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Commonwealth v. Terrell

Supreme Court of Kentucky

April 2, 2015


Released for Publication August 20, 2015.


COUNSEL FOR APPELLANT: Jack Conway, Attorney General of Kentucky; Heather Michelle Fryman, Assistant Attorney General.

COUNSEL FOR APPELLEE: Jason Apollo Hart, Assistant Public Advocate.



Police took Samuel Terrell into custody to question him while investigating his mother's murder, but a circuit court order halted the questioning until Terrell was allowed access to a public defender. Terrell's father procured this order from the circuit judge, ex parte, purportedly under the authority of Kentucky Rule of Criminal Procedure (RCr) 2.14(2). The Commonwealth appealed the order; and the Court of Appeals affirmed the circuit court's issuance of the order based on our interpretation of RCr 2.14(2) in West v. Commonwealth,[1] which held that courts had the authority to interrupt police interrogations and to mandate the accused's access to an attorney at the request of a benevolent third party. We granted the Commonwealth's motion for discretionary review.

Reversing the opinion of the Court of Appeals, we retreat from the broad holding in West by rejecting the notion that RCr 2.14(2) somehow allows a trial courts to exercise its constitutional authority to intervene pre-prosecution to enjoin police from questioning a suspect. Instead, we hold that except for constitutionally mandated authority to issue search warrants, courts are not vested with general jurisdiction over a criminal matter until the criminal matter becomes a criminal case upon commencement of prosecution. We agree with West in the general sense that an accused has a right to an attorney during an interrogation and RCr 2.14(2) guarantees attorneys be given access to their clients in custody, but we do not read RCr 2.14(2) as a vehicle for the appointment of an attorney or interference by the judicial branch in pre-prosecution criminal investigations. Finally, we hold that a motion to suppress is the appropriate weapon to attack an allegedly improper interrogation resulting from the denial of access to counsel. Accordingly, we reverse the opinion of the Court of Appeals and vacate the circuit court's order.


The record on appeal is sparse. There is a great deal we do not know from the record about Terrell's arrest, his subsequent interrogation, and the trial court's order stopping the interrogation. But what we do know is that Terrell's mother's dead body was found in a pool of blood in the early morning hours of May 13, 2011, on the floor of her apartment, the apparent victim of a shooting. When first-responders arrived at the apartment, Terrell and his brother were there.

Three witnesses, including Terrell's brother and sister and an acquaintance, informed police that Terrell had been at the apartment late on the evening of May 12. Terrell's brother further informed police that at approximately 2:30 a.m., Terrell arrived at his apartment and informed him " someone" had hurt their mother. The acquaintance told police that she, along with others, dropped Terrell off at his mother's apartment--where he also resided--around 1:45 a.m. Terrell's sister described a contentious relationship between Terrell and his mother.

The exact time is unknown, but at some point on the morning of May 13, police arrested Terrell as a suspect. Based on the information mentioned above, at 6:13 a.m., police obtained a search warrant for Terrell's person and his apartment. The search warrant included authorization to search 141 clothing worn by Samuel Jay Terrell at the time he was taken into custody." Because of this skeletal information in the record, we are forced to assume Terrell was taken into custody sometime between 2:30 a.m. and 6:13 a.m. The record is silent from the issuance of the search warrant until 12:35 p.m., the time we assume the circuit judge wrote as he signed the order that was entered by the circuit clerk directing that " officers shall cease all questioning of Samuel Terrell[ until he is allowed access to an attorney from the Public Defenders [sic] Office." By the terms of the order and the recitation of facts by both parties, Terrell's father approached the circuit judge, ex parte, and obtained the order.

The record does not disclose whether interrogation had begun at the time of the order; what Terrell said to police, if anything; whether he was Mirandized; or whether he waived his right to counsel. In its statement of the case, the Commonwealth states that Terrell " did not request counsel" and " [a]t the time of the Order, Terrell had not requested an attorney[.]" But these assertions, while perhaps accurate, are not supported anywhere in the record.

Curiously, we are presented with no evidence that Terrell was ever actually represented by the public defender as the order directs. At his arraignment on May 18, the record shows Terrell represented by private counsel. Perhaps even more curiously, the notice of appeal lists both the private ...

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