DELACRUZ (DAVID) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: OCTOBER 8, 2010; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-001312-MR
DAVID DELACRUZ
v.
APPELLANT
APPEAL FROM GRAVES CIRCUIT COURT
HONORABLE TIMOTHY C. STARK, JUDGE
ACTION NO. 07-CR-00317
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
REVERSING & REMANDING
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BEFORE: KELLER AND THOMPSON, JUDGES; HARRIS,1 SENIOR JUDGE.
HARRIS, SENIOR JUDGE: David Delacruz appeals from his Graves Circuit
Court conviction on the charge of complicity to trafficking in marijuana greater
than 5 pounds and sentence of 5 years imprisonment. Delacruz requests reversal
based upon the following claimed errors: (1) that the trial court erred by denying
1
Senior Judge William R. Harris sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes
(KRS) 21.580.
his motion to suppress an incriminating statement which he asserts was given in
violation of his Miranda rights; (2) that the trial court erred by permitting the
Commonwealth to peremptorily strike a juror based upon the juror’s ethnicity; and
(3) that the jury was improperly instructed. After a careful review of the record
and briefs, we conclude that the trial court erred in its denial of Delacruz’s motion
to suppress. Therefore, we reverse.
On August 24, 2007, Detective Michael Williams learned that a box
containing marijuana was en route to a residence located in Mayfield, Kentucky.
Detective Williams intercepted the package at Fed Ex and presented it to a drug
detecting dog. The dog alerted on the package, indicating the presence of a
controlled substance. Pursuant to a search warrant, Detective Williams opened the
box and found over fourteen pounds of marijuana. Detective Williams resealed the
box and prepared to execute a controlled delivery.
Detective Williams donned a Fed Ex uniform and drove a van labeled
“Fed Ex” to the residence where the package was addressed. Laura Ladd received
the package and was immediately arrested. Ladd told the officers that she had
been paid to receive a package for Gabino Lopez. She told the officers that Lopez
instructed her to call the owner of the residence, Delacruz, when the package
arrived.
Delacruz was later questioned by the police. Initially, he denied any
knowledge but later admitted that he knew that the package was being delivered
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for Lopez. Delacruz claimed, however, that he believed that the box contained car
parts.
Ladd, Lopez, and Delacruz were all indicted on two counts of
trafficking in marijuana greater than five pounds. Delacruz was convicted on both
counts of the indictment. However, the trial court granted a judgment
notwithstanding the verdict on one count of trafficking.2 On July 7, 2009,
Delacruz was sentenced to 5 years imprisonment on the remaining conviction.
This appeal follows.
I. The Miranda Rights Violation
A suspect must be informed of his right to remain silent and his right to
an attorney prior to a custodial interrogation. Miranda v. Arizona, 384 U.S. 438,
86 S.Ct. 1602, 16 L.Ed. 694 (1966). These rights are known collectively known as
“Miranda rights” or “Miranda warnings.” The Commonwealth must prove by a
preponderance of the evidence that the defendant waived these Miranda rights.
Mills v. Commonwealth, 996 S.W.2d 473, 482 (Ky. 1999); McCloud v.
Commonwealth, 286 S.W.3d 780 (Ky. 2009). Although we must “presume that a
defendant did not waive his rights[,]” waiver can be shown “from the actions and
words of the person interrogated.” North Carolina v. Butler, 441 U.S. 369, 373, 99
S.Ct. 1755, 60 L.Ed.2d 286 (1979). The waiver must be executed knowingly and
voluntarily. Mills, 996 S.W.2d at 482. The person waiving his rights must
understand the nature of the right being waived and the potential consequences of
2
The count of the indictment concerning which the trial court granted judgment notwithstanding
the verdict charged a separate offense allegedly to have occurred on August 8, 2007.
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the waiver. Id. The Commonwealth failed to show that Delacruz understood these
rights.
A portion of the audio recording of the interrogation was played during
the suppression hearing. The recording contains this exchange between Detective
Williams and Delacruz:
Detective Williams: Let me first read you your rights.
You have the right to remain silent. Anything you say
can and will be used against you in a court of law. You
have the right to an attorney before making any
statements. You may have your attorney with you before
making any statements. Or you can answer questions
with your attorney with you. If you can not afford an
attorney, the court will appoint one for you. Do you
understand that you don’t have to answer any questions,
whatsoever, that I ask? Or answer any questions?
Delacruz: (inaudible)
Detective Williams: That’s just it. Do you understand
that you don’t have to make any statements or answer
any questions?
Delacruz: Well, I don’t understand what you are talking
about.
Detective Williams: Yes or no. Do you understand that
you don’t have to answer any of my questions? If I ask
you a question do you understand that you don’t have to
answer it . . . if you do not want to?
Delacruz: I don’t know what kind we are talking about
here?
Detective Williams: Don’t wonder about the kind I am
going to ask you. Wonder if... Do you understand that if
I ask you a question about anything, you don’t have to
answer if you don’t want to? Do you understand that
much?
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Delacruz: I want to answer whatever you want.
Anything you want, I want to answer.
Detective Williams: But you do understand that you
don’t have to if you don’t want to? That’s right. That’s
good. So you do understand?3
The recording demonstrates that Detective Williams attempted to
assure that Delacruz understood that he had the right to remain silent. However,
after Delacruz was initially advised of his Miranda rights, he indicated that he did
not understand. Rather than rereading the rights, describing each individual right,
or providing Delacruz with rights written in Spanish, Detective Williams only
asked if he understood that he did not have to answer questions. That explanation
is incomplete and insufficient. Detective Williams never ascertained that Delacruz
understood all of his Miranda rights.
Absent a showing by the Commonwealth by a preponderance of the
evidence that Delacruz understood all of his Miranda rights, including his rights
with respect to counsel, any waiver of rights by Delacruz was not knowingly and
intelligently made, and should have been suppressed.
The trial court’s failure to suppress these statements requires us to
reverse and remand this case for a new trial with directions to the trial court to
suppress Delacruz’s statements.
II. The Batson Challenge
3
No audible answer to this final question was disclosed at the suppression hearing.
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The second issue raised by Delacruz concerns the Commonwealth’s
peremptory strike of a juror with a Hispanic surname. Since we are remanding this
case for a new trial and this issue is unlikely to reoccur, we will not address it
further, except to observe that we believe the trial court did not err. See Stanford
v. Commonwealth, 793 S.W.2d 112, 114 (Ky. 1990).
III. The Jury Instructions
Lastly, Delacruz claims that the jury was improperly instructed on the
charge of complicity to trafficking in marijuana greater than 5 pounds.
Because it is likely that this issue will arise upon retrial, we will address it.
The jury instruction failed to require the jury to find that Delacruz
intended for the marijuana to be sold. However, in Crawley v. Commonwealth,
107 S.W.3d 197 (Ky. 2003), the Kentucky Supreme Court held that such a failure
may be cured by an adequate instruction defining complicity. Id. at 200. The
complicity instruction provided:
Complicity – means that a person is guilty of an offense
committed by another person when, with the intention of
promoting or facilitating the commission of the offense,
he solicits commands or engages in a conspiracy with
such other person to commit the offense, or aids,
counsels, or attempts to aid such person in planning or
committing the offense.
The complicity instruction which the trial court gave accords with Crawley.
Therefore, we find no error in the instructions.
Accordingly, we reverse and remand this case to the Graves Circuit
Court for a new trial to be conducted in accordance with this opinion.
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KELLER, JUDGE, CONCURS.
THOMPSON, JUDGE, DISSENTS AND FILES SEPARATE
OPINION.
THOMPSON, JUDGE, DISSENTING: I respectfully dissent from
the majority opinion because I believe there was substantial evidence to support
the trial court’s factual findings and, therefore, we are required to affirm.
The voluntariness of the incriminating statements depends upon the
totality of the circumstances surrounding the statement and presents a question of
fact. Mills v. Commonwealth, 996 S.W.2d 473, 481 (Ky. 1999). The applicable
standard of review is concisely stated as follows:
If supported by substantial evidence, the factual findings
of the trial court shall be conclusive. When the findings
of fact are supported by substantial evidence ... the
question necessarily becomes, whether the rule of law as
applied to the established facts is or is not violated. The
second prong involves a de novo review to determine
whether the court's decision is correct as a matter of law.
However, a reviewing court should take care both to
review findings of historical fact only for clear error and
to give due weight to inferences drawn from those facts
by resident judges and local law enforcement officers.
Olden v. Com., 203 S.W.3d 672, 676 (Ky. 2006)(internal quotations and citations
omitted).
Detective Williams read Delacruz his Miranda rights and was
convinced that Delacruz understood his right to remain silent. He testified that he
was able to converse with Delacruz in English and proceeded to question him only
after Delacruz confirmed that he knew he was not required to answer the officer’s
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questions. Additionally, Delacruz’s neighbor testified that although Delacruz was
not fluent in English, he understands more English than he reveals and understands
what is said when repeated more than once.
Because I believe that the trial court’s finding that Delacruz
understood his Miranda rights is supported by substantial evidence, I would affirm.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Ed Monahan
Public Advocate
Jack Conway
Attorney General
Linda Roberts Horsman
Assistant Public Advocate
Frankfort, Kentucky
Gregory C. Fuchs
Assistant Attorney General
Frankfort, Kentucky
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