JAMES M. EDWARDS v. COMMONWEALTH OF KENTUCKY
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RENDERED: JULY 7, 2000; 10:00 a.m.
NOT TO BE PUBLISHED
MODIFIED: JULY 21, 2000; 10:00 a.m.
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 1999-CA-000616-MR
JAMES M. EDWARDS
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE THOMAS KNOPF, JUDGE
ACTION NO. 98-CR-001818
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
DYCHE, EMBERTON and HUDDLESTON, Judges.
HUDDLESTON, JUDGE.
This is an appeal by James M. Edwards from a
judgment based on a conditional guilty plea.1
Edwards pled guilty
to nine counts of burglary, reserving the right to appeal to this
Court the trial court’s denial of his motion to suppress certain
incriminating statements he made to Louisville police following his
arrest.
As disclosed in the uncontradicted testimony presented at
the November 23, 1998, suppression hearing, the facts are as
1
Ky. R. Crim. Proc. (RCr) 8.09.
follows.2
At about 5:25 a.m. on the morning of June 15, 1998, in
the Old Louisville section of Louisville, Louisville Police Officer
Higgs received a radio dispatch regarding a break-in in progress.
Higgs was nearby and responded.
location
of
the
reported
As he drove up an alley near the
break-in,
carrying two large stereo speakers.
out his name.
him again.
Higgs
encountered
Edwards
Higgs knew Edwards and called
Edwards at first did not stop, but Higgs called to
Edwards then stopped and placed the speakers on the
ground. Higgs did not immediately arrest Edwards, but did handcuff
him.
Higgs then transported Edwards to the front of the location,
where three witnesses identified Edwards as the man they had seen
break into the residence. Higgs then arrested Edwards and read him
his “Miranda3 rights.”
Higgs indicated that he understood them.
Thereafter, Edwards agreed to speak to Higgs.
Edwards
explained various details of the break-in to Higgs and emphasized
that this was the first house he had ever burglarized.
Higgs then
transported Edwards to the 5th Police District station house.
the
meantime,
Higgs
had
called
Louisville
Police
In
Detectives
Gravatte and Bybee about the apprehension of Edwards. Gravatte and
Higgs were assigned to investigate several burglary cases in the
Old Louisville area.
About ten to fifteen minutes following Higgs
and Edwards’ arrival at the station, Detective Gravatte arrived.
Higgs told Detective Gravatte that he had informed Edwards of his
2
The Commonwealth did not file a brief in the case.
We
therefore accept the appellant’s statement of the case, which
comports with the facts as set forth herein. Ky. R. Civ. Proc. (CR)
76.12(8)(c).
3
See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16
L.Ed.2d 694 (1966).
-2-
rights, and Detective Gravatte questioned Edwards regarding that
morning’s break-in.
About ten or fifteen minutes after Gravatte’s
arrival, Detective Bybee arrived.
a.m., Higgs left.
At this point, at about 6:15
At no time while Edwards was in Higgs presence
did Edwards explicitly seek to invoke his right to remain silent,
and Edwards seemed to understand what was going on.
The detectives asked Edwards if he understood his rights,
to which Edwards responded “yes”.
The detectives emphasized to
Edwards that he did not have to speak to them, and Edwards
indicated that he understood that.
However, Edwards refused to
sign a rights waiver form or to give a tape recorded statement.
During this time, Edwards commented several times to the effect
that “I didn’t do anything, take me to jail.”
Edwards also
continued to comment that he was involved with only the one
burglary.
However, at no time did Edwards explicitly indicate to
the detectives that he wanted to invoke his right to remain silent.
At some point Gravatte left the room momentarily to get
some coffee.
A discussion between Edwards and Bybee ensued.
The
discussion initially centered upon the difference between right and
wrong. Bybee commented to the effect that the most important thing
was that “he clear things up with God.” Although Edwards initially
refused to talk about the other burglaries and maintained that that
morning’s burglary was the only one with which he was involved,
following the discussion about right and wrong, Edwards voluntarily
agreed to drive around the Old Louisville area and show the
detectives other locations he had burglarized.
-3-
Gravatte, Bybee and Edwards proceeded with the trip
around
Old
Louisville,
and
the
detectives
logged
Edwards’s
incriminating statements relating to various burglaries he had
committed.
In the car, Detective Bybee again asked Edwards if he
understood
his
rights,
and
Edwards
affirmed
that
he
did.
Procedurally, the detectives would drive by various addresses in
Old Louisville where burglaries had occurred, and Edwards would
indicate whether he recognized the location as the site of one of
his burglaries.
In July 1998 Edwards was indicted on eight counts of
second-degree burglary (KRS 511.030) and one count of third-degree
burglary (KRS 511.040). On October 8, 1998, Edwards filed a motion
to suppress his statements to the police on the basis that the
statements were not the product of a free, voluntary, intelligent
and
non-coerced
choice.
Edwards
also
moved
to
suppress
the
statements, and any evidence gained from the statements, as fruits
of an illegal arrest.4
An evidentiary hearing on the suppression motion was held
on November 23, 1998. At the evidentiary hearing, the Commonwealth
presented three police officers, Higgs, Gravatte and Bybee, as
witnesses.
Edwards presented no witnesses.
At the conclusion of
the hearing it was agreed that the trial court would take the case
under submission.
The trial court subsequently denied the motion.
On January 5, 1999, Edwards entered into a conditional
guilty plea agreement with the Commonwealth.
4
Under the agreement,
It is not contended on appeal that Edwards was subjected to
an illegal arrest by Higgs.
-4-
Edwards was to receive eight years on each second-degree burglary
count and five years on the third-degree burglary count, all
sentences to run concurrently for a total of eight years to serve.
Under the agreement, however, Edwards reserved his right to appeal
the denial of his suppression motion. The trial court accepted the
plea
agreement
accordance
with
and
its
entered
terms.
judgment
Edwards
and
imposed
then
filed
sentence
this
in
appeal
challenging the denial of his suppression motion.
Edwards contends that the trial court erred by denying
his motion to suppress because the police did not respect his right
to cut off questioning.
Edwards insists that the detectives
improperly failed to take notice of his request not to talk about
other burglaries and his request to be taken to jail.
Edwards
argues that all statements and evidence obtained after he first
indicated he no longer wished to talk about other burglaries should
be suppressed.
In addition, Edwards contends that Higgs violated
Rule of Criminal Procedure (RCr) 3.02(2) in that Higgs arrested
Edwards without a warrant, and pursuant to the rule was required to
take him without unnecessary delay before a judge but, instead,
took him to be interviewed by the detectives.
Miranda v. Arizona requires the express declaration of a
defendant's rights prior to custodial interrogation.
suppression is the remedy.5
Edwards
his
rights
at
the
Otherwise
It is uncontested that Higgs read
time
of
his
arrest
and
that
the
detectives on several occasions after that notified Edwards that he
5
Miranda, supra, n. 3 at 479;
892 S.W.2d 299, 302 (1995).
-5-
Wells v. Commonwealth,
Ky.,
did not have to speak to them.
The detectives also on several
occasions questioned Edwards as to whether he understood his
rights, and received Edwards’s assurance that he did.
There is no assertion that Edwards requested, or even
mentioned, an attorney during the course of police interrogation so
as to require the cessation of questioning.6
Rather, Edwards’s
argument in support of suppression is based solely on the premise
that he asserted his Fifth Amendment right to remain silent, and
the police failed to honor the assertion of the right by continuing
to interrogate him.
Specifically, Edwards contends that (1) when
he denied involvement in any other burglaries, he was effectively
invoking his right to remain silent as to those burglaries, and (2)
that when he stated, “I didn’t do anything, take me to jail,” he
was, in effect, literally requesting that interrogation cease and
that he be taken immediately to jail.
The voluntariness of a confession is assessed based on
the
totality
confession.7
of
circumstances
surrounding
the
making
of
the
A statement is not “compelled” within the meaning of
the Fifth Amendment if an individual "voluntarily, knowingly and
intelligently" waives his constitutional privilege.8
The inquiry
into whether a waiver is coerced has two distinct dimensions.
6
See Baril v. Commonwealth, Ky.,
612 S.W.2d 739, 743 (1981).
7
Allee v. Commonwealth, Ky., 454 S.W.2d 336, 341 (1970), cert.
granted, 400 U.S. 990, 91 S. Ct. 454, 27 L. Ed. 2d 438 (1971),
case dismissed, 401 U.S. 950, 91 S. Ct. 1186, 28 L. Ed. 2d 234
(1971); Mills v. Commonwealth, Ky., 996 S.W.2d 473, 481 (1999).
8
Miranda v. Arizona, supra, n. 3, at 444.
-6-
First, the relinquishment of the right must have been
voluntary in the sense that it was the product of a free
and deliberate choice rather than intimidation, coercion,
or deception.
Second, the waiver must have been made
with a full awareness both of the nature of the right
being abandoned and the consequences of the decision to
abandon it.
Only if the “totality of the circumstances
surrounding the interrogation' reveal both an uncoerced
choice and the requisite level of comprehension may a
court properly conclude that the Miranda rights have been
waived.”9
The Commonwealth only needs to prove waiver of
a preponderance of the evidence.10
Miranda rights by
An appellate court will reverse
the trial court's decision as to a Miranda violation only upon a
showing of clear abuse of discretion.11
There was no testimony or evidence given at the hearing
to contradict the police officers’ testimony that Edwards was
advised of his rights, that he understood the rights read to him,
and that he knowingly waived them.
"If the government wishes to
introduce
a
into
evidence
at
trial
statement
made
during
[a
custodial] interrogation, it has the burden of establishing by a
9
Moran v. Burbine, 475 U.S. 412, 421, 106 S. Ct. 1135, ____,
89 L. Ed. 2d 410, 421 (1986)(quoting Fare v. Michael C., 442 U.S.
707, 725, 99 S. Ct. 2560, 61 L. Ed. 2d 197 (1979));
See also
Colorado v. Spring, 479 U.S. 564, 573, 107 S. Ct. 851, 857, 93 L.
Ed. 2d 954 (1987); Mills v. Commonwealth, at 481-482 (1999).
10
Colorado v. Connelly, 479 U.S. 157 168, 107 S. Ct. 515, 522,
93 L. Ed. 2d 473 (1986); Mills at 482.
11
Mitchell v. Commonwealth, Ky., 908 S.W.2d 100, 103 (1995).
-7-
preponderance of the evidence that the suspect waived his Miranda
rights and that his statement was truly the product of free
choice."12
Uncontradicted
testimony
by
witnesses
for
the
Commonwealth satisfies a burden of proof higher than preponderance
of the evidence to show waiver.13
Edwards was read his rights and he on several occasions
indicated that he knew what those rights were.
Thereafter, rather
than stating that he sought to invoke his right to remain silent,
Edwards, to the contrary, waived his right to remain silent and
expressed a willingness to talk first to Higgs, and then the
detectives. Subsequent statements to the effect that he “committed
only one burglary” and that he “should be taken on to jail”
implicate an assertion of the right to remain silent only in the
most subtle way.
When
a
suspect
invokes
his
privilege
against
self-
incrimination, whether in the form of refusing to answer questions
or asking that an ongoing interrogation be terminated, his request
must
be
“scrupulously
honored.”14
If
a
suspect
"states
unequivocally that he wishes to remain silent and refuses to answer
questions, interrogation ordinarily must cease."15
When it is not
clear whether a suspect has invoked his right to remain silent,
12
United States v. Ramirez, 79 F.3d 298, 304 (2d Cir.1996)
(internal quotations and citation omitted).
13
See Reeves v. Commonwealth, Ky., 462 S.W.2d 926, 930
(1971), cert. denied, 404 U.S. 836, 92 S. Ct. 124, 30 L. Ed. 2d 69
(1971); Mills at 482.
14
Michigan v. Mosley, 423 U.S. 96, 104, 96 S. Ct. 321, 326,
46 L. Ed. 2d 313; Mills 996 S.W.2d at 482.
15
Ramirez at 304.
-8-
officers may question the suspect for the purpose of clarifying the
ambiguity.16 "In some circumstances, however, a suspect's statement
as to his willingness or unwillingness to answer questions, or his
silence in response to some questions, does not constitute even an
ambiguous or equivocal invocation of the right to remain silent."17
The present case is of the third type.
Edwards’s initial denials
of other burglaries and his occasional references to the effect
that he should be taken to jail are so imperceptibly and indirectly
related to an assertion of the right to remain silent that they
cannot be expected to be taken by a reasonable police officer to be
an
invocation
of
the
Fifth
Amendment
right
against
self-
incrimination.
The United States Supreme Court decision in
Davis v.
United States18, on a similar Miranda issue (invocation of the right
to counsel after previous waiver must be by clear request before
law enforcement officers are required to cease interrogation),
supports the position that the invocation of the right to silence
after a previous waiver must be clear.
Considering that Edwards
had previously waived his right to remain silent, we are not
persuaded that his statements to the effect that he did not commit
prior burglaries or that he wanted to be taken to jail were
invocations of his right to remain silent such that the detectives
were required to cease questioning him.
16
Id.; see also Springer v. Commonwealth, 998 S.W.2d 439, 446
(1999).
17
18
Id.
512 U.S. 452, 114 S. Ct. 2350, 129 L. Ed. 2d 362 (1994).
-9-
Next, Edwards contends that there was a violation of
Kentucky Rule of Criminal Procedure (RCr) 3.02(2) when Officer
Higgs failed to take him without unnecessary delay before a judge
and file a post-arrest complaint.
right
to
appeal
this
issue
conditional guilty plea.
was
It does not appear that the
reserved
by
Edwards
in
his
The plea agreement states only that
“[t]his is a conditional plea conditioned on [Edwards’] appeal of
suppression.”
The
suppression
hearing
dealt
only
with
the
voluntariness of his post-arrest statements and the invocation of
his right to remain silent.
Edwards did not raise this issue
before the trial court, it is not an element of his conditional
plea agreement, and the issue is unpreserved.
In
any
event,
giving
Edwards
his
Miranda
warning
satisfied the required constitutional protection and covered many
of the protections envisioned by RCr 3.02.19
arrested
and
held
in
custody.
While
Edwards was lawfully
Edwards
was
not
taken
immediately before a judge, there was neither coercion or duress in
obtaining the post-arrest statement.
disregard
for
the
rule.
Id.
There was not a flagrant
Unnecessary
delay
should
not
invalidate any confession or statements made during the post-arrest
period unless coercive tactics were used. Id.
coercive tactics used in this case.
There were no
Even if Edwards’s RCr 3.02
argument were preserved for our review as a part of his conditional
plea,
the
evidence
would
not
support
the
suppression
of
his
statements and confessions given in the hours following his arrest.
19
Savage v. Commonwealth, Ky. 939 S.W.2d 325, 327 (1996).
-10-
Because the trial court was correct in denying the motion
to suppress, the judgment is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
J. David Niehaus
Deputy Appellate Defender
Office of the Jefferson
District Public Defender
Louisville, Kentucky
None filed
Daniel T. Goyette
Jefferson District
Public Defender
-11-
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