 2007) (internal quotation marks and citations omitted).
In its simplest form, the custodial question boils down to "whether a reasonable person would have felt he or she was not at liberty to terminate the interrogation and leave." Wells v. Commonwealth, 512 S.W.3d 720, 722 (Ky. 2017) (internal quotation marks and citation omitted). To make that determination, courts examine the entire circumstances surrounding the interrogation, such as:
the place, time, and duration of the questioning; the questioning's tenor, whether cordial and neutral or harsh and accusatory; the individual's statements; the presence or absence of physical restraints; whether there was a threatening presence of several officers and a display of weapons or physical force; and the extent to which the questioner sought the individual's cooperation or otherwise informed him that he was not under arrest and was free to leave.Peacher v. Commonwealth, 391 S.W.3d 821, 846 (Ky. 2013).
Here, the circumstances are unusual in that Merriweather's injuries from a motor vehicle accident meant that, as a practical matter, she was immobile and so she could not have simply walked away from Det. Hicks. Merriweather seems to argue that her immobility, and the fact that the discussion occurred in a nursing home-type environment, inevitably means she was in custody. We disagree, as Kentucky precedent holds that a person is not automatically in custody simply because he or she was interrogated while hospitalized. We conclude that precedent applies here because Merriweather was not hospitalized when she spoke with Det. Hicks but her condition - being an immobile resident of a nursing hometype facility - is the functional, practical equivalent of being hospitalized. Because there is Kentucky precedent directly addressing the situation, we decline to address the extraterritorial authority cited by Merriweather.
Specifically, our Supreme Court recently held:
With regard to police questioning that occurs while a suspect is a patient at a hospital, this Court has previously stated, albeit in unpublished opinions, that the restraint giving rise to custody must be restraint instigated by the police, and for that reason the majority rule is that confinement to a hospital bed does not, by itself, amount to custody for Miranda purposes. Rather, hospital questioning, like questioning elsewhere, is not custodial unless the circumstances would lead a reasonable person to believe that were he capable of leaving the hospital, the police would not allow him to do so.Bowman, 686 S.W.3d at 241-42 (footnote, internal quotation marks, and citations omitted). In short, a suspect's hospitalization does not automatically mean a suspect was in custody. In fact, the Court in Bowman ultimately concluded a hospitalized Bowman was not in custody because: the questioning was brief and conducted while others were present; the officer did not attempt to clear the room; the questions "were asked in a professional and non-accusatory manner"; Bowman was not handcuffed or restrained; the officer did not command Bowman to answer; and the officer did not tell Bowman "that he was under arrest or that he could not leave." Id. at 242.
The case at hand contains many of the same factors discussed in Bowman. Det. Hicks asked questions in a calm, nonadversarial manner. Det. Hicks did not restrain Merriweather, nor was she otherwise physically restrained (beyond her mobility difficulties caused by the unrelated vehicular accident). Det. Hicks did not command Merriweather to answer his questions. And, crucially, Det. Hicks specifically told Merriweather early in their conversation that she was not under arrest. Moreover, there are other relevant factors present in other cases which were not analyzed in Bowman which favor the Commonwealth. For example, Det. Hicks was the only police officer present. Also, Det. Hicks did not touch or loom over Merriweather, nor did he display any weapons or otherwise engage in a show of intimidation or physical force. Peacher, 391 S.W.3d at 846.
To be sure, Merriweather is correct when she argues that some factors weigh in favor of her argument that she was in custody. For example, the questioning here lasted for over an hour and thus cannot reasonably be deemed to have been brief. Moreover, the conversation occurred when only Det. Hicks and Merriweather were present - in fact, before speaking with Merriweather, Det. Hicks asked a hospital nurse or orderly to leave the room.
Perhaps the factor weighing most in Merriweather's favor is the fact that, for reasons to which we are not privy, Det. Hicks did not ask Merriweather if she wished to speak to him. Our Supreme Court held in Bowman that the officer's failure to tell Bowman he "was free to leave or stop questioning is a factor that cuts in favor of finding he was in custody ...." Bowman, 686 S.W.3d at 242 . However, that factor is obviously not always conclusive because our Supreme Court nonetheless concluded Bowman was not in custody.
"Custody 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." Smith v. Commonwealth, 312 S.W.3d 353, 358 (Ky. 2010) (citations and footnote omitted). On balance, and considering all of the relevant circumstances previously discussed, we discern that most pertinent factors favor the Commonwealth. Our conclusion is especially reliant upon Det. Hicks' having specifically told Merriweather that she was not under arrest. Merriweather has not shown that a reasonable person in her situation would not have believed Det. Hicks and, instead, would have believed she was in custody.
In sum, we agree with the trial court that it would have been far better practice for Det. Hicks to have asked Merriweather at the outset if she wished to speak with him. However, we also agree with the trial court's bottom line conclusion that a reasonable person in Merriweather's position would have believed she was free to cease speaking with Det. Hicks. Consequently, we affirm the denial of Merriweather's motion in limine (which we have treated as a motion to suppress).
Because we have concluded that Merriweather was not in custody, the fact that Det. Hicks asked potentially incriminating questions and seemed to suspect Merriweather's involvement with the robbery from the beginning of the conversation does not entitle her to relief. Bowman, 686 S.W.3d at 242 (brackets original to Bowman; internal quotation marks, citations, and footnote omitted) ("But, [w]hat the police may know or suspect about the interviewee or even the fact that they intend to arrest him is irrelevant to [a custody] determination, unless they communicate their knowledge or intent in such a way that a reasonable person would believe himself effectively arrested .... Bowman also argues that the questions posed to him by Det. Eisenback were attempts to get him to make incriminating statements. But even assuming arguendo we agree with his assertion that Det. Eisenback interrogated him, Miranda does not forbid non-custodial interrogation. In other words, Det. Eisenback was free to ask Bowman potentially incriminating questions because Bowman was not in custody.").
We now turn to the trial court's denial of Merriweather's request for an instruction on assault in the fourth degree. "When the [alleged] error arises from giving an unwarranted instruction or failing to give a warranted instruction, we review the decision for abuse of discretion." Commonwealth v. Caudill, 540 S.W.3d 364, 367 (Ky. 2018). And "[t]he test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
As our Supreme Court has held:
A court generally is required to instruct a jury on all offenses that are supported by the evidence. But a trial court does not need to give an instruction on a lesser-included offense if there is no evidentiary
foundation for the instruction. Rather, a trial court must give a lesser-included offense instruction only if, considering the totality of the evidence, the jury might have a reasonable doubt as to the defendant's guilt of the greater offense, and yet believe beyond a reasonable doubt that [s]he is guilty of the lesser offense.Commonwealth v. Swift, 237 S.W.3d 193, 195 (Ky. 2007) (internal quotation marks and footnotes omitted).
Assault in the fourth degree is, in many ways, closely related to robbery in the first degree. Both involve inflicting injury to the victim. See Kentucky Revised Statute (KRS) 508.030(1)(a); KRS 515.020(1)(a)-(b). The difference is that robbery also requires a theft. As our Supreme Court has explained, "[f]ourth-degree assault is a lesser-included offense to first-degree robbery. The principal difference between the two is that first-degree robbery requires an additional element of [the injury to the victim being inflicted] 'in the course of committing theft ....'" Johnson v. Commonwealth, 694 S.W.3d 232, 254 (Ky. 2023) (citations omitted).
At times during her interview with Det. Hicks, Merriweather stated that she believed that she was only a lookout there to protect Quarles when he sold a phone to a stranger he encountered on Facebook. However, by the end of her interview, Merriweather had abandoned that position.
Merriweather agreed with Det. Hicks that there would have been no reason for her to strike Alfredo if he had given Quarles the money. That directly linked the blow to Alfredo to a theft. Merriweather referred to Quarles as a puppet master and stated she struck Alfredo after Quarles implored her to "do it." She told Det. Hicks that she knew what Quarles meant by "do it" because he had discussed it with her a couple of days previously. Again, those statements directly and unmistakably linked the striking of Alfredo to a preplanned theft. Merriweather nodded in agreement with the statement by Det. Hicks that there would have been no need for her to have struck Alfredo if he had given Quarles the money, thus unmistakably linking her striking Alfredo to a theft. Since Merriweather abandoned her insistence that she was only acting as a lookout to protect her boyfriend as he engaged in a legitimate sale, it would not have been reasonable for a juror to accept that theory of events.
Moreover, Alfredo, Oscar, and Justin all testified consistently that Merriweather struck Alfredo only after he refused to hand the money to Quarles without receiving the phone. Merriweather has not explained adequately why she otherwise would have struck Alfredo as she points to no evidence indicating that Alfredo (nor any of his passengers) made threats or otherwise was aggressive.
In sum, it would have been unreasonable for a juror to have concluded that Merriweather's striking Alfredo with a gun was unrelated to a theft since Merriweather herself abandoned that version of events by the end of her conversation with Det. Hicks. Consequently, the trial court's decision to decline to instruct the jury on assault in the fourth degree was not an abuse of discretion.
Had Merriweather not abandoned her earlier assertions that she believed Quarles was going to sell a phone to Alfredo, an instruction on assault in the fourth degree would likely have been proper, even if the vast majority of the evidence indicated that she struck Alfredo in furtherance of a theft. Taylor v. Commonwealth, 671 S.W.3d 36, 44 (Ky. 2023) (internal quotation marks and citations omitted) ("The dissent contends that no reasonable juror could have reviewed the evidence in this case and entertained a reasonable doubt as to Taylor's guilt for first-degree wanton endangerment. This presupposes that the jury would believe the testimony of the Commonwealth's witnesses and experts. We reiterate that it is the jury's prerogative, not the court's or the Commonwealth's, to consider all of the evidence and decide whether to accept or reject it. The jury is the sole judge of credibility and may pick and choose what evidence to accept or reject."). However, a reasonable jury could not have accepted that Merriweather was only present to protect Quarles during what she believed was going to be a legitimate sales transaction when Merriweather herself abandoned that version of events during her conversation with Det. Hicks.
We also reject Merriweather's fatally terse argument that she struck Alfredo as a result of some sort of misunderstanding. Merriweather does not cite supporting authority or explain her misunderstanding argument in sufficient detail to warrant appellate relief. As we have held, "a terse, conclusory assertion wholly unaccompanied by meaningfully developed argument or citation to authority is insufficient to merit appellate relief." Schell v. Young, 640 S.W.3d 24, 32 (Ky. App. 2021).
Even if we leniently attempted to examine the misunderstanding argument on the merits, we would affirm. Briefly, some members of Alfredo's party did not speak English fluently, but Alfredo did. Merriweather stresses the language barrier but does not explain sufficiently how language difficulties created some sort of unspecified misunderstanding which led to her striking Alfredo (for reasons unrelated to a theft).
Our conclusion is not changed by the fact that a person who overheard the discussions between Alfredo and Merriweather and Quarles from a distance seemingly agreed with Merriweather's counsel's statement at trial that the situation looked like a misunderstanding between the two groups. The witness did not meaningfully explain what any misunderstanding involved, and he admitted he did not see Merriweather possessing a gun, so his first-hand knowledge was quite limited. A hazy notion that two parties may have misunderstood each other for some unknown reasons does not, at least under these facts, present a situation where a reasonable juror could have concluded that Merriweather struck Alfredo due to a misunderstanding unrelated to a theft.
In sum, even reviewing the evidence in the light most favorable to Merriweather, a reasonable juror could not have believed that her striking Alfredo was not in furtherance of a theft. "The trial court is best positioned to determine which instructions are warranted given the developments of the trial and the evidence presented." Meredith v. Commonwealth, 677 S.W.3d 452, 464 (Ky. 2023). Under these unique facts, we discern no abuse of discretion in the trial court's decision to not instruct the jury on assault in the fourth degree.
For the foregoing reasons, the McCracken Circuit Court is affirmed.
ALL CONCUR.