ON APPEAL FROM ROCKCASTLE CIRCUIT COURT HONORABLE DAVID A. TAPP, JUDGE NOS. 11-CR-00046, 11-CR-00071
COUNSEL FOR APPELLANT: Roy Alyette Durham, II Assistant Public Advocate.
COUNSEL FOR APPELLEE: Jack Conway Attorney General Julie Scott Jernigan Assistant Attorney General.
Appellant, Delbert W. Leger, appeals as a matter of right, pursuant to Ky. Const. § 110, from a judgment of the Rockcastle Circuit Court convicting him of one count of theft of identity (KRS 514.160) and one count of theft by deception under $500.00 (KRS 514.040). After further finding Appellant guilty of the status offense of first-degree persistent felony offender (PFO), the jury fixed his sentence at twenty years' imprisonment for theft of identity and one hundred and eighty days' imprisonment for theft by deception, both to be served concurrently, for a total sentence of twenty years' imprisonment. The trial court imposed the sentence accordingly.
On appeal, Appellant raises several grounds for reversal. Most significantly, Appellant argues that after he was taken into police custody, he was not properly advised of his Miranda rights, and therefore the statement he subsequently made to police was improperly admitted into evidence. In the particular circumstances of this case, Appellant raises an issue of first impression for this Court. Upon consideration of that issue, we reverse the conviction and remand this matter to the Rockcastle Circuit Court for further proceedings. Of the other issues raised in this appeal, we address only those that are likely to recur upon retrial of the case.
I. FACTUAL AND PROCEDURAL HISTORY
According to the Commonwealth's theory, Appellant engaged in a scheme to take money from several acquaintances of his brother, Doug Leger, who was confined to a nursing home. Pretending to be Doug, Appellant called as many as eight of Doug's acquaintances and falsely claimed to have an urgent need for money. Although there was some variation on the theme with each victim, Appellant generally explained that "his" (meaning Doug's) girlfriend was stranded out-of-state with car trouble and needed money in order to return home. The amount solicited from each victim ranged from $100.00 to $350.00 and was paid by either cash or check. Since Doug was in a nursing home, the caller informed the victim that Appellant would collect the money. As a result of this scheme, Appellant was indicted for a single count of theft of identity and a single count of theft by deception that identified eight individuals as victims of the theft. The Commonwealth determined that Appellant had taken a total of $1, 714.00 from at least eight victims using this scheme.
Trooper Allen of the Kentucky State Police arrested Appellant. Allen and Appellant had been acquainted with each other for many years. On the way to the Rockcastle County Sheriffs Office in Allen's cruiser they began conversing about a variety of topics. During that conversation, Appellant volunteered an unsolicited incriminating statement. Immediately thereafter, Allen advised Appellant of his Miranda rights. At the sheriff's office, Allen formally questioned Appellant and recorded the session on an audio recording device. In the beginning of the interview, Allen stated: "You know I've advised you of your rights, you know your rights, you don't have to talk to me." Appellant responded in the affirmative. Appellant then admitted to making one of the telephone calls and using his brother's identity to obtain money. However, when Allen questioned Appellant about a specific call to another individual, Appellant abruptly asked Allen, "What I am telling you now is between us, right. It ain't goin' [unintelligible]? Allen replied, "Right." Appellant subsequently confessed to taking money from five of the eight victims identified in the indictment, and made other incriminating remarks that were used against him at trial, including admissions that he used illegal drugs.
Appellant was then charged by the Rockcastle County Grand Jury with a single count of theft of identity, and a single count of felony theft by deception ($500 or more) that identified eight individual victims, although the largest amount taken from any single victim was $350.00. In subsequent pre-trial proceedings and upon the basis that the individual misdemeanor thefts could not be aggregated to make a felony offense, the Commonwealth moved to amend the charge to a single misdemeanor count of theft by deception under $500. KRS 514.040(8).
At trial, Appellant denied that he made any of the telephone calls to the victims, and testified that he picked up the money at the request of Doug and Doug's girlfriend. He stated that he had done this for his brother on prior occasions, and for his services he was given a portion of the money collected. He claimed that he had falsely admitted to Trooper Allen that he made the calls so that Doug's girlfriend would not be arrested. Doug testified at trial that he was not responsible for the telephone calls. There was no testimony from any witness identifying Appellant as the caller. As previously noted, the jury convicted Appellant on both charges, and of being a PFO.
II. THE OFFICER'S ASSURANCE OF CONFIDENTIALITY VITIATED PREVIOUSLY GIVEN MIRANDA WARNINGS.
This case presents us with an issue we have not heretofore addressed: whether Trooper's Allen's agreement that Appellant's statement would be confidential vitiated the previously-given Miranda warning. Appellant argues that his incriminating statements were made without a fair understanding and voluntary waiver of his Miranda rights, and the trial court erred in failing to suppress them. He further contends that the "excessively friendly" interrogation conducted by Trooper Allen was so deceptive that it unfairly induced Appellant to forget that the trooper was an "adversary, " and "revealed an atmosphere" that prompted Appellant to speak against his better interest.
First, we see absolutely nothing improper about Trooper Allen's courteous and friendly demeanor or the impression of cordiality created by his manner of speaking with Appellant. There is nothing wrong with civility in police interrogations. We do, however, find ourselves in agreement with Appellant that Trooper Allen's response to a question posed by Appellant during his custodial interrogation vitiated the Miranda warning by assuring ...