CARLOS CREECH V. COMMONWEALTH OF KENTUCKY
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AUGUST 19, 2005; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-000910-MR
CARLOS CREECH
APPELLANT
APPEAL FROM JACKSON CIRCUIT COURT
HONORABLE R. CLETUS MARICLE, JUDGE
CIVIL ACTION NO. 99-CR-00054
V.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
MINTON AND SCHRODER, JUDGES; EMBERTON, SENIOR JUDGE.1
MINTON, JUDGE:
Carlos Creech was sentenced to ten years’
imprisonment after a jury found him guilty of second-degree
manslaughter for the shooting death of Selva Ray Thomas.
Creech
now appeals the judgment of conviction and sentence claiming
that the trial court erred when it failed to suppress his
1
Senior Judge Thomas D. Emberton sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the
Kentucky Constitution and KRS 21.580.
confession, improperly instructed the jury on the elements of
second-degree manslaughter and reckless homicide, and that a
panel of this court erred in an interlocutory appeal when it
reversed the trial court’s grant of a new trial.
merit to any of Creech’s arguments.
I.
We find no
So we affirm the judgment.
FACTUAL SUMMARY.
For several years, Creech was romantically involved
with a woman named Ida Sutton.
their relationship.
But in August 1999, they ended
And although they were no longer dating,
Creech continued to call Sutton.
After breaking off the relationship with Creech,
Sutton became friendly with Selva Ray Thomas.
dating as Thomas was a married man.
The two were not
But it is undisputed that
Sutton and Thomas spent time together.
In the early morning hours of October 31, 1999,
Thomas’s corpse was discovered on the side of a road in Jackson
County.
Hours before, Thomas, Sutton, and several others had
been four-wheeling in Jackson County.
Their outing ended around
10:00 p.m., and Thomas and Sutton returned to Sutton’s trailer.
Shortly after their return, Creech phoned Sutton
asking her if she had been out four-wheeling.
He also asked if
she were alone, to which she responded in the affirmative.
About two hours later, Sutton and Thomas saw a flash of light
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behind the trailer.
When Thomas went to investigate, he found
that the cooler attached to his four-wheeler had been set afire.
Thomas doused the fire, jumped on the four-wheeler, and headed
toward the main road.
Sutton testified that as Thomas departed on his fourwheeler, she heard a truck start up at the top of the hill
behind her trailer.
Sutton then heard two gunshots.
heard the truck and the four-wheeler leave the scene.
went to the road to investigate.
She then
Sutton
She was met by Russell
Justice, who informed her that Thomas had flipped his fourwheeler and was dead.
Even though Thomas’s four-wheeler had
flipped, he actually died from gunshot wounds.
Because of the relationship between Creech and Sutton,
the relationship between Sutton and Thomas, and Creech’s phone
call to Sutton just before Thomas’s death, Creech became a
suspect.
So the sheriff and one of his deputies went to
Creech’s home to discuss the situation with him.
Creech
initially denied any knowledge of Thomas’s death.
According to
him, he had driven his truck to a field sometime late in the
evening to listen to his foxhounds run on a neighboring farm.
As he was on his way home, he met Thomas astride his fourwheeler.
He tried to drive past Thomas, but Thomas blocked him
from passing on the road.
Creech stated that Thomas then got
off the four-wheeler and approached his truck.
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Acting upon the
belief that Thomas was a “violent and dangerous man” and that he
may have been armed, Creech fired a pistol “in Thomas’s
direction 2 or 3 times.”
Thomas then turned slightly and walked
past Creech’s truck, at which time Creech pulled around the
four-wheeler, drove home, and went to bed.
The sheriff and his deputy arrived at Creech’s home at
approximately 2:30 a.m.
Although the sheriff only stayed for a
short while, the deputy remained with Creech.
At around
5:00 a.m., Kentucky State Police Detective Joie Peters arrived.
Detective Peters questioned Creech about Thomas’s death, but
Creech denied any knowledge.
and son-in-law arrived.
son.
Eventually Creech’s son, daughter,
Creech went outside to confer with his
Upon his return, he apparently informed the Detective that
he was ready to make a statement and was read his Miranda2
rights.
He then confessed to shooting Thomas, and he showed
Peters where the gun was hidden.
Creech was not arrested at
that time.
II.
PROCEDURAL HISTORY.
The Jackson County grand jury later indicted Creech on
one count of murder, one count of criminal attempt to commit
arson, and one count of first-degree criminal mischief.
The
murder charge arose from the shooting death of Thomas; the arson
2
Miranda v. Arizona, 396 U.S. 868, 90 S.Ct. 140, 24 L.Ed.2d 122
(1969).
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charge arose from the grand jury’s belief that sufficient
evidence existed to charge that Creech “intentionally set fire
to an ATV located next to [Sutton’s] mobile home in an attempt
to burn the mobile home”; and the criminal mischief charge arose
from the fire damage to Thomas’s ATV.
At trial, an issue arose during jury deliberation that
the members of the petit jury had improperly separated before
reaching a verdict and may have been influenced in their
deliberation by contact with non-jurors in the courthouse
hallway.
It appears that the jury room at the courthouse is not
equipped with a restroom.
So during deliberation in this case
the male and female jurors were allowed to separate to use the
restroom in another part of the courthouse.
Creech claimed this
amounted to jury separation in violation of RCr3 9.66 and moved
for a mistrial.
The trial court denied the mistrial motion.
The jury found Thomas guilty of second-degree manslaughter.
was sentenced to ten-years’ imprisonment.
He
Creech filed a post-
judgment motion for a new trial citing the alleged improper jury
separation.
The trial court granted this motion, and the
Commonwealth filed an interlocutory appeal.
3
Kentucky Rules of Criminal Procedure.
-5-
In an unpublished decision, a panel of this Court
reversed the trial court’s decision.4
The panel held that the
facts from the hearing on the new trial motion did not reveal
sufficient evidence to indicate that the jury was subjected to
improper influence.
The panel also noted that there was
insufficient proof to establish that an impermissible separation
of the jury occurred.
Holding that the trial court abused its
discretion in granting Creech a new trial, the panel reversed
the trial court’s decision and set aside its new trial order.
The trial court was directed to “reinstate the jury’s verdict
and sentence.”
The Kentucky Supreme Court denied Creech’s request for
discretionary review.
And the trial court entered a final
judgment and sentence from which this appeal is taken.
III.
ARGUMENTS ON APPEAL.
Creech makes three main arguments:
first, the trial
court erroneously admitted Creech’s confession into evidence at
trial; second, the trial court’s jury instructions were
erroneous; and, third, this Court erred in reversing the trial
court’s decision to grant Creech’s motion for a new trial.
4
Commonwealth v. Creech, 2002-CA-001434-MR, Mar. 7, 2003.
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A.
Creech’s Confession.
Creech first argues that the court’s order denying his
motion to suppress was inadequate in that it failed to make the
factual findings required by RCr 9.78.
He asserts that
“[a]lthough the Order refers to certain findings of fact which
were made on the record at the conclusion of the hearing and
which are incorporated by reference in the written Order, the
only fact found by the trial court was that Mr. Creech was not
in custody at the time he made his statement.”
Creech also
claims the court erred in concluding his statement to Detective
Peters was voluntary.
We disagree.
RCr 9.78 reads:
If at any time before trial a defendant
moves to suppress, or during trial makes
timely objection to the admission of
evidence consisting of (a) a confession or
other incriminating statements alleged to
have been made by the defendant to police
authorities . . . the trial court shall
conduct an evidentiary hearing outside the
presence of the jury and at the conclusion
thereof shall enter into the record findings
resolving the essential issues of fact
raised by the motion or objection and
necessary to support the ruling. If
supported by substantial evidence the
factual findings of the trial court shall be
conclusive.
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Kentucky case law affirms that a trial court’s decision on a
suppression motion will be upheld so long as it is supported by
substantial evidence.5
With regard to the issue of the voluntary nature of a
confession, the Kentucky Supreme Court has held that “absent a
substantial factual dispute in the evidence, voluntariness of a
confession may be properly decided by a reviewing court.
The
voluntariness of a confession is assessed based on the totality
of the circumstances surrounding the making of the confession.”6
It is the law “that a confession voluntarily made by an accused
is admissible, and, even in response to a question, if the
questioning is not persisted in to the extent of bringing
pressure to bear on the accused to confess in order to escape
being plied with questions.”7
The General Assembly incorporated
this rule into the statutory scheme when it enacted KRS 422.110,
which reads:
No peace officer, or other person having
lawful custody of any person charged with
crime, shall attempt to obtain information
from the accused concerning his connection
with or knowledge of crime by plying him
with questions, or extort information to be
used against him on his trial by threats or
5
See, Watkins v. Commonwealth, 105 S.W.3d 449 (Ky. 2003); Canler v.
Commonwealth, 870 S.W.2d 219 (Ky. 1994); Morgan v. Commonwealth,
809 S.W.2d 704 (Ky. 1991).
6
Mills v. Commonwealth, 996 S.W.2d 473, 481 (Ky. 1999).
7
Cobb v. Commonwealth, 267 Ky. 176, 101 S.W.2d 418, 419 (Ky. 1936).
-8-
other wrongful means, nor shall the person
having custody of the accused permit any
other person to do so.
After hearing the evidence on Creech’s motion to
suppress, the judge made the following statement:
Alright, I’m ready to rule in this
case. I find that I do not believe under
the facts of this case that Mr. Creech was
in custody or was in de facto custody. Mr.
Creech was at home. He was not in a police
station. He was not other than when he went
out and made the statement in the back seat
of a car. I don’t even know that it was the
back seat of a car at the time he made the
statement. He was told he was not under
arrest. He was told he would not be
arrested after he makes the statement. He
never made any demand that any of these
people leave at any time. As a matter of
fact his testimony would tend to show that
he was courteous to them to the point of
moving from the kitchen table into a room
where they [sic] were bigger chairs. The
Court [cannot] find that under these set of
circumstances that Mr. Creech was in any
kind of custody.
As to whether or not he was free to
leave, obviously a man doesn’t have to leave
his home, but he was free to ask them to
leave in the beginning. He was allowed to
go outside to another area to talk to his
son. His son has testified. It appears to
me that they apparently decided and it may
be that it was self defense; I don’t know
whether it was or not, that they were going
to make a statement and rely on self
defense. I don’t know what the statement
says. I have never read it that I remember
and of course (inaudible), but I don’t
believe that he was in anyway involuntary in
his statement. It appears to me that his
statement was voluntary. Nobody put him
under duress. Nobody threatened him. They
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talked. The record to me doesn’t even show
that he was plied with questions during all
of this time. He was just there with an
officer talking to him, did not show what
the extent of that conversation was.
The court’s written order incorporated by reference the findings
from the evidentiary hearing; Creech’s suppression motion was
denied.
We are satisfied from our review of the transcript of
the suppression hearing that the trial judge made sufficient
factual findings to support his ruling under RCr 9.78.
These
findings were incorporated into the court’s order denying
Creech’s motion to suppress.
substantial evidence.
Clearly, the decision was based on
We hold that the trial court complied
with the fact-finding requirements of RCr 9.78.
Moreover, we agree with the circuit court’s conclusion
that there was insufficient evidence to suggest that Creech’s
statement was involuntary.
As the court noted, Creech was not
in custody at the time his statement was made; he was free to
leave his home or to ask the officers to leave at any time; he
was permitted to go outside to speak with his son; and there was
no evidence of duress, coercion, or threats.
Thus, the court
concluded Creech’s confession was voluntary.
We find no error
in the trial court’s conclusion of law.
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B.
Jury Instructions.
Second, Creech claims the jury instructions on seconddegree manslaughter and reckless homicide were erroneous because
they failed to include “the absence of the privilege to act in
self protection as an element of the offense.”
Citing
Commonwealth v. Hager,8 Creech argues this error affected the
jury’s ultimate decision.
In the alternative, Creech requests
that we find his counsel ineffective.
In his brief before this Court, Creech acknowledges
that this issue is not preserved for appellate review.
Specifically, Creech admits that his counsel tendered the
instructions he now argues were erroneous; that his counsel
failed to object to his own tendered instructions; and that his
failure to object was “not trial strategy but simple negligence
on his part.”
RCr 9.54(2) states:
No party may assign as error the giving or
the failure to give an instruction unless
the party’s position has been fairly and
adequately presented to the trial judge by
an offered instruction or by motion, or
unless the party makes objection before the
court instructs the jury, stating
specifically the matter to which the party
objects and the ground or grounds of the
objection.
8
41 S.W.3d 838 (Ky. 2001).
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The “[f]ailure to comply with RCr 9.54(2) has been
consistently held to prohibit review of alleged error in
instructions because of the failure to properly preserve the
claimed error.”9
An error that was not preserved before the
trial court may only be reviewed on appeal if the matter
constitutes “[a] palpable error which affects the substantial
rights of a party.”10
We fail to see how the tendered jury instructions
resulted in palpable error.
The instructions that were used by
the court are identical to the instructions suggested by Justice
Cooper in his Kentucky Instructions to Juries.11
Moreover, a
separate instruction regarding self-protection was included in
the instructions; therefore, we do not believe the absence of a
comment within the second-degree manslaughter and reckless
homicide instructions regarding the privilege to act in selfprotection affected Creech’s substantial rights.
9
Commonwealth v. Duke, 750 S.W.2d 432, 433 (Ky. 1988); see also,
Commonwealth v. Collins, 821 S.W.2d 488 (Ky. 1991); Evans v.
Commonwealth, 702 S.W.2d 424 (Ky. 1986).
10
RCr 10.26.
11
WILLIAM S. COOPER, KENTUCKY INSTRUCTIONS TO JURIES, VOL. 1 CRIMINAL, §3.28,
§3.29 (1999). We note that Creech argues the decision in
Commonwealth v. Hager, supra, puts further requirements on the
second-degree manslaughter and reckless homicide instructions that
were not included in the 1999 version of Justice Cooper’s treatise.
But the 2004 cumulative supplement makes no mention of any changes;
therefore, we must assume that the 1999 version, which is the
version used in Creech’s case, is correct.
-12-
Because we find no fault with the jury instructions,
we also reject Creech’s alternative argument.
Counsel’s failure
to object to the instructions did not render his assistance
ineffective.
C.
Earlier Court of Appeals Decision.
Finally, Creech argues that the unpublished opinion of
this Court reversing the trial court’s grant of a new trial was
erroneous.
Creech suggests we “correct the error” by
reinstating the trial court’s order granting him a new trial.
“The ‘law of the case’ doctrine is firmly established
in this Commonwealth.
As early as 1870, we held that the Court
of Appeals has no power on a second appeal to correct an error
in the original judgment which either was, or might have been
relied upon in the first appeal.”12
Kentucky courts have
consistently held that:
The doctrine of “the law of the case” is
founded upon the policy that there should be
an end to litigation, and cases may not be
presented by piecemeal. It is a sound
policy, and well developed and understood in
this jurisdiction. The doctrine, as defined
by the decisions, is that one adjudication
settles all errors relied upon for a
reversal, whether mentioned in the opinion
of the court or not, and all errors lurking
in the record on the first appeal which
12
Commonwealth v. Schaefer, 639 S.W.2d 776, 777 (Ky. 1982).
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might have been, but were not expressly,
relied upon as error.13
More recently, the Kentucky Supreme Court has noted
that “where the law of the case rule is applicable, ‘it has
sufficient flexibility to permit the appellate court to admit
and correct an error made in the previous decision where
substantial injustice might otherwise result and the former
decision is clearly and palpably erroneous.”14
It is clear that the law of the case doctrine applies
to Creech’s case.
Although we recognize that the doctrine
provides for some flexibility, we see no reason to disturb our
decision on the propriety to the jury separation during
deliberation in this case.
Therefore, there is no error for us
to “admit and correct.”
III.
DISPOSITION.
For the foregoing reasons, we affirm the judgment of
conviction and sentence of the Jackson Circuit Court.
ALL CONCUR.
13
Id., citing, Sowders v. Coleman, 223 Ky. 633, 4 S.W.2d 731 (Ky.
1928).
14
Hampton v. Commonwealth, 133 S.W.3d 438, 444-445 (Ky. 2004).
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BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Stephan Charles
Manchester, Kentucky
Gregory D. Stumbo
Attorney General of Kentucky
George G. Seelig
Assistant Attorney General
Frankfort, Kentucky
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