Opinion
NO. 2014-CA-000837-MR
05-13-2016
COMMONWEALTH OF KENTUCKY APPELLANT v. CECIL WILLIAM HOLLERAN APPELLEE
BRIEFS FOR APPELLANT: Jack Conway Attorney General of Kentucky Kimberly Henderson Baird Assistant Attorney General Frankfort, Kentucky BRIEF FOR APPELLEE: Samuel N. Potter Assistant Public Advocate Department of Public Advocacy Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE ERNESTO M. SCORSONE, JUDGE
ACTION NO. 12-CR-00678 OPINION
AFFIRMING
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BEFORE: MAZE, STUMBO, AND TAYLOR, JUDGES. TAYLOR, JUDGE: Commonwealth of Kentucky brings this appeal from an April 28, 2014, opinion and order of the Fayette Circuit Court granting Cecil William Holleran's motion to suppress. We affirm.
The relevant facts are uncontroverted and were summarized by the circuit court as follows:
Detective David Flannery ("Det. Flannery") works with the Lexington Division of Police, Internet Crimes Against Children Division. Det. Flannery was contacted by a detective in the Lake County Sheriff's in Illinois who provided information that a juvenile in his jurisdiction had been having sexual conversations with an individual on the Internet who's IP address originated in Lexington, Kentucky.
On March 13, 2012[,] Det. Flannery and Detective Martin Shearer ("Det. Shearer") arrived at the residence from which the IP Address originated, which was owned by Sherry and Ronald Bailey (collectively "Baileys"). The Detectives approached the residence dressed in their detectives clothing and with their badges visible with the intent to perform a knock and talk investigation. Defendant Cecil Holleran ("Holleran") answered the door. Det. Flannery and Det. Shearer identified themselves as detectives with the Lexington Police Department and explained that their presence was due to an investigation. They asked . . . Holleran if they could enter and Holleran invited them into the residence.
Holleran took Det. Flannery and Det. Shearer into the kitchen where Det. Flannery talked to Holleran about Internet activity which had originated from the residence. Holleran advised the detectives that there was only one computer in the residence, a laptop which he produced. The laptop had a broken screen. During the conversation, Holleran admitted he had used a fake Facebook account to communicate with several juveniles, including the juvenile from Illinois. Holleran then took the detectives to his bedroom, where the Detectives found a fully functioning desktop computer. The Detectives also discovered several envelopes with return addresses of females from several states, including the juvenile from Illinois.
The detectives and Holleran returned to the kitchen where . . . Det. Flannery explained that they would like Holleran to complete a Consent to Search form and what this would entail. This conversation was recorded by Det. Flannery. During this process, the detectives never
indicated to Holleran that he was under arrest and communicated to Holleran that he was not required to consent. The form also included a written advisement which indicated that the signatory is not required to consent. Holleran completed the form, which gave consent to Det. Flannery to search two bedrooms in the residence primarily used by Holleran, including the bedroom with the functioning desktop computer. Det. Flannery conducted the search while Det. Shearer remained in the kitchen with Holleran.
Upon completion of the search, Det. Flannery advised that he would like Holleran to complete a consent form to allow the Detectives to remove from the bedroom the desktop computer, envelopes, and a notebook and take them to the police station. Holleran completed the consent form. Det. Flannery then asked Holleran to accompany him to the police station to talk about Holleran's communications with the juvenile in Illinois. Holleran consented and was driven by another police officer to the police station.
Holleran was then placed in an interview room. According to Det. Flannery, Holleran was not in custody or under arrest. At the outset of Det. Flannery's questioning he presented Holleran with a consent form to search the computer taken from Holleran's bedroom which authorized a forensic examination of the computer. Det. Flannery gave Holleran an opportunity to read over the consent form. Holleran indicated he understood it and then signed it.
In answering a series of questions from Det. Flannery, Holleran stated he had no mental or physical impairments and that he made it to college but failed out during the first year. Holleran also answered in the affirmative that he arrived at the police station willingly. Det. Flannery testified that during this questioning he did not notice if Holleran had any mental deficiencies beyond a possible speech impediment.
Det. Flannery then read Holleran his Miranda Rights. When questioned by Det. Flannery whether he
understood his Miranda Rights and if he would be willing to answer questions, Holleran answered "yes" to both questions and he signed a Miranda waiver. At no time thereafter did Holleran ask to end the interview or invoke his Miranda rights. Holleran was also presented with consent to assume online identity, which authorizes law enforcement to take over online contact and social networking accounts to assist in official investigations. Holleran signed the consent form. The interview continued after that with questions about Holleran's online activities.
When the consent to search the computer was given by Holleran, Detective Jim Barber ("Det. Barber"), a computer forensic examiner, began investigating the contents of the bedroom computer. During his search, Det. Barber found an image of a juvenile between the ages of 10 and 12 with exposed genitals. Det. Barber's search ended at that point and he alerted Det. Flannery in the interview room of the image. Det. Flannery instructed Det. Barber to print out a redacted version of the image and bring the printout to the interview room. Det. Flannery presented the printout to Holleran who acknowledged he had seen it and that he had received it from a foreign individual.
At the end of the interview, Mr. Holleran was arrested for and charged with one count of Possession of Matter Portraying Sexual Performance by a Minor. He was transported to the Fayette County Detention Center. As Det. Flannery took Holleran to the Fayette County Detention Center transport unit, Holleran made a statement indicating he would like to talk more to Det. Flannery. Det. Flannery advised he did not have time to talk at that time, and said that he would visit Holleran the following day at the jail.
On March 14, [2012], the following day, Det. Flannery executed a search warrant of the computer which turned up several images and videos of matter portraying sexual performance by a minor. At this point, Holleran had been released from jail and was set for arraignment. After the arraignment and appointment of
attorney, Det. Flannery approached Holleran and advised him he was under arrest for other images and videos found on the computer. The two of them then walked over to the Lexington Police Department.
At the police station, Det. Flannery read Holleran his Miranda Rights and Holleran invoked his right to an attorney. Holleran was placed in a holdover cell. Holleran then indicated he wanted to talk to Det. Flannery but he did not want to go to jail. Det. Flannery told Holleran he would not ask him any questions since his right to an attorney had been invoked. Det. Flannery then left to pick up a record because Holleran made statements that he would like to talk to him. He returned to the holdover cell 10 to 15 minutes later. A sergeant joined Det. Flannery.
Det. Flannery told Holleran that he could not make the decision for him to talk or not. Det. Flannery also advised that he would not ask Holleran to talk because that would be coercion. Holleran responded that he did want to talk but he did not want to go to jail. Det. Flannery told Holleran that once he was arrested the decision of whether Holleran would go to jail could not change.
Det. Flannery advised Holleran that they were there to speak with him because Holleran had indicated a willingness to talk but that he, Det. Flannery, could not make that decision for him. Det. Flannery said they would stop talking with Holleran since he had invoked his right to counsel but he would listen if Holleran wanted to talk. This discussion continued with Holleran making comments that he did not want to go back to jail. Det. Flannery told Holleran he needed to make a decision about whether he wanted to and reminded him that he had indicated a desire to do so the day before and again after invoking his right to counsel earlier that day.
Holleran then stated he would like to talk. Det. Flannery asked if he was sure. In response, Holleran asked if he had a choice, which Det. Flannery said he did. Holleran then asked if he would still get an attorney if he
chose to talk. Det. Flannery responded that talking now would only give away the right to an attorney right then but would not mean he gave up his right to an attorney later on. Holleran said he would like to talk. Det. Flannery initiated questioning of Holleran. At the end of the discussion, Holleran was charged with four counts of Possession of Matter Portraying Sexual Performance by a Minor.April 28, 2014, Opinion and Order at 1-6.
Holleran was ultimately indicted upon five counts of possession of matter portraying a sexual performance by a minor. Kentucky Revised Statutes (KRS) 531.335. Due to Holleran's low mental functioning, he was evaluated for mental competency to stand trial, and a competency hearing was scheduled. At the hearing, Dr. Rebecca Abshier testified for the Commonwealth. Dr. Abshier stated that Holleran possessed an I.Q. of 65, which was consistent with mild mental retardation. Dr. Abshier also noted that Holleran tested at a third grade level for reading and a fourth grade level for spelling. Dr. Abshier opined that Holleran was competent to stand trial. Dr. Martin Smith testified for the defense. Dr. Smith diagnosed Holleran with borderline intellectual functioning and with an I.Q. of 70. Dr. Smith also concluded that Holleran was competent to stand trial.
By order entered March 22, 2013, the circuit court determined that Holleran possessed "the capacity to appreciate the nature and consequences of the proceedings against him and to participate rationally in his defense." Hence, the circuit court concluded that Holleran was competent to stand trial.
Due to the evidence amassed at the competency hearing concerning Holleran's mental deficiency, Holleran filed a motion to suppress evidence arguing that he did not knowingly or intentionally waive his Miranda rights or consent to the search of his property. A suppression hearing was conducted. Detective Flannery testified for the Commonwealth. Detective Flannery stated that he was unaware Holleran suffered from any mental deficit. Detective Flannery did observe Holleran had a speech impediment. Detective Flannery believed that Holleran knowingly and voluntarily waived his Miranda rights and consented to a search of his property. Dr. Smith testified for the defense. Dr. Smith opined that Holleran only possessed a basic understanding of his Miranda rights and did not fully appreciate the consequences of waiving these rights. Dr. Smith utilized the Standardized Assessment of Miranda Abilities (SAMA) to test Holleran and concluded that Holleran lacked the mental capacity to fully understand his waiver of the Miranda rights. By opinion and order entered April 28, 2014, the circuit court granted in part Holleran's motion to suppress. The circuit court denied the motion as concerns initial statements made to the police detectives by Holleran while in his house on March 13, 2012. However, upon accompanying the detectives to the police station, the circuit court concluded that Holleran was in police custody during the March 13, 2012, interrogation and that Holleran did not knowingly and intelligently waive his Miranda rights. Thus, the court suppressed all statements from the March 13, 2012, interrogation at the police station. The circuit court also determined that Holleran did not knowingly and intelligently waive his Miranda rights during the March 14, 2012, police interrogation at the police station and suppressed all statements therefrom. The circuit court further found that Holleran did not voluntarily sign consents to search and suppressed evidence seized as a result. This appeal follows.
Miranda v. Arizona, 384 U.S. 436; 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
The Commonwealth contends that the circuit court committed error by suppressing Holleran's statements made at the police station during interrogations on March 13, 2012, and on March 14, 2012. The Commonwealth also asserts that the circuit court erred by suppressing evidence obtained from Holleran's consents to search. We will initially analyze the propriety of suppressing Holleran's statements made during the March 13 interrogation, and then his statements made during the March 14 interrogation. Lastly, we will determine the validity of Holleran's consents to search.
I. MARCH 13, 2012, INTERROGATION
The Commonwealth argues that Holleran was not in custody at the police department, and even if he were in custody, Holleran validly waived his Miranda rights before commencement of the March 13 interrogation. The Commonwealth points out that Holleran agreed to accompany the police to the police department and that Detective Flannery specifically told Holleran that he was not under arrest. Once in the interview room at the police department, Detective Flannery stated that Holleran "was free to leave at anytime." Commonwealth's Brief at 9. Throughout the entire investigation and interrogation, the Commonwealth emphasized "[t]he voluntariness and congeniality of the encounter between the detectives" and Holleran. Commonwealth's Brief at 9. As Holleran was not subject to a custodial interrogation, the Commonwealth argues that Miranda warnings were unnecessary. Alternatively, the Commonwealth believes that Holleran intelligently and knowingly waived his Miranda rights prior to the custodial interrogation on March 13. To resolve this contention of error, we shall determine whether Holleran was in custody at the police department on March 13, and if so, whether Holleran validly waived his Miranda rights.
Cecil William Holleran was transported to the police station by a uniformed officer.
A. CUSTODY
The law is well-settled that "Miranda warnings are only required when the suspect being questioned is 'in custody.'" Com. v. Lucas, 195 S.W.3d 403, 405 (Ky. 2006) (citation omitted); see also Miranda v. Arizona, 384 U.S. 436; 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). Stated differently, it is incumbent upon police to advise a suspect of his constitutional right to remain silent and right to counsel's assistance before initiating a custodial interrogation. A custodial interrogation occurs when the suspect is arrested or when the suspect experiences a significant restraint on his freedom of movement. Lucas, 195 S.W.3d 403. If the suspect is not formally arrested, the test to determine custody is "whether, in light of the objective circumstances of the interrogation, . . . a reasonable person would have felt he or she was not at liberty to terminate the interrogation and leave." Peacher v. Com., 391 S.W.3d 821, 846 (Ky. 2013) (quoting Howes v. Fields, ___ U.S. ___, 132 S. Ct. 1181, 1189, 182 L. Ed. 2d 17 (2012). And, the circuit court's findings of fact are upheld unless clearly erroneous, but the legal issue of custody is reviewed de novo. Peacher, 391 S.W.3d 821.
In the case at hand, the material facts are undisputed. Before the interrogation at the police department, Detective Flannery uncovered incriminating evidence at Holleran's home, and Holleran also admitted to using a fake Facebook account to converse with juveniles. Detective Flannery also seized a desktop computer from a room utilized by Holleran. At this point, it is clear that Detective Flannery viewed Holleran as a suspect. Detective Flannery told Holleran that the Detective wanted Holleran to go with the police to the police department for questioning, and Holleran complied. Holleran was transported to the police department in the backseat of a police cruiser with doors that only opened from the outside and then was escorted to an interrogation room equipped with a recording device. It appears that Holleran was never left unattended at the police station. Moreover, the interrogation at the police department could not be categorized as cordial or neutral; rather, Detective Flannery's questioning was accusatory and at times belligerent. See Peacher v. Com., 391 S.W.3d 821. Based upon the objective circumstances, we agree with the circuit court that a reasonable person would not have felt that he was free to leave and that Holleran was subjected to custodial interrogation at the police department on March 13. See Lucas, 195 S.W.3d 403.
B. WAIVER OF MIRANDA RIGHTS
A suspect may validly waive his Miranda rights if such waiver was voluntary, knowing, and intelligent. Miranda, 384 U.S. 436; Dillon v. Com., 475 S.W.3d 1 (Ky. 2015). More particularly, the Courts have established a two-part test based upon the totality of the circumstances:
First, the waiver "must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception." Id. "Second, the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it." Id.Dillon, 475 S.W.3d at 13 (quoting Moran v. Burbine, 475 U.S. 412, 421, 106 S. Ct. 1135, 89 L. Ed. 2d 410 (1986)). Our Supreme Court has stressed that "[t]he 'totality of the circumstances surrounding the interrogation' must show 'the requisite level of comprehension [before] a court [can] properly conclude that the Miranda rights have been waived.'" Dillon, 475 S.W.3d at 14 (quoting Moran, 475 U.S. at 421). And, the Commonwealth bears the burden of proving waiver by a preponderance of the evidence. Dillon, 475 S.W.3d 1. The issue of whether a suspect validly waived his Miranda rights is reviewed de novo. Id.
In its April 28, 2014, Opinion and Order, the circuit court concluded that Holleran did not knowingly and intelligently waive his Miranda rights before the custodial interrogation at the police department on March 13:
Holleran did not knowingly and intelligently waive his rights. Dr. Smith testified that Holleran likely had a basic understanding of his rights but was unable to comprehend the consequences of his waiver. The Commonwealth was not able to overcome the testimony
of Dr. Smith and establish that Holleran knowingly and intelligently waived his rights.April 28, 2014, Opinion and Order at 10.
Considering the totality of the circumstances surrounding the March 13 custodial interrogation, we too believe that Holleran lacked the intelligence and mental capacity to make a knowing and intelligent waiver of his Miranda rights. The Commonwealth carried the burden to prove that Holleran's waiver was knowing and intelligent; however, the Commonwealth simply failed to demonstrate same. The expert opinion of Dr. Smith was uncontradicted at the suppression hearing, and the effect of his expert testimony was that Holleran lacked the mental capacity to understand and appreciate the consequences of waiving his Miranda rights. Moreover, the evidence indicates that Holleran had no prior experience with the criminal justice system and had difficulty comprehending more than basic written or spoken words. Accordingly, we hold that Holleran's waiver of his Miranda rights at the March 13 custodial interrogation was not made knowingly or intelligently and was constitutionally invalid. See Dillon, 475 S.W.3d 1. Thus, Holleran's statements made during the March 13 custodial interrogation were properly suppressed.
II. MARCH 14, 2012, INTERROGATION
The Commonwealth argues that the circuit court erred by suppressing statements Holleran made to Detective Flannery during a custodial interrogation that took place on March 14 at the police station. The Commonwealth maintains that Holleran voluntarily, knowingly, and intelligently waived his Miranda rights, thus suppression of his statements was improper.
In its April 28, 2014, Opinion and Order, the circuit court suppressed Holleran's statements because the circuit court believed that Holleran's waiver of his Miranda rights was not made knowingly and intelligently. The circuit court again concluded that Holleran lacked the mental capacity to "understand the consequences of his waiver" of Miranda rights. Also, the circuit court noted that Holleran was arraigned on March 14 and was appointed an attorney. Once outside the courtroom, Detective Flannery arrested Holleran on additional charges and then escorted Holleran to the police department. The circuit court pointed out that Holleran requested an attorney, and at that time, the custodial interrogation should have ceased:
After a defendant invokes his right to counsel, interrogation can be resumed if the defendant knowingly and intelligently waives his right, and the defendant initiates questioning. Id. Holleran indicated that he wished to speak to an attorney after he was read his Miranda rights. Detective left Holleran in a holdover cell in the police station and returned with his voice recorder. Holleran did not knowingly and intelligently waive his right to counsel because he was unable to understand the consequences of his waiver. Because interrogation continued after Holleran's request and Holleran's attorney was not present, statements made to the Det. Flannery on March 14, 2012, after Holleran's request, are suppressed.April 28, 2014, Opinion and Order at 10.
Considering the totality of the circumstances, we again conclude that Holleran lacked the intelligence and mental capacity to make a knowing and intelligent waiver of his Miranda rights at the March 14 interrogation. Our reasoning is analogous to that previously set forth in this Opinion concerning Holleran's waiver of his Miranda rights at the custodial interrogation that took place on March 13. The only significant difference is the additional constitutional question as to whether Detective Flannery should have continued the custodial interrogation on March 14 once Holleran invoked his right to counsel. We harbor grave concern as to the propriety of the Detective's actions but note that same is rendered moot as any waiver of Holleran's Miranda rights on March 14 was constitutionally invalid. Hence, we agree with the circuit court that Holleran's statements at the March 14 custodial interrogation should be suppressed.
The law applicable to waiver of Miranda rights is found previously in this Opinion under heading "WAIVER OF MIRANDA RIGHTS." We will not restate the law here, but, if necessary, the reader may refer to our previous recitation of the applicable law. --------
III. CONSENT TO SEARCH
The Commonwealth also asserts that the circuit court erred by determining that Holleran's consents to search were given involuntarily. The Commonwealth points out that Holleran freely and voluntarily signed three consent to search forms on March 13. The Commonwealth cites to Detective Flannery's testimony that Holleran was told that he did not have to consent to the searches. Also, the Commonwealth maintains that Detective Flannery thoroughly explained to Holleran the legal effect and subject matter of each consent form signed.
To pass constitutional muster, it is well-settled that a defendant's consent to search must be voluntary. Farmer v. Com., 6 S.W.3d 144 (Ky. App. 1999). Voluntariness is determined by the specific circumstances surrounding a case. Cook v. Com., 826 S.W.2d 329 (Ky. 1992). And, the Kentucky Supreme Court has recognized:
While it is fundamental that a consent must be free, voluntary, and without coercion, it is also the case that "the question whether a consent to a search was in fact 'voluntary' or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances."Hampton v. Com., 231 S.W.3d 740, 749 (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S. Ct. 2041, 2047-48, 36 L. Ed. 2d 854 (1973)). The Commonwealth must prove that a defendant's consent was voluntary by a preponderance of the evidence. See Farmer, 6 S.W.3d 144.
In the case sub judice, the circuit court found that Holleran did not voluntarily sign the consent to search forms on March 13. The circuit court reasoned:
From his examination, Dr. Smith found that Holleran's reading comprehension was at a level of borderline mental retardation and that his conceptual abilities were extremely low. Dr. Smith also determined that due to Holleran's low cognitive ability he was easily influenced by the investigating officers and had a desire to please. As a result of this, Holleran could not have fully comprehended the consent he was asked to give.
Holleran gave consent due to his desire to please and gain the approval of the officers. His consent was given at the insistence of the officers rather than as an intelligent and voluntary act.April 28, 2014, Opinion and Order at 11.
In effect, the circuit court concluded that Holleran's consent was involuntary due to implied coercion. In reaching this decision, the circuit court considered Holleran's limited mental capacity coupled with the adamant "insistence of the officers." Viewing all circumstances of the case, we are unable to conclude that the circuit court's finding upon voluntariness was clearly erroneous as substantial evidence supports same. See Hampton, 231 S.W.3d 740. Therefore, we are of the opinion that the circuit court did not err by suppressing the evidence seized from Holleran's consents to search.
For the foregoing reasons, the opinion and order of the Fayette Circuit Court is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Jack Conway
Attorney General of Kentucky Kimberly Henderson Baird
Assistant Attorney General
Frankfort, Kentucky BRIEF FOR APPELLEE: Samuel N. Potter
Assistant Public Advocate
Department of Public Advocacy
Frankfort, Kentucky