Rehearing Denied Sept. 26, 2013.
[Copyrighted Material Omitted]
Dennis M. Ritchie, for Appellant.
Jack Conway, Attorney General of Kentucky, Joyce Gail Guiling, Courtney J. Hightower, Assistant Attorney General, for Appellee.
Appellant, Garrett Thomas Dye, pled guilty to Murder, Resisting Arrest, and Tampering with Physical Evidence. For these crimes, the Todd Circuit Court sentenced him to a total of fifty years' imprisonment. He now appeals as a matter of right, Ky. Const. § 110(2)(b), arguing that (1) his confession was coerced, (2) he did not knowingly and intelligently waive his Miranda rights, and (3) he unequivocally invoked his right to counsel. Additionally, he argues that all evidence seized pursuant to information obtained from his confession must be suppressed as " fruit of the poisonous tree." Because we conclude that Appellant's confession was involuntary, we now reverse and remand for further proceedings.
On the evening of February 4, 2011, Appellant's nine-year-old sister went missing after spending that afternoon with Appellant shoveling gravel in their driveway. Appellant's parents notified the Todd County Sheriff's Department of her disappearance, and just after midnight on February 5, 2011, the girl's dead body was discovered in a thicket about 100 yards from Appellant's home.
Because there were signs of blunt force trauma to the girl's head and face, a search warrant was issued that morning at 5:28 a.m. for the recovery of items from the property and its buildings potentially related to her death, including potential weapons, clothes, and shoes. Pursuant to this search warrant, a number of items were recovered from Appellant's home and surrounding property, including two shovels, various clothes, tennis shoes, and a buccal swab DNA sample from Appellant.
The same morning, Appellant and his parents were taken to the Trenton Police Station for questioning, but Appellant's father requested that Appellant, who was seventeen years old at the time, not be questioned until a lawyer could be retained on his behalf. Appellant was not questioned at that time.
The next day, law enforcement went to Appellant's home and arrested him for his sister's murder. Appellant was read his Miranda rights before being transported to the Logan County Courthouse where four officers (two at a time) took turns interrogating him for approximately two hours in the Court Designated Worker's (CDW) Office. During the interrogation, Appellant confessed to murdering his sister. That evening, a second search warrant (" the February 6 search warrant" ) was issued based upon information contained in Appellant's confession, and additional incriminating items (similar to those seized pursuant to the first search warrant) were retrieved from his home.
At trial, Appellant moved to suppress his confession on the grounds that his Miranda waiver was involuntary, his right to counsel was invoked but denied, and his confession was coerced. The trial court denied the motion on all grounds. Thereafter, Appellant pled guilty to all counts but reserved his right to appeal. The trial court sentenced him to fifty years' imprisonment for murder, twelve months for resisting arrest, and three years for tampering, all to run concurrently for a total of fifty years.
On appellate review of a trial court's denial of a motion to suppress, we generally apply the two-step process set
out in Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996), and adopted by Kentucky in Adcock v. Commonwealth, 967 S.W.2d 6 (Ky.1998). Under this standard we review the trial court's findings of fact for substantial evidence, id. at 8, and then conduct a de novo review of the trial court's application of the law to the established facts to determine whether its ruling was correct as a matter of law, Welch v. Commonwealth, 149 S.W.3d 407, 409 (Ky.2004).
However, a simple application of this standard of review is insufficient in the case at bar because the trial court's findings of fact, although supported by substantial evidence in the record, are incomplete. For example, the trial court's order states that the officers told Appellant " how difficult things will be in the penitentiary." What the order omits, however, is the officers' actual message, i.e., that if Appellant did not confess he would be convicted, receive the death penalty, and be the subject of serious and repeated prison violence while awaiting execution. Thus, application of our normal standard of reviewing a ruling on a motion to suppress is inadequate here because it would require us to ignore facts relevant to the question of whether Appellant's substantial rights were violated.
Moreover, as the U.S. Supreme Court noted in Haynes v. Washington:
It is well settled that the duty of constitutional adjudication resting upon this Court requires that the question whether the Due Process Clause of the Fourteenth Amendment has been violated by admission into evidence of a coerced confession be the subject of an independent determination here, see, e.g., Ashcraft v. Tennessee, 322 U.S. 143, 147-148, 64 S.Ct. 921, 923, 88 L.Ed. 1192 [(1944)]; ‘ we cannot escape the responsibility of making our own examination of the record,’ Spano v. New York, 360 U.S. 315, 316, 79 S.Ct. 1202, 1203, 3 L.Ed.2d 1265 [(1959)]. While, for purposes of review in this Court, the determination of the trial judge or of the jury will ordinarily be taken to resolve evidentiary conflicts and may be entitled to some weight even with respect to the ultimate conclusion on the crucial issue of voluntariness, we cannot avoid our responsibilities by permitting ourselves to be ‘ completely bound by state court determination of any issue essential to decision of a claim of federal right, else federal law could be frustrated by distorted fact finding.’ Stein v. New York, 346 U.S. 156, 181, 73 S.Ct. 1077, 1091, 97 L.Ed. 1522 [(1953)].
373 U.S. 503, 515-16, 83 S.Ct. 1336, 10 L.Ed.2d 513 (1963). Although the U.S. Supreme Court is the final arbiter of federal constitutional issues, we have previously recognized that " absent a substantial factual dispute in the evidence, voluntariness of a confession may be properly decided by a reviewing court." Mills v. Commonwealth, 996 S.W.2d 473, 481 (Ky.1999) ( citing Jackson v. Denno, 378 U.S. 368, 391-92, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964)), overruled on other grounds by Padgett v. Commonwealth, 312 S.W.3d 336 (Ky.2010). Most of Appellant's interrogation was audiotaped (although some parts are muffled or inaudible), and the material facts are not in dispute; we therefore invoke our authority to decide whether Appellant's confession was voluntary.
A. Coerced Confessions
In Bailey v. Commonwealth, we recited the relevant law concerning involuntary confessions:
The Due Process Clause of the Fourteenth Amendment prohibits the admission of involuntary confessions: " [if the defendant's] will has been overborne and his capacity for self-determination critically impaired, the use of [the] confession offends due process." Schneckloth v. Bustamonte, 412 U.S. 218, 225-26, 93 S.Ct. 2041, 2047, 36 L.Ed.2d 854 (1973). " The voluntariness of a confession is assessed based on the totality of the circumstances surrounding the making of the confession." Mills v. Commonwealth, 996 S.W.2d 473, 481 (Ky.1999). However, the threshold question to a voluntariness analysis is the presence or absence of coercive police activity: " coercive police activity is a necessary predicate to the finding that a ...