Opinion
NO. 2017-CA-001710-MR
06-28-2019
LEFON EDWARDS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Linda Roberts Horsman Assistant Public Advocate Department of Public Advocacy Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Bryan D. Morrow Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM BOONE CIRCUIT COURT
HONORABLE JAMES R. SCHRAND, II, JUDGE
ACTION NO. 16-CR-00408 OPINION
AFFIRMING
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BEFORE: DIXON, JONES AND K. THOMPSON, JUDGES. THOMPSON, K., JUDGE: Lefon Edwards was convicted in the Boone Circuit Court of two counts of second-degree robbery and first-degree fleeing or evading police and sentenced to eight years of imprisonment. He presents the following issues on appeal: (1) whether the trial court erred when it allowed the prosecution to introduce evidence that should have been excluded because it was discovered after he invoked his Fifth Amendment right to silence and is fruit of the poisonous tree; (2) the proceedings were stained by prosecutorial misconduct; and (3) he was entitled to a directed verdict of acquittal on the robbery charges.
In 2016, Edwards had a gambling addiction. To support that addiction, he devised a plan to get money by demanding money from employees of hotels and restaurants.
On April 20, 2016, Edwards entered the Holiday Inn in Richwood, Kentucky, shortly after midnight. Heather Huff was the night-time desk clerk on duty. Huff testified that Edwards entered the hotel lobby and asked about the cost of a room for the night, then said: "You are not supposed to be here. It's supposed to be some guy I can beat up and just take the money. So, listen you're going to need to hand me all the money." Huff gave him about $180 and told him she did not have the ability to open the safe. After Edwards left the hotel, Huff fled to a closet where she locked herself in and called 911.
Edwards then drove to the Belterra Resort and Casino in Indiana, where after losing at blackjack, he left at 3:42 a.m. He returned at 4:32 a.m. with a roll of cash and left again at 5:57 a.m. after losing all his money.
Edwards's actions, including the times he entered and left Belterra, are shown on a surveillance video taken from a Belterra camera that was introduced into evidence.
After leaving Belterra, Edwards drove to the Waffle House in Walton, Kentucky, arriving at 6:25 a.m. Brooklyn Pelfrey, Jackie Wayman, and Kelly Viar were working. Edwards entered the restaurant and asked if the women had children. They replied that they did. Edwards then stated, "Good, because this is a robbery." According to the women, Edwards put his hands in his pockets making the women believe he had a weapon. While Viar led Edwards to the register to empty the cash register, Pelfry went to the back room to call 911. As soon as Edwards noticed Pelfry missing, he ordered her back to the front. Viar gave Edwards the cash. Edwards then instructed the women not to call anyone for ten minutes and exited the building, got into his vehicle and sped away.
The times stated are taken from surveillance video cameras located at the Waffle House. --------
As Edwards sped away, Waffle House manager Charles Hudson was just arriving. Wayman ran to him and told him they had been robbed. Hudson called 911 and followed Edwards, who was driving a red Nissan Xterra. While following Edwards, Hudson kept dispatch aware of his location. The police caught up with Edwards and Hudson stopped his pursuit.
Sergeant Gregory Tanner caught up with Edwards on I-75 and activated his emergency lights. Edwards refused to stop, and a high-speed chase ensued on busy highways during morning rush hour and when children were traveling to a nearby school. Because of safety concerns, the police stopped pursuing Edwards.
The police had the license plate number of the Xterra and determined it was owned by Christan Hage. Hage and Derek Tye had married the prior Saturday and were on their honeymoon. The couple was "face-timed" by Tye's father in the presence of Detective Greg Faulkner who was investigating the Holiday Inn Express and Waffle House cases. Detective Faulkner held up a photo taken from the surveillance camera at Waffle House for the couple to see and they identified the man as "Bentley" Edwards, a friend of Tye's and to whom they had entrusted the Xterra.
Detectives Mike Dickhaus and Faulkner investigated the case and that same day went to Edwards's mother's home in Ohio. Detective Faulkner testified at the suppression hearing that before speaking to Edwards, he learned from an NCIC search that Edwards had a gambling related warrant out of Indiana. He then arranged for local law enforcement to execute the warrant who arrested Edwards on the front porch of the residence.
The detectives and local law enforcement then went into the home where the officers discussed the Holiday Inn Express and Waffle House cases with Edwards. Edwards spoke briefly to the detectives before invoking his right to remain silent. Despite his invocation, the detectives continued speaking to Edwards. Edwards admitted committing the crimes at the Holiday Inn Express and Waffle House but denied he used force against the workers at those locations. During the questioning, Edwards also stated that he had been at Belterra Casino on April 20, 2016, and was using the money taken from the hotel and Waffle House to gamble at the casino. The detectives also recovered a shirt and money from Edwards's bedroom.
Detective Faulkner contacted the Indiana Gaming Commission and requested all videos of Edwards gambling on April 20, 2016. The Gaming Commission sent video of Edwards entering, gambling, and leaving the Belterra Casino on that date.
Edwards was indicted for first-degree robbery of Waffle House, second-degree robbery at the Holiday Inn Express, and first-degree fleeing or evading police. The Commonwealth later amended the first-degree robbery to second-degree robbery.
Following his indictment, Edwards filed a motion to suppress his statements based on Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Following a suppression hearing, the trial court ruled that Edwards was in custody when the statements were made and had invoked his right to remain silent. It suppressed Edwards's confession and any items seized from the home after he invoked his right to remain silent.
Subsequently, Edwards moved to dismiss the indictment alleging that the Commonwealth presented false testimony to the grand jury. He contended that the Commonwealth presented grand jury testimony that Edwards threatened the use of a dangerous instrument, which resulted in the first-degree robbery charge that was amended to second-degree robbery. The trial court denied the motion.
On the day of trial, Edwards learned that the Commonwealth intended to introduce the Belterra surveillance video into evidence to show motive for the crimes and moved to suppress the video as poisonous fruit of his questioning in violation of Miranda. The Commonwealth maintained that the video was admissible under the inevitable discovery rule.
Detective Faulkner testified in camera concerning whether he would have discovered the Belterra video even if he had not violated Edwards's right to remain silent. He testified that "good police work" would have led to discovery of the surveillance video, because he was aware of the gambling-related Indiana warrant prior to questioning Edwards and would have contacted the Indiana Gaming Commission. Detective Faulkner testified that the Gaming Commission keeps track of all patrons who use gaming cards. He explained that a gaming card has an identification number and a name associated with its owner and is used by regular players at different casinos to earn points. Detective Faulkner testified that after discovering Edwards had a registered gaming card, he requested any videos showing Edwards gambling near the time of the crimes at the Holiday Inn Express and Waffle House. Detective Faulkner testified that with the knowledge of the Indiana warrant, he would have contacted the Gaming Commission regardless of whether or not he had spoken to Edwards.
The trial court denied Edwards's motion to suppress the video, and it was played at trial.
At trial, Edwards admitted that he committed a theft when he took money at the Holiday Inn Express and Waffle House and that he fled from police. However, he testified that he did not threaten immediate force against anyone at either location. Edwards testified that from his experience in the hotel industry and as a manager trainee at a Waffle House, he knew employees are trained not to resist such demands and, therefore, he did not intend to use any verbal or physical threats. His defense to the second-degree robbery charge was that he simply requested money and the women complied. As to the reason he fled police, Edwards testified he feared that if he stopped, he would be shot.
The jury was instructed on theft by unlawful taking under $500 as lesser-included offenses of each charge of second-degree robbery. The jury was not convinced by Edwards's testimony and convicted him on both counts of second-degree robbery and fleeing or evading. The robbery convictions were ordered to run concurrently and the fleeing or evading conviction to run consecutively to the robbery convictions for a total sentence of eight years.
We first address Edwards's argument that the Belterra surveillance video should have been suppressed. As explained in Dye v. Commonwealth, 411 S.W.3d 227, 230-31 (Ky. 2013), our appellate review of a trial court's denial of a motion to suppress is a two-step process. "Under this standard we review the trial court's findings of fact for substantial evidence, and then conduct a de novo review of the trial court's application of the law to the established facts to determine whether its ruling was correct as a matter of law." Id. (citation omitted).
In Miranda, the U.S. Supreme Court held that "any person who is in custody and subjected to police interrogation must be informed of his right against self-incrimination, or as standard in Miranda warnings, his right to remain silent." Bartley v. Commonwealth, 445 S.W.3d 1, 5 (Ky. 2014). If a suspect invokes that right at any time during questioning, the questioning must cease. Id. If the police continue to question a suspect after he has invoked the right to remain silent and makes incriminating statements, those statements must be suppressed. Id.
In Dye, our Supreme Court held that the exclusionary rule applies to evidence obtained directly from violations of Miranda as well as evidence that is tainted or fruit of the poisonous tree. Dye, 411 S.W.3d at 236-38. However, the Court further held that "the Fifth Amendment version of the fruit-of-the- poisonous-tree doctrine is subject to the same limiting principles as its counterparts in the Fourth and Sixth Amendments—the independent-source, inevitable discovery, and dissipation-of-taint-doctrines." Id. at 237 (quoting JOSHUA DRESSIER & ALAN C. MICHAELS, Understanding Criminal Procedure: Volume 1: Investigation § 23.05[B][3][b][ii] at 464-65 (4th ed. 2006)).
The inevitable discovery rule allows for unlawfully obtained evidence to be admitted "upon proof by a preponderance of the evidence that the same evidence would have been inevitably discovered by lawful means." Hughes v. Commonwealth, 87 S.W.3d 850, 853 (Ky. 2002) (citing Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984)). "The rationale behind the rule is that it does not put the police in a better position than they would have been absent the error, but only puts them in the same position as if there had been no unlawful search." Commonwealth v. Elliott, 714 S.W.2d 494, 496 (Ky.App. 1986).
The trial court found that although Edwards's statement that he was at the Belterra Casino on April 20, 2016, was required to be suppressed under Miranda, the surveillance video would have been inevitably discovered by the detectives investigating the crimes at the Holiday Inn Express and Waffle House. It found Detective Faulkner's testimony credible that because of his knowledge of the gambling related Indiana warrant, using good police work, he would have discovered that Edwards was at Belterra on April 20, 2016, and obtained the video without Edwards's statement. This was a finding of fact which we must affirm if supported by substantial evidence. Dye, 411 S.W.3d at 231.
It is not unreasonable to conclude that given Detective Faulkner's knowledge prior to him questioning Edwards, he would suspect that gambling motivated Edwards to commit the crimes at the Holiday Inn Express and Waffle House and that he gambled away the proceeds of his crimes. This is particularly true because the Belterra Casino is only a short drive from the crime scenes. As Detective Faulkner testified, a simple call to the Indiana Gaming Commission would have inevitably led to the discovery of the surveillance video. We conclude that the trial court's conclusion that the video would have been inevitably discovered was not clearly erroneous.
Edwards claims that the proceedings "were stained by prosecutorial misconduct." He claims the prosecutor told the grand jury that Edwards was armed with a dangerous instrument when he robbed the Waffle House, resulting in his indictment for first-degree robbery. He argues that the trial court erroneously denied his motion to dismiss the indictment because of the prosecutor's statement. We disagree.
Even if the prosecutor misinformed the grand jury that Edwards was armed when he committed the crimes, after interviewing the witnesses at Waffle House who told the prosecutor they did not see Edwards with a weapon, the indictment was amended to second-degree robbery. It is impossible for Edwards "to demonstrate a flagrant abuse of the grand jury process that resulted in both actual prejudice and deprived the grand jury of autonomous and unbiased judgment." Commonwealth v. Baker, 11 S.W.3d 585, 588 (Ky.App. 2000). Moreover, Detective Faulkner testified before the grand jury that Edwards had his hand in his pocket and the women working at the Waffle House thought it to be a gun. That was an accurate statement.
Edwards argues that the prosecutor's closing argument was improper and constituted prosecutorial misconduct when the prosecutor allegedly told the jury that Edwards was indicted for first-degree robbery but that the charge was amended to second-degree robbery and that he "held captive" four women at the Holiday Inn Express and Waffle House. Again, we conclude there is no reason for reversal.
"Prosecutorial misconduct is 'a prosecutor's improper or illegal act involving an attempt to persuade the jury to wrongly convict a defendant or assess an unjustified punishment." Noakes v. Commonwealth, 354 S.W.3d 116, 121 (Ky. 2011) (quoting BLACK'S LAW DICTIONARY (9th ed. 2009)). "In considering an allegation of prosecutorial misconduct, the Court must view that allegation in the context of the overall fairness of the trial. To justify reversal, the Commonwealth's misconduct must be 'so serious as to render the entire trial fundamentally unfair.'" Murphy v. Commonwealth, 509 S.W.3d 34, 49 (Ky. 2017) (quoting Soto v. Commonwealth, 139 S.W.3d 827, 873 (Ky. 2004)) (citation omitted).
Edwards's defense was that although he committed crimes at the Holiday Inn Express and Waffle House and fled from police, his actions could have been worse. In response, the prosecutor stated in closing as follows:
[Edwards] talks about all these things he didn't do. Well, he didn't kill somebody. He didn't injure anybody. He didn't actually show them the gun. Or, he didn't actually run anybody off the road. He makes it sound like he gets credit for that. Or somehow that's proof that he didn't commit these crimes that he was charged with.The Commonwealth never stated that Edwards was originally charged with first-degree robbery. To the contrary, the prosecutor stated he was not charged with that crime. There is no factual basis for Edwards's prosecutorial misconduct claim.
All that is, is proof that he didn't do something more serious than what it is that he's charged with. Now, if we had charged him with robbery, if we had charged him with robbery in the first degree, or assault for shooting somebody, that would be overcharging by the government. That's not what we did here. We charged him based solely on the facts. So, he doesn't get bonus points. He doesn't get credit because he didn't shoot somebody, or he didn't actually show them a weapon. Because had he done any of those things his charges would have been a lot worse than what he's looking at right now.
In closing argument, the prosecutor did state Edwards "held captive" the four women from whom he took the money at the Holiday Inn Express and Waffle House. However, Edwards's objection to the use of the words "held captive" was sustained and no further relief was requested.
In Baker v. Commonwealth, 973 S.W.2d 54 (Ky. 1998), the defendant's objection to the prosecutor's use of the words "kidnap" an "abduct" as a mischaracterization of the evidence, was sustained as to the use of the word kidnap. The defendant did not request any further relief. The Court noted that under Kentucky Rules of Criminal Procedure 9.22, "[i]n the absence of a request for further relief, it must be assumed that appellant was satisfied with the relief granted, and he cannot be heard to complain." Id. at 56.
Like the appellant in Baker, Edwards objected to the use of the word "captive" and the trial court sustained the objection. Because Edwards did not request further relief, he cannot complain on appeal.
At the close of the Commonwealth's case, Edwards made a motion for a directed verdict on the robbery charges and renewed his motion at the close of all evidence. He argues he could not be convicted of those crimes because he did not threaten anyone in the course of the thefts or use a weapon. His motions were denied.
"A motion for a directed verdict of acquittal should only be made (or granted) when the defendant is entitled to a complete acquittal i.e., when, looking at the evidence as a whole, it would be clearly unreasonable for a jury to find the defendant guilty, under any possible theory, of any of the crimes charged in the indictment or of any lesser included offenses." Campbell v. Commonwealth, 564 S.W.2d 528, 530 (Ky. 1978). The Commonwealth argues that because Edwards admitted to the thefts, a lesser-included crime of second-degree robbery, he was not entitled to a directed verdict of acquittal. It contends that his relief was to object to the second-degree robbery instruction. Having failed to do so, the Commonwealth contends review of the issue is precluded.
We can readily dispose of Edwards's argument that there was not sufficient evidence to convict him on two counts of second-degree robbery on the merits. As observed in Tunstull v. Commonwealth, 337 S.W.3d 576, 583 (Ky. 2011) (quoting KRS 515.030(1)), second-degree robbery requires that a person "uses or threatens the immediate use of physical force upon another person with intent to accomplish the theft." Pursuant to KRS 514.030(1)(a), theft by unlawful taking requires only "control over movable property of another with intent to deprive him thereof[.]" In contrast to theft which is a crime against property, "robbery is considered a crime against a person." Tunstull, 337 S.W.3d at 583.
In Tunstull, the Court held that the absence of a direct threat of physical force in the course of committing a theft did not matter when the defendant entered a bank disguised and aggressively demanded money. The Court concluded that "[a]n individual, particularly when masked or otherwise disguised, coming into a bank aggressively demanding money is a threat in and of itself—the implication clearly being that if the employees or customers do not comply, that physical force will follow." Id.
Although Edwards was not masked or disguised when he entered the Holiday Inn Express or Waffle House, the implication that he would use physical force if his demands for money were not met was no less clear than in Tunstull. He entered both businesses and demanded money. At the Holiday Inn Express, his statement that he planned on using physical force on a man, clearly implied that if Huff did not comply he would physically harm her. Indeed, Huff felt threatened, hiding in a closet even after Edwards departed. At Waffle House, he announced that "this is a robbery" and demanded money with his hands in his pockets. He asserted control over the whereabouts of the women working. His conduct was sufficient to submit the charge of second-degree robbery to the jury. We conclude the trial court did not err.
For the reasons stated, the judgment of conviction and sentence of the Boone Circuit Court is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Linda Roberts Horsman
Assistant Public Advocate
Department of Public Advocacy
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Bryan D. Morrow
Assistant Attorney General
Frankfort, Kentucky