RICHARD M . CALLIHAN V COMMONWEALTH OF KENTUCKY
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2003-SC-01 83-M R
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APPELLANT
RICHARD M. CALLIHAN
V
APPEAL FROM GREENUP CIRCUIT COURT
HONORABLE LEWIS D. NICHOLLS, JUDGE
01-CR-82
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION OF THE COURT BY JUSTICE COOPER
AFFIRMING
Appellant, Richard Callihan, was indicted in the Greenup Circuit Court for two
counts of rape in the first degree (Counts I and II), one count of sodomy in the first
degree (Count III), and one count of criminal abuse in the first degree (Count IV). He
entered a guilty plea to all counts conditioned on the preservation of his right to appeal
the denial of his motion to suppress his confession .
RCr 8 .09 . The trial court
sentenced him to twenty years imprisonment for Counts I through III and ten years
imprisonment for Count IV, to run concurrently for a total of twenty years . He appeals to
this court as a matter of right, Ky. Count. ยง 110(2)(b), on the grounds that the trial court
erroneously denied his motion to suppress his taped confession as it was obtained after
he had become the focus of the investigation and before the police informed hire of his
right to counsel and his right to remain silent. Finding no error, we affirm .
't7
Appellant resided with his girlfriend, Danielle M ., her daughter, L .M., and her two
sons, A.M . and E .M. An investigation into Appellant's treatment of Danielle's children
began in May 2001 after the Department for Social Services (DSS) received a complaint
regarding his disciplinary methods . When the investigation began, Appellant had lived
with Danielle and her children for approximately three years . When initially interviewed
by DSS, the children indicated that aside from an incident where Appellant made A.M .
run up a steep bank carrying bricks on his shoulders, he had not abused them .
However, the children later revealed that Appellant had punished them by making them
stand naked . A few days later, DSS received information from Danielle that E .M . and
L.M . told her that Appellant had sexually abused them.
This information resulted in a police investigation in which Kentucky State
Trooper Greg Virgin and DSS worker Bentley Ratcliff interviewed L .M ., E .M., and
Appellant, on May 14, 2001 . L.M . stated that Appellant had not sexually abused her
during the first two years that he lived with her family. However, she described
numerous sexual encounters with Appellant that began when she was ten years old .
Appellant first asked her to perform oral sodomy on him, but L.M. refused . Later, as
punishment for L.M .'s poor performance in school, he forced her to disrobe and raped
her . As another punishment, he instructed her to perform oral sodomy on E .M ., but
E .M . would not allow her to do so. On another occasion, Appellant forced her to scrub
the floor unclothed, while Appellant watched pornography. After she had scrubbed the
floor, Appellant made her bathe with him . When they finished bathing, Appellant again
raped her. L.M. made numerous references to additional incidents of sodomy and
sexual intercourse and also revealed that Appellant threatened to harm her if she told
her mother about the abuse.
E .M . described a sexual encounter with Appellant that occurred when he was
eleven years old. He and Appellant had gone squirrel hunting and had drunk some
whiskey upon returning home . The alcohol intoxicated E.M . and made him feel
extremely hot, so to cool off, he removed all of his clothes except his underwear . He
and Appellant entered a bedroom where Appellant played a pornographic movie. They
both began to masturbate and Appellant told E .M. to perform anal sodomy on him.
After E .M. did so, Appellant asked him to do it again, and E .M . refused . E .M . stated that
this was the only sexual encounter he had with Appellant . He also corroborated L.M .'s
claim that Appellant had ordered her to perform oral sodomy on E.M.
After speaking with E .M . and L.M ., Virgin and Ratcliff requested that Appellant
speak to them. Appellant agreed and voluntarily went to Ratcliffs office at DSS that
evening at approximately 7:30 p.m . The first twenty to thirty minutes of the interview
were not recorded or transcribed . The only proof of what happened during that portion
of the meeting was Virgin's police report and his testimony during the suppression
hearing . This testimony established, inter alia, that Virgin informed Appellant that he
wanted the door closed for privacy reasons because a nearby custodian was
vacuuming the floors . Appellant was also advised at the onset of the interview that he
was not under arrest, that he was free to leave at any time, and that he had no
obligation to answer questions . Virgin also stated that he informed Appellant that he
would not be arrested that day and that Appellant subsequently admitted to sexually
abusing E.M . and L.M. As revealed by the transcript and Virgin's testimony, Virgin
informed Appellant of his rights pursuant to Miranda v. Arizona, 384 U .S . 436, 86 S .Ct.
1602, 16 L.E.2d 694 (1966), and immediately thereafter received Appellant's permission
to record the remainder of the interview. Appellant again admitted to sexually abusing
E .M . and L.M . He left after the interview, and police took him into custody the following
day.
MOTION TO SUPPRESS.
Citing Escobedo v. Illinois , 378 U .S . 478, 84 S .Ct. 1758, 12 L.Ed .2d 977 (1964),
Appellant contends that the trial court erred in overruling his motion to suppress his
taped confession . He asserts that the confession is defective because it was obtained
without the benefit of Miranda warnings after the police had focused a criminal
investigation on him. We first address the Commonwealth's claim that Appellant failed
to preserve this issue for appellate review . Because the United States Supreme Court
decided Escobedo on the right to counsel guaranteed by the Sixth Amendment and
Appellant moved to suppress his confession on Fifth Amendment grounds, the
Commonwealth asserts that he cannot now challenge his convictions on Sixth
Amendment grounds . This assertion lacks merit because Appellant has not mounted a
Sixth Amendment challenge, but rather argues that his confession should have been
suppressed because he was not informed of his Miranda rights as required by the Fifth
Amendment . Additionally, the Court has since declared that Escobedo's primary
purpose was to protect the Fifth Amendment right against self-incrimination . United
States v . Gouveia , 467 U .S . 180, 188 n .5, 104 S.Ct. 2292, 2297 n .5, 81 L .Ed .2d 146
(1984) ; Kirby v. Illinois , 406 U .S . 682, 689, 92 S .Ct. 1877, 1882, 32 LEd .2d 411 (1972) ;
Johnson v. New Jersey , 384 U .S . 719, 729-30, 86 S .Ct. 1772, 1779, 16 L.Ed .2d 882
(1966) .
At first blush, it would seem that we could decide this case simply on the grounds
that Appellant did, in fact, receive Miranda warnings immediately before he gave the
taped statement, which rehashed the contents of his unrecorded confession . However,
the United States Supreme Court's recent decision in Missouri v. Seibert , 542 U .S . ___,
124 S .Ct. 2601, _- L .Ed .2d - (2004), precludes such a simple solution . In Seibert,
police questioned a criminal suspect and intentionally withheld Miranda warnings until
after she confessed . Almost immediately after the initial confession, they informed her
of her Miranda rights, and then asked if they could record her statement. She agreed .
The Court held that her confession was Miranda-defective even though she gave the
second confession after receiving Miranda warnings . Four members of the Court held
that the second statement was per se tainted because of the potential of the "question
first" technique to weaken Miranda 's safeguards against the admission of coerced
confessions :
After all, the reason that question-first is catching on is as obvious as its
manifest purpose, which is to get a confession the suspect would not
make if he understood his rights at the outset ; the sensible underlying
assumption is that with one confession in hand before the warning, the
interrogator can count on getting its duplicate, with trifling additional
trouble . Upon hearing warnings only in the aftermath of interrogation and
just after making a confession, a suspect would hardly think he had a
genuine right to remain silent, let alone persist in so believing once the
police began to lead him over the same ground again .
Id . at !, 124 S .Ct. at 2610-11 . Justice Kennedy concurred in result only, stating that
post- Miranda statements obtained using the "question-first" technique are only invalid
where police deliberately employ the technique to circumvent the suspect's Miranda
rights . Id . at __, 124 S .Ct. at 2616 (Kennedy, J ., concurring) . Because Seibert is a
plurality decision, its holding is confined to the "position taken by those Members who
concurred in the judgments on the narrowest grounds." Marks v. United States , 430
U.S . 188, 193, 97 S .Ct. 990, 993, 51 L.Ed.2d 260 (1977) (internal quotations and
citations omitted) . Here, the narrowest grounds are those set forth in Justice Kennedy's
concurring opinion . Thus, absent an evidentiary hearing as to whether Virgin
deliberately employed the "question-first" technique to circumvent Appellant's Miranda
rights, we cannot dismiss his argument on the grounds that he, in fact, was informed of
his rights .
We reject Appellant's argument that the mere fact that he was the focus of a
criminal investigation entitled him to Miranda warnings prior to police questioning . It is
well settled that Miranda's holding is generally limited to custodial settings. Escobedo
does not require that police " Mirandize " an interviewee simply because he or she has
become the focus of an investigation . To hold otherwise would ignore well-settled
precedent . The United States Supreme Court expressly limited Miranda 's warning
requirement to custodial interrogation . Miranda, supra, at 444, 86 S .Ct. at 1612 ("Our
holding . . . is this : the prosecution may not use statements, whether exculpatory or
inculpatory, stemming from custodial interrogation of the defendant unless it
demonstrates the use of procedural safeguards effective to secure the privilege against
self-incrimination .") (emphasis added) . The Court has also made several post-Miranda
pronouncements reaffirming Miranda's limitation to custodial interrogation . See, e .q . ,
Johnson , supra , at 729-30, 86 S.Ct. at 1779 ("Our opinion in Miranda makes it clear that
the prime purpose of these rulings is . . . to assure that the person who responds to
interrogation while in custody does so with intelligent understanding . . . ."). Indeed,
Miranda recognized the necessity of warnings because of the potential of a custodial
environment to overbear an individual's will to exercise his constitutional rights . Moran
v. Burbine , 475 U .S . 412, 420, 106 S.Ct. 1135, 1140, 89 L .Ed .2d 410 (1986) ("in
Miranda v. Arizona , the Court recognized that custodial interrogations, by their very
nature, generate 'compelling pressures which work to undermine the individual's will to
resist and to compel him to speak where he would not otherwise do so freely ."') (quoting
Miranda , supra , at 467, 86 S .Ct. at 1624).
Nor does Escobedo, supra, provide otherwise. Rather, its holding was also
grounded in the coercive nature of police custody:
[W]here, as here, the investigation is no longer a general inquiry into an
unsolved crime but has begun to focus on a particular suspect, the
suspect has been taken into police custody, the police carry out a process
of interrogations that lends itself to eliciting incriminating statements, the
suspect has requested and been denied an opportunity to consult with his
lawyer, and the police have not effectively warned him of his absolute
constitutional right to remain silent, the accused has been denied "The
Assistance of Counsel" in violation of the Sixth Amendment . . . .
Id . a t 490-91, 84 S .Ct. at 1765 (emphasis added) (citations omitted) . The Court decided
Escobedo two years before Miranda , and has never construed Escobedo to require
Miranda warnings simply because police have focused a criminal investigation on an
individual who is subject to questioning. See Johnson , supra, at 733-34, 86 S .Ct. at
1781 (recognizing Escobedo's limited holding); Kirby, supra , at 689, 92 S.Ct. at 1882
(citing Johnson's limitation of Escobedo to its own facts) . Indeed, the Court specifically
rejected the "focus of the investigation" test as inconsistent with its holding in Miranda .
Beckwith v. United States , 425 U .S . 341, 96 S .Ct. 1612, 48 L.Ed .2d 1 (1976) . In
Beckwith , the defendant was questioned by two special agents from the Internal
Revenue Service (IRS) at one of his residences . Because the IRS had conducted a
thorough investigation of the defendant prior to questioning, he argued that his
statements should have been suppressed because he was questioned without Miranda
warnings after he had become the focus of a criminal investigation . The Court, rejecting
this argument, held that because the defendant was not in custody, Miranda's
safeguards, designed to prevent coercion from overcoming an individual's constitutional
rights, did not apply. Id . at 347-48, 96 S .Ct. at 1616-17 .
Additionally, courts of this state adhere to the custodial interrogation requirement,
despite Appellant's assertion to the contrary that Skaggs v. Commonwealth , Ky., 694
S.W .2d 672 (1985), vacated in part by Skaggs v. Parker, 235 F .3d 261 (6th Cir. 2000),
Wills v. Commonwealth, Ky., 502 S .W.2d 60 (1973), Wilson v. Commonwealth , Ky., 476
S .W .2d 622 (1971), and Jasper v. Commonwealth , Ky., 471 S.W .2d 7 (1971), require
otherwise . In Farler v. Commonwealth , Ky. App., 880 S.W .2d 882 (1994), the Court of
Appeals, expressly addressing all of the aforementioned cases cited by Appellant,
embraced the principle that Escobedo does not entitle a defendant to Miranda warnings
absent custodial interrogation even if he has become the focus of a criminal
investigation . Id . a t 884-85 . See also Little v. Commonwealth , Ky . App ., 991 S.W.2d
141 (1999) (rejecting Skaggs , Wills , and Jas er, and noting that this Court has not yet
rejected the focus of the investigation test but has implicitly done so by reaffirming
custodial interrogation requirement). Although this Court has never explicitly rejected
the "focus of the investigation" test regarding the necessity of Miranda warnings, we do
so now. This is not a change in the law, but a reaffirmation of our adherence to the
custodial interrogation requirement . Watkins v. Commonwealth , Ky., 105 S .W .3d 449,
451 (2003) (recognizing that Miranda "requires the express declaration of a defendant's
rights prior to custodial interrogation ") (emphasis added) ; Adkins v. Commonwealth , Ky.,
96 S .W .3d 779, 791 (2003) ("Indeed, Miranda, itself, was concerned only with 'custodial
interrogation"'); Brown v. Commonwealth , Ky., 780 S .W.2d 627, 628 (1989) (defendant
not entitled to Miranda warnings because she was not subject to custodial
interrogation) .
As such, Appellant's statement was not Miranda -defective. He does not argue
that he was in custody at the time of his confession, nor do the facts support such a
finding. In Oregon v. Mathiason , 429 U.S. 492, 97 S .Ct. 711, 50 L.Ed .2d 714 (1977)
(per curiam), the United States Supreme Court held that a criminal suspect interviewed
by a police officer at the police station behind closed doors was not in custody . In
support, the Court noted that the suspect was not taken by force to the police station,
that police told the suspect that he was not under arrest, and that he was able to leave
after the interview. Id . at 495, 97 S .Ct. at 714. Similarly, in the case sub judice , the trial
court found that Appellant was not in custody at the time of his confession . Virgin
testified at the suppression hearing that he told Appellant that he was free to leave at
any time, that he had no obligation to answer questions, and that he would be able to
return home after the interview. Thus, the trial court's finding that Appellant was not in
custody at the time of his confession is conclusive, RCr 9 .78, relieving police of their
obligation to inform him of his Miranda rights and obviating any need for a remand for
reconsideration in light of the United States Supreme Court's recent decision in Missouri
v. Seibert.
Accordingly, the judgment of conviction and the sentences imposed by the
Greenup Circuit Court are affirmed .
All concur.
COUNSEL FOR APPELLANT :
Michael J. Curtis
Michael J . Curtis Law Office
1544 Winchester Avenue
P.O . Box 1455
Ashland, KY 41105-1455
COUNSEL FOR APPELLEE:
Gregory D . Stumbo
Attorney General
State Capitol
Frankfort, KY 40601
George G . Seelig
Assistant Attorney General
Criminal Appellate Division
Office of the Attorney General
Suite 200
1024 Capital Center Drive
Frankfort, KY 40601
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