ON APPEAL FROM HART CIRCUIT COURT HONORABLE CHARLES C. SIMMS, JUDGE NOS. 10-CR-00137, 10-CR-00031
COUNSEL FOR APPELLANT: Molly Mattingly Assistant Public Advocate.
COUNSEL FOR APPELLEE: Jack Conway Attorney General Christian Kenneth Ray Miller Assistant Attorney General.
Kenneth Buster appeals from his conviction of four counts of complicity to rape (victim under 12 years of age); and one count each of first-degree rape, first-degree sodomy, and first-degree sexual abuse. Buster entered a conditional guilty plea, reserving the right to appeal the trial court's denial of a motion to suppress statements made to a social worker. We affirm.
On October 1, 2009, the Cabinet for Health and Family Services ("Cabinet") was advised of an allegation of sexual abuse involving a minor female. As a result, Benson Bell, a social worker with the Cabinet, interviewed the alleged victim who claimed that Appellant had anal sex with her. Bell then spoke to Appellant's wife, Patricia Buster, who had also been named in the allegations. Patricia provided Bell with a list of names of children that Appellant had molested, claiming that she knew he had molested them because she had either taken part in, or witnessed, the acts.
In November 2009, Bell went to the Kentucky State Reformatory in Lagrange, Kentucky and interviewed Appellant about the allegations. Appellant was incarcerated there and serving a sentence in an unrelated case. It is undisputed that Bell did not give Miranda warnings to Appellant before questioning him. During the interview, Appellant admitted to numerous acts of sexual abuse involving multiple victims.
Appellant was ultimately charged with 718 counts of sexual crimes involving multiple alleged victims in Indictment No. 10-CR-00031, and an additional 60 counts of sexual crimes involving another alleged victim in Indictment No. 10-CR-00137. Prior to trial, defense counsel moved to suppress Appellant's statements to Bell on grounds that Appellant was not provided with Miranda warnings. Following a hearing, the trial court denied Appellant's motion, making extensive findings of fact and conclusions of law, including the following:
The fact that someone is incarcerated on an unrelated charge does not mean that the prisoner is "in custody" for Miranda purposes.
. . . [T]his Court finds that it must consider the totality of the circumstances when it determines whether Buster was in custody for Miranda purposes. As a result, this Court has considered the following: (1) that Bell is a social worker without any power to arrest, and (2) that there is no evidence to suggest that Bell was working in conjunction with the Munfordville City Police Department or any other police agency when he visited with Buster. In addition, this Court has watched the videotaped interview and ascertained the following: (1) that Buster was not shackled, (2) that Buster appears to be comfortable as he drinks from a white cup, (3) that a guard identifies himself as being present, (4) that this guard never makes any further statements throughout this interview, (5) that this interview only takes approximately thirty minutes, (6) that Buster confirms that he was not coerced or forced to make any statement, and (7) that Buster admits that has [sic] statements were provided of his own free will. After considering the totality of the circumstances, this Court finds that Buster's Fifth Amendment right securing the privilege against self-incrimination has not been violated.
Having so found, the trial court denied Appellant's motion to suppress the statements made to Bell. Thereafter, pursuant to Appellant's conditional guilty plea, Appellant was sentenced to a total of 25 years imprisonment as follows. In Indictment No. 10-CR-00031, Appellant pled guilty to four counts of complicity to rape (victim under 12 years of age) and was sentenced to 25 years on each count, to run concurrently. In Indictment No. 10-CR-00137, Appellant pled guilty to one count each of first-degree rape, first-degree sodomy, and first-degree sexual abuse. He was sentenced to 25 years each on the rape and sodomy charges and five years on the sexual abuse charge, to run concurrently with each other and with the sentence in 10-CR-00031. This appeal followed.
When reviewing an order denying a motion to suppress, we consider the trial court's findings of fact "conclusive" if they are "supported by substantial evidence." RCr 9.78. "Using those facts [if supported], the reviewing court then conducts a de novo review of the trial court's application of the law to those facts to determine whether the decision is correct as a matter of law." Commonwealth v. Jones, 217 S.W.3d 190, 193 (Ky. 2006). The only evidence presented at the suppression hearing was the testimony of Benson Bell. Appellant presented no evidence. Having reviewed the record, we adjudge the findings to be supported by substantial evidence, with the exception of the finding that Bell was not working in conjunction with law enforcement.
Next, we must determine whether the trial court properly determined that Appellant was not entitled to Miranda warnings. "In order to use statements, whether exculpatory or inculpatory, made by a defendant subjected to custodial interrogation, the prosecution must demonstrate that the Appellant was advised of his Fifth Amendment rights, including the right to remain silent and the right to an attorney." Cummings v. Commonwealth, 226 S.W.3d 62, 65 (Ky. 2007) (citing Miranda v. Arizona, 384 U.S. 436, 444 (1966)). We have consistently recognized that "Section Eleven of the Constitution of Kentucky and the Fifth Amendment to the Constitution of the ...