United States District Court, E.D. Kentucky, Southern Division, Pikeville
MEMORANDUM OPINION & ORDER
M. Hood, Senior U.S. District Judge
matter is before the Court for a review of the Report and
Recommendation of Magistrate Judge Edward B. Atkins [DE 523].
Said action was referred to the magistrate for the purpose of
reviewing the merit of Defendant's Motion to Suppress [DE
485]. In his Report and Recommendation, the Magistrate Judge
recommends that the Court deny Arny's motion. Defendant
has filed Objections [DE 528], to which the United States has
filed a Response [DE 541], and this matter is ripe for
consideration. For the reasons stated below, the Report and
Recommendation will be accepted and the motion to suppress
will be denied.
State Police officers arrested Defendant Dr. Stephen C. Arny
at his Shelbyville home in August of 2012. While Defendant
waited for someone to pick up a child at the home, he spoke
with Detective Randy Hunter, a KSP officer who executed the
arrest warrant. For about 30 minutes, the defendant and Det.
Hunter spoke, and Defendant answered several of the
officer's questions. DE 419 at 32-33. After Defendant was
arrested, he made additional statements to Det. Hunter en
route to the jail. Id. at 65. The parties do not
dispute that Defendant was in custody during his
conversations with Det. Hunter, but dispute the United
States' contention that Defendant was read his rights.
United States Magistrate Judge Edward B. Atkins held a
hearing on November 21, 2016, to address this factual dispute
between the parties. DE 491.
hearing before the magistrate judge, Det. Hunter testified
that he used a standard form a KSP-096 (introduced into
evidence as Exhibit 1) to effectuate the Miranda
warning and read the form's five provisions containing
those Fifth Amendment rights. DE 501 at 11. Det. Hunter
testified that Defendant understood his rights and his waiver
of them but that “he also said that he didn't want
to sign anything” and “did not sign the
form.” Id. at 11, 14. After that
acknowledgement, Det. Hunter testified that he and Defendant
walked through the house and talked. Id. at 15-16.
In his recommendation, the magistrate judge noted that Det.
Hunter's testimony at the hearing matched his testimony
during trial. DE 523 at 5. Another KSP officer on the scene
at the time of Arny's arrest, Trooper Matt Rogers,
corroborated Det. Hunter's testimony during the hearing.
DE 501 at 33-34 (“I remember [Hunter and Arny] sitting
down at the table in the array of events and Mr. Hunter
reading his Miranda rights to him.”).
testified on his own behalf at the evidentiary hearing before
the magistrate judge, that he was never read the
Miranda warning, and he did not recall seeing the
standardized form or hearing any discussion regarding it.
Id. at 39-40 (“I don't recall seeing that
form or hearing any discussion about a form.”). This
was inconsistent with his testimony during an earlier hearing
in this matter on July 10, 2015, before then-District Judge
Thapar, in which Defendant stated “I certainly
don't remember those famous words spoken to me that
day” but acknowledged Det. Hunter tried to put a form
in front of him that he declined to sign. DE 419 at 32-33
(“He was trying to get me to sit down and put a form in
front of me to sign and give a statement, and I declined. But
we were in the same room together, and we were waiting for
30, 40 minutes together and so there was casual
conversation.”). Yet, at the hearing before the
Magistrate Judge, Defendant said the form was not near him,
and he never saw it or sat down to discuss it. DE 501 at 41.
magistrate judge concluded that defendant was advised of his
Miranda rights by Det. Hunter. Based on his
findings, the judge recommended Defendant's motion to
suppress be denied. DE 523 at 10. The Defendant timely filed
an objection to the recommendation. DE 528.
to Federal Rule of Civil Procedure 72, a party may object to
and seek review of a magistrate judge's report and
recommendation. See Fed. R. Civ. P. 72(b)(2). If
objections are made, “[t]he district judge must
determine de novo any part of the magistrate judge's
disposition that has been properly objected to.”
Fed.R.Civ.P. 72(b)(3). Objections must be stated with
specificity. Thomas v. Arn, 474 U.S. 140, 151 (1985)
(citation omitted). Generally, “a judge of the court
shall make a de novo determination of those portions of the
report or specified proposed findings or recommendations made
by the magistrate judge.” 28 U.S.C. § 636.
However, when the petitioner fails to file any objections to
the Recommended Disposition, as in the case sub
judice, “[i]t does not appear that Congress
intended to require district court review of a
magistrate's factual or legal conclusions, under a de
novo or any other standard.” Thomas v. Arn,
474 U.S. 140, 150 (1985). “Only those specific
objections to the magistrate's report made to the
district court will be preserved for appellate review.”
Carson v. Hudson, 421 F.App'x 560, 563 (6th Cir.
2011) (quoting Souter v. Jones, 395 F.3d 577, 585-86
(6th Cir. 2005)). The court may “accept, reject, or
modify, in whole or in part, the findings or recommendations
made by the magistrate judge.” 28 U.S.C. §
636(b)(1). When attacking a district court or magistrate
judge's credibility determination, the party challenging
it must show why it is clearly erroneous. United States
v. Cooke, 915 F.2d 250, 252 (6th Cir. 1990).
defendant's statements can only be admitted as evidence
if he or she has been informed of their right to remain
silent, that any statement they make may be used as evidence,
and that they have the right to have an attorney present.
Miranda v. Arizona, 384 U.S. 436, 444 (1966). The
defendant can waive his or her Fifth Amendment rights if done
so knowingly, intelligently and voluntarily. Id. The
United States Supreme Court in Withrow v. Williams,
507 U.S. 680 (1993) provided factors the court can consider
when evaluating if defendant voluntarily waived his or her
Miranda rights. Those factors include the length,
location, and continuity of the interrogation; the
suspect's education, maturity and physical and mental
health; whether the person was actually advised of his or her
rights; and whether there was any police coercion.
Id. at 693-94. The government bears the heavy burden
of proving the defendant waived his or her Miranda
rights by a preponderance of the evidence. United States
v. Bentley, 726 F.2d 1124, 1128 (6th Cir. 1984);
Colorado v. Connelly, 497 U.S. 157 (1986).
the Withrow factors, Defendant argues only that the
officer's failed to read his Miranda rights.
Additionally, the defendant gives a few reasons why he thinks
the Magistrate Judge's decision is erroneous: (1) the
standardized form Det. Hunter produced was not the actual
form presented to Defendant, but was a sample copy, and Det.
Hunter confirmed there was no signed copy of the standard
form, (2) Det. Hunter's written statement is
self-corroborating, and was not signed by Defendant or
recorded, and (3) it would be unlikely for a lower-ranked
trooper to testify against his superior in both rank and
the issue of the standardized form, the United States Supreme
Court has held that the refusal to make a written statement
or confession does not negate a waiver of rights.
Connecticut v. Barrett, 479 U.S. 523, 529 (1987).
Defendant argues he never signed a waiver or written
statement. However, this is not a requirement under
Miranda or subsequent case law; the defendant need
not sign a written statement for a waiver of rights to be
effective. He simply needed to hear the warnings and waive
them orally for a statement to be admissible. According to
the testimony of Det. Hunter, Defendant did orally waive
those rights without signing the form. However, because the
defendant's testimony directly contradicts Det.
Hunter's, regarding whether the rights were read at all,
the Court must make a determination of credibility regarding
the testimony to settle the issue.
testimony is contradictory as to whether Miranda
warnings were given, the Court is asked to make a credibility
determination and explain how it came to that conclusion.
Cooke, 915 F.2d at 252. Considerable deference is
given to the judicial officer at the suppression hearing
tasked with evaluating credibility. Id. If the
judicial officer at the suppression hearing finds the
defendant's testimony to be implausible compared to other
or previous testimony, he has the discretion to find the
defendant's testimony to be discredited. United
States v. Caldwell, 518 F.3d 426, 430 (6th Cir. 2008)
(upholding district judge's determination that the
defendant's testimony was not credible where defendant
testified that he did not ...