JAMES E. LITTLE V. COMMONWEALTH OF KENTUCKY
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RENDERED: June 5, 1998; 10:00 a.m.
NOT TO BE PUBLISHED
NO. 97-CA-0412-MR
JAMES E. LITTLE
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE THOMAS B. WINE, JUDGE
ACTION NO. 96-CR-940
V.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
* * * * * * * *
BEFORE:
GUDGEL, CHIEF JUDGE; GARDNER and SCHRODER, Judges.
GARDNER, JUDGE:
James Little (Little) appeals from his conviction
in Jefferson Circuit Court for theft by unlawful taking of property
valued
over
$300.
On
appeal,
he
maintains
that
an
oral
incriminating statement he made to a police officer should have
been suppressed and that evidence regarding the general practice of
police officers' roles in settlement discussions in Jefferson
District Court should have been admitted.
This Court affirms the
circuit court's judgment.
Little and a companion allegedly took a leather coat from
a Louisville J. C. Penney's store without paying in January 1996.
Little was arrested and made his first appearance in Jefferson
District Court on February 7, 1996.
defender
apparently
was
denied
at
His request for a public
that
time,
ultimately was passed until March 4, 1996.1
and
the
case
Little on that date
requested a continuance in order to hire an attorney.
Little
apparently proceeded pro se and waived the case to the grand jury.
In April 1996, Little was indicted on charges of theft by
unlawful taking of property valued at $300 or more and first-degree
persistent felony offender (PFO I).
In September 1996, Little
moved to suppress out-of-court and an in-court identifications made
by Pearson.
The court suppressed the out-of-court identification
by Pearson but found there had been no in-court identification.
The Commonwealth moved the circuit court to reconsider its ruling.
In
an
affidavit
accompanying
this
motion,
the
Commonwealth
maintained that Pearson was capable of identifying Little as a
result of an encounter between Little and Person outside the
district courtroom on March 4, 1996.
Apparently for the first
time, Pearson claimed that during a conversation between the two,
Little spontaneously and voluntarily stated that he had taken the
coat.
Little
through
counsel
moved
the
circuit
court
to
preclude introduction of Little's statement to Pearson primarily
because of the Commonwealth's alleged failure to earlier comply
1
On that day, Little was waiting in district court when
Officer Richard Pearson (Pearson), the off-duty police office who
was working at Penney's on the night of the alleged theft, arrived.
Little followed Pearson out of the courtroom and the two
subsequently conversed. Pearson later claimed that Little made an
incriminating statement to him. This conversation and resulting
statement were the subject of a suppression motion.
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with discovery orders. Little in a separate motion asked the court
to suppress his statement to Pearson based upon a violation of his
sixth amendment rights as well as other grounds.
In orders of
December 20, 1996, the circuit court denied Little's motions
regarding his statement to Pearson.
In January 1997, Little
entered a conditional guilty plea to the theft by unlawful taking
of property valued over $300.
Pursuant to an agreement with the
Commonwealth, the PFO I charge was dismissed.
Little received a
one year sentence on the theft charge, with the sentence to run
consecutively with a two year sentence that Little was serving on
a separate charge.
Little reserved the right to appeal the
suppression issue, and has now brought this appeal.
Little argues to this Court that his oral incriminating
statement to Pearson was obtained in violation of his right to
counsel pursuant to the Sixth Amendment to the United States
Constitution and Section Eleven of the Kentucky Constitution.
Specifically, he maintains that he was unrepresented when he spoke
with Pearson outside the courtroom and that he perceived the
conversation as a settlement discussion.
He maintains his rights
were violated, and thus any incriminating statements should be
suppressed.
We
have
carefully
reviewed
the
record
and
the
applicable law and have found no error by the trial court.
The right to counsel granted by the Sixth and Fourteenth
Amendments means at least that a person is entitled to the help of
a lawyer at or after the time that judicial proceedings have been
instituted against him or her.
Maine v. Moulton, 474 U.S. 159, 106
-3-
S.Ct. 477, 484, 88 L.Ed.2d 481 (1985), quoting Brewer v. Williams,
430 U.S. 387, 398, 97 S.Ct. 1232, 1239, 51 L.Ed.2d 424 (1977).
See
also Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 1202,
12 L.Ed.2d 246 (1964).
The Sixth Amendment guarantees the accused
after the initiation of formal charges the right to rely on counsel
as a medium between him or her and the state.
106 S.Ct. at 487.
Maine v. Moulton,
See also Michigan v. Jackson, 475 U.S. 625, 106
S.Ct. 1404, 1408, 89 L.Ed.2d 631 (1986).
This guarantee includes
the state's affirmative obligation not to act in a manner that
circumvents the protections accorded the accused by invoking this
right.
Maine v. Moulton, 106 S.Ct. at 487.
The Sixth Amendment is
not violated when by luck or happenstance, the state obtains
incriminating statements from the accused after the right to
counsel has attached.
Id.
The knowing exploitation by the state
of an opportunity to confront the accused without counsel is as
much a breach of the state's obligation not to circumvent the right
to assistance of counsel as is the intentional creation of such an
opportunity.
Id.
The state has the burden of establishing a valid
waiver.
Michigan v. Jackson, 106 S.Ct. at 1409.
initiate
interrogation
after
a
defendant's
If police
assertion
at
an
arraignment or similar proceeding of the right to counsel, any
waiver
of
the
defendant's
right
to
counsel
for
that
police-
initiated interrogation is invalid. Id. After the sixth amendment
right to counsel attaches and is invoked, any statements obtained
from the accused during subsequent police initiated custodial
questioning
regarding
the
charge
-4-
at
issue
are
inadmissible.
Linehan v. Commonwealth, Ky., 878 S.W.2d 8, 10 (1994), quoting
McNeil v. Wisconsin, 501 U.S. 171, 179, 111 S.Ct. 2204, 2209, 115
L.Ed.2d 158, 169 (1991).
Whether a valid waiver of the right
occurred and thus, whether evidence should be suppressed depends
upon the totality of the circumstances.
Haynes v. Commonwealth,
Ky., 657 S.W.2d 948, 951 (1983), quoting Edwards v. Arizona, 451
U.S. 477, 485, n.9, 101 S.Ct. 1880, 1885, n.9, 68 L.Ed.2d 378
(1981).
Generally, a trial court's ruling in suppression matters
is conclusive if supported by substantial evidence.
Commonwealth,
Ky.,
870
S.W.2d
219,
221
(1994);
Canler v.
Crawford
v.
Commonwealth, Ky., 824 S.W.2d 847, 849 (1992).
In the case at bar, the record reveals that the trial
court correctly decided not to suppress Little's statement to
Pearson.
On the day of the encounter between Pearson and Little,
Little followed Pearson out of the courtroom, and Little initiated
the conversation.
Little asked whether the case could be taken
care of that day.
Little suddenly and without questioning from
Pearson told Pearson that he had indeed taken the coat from
Penney's.
Pearson asked Little whether he had counsel to which he
replied negatively. Pearson apparently told Little that he did not
mind if the case was taken care of that day, but they would have to
check with the prosecutor.
He told Little that he did not think
the court would allow the case to be dealt with that morning,
because Little had no counsel.
Pearson later did ask Little if he
knew the whereabouts of the woman that had entered the Penney's
store with him.
Little's statement regarding the coat was clearly
-5-
made voluntarily without coaxing from Pearson. While Pearson could
have handled the situation differently, we do not believe his
actions could have been perceived as settlement negotiations by
Little.
The factual scenario in the instant case is fundamentally
different from those in Michigan v. Jackson, supra; Maine v.
Moulton, supra; Massiah v. United States, supra, and other cases
cited by appellants.2
Little finally contends that the circuit court committed
error by denying defense counsel's request to call an attorney to
testify about plea bargaining practices in Jefferson District
Court.
Counsel sought to demonstrate that Little's incriminating
statement to Pearson was obtained in violation of Kentucky Rule of
Evidence (KRE) 410.
Little's counsel below attempted to introduce
the testimony of Mr. Neal, an attorney, regarding the practice by
police
officers
in
Jefferson
District
Court
of
talking
to
defendants attempting to settle cases with them and then advising
the prosecutor about an agreement.
2
The circuit court denied the
Little argues secondarily in his brief that the Jefferson
District Court erred by not appointing counsel to represent him
prior to his exchange with Pearson. The Commonwealth argues that
this argument was not preserved adequately below, and should not be
considered now by this Court. We decline to address the merits of
this issue for two reasons. First, Little has failed to show that
this issue was adequately raised below during his suppression
motion. See Skaggs v. Assad, By and Through Assad, Ky., 712 S.W.2d
947 (1986), Loew v. Allen, Ky., 419 S.W.2d 734 (1967); Elwell v.
Stone, Ky. App., 799 S.W.2d 46 (1990). See also Stuart v. Capital
Enterprise Ins. Co., Ky. App., 743 S.W.2d 856 (1987).
Second,
because we have concluded that Little's statements to Pearson were
made voluntarily and did not resemble those in cases cited by
Little, it is not necessary to address the merits of this issue.
-6-
defense's request to introduce this evidence.
This Court has
uncovered no error.
A
trial
court
must
determine
whether
the
proffered
evidence is relevant and whether the prejudice resulting from
introducing the evidence outweighs the probativeness.
Partin v.
Commonwealth, Ky., 918 S.W.2d 219, 222 (1996); KRE 401, 403.
A
trial court's decision to exclude evidence will not be disturbed
absent an abuse of discretion.
at 222.
Partin v. Commonwealth, 918 S.W.2d
See also Glens Falls Ins. Co. v. Ogden, Ky., 310 S.W.2d
547 (1958); Transit Authority of River City [TARC] v. Vinson, Ky.
App., 703 S.W.2d 482 (1985).
In the case at bar, this Court has found no abuse of
discretion by the circuit court in excluding the evidence offered
by the defense.
Neal was not familiar with the specific facts of
Little's case. He was not privy to the conversation between Little
and Pearson.
He simply was to testify about the general practices
in district court regarding police officers discussing possible
settlements
with
defendants.
The
potential
relevance
and
probativeness of the evidence appeared marginal. The evidence also
did not seem to have much bearing on the applicability of KRE 410.
The cases cited by Little on appeal are distinguishable from the
case at bar.
We decline to disturb the trial court's ruling.
For the foregoing reasons, the judgment of the Jefferson
Circuit Court is affirmed.
ALL CONCUR.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Frank W. Heft, Jr.
Daniel T. Goyette
Louisville, Kentucky
A. B. Chandler III
Attorney General
Dana M. Todd
Assistant Attorney General
Frankfort, Kentucky
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