APPEAL FROM JEFFERSON CIRCUIT COURT HONORABLE JUDITH E.
MCDONALD-BURKMAN, JUDGE NO. 14-CR-000973
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.
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.
convictions arose from three separate robberies committed in
downtown Louisville in January 2014.
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.
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
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
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
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). (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
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.
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.
The trial court did not err in declining to suppress
Smith's statements to Detective Ditch.
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
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.
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 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).
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).
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).
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
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.
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.
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.
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.
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.
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.
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
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
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.
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
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