DUNSON (ROBERT) VS. COMMONWEALTH OF KENTUCKYAnnotate this Case
RENDERED: SEPTEMBER 26, 2008; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE PAMELA GOODWINE, JUDGE
ACTION NO. 01-CR-00422
COMMONWEALTH OF KENTUCKY
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BEFORE: VANMETER AND WINE, JUDGES; LAMBERT,1 SENIOR JUDGE.
LAMBERT, SENIOR JUDGE: Appellant, Robert Dunson, challenges the trial
court’s denial of his motion to suppress his confession and a letter of apology that
he wrote to the victim. Specifically, Appellant contends that the investigating
police officer coerced his confession, rendering it involuntary.
Senior Judge Joseph E. Lambert sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
In the instant case, Appellant was indicted for first-degree rape and
first-degree sexual abuse. The victim was his girlfriend’s daughter, a child under
the age of twelve at the time of the offenses. Subsequent to the denial of the
motion to suppress his confession, Appellant entered a conditional guilty plea in
exchange for dismissal of the sexual abuse charge and amendment of the firstdegree rape charge to second-degree rape. Pursuant to the plea agreement,
Appellant was sentenced to ten years imprisonment.
Although Appellant expressly reserved the right to appeal from the
suppression order, appointed counsel failed to follow through with an appeal.
Ultimately, Appellant filed a pro se motion for a belated appeal which was rejected
by this Court. However, the Supreme Court of Kentucky granted discretionary
review and ordered that Appellant be granted a belated appeal. This appeal
Upon a challenge to the voluntariness of a confession, the
Commonwealth must prove by a preponderance of the evidence that the confession
was made voluntarily. Tabor v. Commonwealth, 613 S.W.2d 133 (Ky. 1981). In
reviewing a trial court’s determination that a confession was voluntary, this Court
must affirm the determination if it is supported by substantial evidence. Bailey v.
Commonwealth, 194 S.W.3d 296 (Ky. 2006).
At the evidentiary hearing on Appellant’s motion to suppress his
confession, both Appellant and the investigating officer testified. It is undisputed
that Appellant signed a waiver of his Miranda rights prior to any questioning.
Appellant testified that the officer used his son and step-son to manipulate him into
confessing. While Appellant testified that the investigating officer told him that if
he did not confess his children’s lives would be miserable and he would not be able
to see them again, the officer testified that he merely expressed to Appellant that a
confession would minimize stress on the victim.
While the threshold determination is whether there was coercive
police activity, the voluntariness of a confession depends on the totality of the
circumstances. Bailey, 194 S.W.3d 296. The inquiry boils down to “(1) whether
the police activity was ‘objectively coercive’; (2) whether the coercion overbore
the will of the defendant; and (3) whether the defendant showed that the coercive
police activity was the ‘crucial motivating factor’ behind the defendant's
confession.” Henson v. Commonwealth, 20 S.W.3d 466, 469 (Ky. 1999). The
second and third prongs of the inquiry require an examination of the characteristics
of the accused in addition to the circumstances surrounding the interrogation.
Bailey, 194 S.W.3d 296. Said otherwise, particular police tactics must be
evaluated in light of the suspect’s age, education, linguistic ability, any mental
impairment, and other relevant individual characteristics. Id.
Appellant does not claim any elevated vulnerability due to personal
characteristics. The extent of his claim of coercive tactics arises from the officer’s
alleged references to Appellant’s inability to see his son and the added stress the
victim would suffer without a confession. Appellant makes no mention of other
factors relevant to the interrogation, such as prolonged detention, repeated
questioning, lack of advice concerning his constitutional rights, humiliating or
overtly coercive techniques such as deprivation of food or sleep. Id. The record
reveals that none of these factors support Appellant’s claim of coercion.
Consequently, the dispositive inquiry becomes whether the officer’s
brief references to Appellant’s children and the victim constituted credible threats
or psychological coercion sufficient to overcome Appellant’s will. Arizona v.
Fulminante, 499 U.S. 279, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991); Allee v.
Commonwealth, 454 S.W.2d 336, (Ky. 1970). It is true that coercion may be
psychological as well as physical, particularly where it consists of credible threats
of violence or of an offer of protection from physical harm in exchange for a
confession. See Fulminante, 499 U.S. 279. However, where the officer does
nothing more than to appeal to a suspect’s sympathy or compassion for the victim
and others who may be affected, such conduct cannot alone be deemed “coercive.”
We reiterate that in the instant case, Appellant put forth no additional claims of
coercive tactics or evidence of any personal disabilities that would bear on the
analysis. As such, the trial court’s conclusion that Appellant’s confession was
voluntary was supported by substantial evidence.
Turning to suppression of the letter, Appellant testified that after his
confession, the officer directed him to write a letter of apology to the victim.
When Appellant started writing a letter merely questioning the victim’s allegations,
the officer tore it up and informed Appellant that it was not an apology. To the
contrary, the investigating officer testified that he simply gave Appellant the
opportunity to write a letter to the victim but did not force him or direct him in any
way. The officer testified that he left the room for about ten minutes to do some
paperwork while Appellant wrote the letter. As the officer explicitly contradicted
all of Appellant’s allegations concerning the letter of apology, the decision turned
on the credibility of the witnesses, a determination best left to the sound discretion
of the trial judge. Accordingly, we discern no abuse of that discretion.
Acknowledging lack of preservation, Appellant seeks palpable error
review of the trial court’s alleged failure to comply with RCr2 9.78 This rule
requires the trial court to make findings of facts resolving the essential issues
raised in a motion to suppress evidence of a confession or other incriminating
statements. In the case at bar, the trial court made oral findings which are a part of
the record. Thus, even if RCr 9.78 were so strictly construed as to require written
findings, failure to do so in this case did not result in palpable error. See Martin v.
Commonwealth, 207 S.W.3d 1 (Ky. 2006). The oral findings of record are
sufficient for this Court’s review.
Accordingly, the decision of the Fayette Circuit court is affirmed.
Kentucky Rules of Criminal Procedure.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
J. Brandon Pigg
Assistant Public Advocate
Attorney General of Kentucky
James C. Shackelford
Assistant Attorney General