SAMUEL ARTHUR YENAWINE V. COMMONWEALTH OF KENTUCKY
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SUPREME COURT, CR 76.28 (4) (c), THIS OPINION
IS NOT TO BE PUBLISHED AND SHALL NOT BE
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RENDERED : MARCH 17, 2005
AS MODIFIED : AUGUST 25, 2005
NOT TO BE PUBLISHED
,$ixyrrntr Court of ~i
2003-SC-0283-MR
SAMUEL ARTHUR YENAWINE
U~5
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE ANN O'MALLEY SHAKE, JUDGE
INDICTMENT NO . 01-CR-293
V.
COMMONWEALTH OF KENTUCKY
APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING IN PART, REVERSING AND REMANDING IN PART
Appellant, Samuel Yenawine, was convicted of arson in the first degree
(KRS 513.020), four misdemeanor counts of wanton endangerment in the second
degree (KRS 508 .070), tampering with physical evidence (KRS 524.100), and of being
a persistent felony offender in the second degree (KRS 532.080(2)). He was acquitted
of the homicide charge . He received a life sentence for the arson conviction, and
appeals as a matter of right.' We hold that the trial court erred in failing to give an
instruction on third-degree arson and accordingly, we reverse the first-degree arson
conviction . Appellant's convictions of second-degree wanton endangerment, tampering
with physical evidence, and of being a persistent felony offender in the second degree
are affirmed .
' Ky . Const. § 110(2)(b) .
On appeal, Yenawine argues that the trial court erred by not giving an
instruction on arson in the third degree (KRS 513 .040) ; and that the trial court erred by
admitting an incriminating statement obtained by the police in violation of his Fifth and
Sixth Amendment rights, and in violation of his rights under Section 11 of the Kentucky
Constitution . We hold that Yenawine should have received an instruction on arson in
the third degree, but that his statement to the police was not an unambiguous or
unequivocal request for counsel that a reasonable police officer would have understood
it as such . Therefore, we reverse in part and remand to the trial court.
Prior to his death, the victim, Brian Tinnell, lived in an apartment adjacent
to Appellant's apartment . The house was a large, two-story building with a one-story
apartment in the rear. The Yenawines rented the house and Tinnell rented the
apartment in the rear. The first story of the house consisted of several large rooms
used for Brooke and Wendy Modeling, an adult entertainment business . The upstairs
consisted of bedrooms for the Yenawines and their children . The apartment at the back
of the house did not have an access door into the main building when the Yenawines
rented the house. However, since the house did not have a kitchen, but the apartment
did, the Yenawines and Tinnell agreed to cut a door in the wall to allow access . In
exchange for use of the kitchen, Yenawnes wife, Wendy Yenawine, agreed to pay
Tinnell's rent and employ him as a bodyguard for her business .
In the early morning hours of January 10, 2001, firefighters responded to
a fire in the building . Yenawine, his wife, and their three children were rescued from the
front porch roof of the burning building . After extinguishing the fire, firefighters found
the body of Tinnell in the apartment- attached to the back of the residence . Arson
investigator, Sgt. Kevin Fletcher, examined the premises and concluded that the fire
originated in the back apartment. Sgt. Fletcher recovered two metal containers of PVC
glue and cleaner, and a knife in the back apartment near Tinnell's body . Sgt . Fletcher
determined that the fire spread from its point of origin in the apartment to the large
rooms of the first floor of the house, and from there up the steps and wall spaces to the
second floor. An autopsy on Tinnell's body revealed that his death was caused by knife
wounds, rather than by exposure to fire .
Yenawine was indicted on January 18, 2001 for murder and arson . He
turned himself in to police the next day . While in police custody, Yenawine gave
incriminating statements to police and arson investigators . These statements were later
used at trial to establish that Yenawine killed Tinnell and then burned his body. In the
statements, Yenawine told how he and the victim were in the apartment at the back of
the building smoking marijuana on the night of the fire. Later that night, according to his
statement, Yenawine went upstairs to his bedroom where his wife was asleep. After
about an hour or so, Yenawine heard floorboards creaking from the direction of his
children's room . He went to investigate and saw Tinnell sneaking out of the room.
Yenawine, afraid that Tinnell had molested his children, followed Tinnell downstairs to
his apartment . When confronted, Tinnell came at Yenawine with a knife . A fight
ensued, and Yenawine stabbed Tinnell six times, and slashed his throat.
In his taped statement, Yenawine continued to describe the night's
events. Stating that he was confused and disoriented by the fight with Tinnell,
Yenawine took off his bloody clothes and piled them in the center of the room. He then
placed a cardboard box on top of the clothes, poured PVC glue and cleaner on that,
and lit a fire . Yenawine went back upstairs, showered, dressed, and laid down in his
bed with his wife . Yenawine explained that Mrs. Yenawine awoke, felt her throat
burning, and shook him. After trying various ways to get out of the house, Yenawine
was able to get himself and his family through the front window and onto the porch roof,
where they were rescued by firefighters .
At trial, the medical examiner testified that cuts on Yenawine's hands
were consistent with defensive wounds caused by fending off a knife attack .
Yenawine's recorded statement was presented to the jury. Arson investigators and
firefighters testified and confirmed the fire's origin as being consistent with Yenawine's
statements .
I.
Yenawine's first argument is that the trial court erred when it refused to
give an instruction on arson in the third degree . Yenawine tendered a third-degree
arson instruction at trial and objected to its exclusion . Only an instruction on arson in
the first-degree was given .
A defendant is entitled to instructions on the whole law of
the case where those instructions are supported by the evidence . Kentucky law has
established that "an instruction on a lesser included offense is required only if,
considering the totality of the evidence, the jury might have a reasonable doubt as to
the defendant's guilt of the greater offense, and yet believe beyond a reasonable doubt
that the defendant is guilty of the lesser offense ."4
KRS 513.040 states that "[a] person is guilty of arson in the third degree if
he wantonly causes destruction or damage to a building of his own or of another by
intentionally starting a fire or causing an explosion ." The Commonwealth relies on a
RCr 9.54.
Barbour v. Commonwealth , 824 S.W.2d 861 (Ky. 1992) .
Caudill v . Commonwealth , 120 S.W .3d 635, 668 (Ky. 2003).
4
case involving similar circumstances to show that no third degree arson instruction was
necessary. Perdue v. Commonwealth 5 dealt with an act of arson, in which the accused
burned an automobile and all of its contents, including a body, with the help of a
chemical accelerant. While the facts are similar, Perdue differs from this case in an
important respect . In Perdue, the act of burning the car was not secondary to the fire,
but the purpose of the fire . Yenawine argues that the resulting fire in this case was not
intended, but merely a byproduct of his attempt to burn the clothes and the victim's
body .
In his statement to the police, Yenawine stated that he went back to sleep
after setting the fire, that his children and wife were upstairs in the adjacent house, and
that he was in a state of shock after his actions. This recounting of events is
corroborated by other evidence, and would have permitted a jury to believe that
Yenawine did not intend to burn the building; rather that he intended to destroy any
evidence including Tinnell's clothes and body . On remand, if the evidence is the same
or substantially similar, an instruction on arson in the third degree should be given.
II .
Yenawine's statement that he might need to speak with his attorney was
not unambiguous or unequivocal, even in light of the surrounding circumstances . In
Davis v. United States , the United States Supreme Court, in discussing the Fifth
Amendment right to counsel, explained that Miranda v . Arizona7 entitles a suspect "to
the assistance of counsel during custodial interrogation even though the Constitution
G
916 S.W .2d 148 (Ky . 1996) .
512 U .S. 452, 114 S . Ct . 2350, 129 L. Ed . 2d (1994).
396 U .S. 868, 90 S. Ct. 140, 24 L. Ed . 2d 122 (1969) .
5
does not provide such assistance "8 and that Edwards v. Arizona9 requires the police to
immediately cease questioning the suspect once he or she invokes the right to
counsel . 10 But the Court went on to note that it was "unwilling to create a third layer of
prophylaxis to prevent police questioning when the suspect might want a lawyer.
Unless the suspect actually requests an attorney, questioning may continue ."" And
that is exactly what happened here . Yenawine told the detectives "I mi ht need to
speak with my lawyer about whether I should talk with you," and handed them the
business card of his wife's attorney . Recently in Abela v . Martin , '2 the Sixth Circuit held
that a defendant who said that "maybe" he should speak with a specific attorney and
handed over that attorney's business card had invoked his right to counsel . We believe
Abela is wrong and is not binding precedent on this Court . Yenawine's statement is not
the sort of "unambiguous or unequivocal request for counsel" '3 that would have
required the police to stop questioning him . Thus, Appellant's confession is admissible
and its admission did not violate Appellant's Fifth and Sixth Amendment rights or his
rights under Section 11 of the Kentucky Constitution .
For the forgoing reasons, we affirm in part, reverse in part, and remand to
the trial court for further consistent proceedings .
Lambert, C .J., and Cooper, Graves, and Keller, JJ ., concur with Part I .
Graves, Johnstone, Keller, Scott, and Wintersheimer, JJ., concur with Part II . Lambert,
C .J ., files a separate opinion concurring in part and dissenting in part in which Cooper,
Davis , 512 U .S. at 462, 114 S . Ct. a t 2356.
`' 451 U .S. 477, 101 S . Ct . 1880, 68 L . Ed. 2d 368 (1981).
' 0 Davis , 512 U .S. at 462, 2356 .
" Id . at 462, 2357 .
1- 380 F.3d 915 (6th Cir. 2004) .
Davis , 512 U .S . at 462, 114 S .Ct. at 2356 .
6
Q
J ., joins. Johnstone, J ., files a separate opinion dissenting in part and concurring in part
in which Scott and Wintersheimer, JJ., join.
COUNSEL FOR APPELLANT :
Paul J . Neel, Jr.
Leigh Erbe, Sr.
Mark Wettle
1012 South Fourth Street
Louisville, KY 40203
Rob Eggert
730 West Main Street
Louisville, KY 40202
COUNSEL FOR APPELLEE :
Gregory D . Stumbo
Attorney General of Kentucky
Perry T . Ryan
Assistant Attorney General
Criminal Appellate Division
Office of the Attorney General
1024 Capital Center Drive
Frankfort, KY 40601-8204
RENDERED : MARCH 17, 2005
NOT TO BE PUBLISHED
,Supumr (9ourf of Arttfurhg
2003-SC-0283-MR
SAMUEL ARTHUR YENAWINE
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE ANN O'MALLEY SHAKE, JUDGE
INDICTMENT NO. 01-CR-293
V
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION BY CHIEF JUSTICE LAMBERT CONCURRING IN PART AND
DISSENTING IN PART
I concur with respect to part I of the majority opinion reversing for failure to
provide an instruction on arson in the third degree, but I disagree with part II .
Yenawine's second claim for reversal concerns his Fifth and Sixth amendment rights
under the United States Constitution, and his rights under Section 11 of the Kentucky
Constitution . Yenawine stated in his brief with citations to the record that he requested
counsel three separate times: (1) during questioning by Detective Schweitzer on
January 10, 2001, when he requested that his attorney, Bill Butler, be present ; (2) that
he made a verbal request to police to speak to Bill Butler on January 19, 2001 ; and (3)
that he requested counsel in writing by means of Butler's business card.
During the police interview on January 19, 2001 the following colloquy
occurred:
Yenawine : I might need to speak with my lawyer about
whether I should talk with you .
Detective Phelps : Who is your lawyer?
Yenawine : Bill Butler . [Yenawine produces Butler's business
card.]
Detective Phelps: Bill says he is not your lawyer because he
is your wife's lawyer. [Pause] Do you want to talk with us or
not?
Yenawine : I am not going to see my kids?
Detective Phelps : If you want to talk to us we want to tape
you so we get your word right.
Yenawine : Okay.
Butler's business card that Yenawine provided to Detective Phelps stated :
My lawyer has told me not to talk to anyone about my case,
not to answer any questions and not to reply to any
accusations. Call my lawyer if you want to ask me any
questions. I do not agree to answer any question without my
lawyer present. I do not agree to waive any of my
constitutional rights .
It is not clear whether Butler actually represented Yenawine . But Butler testified that he
may have provided some legal advice and that he considered himself Appellant's
lawyer on January 19, 2003 . Butler also testified that he only informed Detective
Phelps that he may have a conflict of interest in representing Yenawine . Butler testified
that after the taping of Yenawine's statement of January 19, had he been aware of the
interrogation he would have instructed police to stop questioning his client until he
arrived. Officer Roberts, another officer present during the interrogation, testified during
the suppression hearing that he and Officer Phelps did not contact Butler while they
were interrogating Yenawine on January 19 . In fact, neither Officer Phelps nor Officer
Roberts contacted Butler until Yenawine provided his statement. At trial, the trial court
denied Yenawine's request to suppress the statements on the basis that he made no
direct request for counsel. The trial court determined that Yenawine's statement that he
"might" need to speak with his attorney was not unambiguous. During trial, Yenawine
objected and was overruled, and the taped statement was played for the jury .
The Fifth Amendment, as analyzed in Miranda v. Arizona ,' protects a
suspect from self-incrimination . Prior to custodial interrogation, a police officer must
inform one in police custody of the familiar Miranda warnings and obtain a waiver of
rights prior to interrogation . Central to the rights articulated in Miranda is the right to
have counsel present during a custodial interrogation . The request for counsel must be
unequivocal and unambiguous .2 These rights are not crime specific, and upon a
request for counsel all questioning must cease . The invocation of the right to counsel
endures so long as the suspect remains in continuous custody.3
The Sixth Amendment right to counsel is designed to ensure fair
prosecution and thereby provide a defendant with a right to have counsel present at all
critical stages. The Sixth Amendment right to counsel does not attach until the
government initiates adversarial proceedings, i.e. , after a charge or indictment.4 After
formal charges are filed, a defendant is guaranteed the right to counsel without
exception . When a suspect requests counsel under the Sixth Amendment, the
interrogation must cease until the attorney arrives . This request for counsel is offense
'384 U.S. 436, 86 S . Ct. 1602,16 L. Ed. 2d 694 (1966) .
Edwards v . Arizona , 451 U.S . 477, 482, 101 S . Ct. 1880, 1883, 68 L. Ed . 2d 378
(1981) (holding waiver of Fifth Amendment right to counsel must be a voluntary,
knowing, and intelligent "relinquishment or abandonment of a known right or privilege, a
matter which depends in each case `upon particular facts and circumstance
surrounding that case, including the background, experience, and conduct of the
accused"') .
Minnick v. Mississiooi , 498 U .S . 146, 111 S . Ct. 486, 112 L. Ed. 2d 489 (1990) .
4 United States v. Gouveia , 467 U.S . 180, 188, 104 S . Ct . 2292, 81 L. Ed. 2d 146
(1984) .
S Powell v. Commonwealth , 346 S.W.2d 731 (Ky. 1961) (holding the right to counsel
during trial is firmly rooted in our criminal jurisprudence and is cherished as one of the
most important safeguards against an unfair trial) .
6 Minnick, 498 U .S . at 146 .
3
specific and does not require that the suspect be in custody.' However, a suspect's
request for counsel under the Sixth Amendment must also be unambiguous."
The right to counsel guaranteed by Section 11 of the Kentucky
Constitution is no greater than that guaranteed by the Sixth Amendment of the United
States Constitution .9 To be afforded the protections provided under Section 11, a
suspect who expresses a desire to deal with police only through counsel is not required
to make such a request during custodial interrogation, and where at arraignment the
accused requests counsel, there can be no further interrogation by authorities, even on
an unrelated charge, until counsel has been made available, unless the accused
initiates further communications, exchanges or conversations with the police, or unless
the accused intends to limit his request.'°
The question here is whether Yenawine's request for counsel was clear
and unequivocal as required by Miranda v. Arizona ," Edwards v. Arizona , '2 Davis .
v
United States , '3 and Kotila v. Commonwealth . '4 A defendant must clearly articulate a
desire for legal counsel with respect to criminal charges brought against him so that a
reasonable police officer would understand the statement to be such a request;
otherwise it is unnecessary to stop the interrogation. '5 Justice Scalia, writing for the
majority in McNiel v. Wisconsin, stated that a request for counsel under the Fifth
Michigan v. Jackson , 475 U.S . 625, 106 S . Ct. 1404, 89 L. Ed. 2d 631 (1986) .
Davis v. United States , 512 U .S. 452, 459, 114 S. Ct. 2350, 129 L. Ed . 2d 362 (1994) .
'Cane v. Commonwealth , 556 S .W.2d 902 (Ky. App. 1977) cert. denied, 437 U.S . 906,
98 S.Ct. 3094, 57 L. Ed. 2d 1136 (1978) .
`° United States v. Wolf , 879 F.2d 1320 (6th Cir. 1989).
" 384 U .S . 436, 86 S . Ct. 1602, 16 L. Ed. 2d 694 (1966) .
''- 451 U .S. 477, 101 S . Ct. 1880, 68 L . Ed . 2d 368 (1981) .
512 U.S. 452, 114 S . Ct. 2350, 129 L . Ed . 2d 362 (1994) .
'114 S .W .3d 226 (Ky. 2003) .
'S Id . citing Davis v. United States 512 U .S . at 459 .
S
Amendment "requires, at a minimum, some statement that can reasonably be
construed to be an expression of a desire for the assistance of an attorney in dealing
with custodial interrogation by the police .
Strikingly similar to this case is the recently decided United States Court of
Appeals for the Sixth Circuit decision in Abela v . Martin ." The court held that although
the defendant said "maybe" he should speak to a specific attorney, because he had
named a specific attorney and presented that attorney's business card, a reasonable
officer would have understood that to be a clear request for counsel.' 8 In Abela , the
Sixth Circuit held that the specific request for a named attorney, leading the suspect to
believe that his attorney would be contacted, and the presentation of that attorney's
business card all corroborated the unequivocal nature of the request for counsel.'9 The
court held :
Accordingly, we reject Respondent's contention that the
word "maybe" be viewed in isolation, and as dispositive of
the question before us . Moreover, as we have determined in
other cases, language that might be less than clear, when
viewed in isolation, can become clear and unambiguous
when the immediately surrounding circumstances render
them so . 2°
In the present case, Yenawine's statement that he might need to speak
with his attorney was unambiguous and unequivocal in light of the surrounding
circumstances . Following Officer Phelps's question as to the identity of Yenawine's
Attorney, Yenawine stated that his attorney was Bill Butler and presented Butler's
501 U .S. 171, 11 S.Ct. at 2208, 115 L. Ed. 2d 158 (1991) .
11 380 F.3d 915, 926 (2004), cert. denied by Caruso v. Abela, 124 S.Ct. 2388, 158
L . Ed.2d 976 (2004) .
'R
_Id.
19
Id.
20
Id.
16
Amendment "requires, at a minimum, some statement that can reasonably be
construed to be an expression of a desire for the assistance of an attorney in dealing
with custodial interrogation by the police . 06
Strikingly similar to this case is the recently decided United States Court of
Appeals for the Sixth Circuit decision in Abela v. Martin ." The court held that although
the defendant said "maybe" he should speak to a specific attorney, because he had
named a specific attorney and presented that attorney's business card, a reasonable
officer would have understood that to be a clear request for counsel .'8 In Abela, the
Sixth Circuit held that the specific request for a named attorney, leading the suspect to
believe that his attorney would be contacted, and the presentation of that attorney's
business card all corroborated the unequivocal nature of the request for counsel- 19 The
court held :
Accordingly, we reject Respondent's contention that the
word "maybe" be viewed in isolation, and as dispositive of
the question before us. Moreover, as we have determined in
other cases, language that might be less than clear, when
viewed in isolation, can become clear and unambiguous
when the immediately surrounding circumstances render
them so. 2°
In the present case, Yenawine's statement that he might need to speak
with his attorney was unambiguous and unequivocal in light of the surrounding
circumstances . Following Officer Phelps's question as to the identity of Yenawine's
Attorney, Yenawine stated that his attorney was Bill Butler and presented Butler's
501 U .S. 171, 11 S .Ct. at 2208, 115 L. Ed. 2d 158 (1991) .
" 380 F. 3d 915, 926 (2004), cert. denied by Caruso v. Abela, 124 S .Ct. 2388, 158
16
L. Ed .2d 976 (2004) .
18 _Id
.
19
.
20
Id.
business card with pre-printed instructions that all questioning cease until the attorney
was contacted . Instead, Officer Phelps did not contact Bill Butler to verify whether he
was Yenawine's attorney. And based upon a previous conversation where Butler
stated that he might have a conflict of interest, Officer Phelps informed Yenawine that
Butler was not his attorney because Butler was his wife's attorney. The circumstances
here corroborate that Yenawine requested Butler's presence during his questioning.
Yenawine's request for a specific attorney, the presentation of the attorney's business
card with a written request that the attorney be contacted and all questioning cease,
and officer Phelps's response all corroborate that this was a reasonable expression of a
desire for the assistance of an attorney prior to custodial interrogation . At the very
minimum police should have contacted Butler at this point.
Griffin v. Lvnau h is
distinguishable because the requested attorney declined to represent the suspect after
being contacted by police and the defendant did not request another attorney . 22
Because Yenawine's Fifth Amendment right to counsel was violated
during a custodial interrogation, his statement should have been suppressed .2s
Yenawine's graphic statement recounting the horrific chain of events played a major
role in incriminating him on the first-degree arson charge . Moreover, as he was under
indictment and requested the assistance of counsel, his right to have counsel present
as provided by the Sixth Amendment and Section 11 of the Kentucky Constitution was
violated .
2 ' As the surrounding circumstances demonstrate a clear request for counsel, we need
not decide whether the pre-printed instructions on the attorney's business card are
alone sufficient to invoke the right to counsel . Nevertheless, the pre-printed instructions
added weight to the totality of the circumstances.
2- 823 F.2d 856, 858 (5th Cir. 1987) .
'
2' Edwards v. Arizona , 451 U.S . 477, 101 S. Ct. 1880, 68 L. Ed . 2d 378 (1981) ; Baaril
Commonwealth , 612 S .W.2d 739 (Ky. 1981).
6
v
.
Cooper, J ., joins this opinion concurring in part and dissenting in part.
RENDERED : MARCH 17, 2005
NOT TO BE PUBLISHED
,$uprPmP (.111urf of ~rufurhV
Q
2003-SC-0283-MR
SAMUEL ARTHUR YENAWINE
V.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE ANN O'MALLEY SHAKE, JUDGE
2001-CR-0293
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION BY JUSTICE JOHNSTONE
CONCURRING IN PART AND DISSENTING IN PART
I concur with respect to part II of the majority's opinion . However, I respectfully
dissent from part I reversing for failure to provide a third-degree arson instruction, and
quote Chief Justice Lambert in Perdue v. Commonwealth , 916 S.W .2d 148, 160 (Ky.
1996), another case involving an intentionally set fire, wherein he stated :
As to appellant's claim that a third degree arson
instruction should have been given, this, too, is without
merit. Third degree arson requires the lack of intention to
damage the item burned. KRS 513.040. In the present
case, a chemical accelerant was placed in the floor of the
car to assist the burning of the car . The argument that the
resulting fire was unintended is preposterous .
Scott and Wintersheimer, JJ ., join this opinion concurring in part and dissenting
in part.
,Suprrnte (9vurf of ~rufurkg
2003-SC-0283-MR
SAMUEL ARTHUR YENAWINE
V.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE ANN O'MALLEY SHAKE, JUDGE
INDICTMENT NO . 01-CR-293
COMMONWEALTH OF KENTUCKY
APPELLEE
ORDER
The petition for rehearing is denied. The Memorandum Opinion of the
Court rendered on March 17, 2005, is modified on its face by substitution of the
attached opinion in lieu of the original opinion . Modifications on pages 1 and 6 of the
original opinion affected the pagination so as to necessitate substitution of the entire
opinion .
All concur.
ENTERED : August 25, 2005 .
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