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Smith v. Commonwealth

Supreme Court of Kentucky

June 15, 2017



          COUNSEL FOR APPELLANT: Bruce P. Hackett Chief Appellate Defender Joshua Michael Reho Assistant Public Advocate.

          COUNSEL FOR APPELLEE: Andy Beshear Attorney General of Kentucky Matthew Robert Krygiel Assistant Attorney General.



         Darnell Smith was convicted of a number of offenses related to three separate robberies and sentenced to a total of 25 years in prison. In this matter-of-right appeal, he raises four claims of error: (1) that admitting his recorded statements to a detective violated his Miranda rights; (2) that barring him from introducing evidence of his refusal to sign a Miranda-waiver form prevented him from fully informing the jury of the circumstances surrounding his statements and thus infringed his right to present a complete defense; (3) that admitting evidence of a sweatshirt with no apparent connection to any of the charged offenses was reversible error; and (4) that denying his motion to sever the charged offenses for separate trials was reversible error. This Court affirms.

         I. BACKGROUND

         Smith's convictions arose from three separate robberies committed in downtown Louisville in January 2014.

         The first occurred on the evening of January 18. Wesley Kingsolving was waiting at a bus stop when two men asked him whether they should walk or take the bus to the Phoenix Hill Tavern (which happened to be very close to Kingsolving's apartment). He recommended the bus and volunteered to show them which stop to get off at because he lived across the street from the bar. So they all rode the bus and got off at the same stop. Kingsolving pointed out the bar before turning and heading home. But the two men did not go to the bar; they robbed Kingsolving instead. The robbers physically assaulted Kingsolving and forced him to let them into his apartment-there they stole a backpack, money, an Xbox, a laptop, condoms, and a cell phone. The lead assailant-the taller of the two men, whom Kingsolving would later identify through a police photo lineup and at trial as Smith-also threatened to shoot him with a "clip." After the robbers left, Kingsolving asked a neighbor to call 911. Surveillance cameras on the bus captured images of the men.

         Thirty minutes later, the second robbery happened about one-and-a-half miles away, outside the Jewish Hospital campus downtown. There, two men approached a Jewish Hospital nurse, Joshua Worthington, who was outside on a smoke break. One of the men asked him for a cigarette, and Worthington declined. The man walked away but immediately returned and asked instead for a drag from the cigarette Worthington was then smoking. Worthington again declined. The man punched him in the face, stole his cellphone, and ran away. Worthington never positively identified who struck him, but described his assailant as a black male who had "acne scars on his face" and was wearing a dark coat or jacket. (Smith has distinctive facial scars.) Surveillance cameras outside the hospital recorded the assault and captured images of the two assailants-their appearance matched that of the two suspects recorded on the bus surveillance before the Kingsolving robbery.

         The third robbery occurred almost one week later, on January 24. That evening, Rodney Pino arrived in the parking lot of his apartment with his son and noticed two men standing in the lot. As he parked his car, one of the men approached and asked for a cigarette. Pino said, "Yes." But as he was exiting his vehicle, the man grabbed him. Pino tried to fight him off. During the struggle, according to Pino, the man implied that he had a gun and threatened, "You don't want it." Eventually, after Pino's son threw something at him, the attacker ordered his companion into Pino's car's driver seat. The attacker jumped into the passenger's seat, and they fled with the vehicle.

         Patrol officers soon encountered the stolen vehicle on the road-the ensuing chase ended when the vehicle crashed. Smith exited from the passenger side of the crashed vehicle and briefly attempted to flee on foot before submitting to police. Law enforcement never apprehended the driver (and Smith never identified him, claiming that he hadn't known the man well and was unsure even of his name). Pino arrived at the scene a short time later and identified the handcuffed Smith as his attacker; he would identify Smith as his attacker at trial as well. When police arrested him, Smith was wearing a dark jacket that appeared to be the same jacket that he was wearing in the bus and hospital surveillance footage from the earlier robberies.

         Smith was charged with three counts of first-degree robbery, first-degree burglary, first-degree fleeing or evading police, two counts of third-degree terroristic threatening, and being a second-degree persistent felony offender (PFO).[1] (For all, he was charged with either principally committing or else being complicit in the commission of each offense. See KRS 502.020.) Before trial, he moved to sever the charges and have separate trials held for each of the three robberies; the trial court denied the motion.

         After a three-day trial, the jury found Smith guilty of the three first-degree robbery counts, first-degree burglary, second-degree fleeing or evading police, - both counts of third-degree terroristic threatening, and being a second-degree PFO. The trial court sentenced him to a total of 25.years' imprisonment as recommended by the jury.

         Smith now appeals to this Court as a matter of right. See Ky. Const. § 110(2)(b). We will develop additional facts as needed in the discussion below.

         II. ANALYSIS

         A. The trial court did not err in declining to suppress Smith's statements to Detective Ditch.

         Smith's first claim of error involves statements he gave to Detective Matt Ditch about the Worthington robbery while he was in jail on other charges. Smith claims that the trial court erred in denying his motion to suppress the statements, which he argues Detective Ditch procured in violation of his Fifth Amendment right to counsel. See Edwards v. Arizona, 451 U.S. 477, 485-86 (1981) ("The Fifth Amendment right identified in Miranda [v. Arizona, 384 U.S. 436 (1966)] is the right to have counsel present at any custodial interrogation.") .[2]

         We review suppression decisions under a mixed standard of review, employing a two-step process. First, we examine the trial court's factual findings for clear error. Welch v. Commonwealth, 149 S.W.3d 407, 409 (Ky. 2004). We treat those findings as conclusive if supported by substantial evidence. Bauder v. Commonwealth, 299 S.W.3d 588, 591 (Ky. 2009). We then review the application of the law to those facts de novo, giving no deference to the lower court's legal conclusions. Id.

         Smith's claim rests on an alleged violation of his rights under the Fifth Amendment as laid out by the United States Supreme Court in Miranda. Broadly speaking, to protect the Fifth Amendment right not to incriminate oneself, Miranda laid out a set of constitutionally mandated guidelines that state authorities must follow to obtain self-incriminating statements that may be used against the defendant at trial. See United States v. Dickerson, 530 U.S. 428, 434-35 (2000). The Miranda requirements are geared toward mitigating against the inherently coercive nature of isolated and pressured interactions with police-namely, custodial interrogations. Id. Those protections are not implicated unless and until the suspect is both "in custody" and subject to interrogation[3] by the state. Rhode Island v. Sims, 446 U.S. 291, 300-01 (1980). To introduce statements obtained through in-custody interrogation without a lawyer present, the state has the burden of showing that the defendant knowingly and intelligently waived his rights and chose to speak to police voluntarily. Miranda, 384 U.S. at 475; see also North Carolina v. Butler, 441 U.S. 369, 373 (1979).

         If a suspect clearly asserts his right to remain silent and to have counsel, a bright-line rule prohibits any further questioning without counsel being present. Edwards, 451 U.S. at 484. The Edwards rule in effect renders any post-invocation waivers presumptively invalid-post-invocation waivers are not considered voluntary if obtained through police persistence. Id. The rule bars "police from badgering a defendant into waiving his previously asserted Miranda right... by presuming his postassertion statements to be involuntary." Montego v. Louisiana, 556 U.S. 778, 787 (2009).

         But that bright-line presumption is overcome if the suspect himself "initiates further communication, exchanges, or conversations with the police." Edwards, 451 U.S. at 485. "Edwards does not foreclose finding a waiver of Fifth Amendment protections after counsel has been requested, provided the accused has initiated the conversations or discussions with the authorities." Minnick v. Mississippi, 498 U.S. 146, 156 (1990). "Only the suspect may reinitiate dialogue with the authorities; the authorities cannot continue to cajole or otherwise induce the suspect to continue to speak without first affording the suspect an attorney." Bradley v. Commonwealth, 327 S.W.3d 512, 518 (Ky. 2010).

         Edwards does not, however, protect a Miranda invocation in perpetuity. Instead, it is subject to an expiration date of sorts, recognizing that the coercive pressures engendered by a custodial setting subside as time passes after a break in custody. See Maryland v. Shatzer, 559 U.S. 98, 107-08 (2010). Indeed, the Supreme Court crafted a bright-line rule dictating when the Edwards presumption expires: 14 days. Shatzer, 559 U.S. at 110. "That provides plenty of time for the suspect to' get reacclimated to his normal life, to consult with friends and counsel, and to shake off any residual coercive effects of his prior custody." Id. So once 14 out-of-custody days have passed, law enforcement is not barred from rewarning under Miranda and reinitiating questioning; the onus is then on the suspect to reinvoke or waive.

         With those general principles in mind, we turn to what happened here. As mentioned above, Smith was arrested for the Pino robbery on January 24, 2014. He remained thereafter in the Louisville Metro Department of Corrections jail on those charges. While he was in jail, police investigations tied him to the other two robberies as well. Detective Ditch was the lead investigator for the Worthington case.

         On March 7, Detective Ditch traveled to the jail and met with Smith in an interrogation room. He attempted to ask Smith questions, but Smith "immediately refused" to speak to him and instead "lawyered up." So the detective ceased questioning and left.

         Almost a month later, on April 3, Detective Ditch returned to the jail, at an Assistant Commonwealth's Attorney's request, to again try to speak to Smith about the Worthington robbery. The second time around, Smith was more receptive-he eventually conceded to the detective that one of the men on the Jewish Hospital surveillance footage was indeed he, yet maintained that he was innocent of the Worthington assault and robbery. An audio recording of this interview was played for the jury at trial.

         In claiming that the Constitution required suppressing his statements to Detective Ditch, Smith begins by arguing that his invoking his Miranda rights when the detective first tried to speak with him on March 7 barred the later questioning on April 3. Once he invoked, he insists, law enforcement was prohibited from questioning him at all unless counsel was present or Smith reinitiated dialogue with the authorities himself. Since he did not initiate further communications with law enforcement nor was an attorney made present, Smith contends Detective Ditch violated his rights when he returned on April 3 to try again to get him to talk. So he insists that any waiver of his rights after being rewarned of them was ineffective under Edwards's bright-line prohibition against post-invocation questioning. A suspect's subsequent waiver after invoking is deemed involuntary and invalid if it was the product of police prodding-he claims that is exactly what the second try on April 3 was.

         Smith is mistaken. His argument, given Shatzefs 14-day rule, presupposes that he remained "in custody" under Miranda during the nearly month-long period between Detective Ditch's visits. In doing so, he relies on a flawed premise: he takes as granted that "locked up" equals "in custody"-it does not.

         What Smith's argument loses sight of is that in this Fifth Amendment context, custody is a judicially defined legal term of art, untied as it were from many of the usual senses of the term-it is limited to circumstances that entail "a serious danger of coercion." Howes v. Fields, 565 U.S. 499, 508-09 (2012). Just because a person is incarcerated when interviewed does not invariably mean that he is in "custody" for Miranda purposes. See id at 508. More to the point, at least where the custodial interrogation is unrelated to the reason the suspect is incarcerated, an inmate-suspect's post-invocation return to the jail's general population is conceptually indistinguishable from an unjailed suspect's invoking, being released from custody, and going home. See Shatzer 559 U.S. at 113-14.

         So once Smith was returned to the jail's general population after he invoked on March 7, he was no longer in custody under Miranda. Because more than 14 noncustodial days passed before Detective Ditch returned on April 3, that earlier invocation did not bar the detective from reinitiating questioning after he rewarned Smith of his rights, which Smith was then obliged to reassert or else waive.

         Smith argues that even if his March 7 invocation should be deemed to have expired, suppression was still required because he indeed reasserted his rights on April 3; the Commonwealth disagrees, insisting that he waived them and spoke to the detective voluntarily.[4]

         If Smith is correct, of course, we would be left to conclude that the Edwards rule should have barred the admission of his statements. 451 U.S. at 485. The applicability of that "rigid" rule requires courts to "determine whether the accused actually invoked his right to counsel." Davis v. United States, 512 U.S. 452, 459 (1994) (quoting Smith v. Illinois, 469 U.S. 91, 95 (1984)). So the question is: Did Smith clearly ask for counsel to be present during the custodial interrogation? To answer that requires us to consider the relevant dialogue between suspect and detective.

         Detective Ditch kicked off the April 3 encounter with Smith by reading aloud all of his Miranda rights-including his right to cut off questioning at any time and ask for counsel-from a waiver form that he hoped to have Smith sign. This exchange followed:

Ditch: If you would sign [the waiver form] for me before I talk to you, I'd appreciate it. You don't have to. If it's, ...

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