JAN DUNSON v. COMMONWEALTH OF KENTUCKY
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RENDERED: November 3, 2000; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-002629-MR
JAN DUNSON
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE LAURANCE VANMETER, JUDGE
ACTION NO. 99-CR-00823
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
JOHNSON, McANULTY, AND SCHRODER, JUDGES.
SCHRODER, JUDGE:
This is an appeal from a judgment of the
Fayette Circuit Court convicting appellant of theft by unlawful
taking over $300 and being a first-degree persistent felony
offender.
As the K-Mart loss prevention officers were not
required to give Miranda warnings after detaining appellant, and
because the trial court did not err in denying appellant’s
motions for a continuance and a mistrial, we affirm.
Appellant, Jan Dunson, was indicted by the Fayette
County Grand Jury on August 2, 1999 for theft by unlawful taking
over $300 and with being a first-degree persistent felony
offender (PFO I), as a result of an incident which occurred at a
Lexington, Kentucky K-Mart on June 12, 1999.
held on October 13, 1999.
A jury trial was
On the morning of trial, appellant
moved the court to suppress statements he made when detained by
K-Mart loss prevention officers, and, after a hearing, the court
denied the motion.
At trial, two K-Mart loss prevention officers, Rob
Baker and David Self, testified to the following version of
events.
Appellant was observed in the K-Mart with a Kroger cart
which contained a large tote bag sold by K-Mart.
Appellant was
then observed going down the pantry aisle putting food items in
the cart.
Appellant eventually made his way to the “Garden
Center” part of K-Mart, where he went behind a stack of grills.
There he was observed putting the food items in trash bags.
Appellant pushed the cart through the Garden Center exit, at
which point the Electronic Automated Sensor was triggered.
Appellant hesitated, and then continued to push the cart through
the exit, at which point he was apprehended by Baker and Self.
Baker and Self testified that appellant then made a
statement to the effect that someone had asked appellant to push
the cart through the exit to see if the alarms were working.
Baker testified that he asked appellant if “somebody in a green
shirt” asked appellant to do it, to which appellant replied “it
might have been, yeah.”
Baker testified he then told appellant
that K-Mart doesn’t have employees who wear green shirts, to
which appellant replied that it may have been somebody else or
may have been different.
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Baker and Self then walked appellant back to the loss
control office, where they opened the tote bag and found it full
of apparel, along with some other items.
After determining the
value of merchandise appellant had in the cart, the police were
called.
Both Baker and Self testified that they only saw
appellant putting the food items into the trash bags, and did not
see appellant put any apparel or other items into the tote bag.
Appellant did not testify, and the defense called no witnesses.
The jury was instructed on theft by unlawful taking
over $300, criminal attempt to commit theft by unlawful taking
over $300, theft by unlawful taking less than $300, and criminal
attempt to commit theft by unlawful taking less than $300.
The
jury found appellant guilty of theft by unlawful taking over
$300, and subsequently found him guilty of PFO I.
Appellant was
sentenced to five years for the theft conviction, enhanced to
fifteen years by the PFO I.
This appeal followed.
Appellant first argues that the trial court erred by
denying his motion to suppress the statements which he made to
the K-Mart loss prevention officers that someone had asked him to
push the cart out, along with the statements regarding the color
of the shirt that person was wearing, as he had not been given
his Miranda warnings when he made the statements.
Appellant
argues that KRS 433.236 gives police power to store loss
prevention officers, therefore, his detention by the K-Mart loss
prevention officers was an authorized action by the state.
Hence, appellant contends that he was “effectively taken into
police custody” when the K-Mart loss prevention officers detained
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him.
Having been subjected to a custodial interrogation, he
argues that he should have been advised of his rights against
self-incrimination per Miranda v. Arizona, 384 U.S. 436, 86 S.
Ct. 1602, 16 L. Ed. 2d 694 (1966), and, as he was not, the
statements should have been suppressed.
KRS 433.236, “Detention and arrest of shoplifting
suspect”, states:
(1)
A peace officer, security agent of a
mercantile establishment, merchant or
merchant’s employee who has probable cause
for believing that goods held for sale by the
merchant have been unlawfully taken by a
person may take the person into custody and
detain him in a reasonable manner for a
reasonable length of time, on the premises of
the mercantile establishment or off the
premises of the mercantile establishment, if
the persons enumerated in this section are in
fresh pursuit, for any or all of the
following purposes:
. . . .
(c)
To make reasonable inquiry as to
whether such person has in his possession
unpurchased merchandise . . .
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(d)
To recover or attempt to recover
goods taken from the mercantile establishment
by such person . . .
(e)
To inform a
peace officer or law
enforcement agency of the detention of the
person and to surrender the person to the
custody of a peace officer . . .
(2)
The recovery of goods taken from the
mercantile establishment by the person
detained or by others shall not limit the
right of the persons named in subsection (1)
of this section to detain such person for
peace officers or otherwise accomplish the
purposes of subsection (1).
(3)
Any peace officer may arrest without
warrant any person he has probable cause for
believing has committed larceny in retail or
wholesale establishments.
Jaggers v. Commonwealth, Ky., 439 S.W.2d 580 (1969),
rev’d on other grounds, 403 U.S. 946, 91 S. Ct. 2282, 29 L. Ed.
2d 856 (1971), held that statements made to a person other than a
law enforcement officer were not subject to Miranda protection.
Cooper v. Commonwealth, Ky., 899 S.W.2d 75, 76-77 (1995); See
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also, Hood v. Commonwealth, Ky., 448 S.W.2d 388 (1969) (Miranda
rights do not apply to a citizen arrest.)
“‘State action’ is
required before any claim of suppression on grounds of compelled
testimony will be entertained.”
Cooper, 899 S.W.2d at 76.
Absent compelling circumstances, feelings of coercion or
intimidation are insufficient to overcome the requirement of
state action.
Id. at 79-80.
Although the K-Mart loss prevention officers had the
power to detain appellant per KRS 433.236(1), this power does not
confer “law enforcement officer” status upon them, hence, per the
aforementioned case law, they were not required to give Miranda
warnings.
Further, the record indicates that no law enforcement
officials whatsoever were present when the statements were made,
as appellant made them when he was first apprehended at the
Garden Center, before the police had even been called.
Accordingly, we conclude that appellant was not being subjected
to a custodial interrogation when he made the statements, thus,
no Miranda warnings were required, and the trial court did not
err in admitting the statements.
Appellant next argues that the court erred in denying
his motion for a continuance.
Appellant contends that the
continuance was needed in order to have time to sufficiently
review new discovery provided by the Commonwealth on the Monday
before the Wednesday, October 13, 1999, trial date.
Appellant
further contends that, because his appointed counsel was assigned
to his case on September 15, 1999, less than a month before the
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trial date, the continuance was necessary to give counsel further
time to prepare.
A motion for a continuance is directed to the sound
discretion of the trial court and the action of the court will
not be disturbed on appeal absent an abuse of that discretion.
Eldred v. Commonwealth, Ky., 906 S.W.2d 694 (1995), cert. denied,
516 U.S. 1154, 116 S. Ct. 1034, 134 L. Ed. 2d 111 (1996);
Snodgrass v. Commonwealth, Ky., 814 S.W.2d 579 (1991); Rosenzweig
v. Commonwealth, Ky. App., 705 S.W.2d 956 (1986).
The Kentucky
Supreme Court has set forth the following factors which a trial
court should consider in exercising its discretion to grant or
deny a continuance:
1) length of delay; 2) previous
continuances; 3) inconvenience to litigants, witnesses, counsel,
and the court; 4) whether the delay is purposeful or is caused by
the accused; 5) availability of other competent counsel; 6)
complexity of the case; and 7) whether denying the continuance
will lead to identifiable prejudice.
Snodgrass, 814 S.W.2d at
581.
With regard to the first two Snodgrass factors,
appellant states that he was not asking for a long delay, and
that there had been no previous continuances.
With regard to the
third factor, appellant did not move for a continuance until the
morning of the trial, just prior to voir dire.
The jurors and
witnesses were present, and the attorneys were prepared for
trial.
Applying the fourth and fifth factors, appellant’s
counsel indicated that appellant felt like things were moving “a
little bit quick for him”, and appellant states he is not
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questioning the competency of his counsel.
not complex.
Sixth, the case was
Finally, we conclude that there was no identifiable
prejudice to appellant.
Although appellant does not state in his
brief what the new discovery was, the videotape record indicates
that it was “K-Mart summary forms”, which appellant’s counsel
stated were not significant.
was prepared for trial.
The record indicates that counsel
It appears that appellant wanted the
continuance simply because appellant thought things were moving
too quickly, as counsel had been recently assigned to the case,
and because appellant himself had just received the K-Mart forms
the day before the trial.
As stated previously, appellant’s
counsel considered these forms insignificant.
In light of the
above analysis, we conclude that the trial court did not abuse
its discretion in denying appellant’s motion for a continuance.
Appellant’s final argument is that the trial court
erred by denying appellant’s motion for a mistrial after it made
statements to the jury referring to appellant’s motion to
suppress.
When the jury returned after the suppression hearing,
the court explained to the jury that “. . . what just happened is
. . . . we had a quick motion about whether or not we were going
to exclude certain evidence.
I decided not to exclude it. . . .”
Appellant moved for a mistrial on the basis of the court’s
comments.
The court denied the motion.
Appellant contends that the court’s comments left the
jury with the belief that appellant was trying to hide evidence
from them, thus implying that appellant was guilty.
A mistrial
should only be granted by the trial court if there is a manifest,
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urgent, or real necessity for such action.
Skaggs v.
Commonwealth, Ky., 694 S.W.2d 672 (1985), cert. denied, 476 U.S.
1130, 106 S. Ct. 1998, 90 L. Ed. 2d 678 (1986).
The Kentucky
Supreme Court has stated:
It is universally agreed that a mistrial is
an extreme remedy and should be resorted to
only when there is a fundamental defect in
the proceedings which will result in a
manifest injustice.
The occurrence
complained of must be of such character and
magnitude that a litigant will be denied a
fair and impartial trial and the prejudicial
effect can be removed in no other way.
Gould v. Charlton Co., Inc., Ky., 929 S.W.2d 734, 738 (1996).
The decision of a trial court whether or not to grant a mistrial
will not be disturbed absent an abuse of discretion.
Jones v.
Commonwealth, Ky. App., 662 S.W.2d 483 (1983).
A judge “should refrain from making comments that tend
to create prejudice to the litigants, the witnesses or the
subject matter of the litigation.”
Transit Authority of River
City v. Montgomery, Ky., 836 S.W.2d 413, 415 (1992).
We do not
believe the judge’s comments caused any prejudice to appellant.
The comments were for the purpose of explaining the reason for
the recess to the jury.
Further, the judge did not say which
side wanted to exclude the evidence.
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Accordingly, we conclude
that the judge did not abuse his discretion in denying
appellant’s motion for a mistrial.
For the aforementioned reasons, the judgment of the
Fayette Circuit Court is affirmed.
JOHNSON, JUDGE, CONCURS.
McANULTY, JUDGE, CONCURS IN RESULT ONLY.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Alicia A. Sneed
Lexington, Kentucky
A. B. Chandler, III
Attorney General
Paul D. Gilbert
Assistant Attorney General
Frankfort, Kentucky
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