Opinion
NO. 2012-CA-001621-MR
06-27-2014
IRIS JENNINGS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Kathleen K. Schmidt Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Courtney J. Hightower Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM KENTON CIRCUIT COURT
HONORABLE MARTIN J. SHEEHAN, JUDGE
ACTION NO. 11-CR-00678-002
OPINION
REVERSING AND REMANDING
BEFORE: CAPERTON, COMBS, AND THOMPSON, JUDGES. CAPERTON, JUDGE: Iris Jennings appeals from her conviction in the Kenton Circuit Court for criminal facilitation to the first-degree assault of Boysie Washington by Alvin McDaniel, for which Jennings was sentenced to one year of imprisonment, probated for three years. After a thorough review of the parties' arguments, the record, and the applicable law, we find reversible error. Accordingly, we reverse and remand this matter for further proceedings.
Jennings's conviction arose from an altercation in which her boyfriend, Alvin McDaniel, shot Boysie Washington and Tanya Henderson. On the day in question, Washington and Henderson's twelve-year-old daughter, Jane, was in a fight at school with Sally, the thirteen-year-old daughter of Jennings. Following the fight, Sally went to her grandmother's house to watch television. After Washington and Henderson learned Jane had been in a fight at school, they went out in search of Sally. This led them to knock on Sally's grandmother's door, which Sally answered. Accounts differ as to what happened next. Washington then induced Sally into the street to fight Jane in order to settle the girls' rift from school. Testimony was given that Washington put his hands on Sally to get her out of the house, which Washington denied. Washington, Henderson, and several other neighborhood spectators watched the fight in the street.
We have changed the minors' names in this opinion to be consistent with the facts as set forth by the Kentucky Supreme Court in McDaniel v. Commonwealth, 2012-SC-000564-MR, 2013 WL 6834977 (Ky. Dec. 19, 2013), wherein the Court affirmed McDaniel's conviction for first-degree assault of Washington and reversed his conviction of first-degree assault of Henderson.
Washington stated that he "shedded" Sally and her sister off him when they jumped him on the street.
When McDaniel learned of the street fight, he was angered by Washington's provocation of the altercation and drove the streets looking for Washington; Jennings was in McDaniel's car but did not testify at trial. McDaniel testified that he viewed Sally as a daughter and he functioned as a father figure to her. At the time of the altercation, Jennings knew Washington but McDaniel did not.
The Commonwealth introduced text messages from Jennings's phone, but did not elicit testimony indicating whether or not Jennings possessed the phone at the time the text messages were sent. A representative from Cincinnati Bell testified that Jennings's phone sent texts which stated, "They are on Trevor now, it is going down" and, "Kids been fighting call you later." Jennings then received a text saying, "Coming now." Next, a text from Jennings's phone said, "Boysie put his hands on my kids about to kick his ass" and "'Bout to fight a nigga."
We note that all persons involved in the fracas were of African-American descent. Jennings appeals the denial of her motion to suppress the evidence which included these text messages; we shall address this matter infra.
McDaniel drove down Trevor Street slowly when he heard a man call out "Hey, Iris!" Unbeknownst to McDaniel, the man who called out was Boysie Washington. Jennings did not respond; she was crying and smoking cigarettes. McDaniel circled back to Trevor Street to talk with the man. McDaniel testified that he had no conversation with Jennings about who had called out her name or how Jennings might be able to identify Washington. McDaniel parked his car. Washington approached the car and began talking to Jennings, who was seated in McDaniel's car. She said, "What's up, Boysie" and the man, later identified as Washington, answered, "What's up, Iris." During this conversation, McDaniel deduced that the man was Washington; McDaniel became enraged. McDaniel exited his vehicle and approached Washington with a pistol drawn from under the seat on the driver's side of the car. The pistol was wrapped in a green towel; McDaniel testified that he brought the pistol to keep Washington from running away and that he meant to confront him and beat him up. After a heated exchange, McDaniel fired multiple shots, hitting Washington in the torso, thigh and arm, and striking Henderson in the wrist.
McDaniel testified that Jennings did not know what McDaniel was going to do and that she did not know that he had a gun. McDaniel testified that he did not intend to fire his weapon when he got out of the car and that he only fired after seeing Washington lift up his shirt to show a black handgun.
Following the shooting, McDaniel and Jennings were tried together, with the jury finding McDaniel guilty of intentional first-degree assault of Washington and wanton first-degree assault of Henderson. Jennings was convicted of facilitating McDaniel's first-degree assault of Boysie Washington. The jury recommended a sentence of one year. The trial court probated her sentence for three years on the condition she serve thirty days in jail. It is from this conviction and sentence that Jennings now appeals.
On appeal Jennings argues: (1) the Commonwealth introduced insufficient evidence to prove that Jennings facilitated the first-degree assault of Washington by McDaniel; (2) the facilitation to first-degree assault instruction was defective; (3) the court erred in failing to grant her motion to suppress the evidence; and (4) the Commonwealth improperly called Dr. Borzada, a trauma surgeon who treated Washington, as a fact witness.
In response, the Commonwealth argues: (1) the trial court acted correctly in denying Jennings's motion for a directed verdict of acquittal; (2) Jennings has waived any issue regarding jury instructions; (3) the trial court correctly denied Jennings's motion to suppress; and (4) there was no error in calling Dr. Borzada as a fact witness. With these arguments in mind, we now turn to the issues raised by the parties.
As her first basis for appeal, Jennings argues that the Commonwealth introduced insufficient evidence to prove that Jennings facilitated the first-degree assault of Washington by McDaniel, with which the Commonwealth disagrees. This error was preserved by Jennings's motions for a directed verdict.
Generally, the Commonwealth bears the burden of establishing each and every element of an offense beyond a reasonable doubt. Brown v. Commonwealth, 890 S.W.2d 286, 288 (Ky. 1994); Commonwealth v. Hamilton, 905 S.W.2d 83, 84 (Ky. App. 1995); Kentucky Revised Statutes (KRS) 500.070(1).
In assessing whether Jennings was entitled to a directed verdict, on appellate review "the test of a directed verdict is, if under the evidence as a whole, it would be clearly unreasonable for a jury to find guilt, only then the defendant is entitled to a directed verdict of acquittal." Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991). When confronted with a motion for directed verdict, the trial court must draw all fair and reasonable inferences from the evidence in favor of the Commonwealth. If the evidence is sufficient to induce a reasonable juror to believe beyond a reasonable doubt that the defendant is guilty, a directed verdict should not be given. For the purpose of ruling on the motion, the trial court must assume that the evidence for the Commonwealth is true, but reserving to the jury questions as to the credibility and weight to be given to such testimony. Paulley v. Commonwealth, 323 S.W.3d 715, 722 (Ky. 2010).
At issue, KRS 506.080 states:
(1) A person is guilty of criminal facilitation when, acting with knowledge that another person is committing or intends to commit a crime, he engages in conduct which knowingly provides such person with means or opportunity for the commission of the crime and which in fact aids such person to commit the crime.Additionally, KRS 508.010 sets forth:
(2) Criminal facilitation is a:
(a) Class D felony when the crime facilitated is a Class A or Class B felony or capital offense;
(b) Class A misdemeanor when the crime facilitated is a Class C or Class D felony;
(c) Class B misdemeanor when the crime facilitated is a misdemeanor.
(1) A person is guilty of assault in the first degree when:
(a) He intentionally causes serious physical injury to another person by means of a deadly weapon or a dangerous instrument; or
(b) Under circumstances manifesting extreme indifference to the value of human life he wantonly engages in conduct which creates a grave risk of death to another and thereby causes serious physical injury to another person.
(2) Assault in the first degree is a Class B felony.
Jennings argues that the Commonwealth failed to present sufficient evidence for Jennings to be convicted of facilitation to assault in the first degree based on the circumstantial evidence proffered and Jennings's presence at the scene of the crime. Jennings is correct that, '"[S]imple knowledge that a crime will be committed is not enough to satisfy the knowledge element for facilitation....' Instead, the defendant must have knowledge that the principal actor intends to commit the crime the defendant is actually charged with facilitating." Finnell v. Commonwealth, 295 S.W.3d 829, 833-34 (Ky. 2009)(citing Commonwealth v. Nourse, 177 S.W.3d 691, 700 (Ky. 2005)). Indeed, "[f]acilitation reflects the mental state of one who is 'wholly indifferent' to the actual completion of the crime." Commonwealth v. Nourse, 177 S.W.3d 691, 700 (Ky. 2005), citing Perdue v. Commonwealth, 916 S.W.2d 148, 160 (Ky. 1995).
We disagree with Jennings that the Commonwealth failed to present sufficient evidence. The Commonwealth presented evidence of the encounter between Washington, Jennings, and McDaniel. The Commonwealth presented evidence that Jennings's phone sent texts which stated, "They are on Trevor now, it is going down," and "Kids been fighting call you later." Jennings then received a text saying, "Coming now." Next, a text from Jennings's phone was sent saying "Boysie put his hands on my kids about to kick his ass" and "bout to fight a nigga." We believe that in light of the evidence as a whole, it would not be clearly unreasonable for a jury to find guilt; thus, the court correctly denied Jennings's motions for a directed verdict.
Next, Jennings argues that the facilitation to first-degree assault instruction was defective. In support thereof, Jennings argues: (a) the court failed to include all pertinent elements of criminal facilitation; and (b) failed to instruct on criminal facilitation to assault under extreme emotional distress (EED). Jennings acknowledges that these arguments are unpreserved and requests palpable error review under Kentucky Rules of Criminal Procedure (RCr) 10.26. The Commonwealth argues that Jennings has waived any issue regarding jury instructions, citing RCr 9.54.
RCr 9.54 states:
(1) It shall be the duty of the court to instruct the jury in writing on the law of the case, which instructions shall be read to the jury prior to the closing summations of counsel. These requirements may not be waived except by agreement of both the defense and the prosecution.
(2) No party may assign as error the giving or the failure to give an instruction unless the party's position has been fairly and adequately presented to the trial judge by an offered instruction or by motion, or unless the party makes objection before the court instructs the jury, stating specifically the matter to which the party objects and the ground or grounds of the objection.
(3) The instructions shall not make any reference to a defendant's failure to testify unless so requested by the defendant, in which event the court shall give an instruction to the effect that a defendant is not compelled to testify and that the jury shall not draw any inference of guilt from the defendant's election not to testify and shall not allow it to prejudice the defendant in any way.
Recently, our Kentucky Supreme Court addressed the interplay between RCr 10.26 and RCr 9.54 and concluded, "assignments of error in "the giving or the failure to give" an instruction are subject to RCr 9.54(2)'s bar on appellate review, but unpreserved allegations of defects in the instructions that were given may be accorded palpable error review under RCr 10.26." Martin v. Commonwealth, 409 S.W.3d 340, 346 (Ky. 2013).
The Martin holding was further refined in Smith v. Commonwealth, 410 S.W.3d 160, 167 (Ky. 2013):
In Martin, we held that RCr 9.54(2) precludes palpable error review of an unpreserved error in the failure to give a specific jury instruction. However, we drew a distinction between errors in the failure to give an instruction at all in comparison to defects in instructions that were otherwise properly given, holding that the latter are subject to consideration under RCr 10.26 for palpable error, whereas the former are not.Id. (internal footnotes omitted).
Here, the trial court did not entirely fail to give a self-protection instruction and, therefore, RCr 9.54(2) does not operate as a bar to appellate review. Having agreed that Appellant was entitled to a self-protection instruction, it was incumbent upon the trial court to then correctly instruct the jury on that theory. However, upon the trial court's failure to include a definitional instruction, Appellant was not relieved of his obligation to preserve the issue by objecting to the flawed instruction in a timely and appropriate manner. Had he done so, we would be authorized to consider his claim that the instruction was flawed under the standard of review for preserved error. Because he did not preserve the issue, Appellant's assignment of error is limited to the significantly higher standard of palpable error review under RCr 10.26, which permits relief only if the claimed error resulted in manifest injustice.
Sub judice, Jennings presents two reasons why the facilitation to assault instruction was defective: (1) the court failed to include all pertinent elements of criminal facilitation; and (2) failed to instruct on criminal facilitation to assault under EED. Per Smith and Martin, we must conclude that Jennings's unpreserved error asserting that the court failed to instruct on criminal facilitation to assault under EED is barred by RCr 9.54. However, Jennings's unpreserved error that the court failed to include all pertinent elements of criminal facilitation is not barred by RCr 9.54 because once the court undertook to give the instruction it was required to do so properly. Accordingly, we shall review this claimed error under RCr 10.26, which states:
A palpable error which affects the substantial rights of a party may be considered by the court on motion for a new trial or by an appellate court on appeal, even though insufficiently raised or preserved for review, and appropriate relief may be granted upon a determination that manifest injustice has resulted from the error.Thus, under RCr 10.26 we may grant relief for an unpreserved error only when the error is (1) palpable; (2) affects the substantial rights of a party; and (3) has caused a manifest injustice. Commonwealth v. Jones, 283 S.W.3d 665, 668 (Ky. 2009). "Manifest injustice" requires showing a probability of a different result or error so fundamental as to threaten a defendant's entitlement to due process of law, i.e., the error so seriously affected the fairness, integrity, or public reputation of the proceeding as to be "shocking or jurisprudentially intolerable." Martin v. Commonwealth, 207 S.W.3d 1, 3 (Ky. 2006).
Further refining the parameters of RCr 10.26, the Kentucky Supreme Court in Brewer v. Commonwealth, 206 S.W.3d 343 (Ky. 2006), undertook an analysis of what constitutes a palpable error:
For an error to be palpable, it must be easily perceptible, plain, obvious and readily noticeable. A palpable error must involve prejudice more egregious than that occurring in reversible error. A palpable error must be so grave in nature that if it were uncorrected, it would seriously affect the fairness of the proceedings. Thus,Id. at 349.
what a palpable error analysis "boils down to" is whether the reviewing court believes there is a "substantial possibility" that the result in the case would have been different without the error. If not, the error cannot be palpable.
At issue, KRS 506.100 states:
A person is not guilty of criminal facilitation when:
(1) The crime facilitated is so defined that his conduct is inevitably incident to its commission; or
(2) Prior to the commission of the crime facilitated he makes a substantial effort to prevent the commission of that crime.
Sub judice, the trial court included the second part of the statute in the jury instructions but omitted the first. We believe that this error resulted in the palpable error since there is a substantial possibility that the result in the case would have been different if the jury were fully instructed, given that McDaniel testified that he was going to approach Washington to confirm his identity without the assistance of Jennings's confirmation. The jury could reasonably have believed that Jennings's confirmation of Washington was inevitably incident to the commission of the assault of Washington. We must conclude that the omission of half of the statute in the jury instructions resulted in manifest injustice to Jennings, mandating our reversal of this palpable error.
Next, Jennings argues the court erred in failing to grant her motion to suppress the evidence as: (a) the police had no authority to seize the cell phone; (b) assuming Jennings gave valid consent, the scope of the search exceeded her consent; and (c) her Miranda rights were violated; thus, the consent to search the phone and the seizure of the phone were involuntary, and the seizure was the fruit of the illegal statement.
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
The Commonwealth argues that the trial court correctly denied Jennings's motion to suppress. In support thereof, the Commonwealth argues: (a) Jennings's argument that the police did not have authority to seize the cell phone in the first place is unpreserved; (b) Detective Cory Warner did not see the texts at issue when he looked at Jennings's phone; (c) the court determined that Detective Warner did not exceed the scope of Jennings's consent; (d) Detective Warner's testimony established that Jennings was not intoxicated; and (e) Jennings's consent to search the phone preceded any mention of counsel.
We agree with the Commonwealth that Jennings's argument that the police did not have authority to seize her cell phone is unpreserved; accordingly, we decline to address this further. We now turn to the remaining issues raised by the suppression motion.
In review of the trial court's decision on a motion to suppress, this Court must first determine whether the trial court's findings of fact are clearly erroneous. Under this standard, if the findings of fact are supported by substantial evidence, then they are conclusive. RCr 9.78; Lynn v. Commonwealth, 257 S.W.3d 596, 598 (Ky. App. 2008). "Based on those findings of fact, we must then conduct a de novo review of the trial court's application of the law to those facts to determine whether its decision is correct as a matter of law." Commonwealth v. Neal, 84 S.W.3d 920, 923 (Ky. App. 2002) (citing Adcock v. Commonwealth, 967 S.W.2d 6, 8 (Ky. 1998); Commonwealth v. Opell, 3 S.W.3d 747, 751 (Ky. App. 1999)). This Court has held that we will review de novo the issue of whether the court's decision is correct as a matter of law. Stewart v. Commonwealth, 44 S.W.3d 376, 380 (Ky. App. 2000). At a suppression hearing, the ability to assess the credibility of witnesses and to draw reasonable inferences from the testimony is vested in the discretion of the trial court." Sowell v. Commonwealth, 168 S.W.3d 429, 431 (Ky. App. 2005) (internal citation omitted). Those decisions are conclusive provided they are supported by substantial evidence. Stewart v. Commonwealth, 44 S.W.3d 376, 380 (Ky. App. 2000).
Detective Cory Warner testified at the suppression hearing. On June 23, 2011, witnesses told him that Jennings was in the car with the shooter at the scene. Around 10 p.m., Jennings arrived at the police station and was informed that she was not under arrest at that time but that she was a person of interest. The Commonwealth played portions of the videotape of Jennings's statement to Detective Warner.
At the start of the interview, prior to being given Miranda warnings, Warner asked Jennings for a phone number where she could be reached besides home and she provided her cell phone number. Miranda warnings were given, and Jennings then asked if she needed a lawyer. In response Detective Warner replied that he just reads the rights.
On cross-examination, Detective Warner admitted Jennings repeatedly informed him that she was under the influence of alcohol and had ingested two shots and three beers. This was corroborated by the showing of the taped interview, wherein, at about 28 minutes into the interview, Jennings told the detective that she wanted to talk to him when she was sober, to which he replied that they were talking now and whether or not she was intoxicated was not his concern. At around 34 minutes into the interview, Jennings informed Detective Warner that her method of contacting McDaniel was by text messaging. Detective Warner then asked Jennings if he could look at her phone and get the number, and Jennings replied affirmatively. The detective responded, "Great, I'll be right back." Detective Thompson then came into the room after 37 minutes of questioning. When Detective Thompson questioned Jennings, she stated, "Since I'm going to jail, that's all I've got to say." This was approximately 48 minutes into the interview.
The Commonwealth introduced a supplemental report from another officer concluding that Jennings was not intoxicated.
Detective Warner testified that he did not know who brought Jennings back to the interview room but whoever did may have taken her cell phone. He testified the cell phone would have been on his desk. He logged the cell phone into evidence on June 24, 2011. Detective Warner said they try not to let interviewees take their cell phone into the interview room because it is distracting to the interviewer.
Defense counsel pointed out that there was an outgoing call on Jennings's phone at 10:15 p.m. The start of the interview occurred at 10:06 p.m. When asked if he made a call from the cell phone at 10:34 p.m., Detective Warner said he did not to his knowledge and that the phone would have been on the desk at that time.
We find it interesting that outgoing calls were made on Jennings's cell phone when the phone was on the detective's desk. While this was raised at the suppression hearing, the argument was not made that the police had violated Jennings's right to privacy prior to her consent.
Detective Warner described Jennings's phone as an old-school cell phone, not a smart phone. He thought there was an icon that said missed calls or messages, and that when one attempted to access the messages only a phone number was visible. He said Jennings gave him consent to look for a phone number but not for texts or voicemail. He looked for the number for McDaniel and had to look under something like "my baby boy," which was a fictitious name. Detective Warner found McDaniel's number under "my man." The detective agreed that there was a photo next to "my man" and he gained access by clicking on it. He later stated that Jennings had instead given him permission to look at the phone instead of permission to look for a phone number. Detective Warner stated that he did not believe that he searched the phone for text messages but that he may have. Detective Warner then obtained a search warrant for Jennings's text messages.
Over an hour into the interview, Jennings told the police she did not wish to speak to them anymore and they ceased questioning. However, approximately four minutes before that, Jennings said, "You told me I didn't need a lawyer," to which the detective replied, "I never told you you didn't need a lawyer." Jennings responded, "Ok but it sounds like I do need a lawyer, cause y'all, y'all confusing me." Detective Warner then told Jennings that no one was confusing her, that she knew exactly what was going on and what she did, but that she was trying to avoid talking about it. After further questioning about the details of going down Trevor Street, Jennings stated that she did not want to answer any more questions and she needed a lawyer. This statement was made more than an hour into the interview. Detective Warner admitted that the conversation continued and that Jennings repeated that she did not want to talk with him anymore. Detective Warner stated that he thought her statement was ambiguous.
The defense argued that Jennings had invoked her right to remain silent at the 28-minute mark when she stated that she wanted to talk when she was sober and again at the 48-minute mark when she said that if she was going to jail that was all she had to say. The defense also argued that there were two times Jennings indicated that she needed an attorney after the interview had proceeded for over an hour. Counsel requested that Jennings's statements be suppressed based on these Miranda violations. Counsel also argued that Detective Warner exceeded the scope of any consent by looking at pictures and text messages when he had only been given consent to look at a phone number.
The trial court concluded that the statements made by Jennings to the police prior to the Miranda warnings were given were biographical information found within the booking exception. The court found that the statements up to "I'm done answering your questions. I need a lawyer, you're confusing me," were not clear and unequivocal; this was over an hour into the interview. The court found that the consent to search the phone was limited to searching for the man's number but the detective did not exceed the scope of consent because there was no proof that he searched any aspect of the phone where a number could not be found. The court overruled the motion.
We decline to address this finding as this specific finding was not contested on appeal.
In addressing the alleged Miranda right violation, we note that a suspect must be informed of his right to remain silent and his right to an attorney prior to a custodial interrogation. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). These rights are known collectively known as "Miranda rights" or "Miranda warnings."
A defendant must unambiguously assert her right to remain silent in order to cut off questions from the police. See Buster v. Commonwealth, 364 S.W.3d 157, 162-63 (Ky. 2012) (citing Berghuis v. Thompkins, 560 U.S. 370, 381, 130 S.Ct. 2250, 2260, 176 L.Ed.2d 1098 (2010)). However, the defendant's invocation of her rights need not be formal. She may simply tell the police that she does not want to talk to them. Buster at 162-163 (citing Berghuis at 2256; State v. Morrisey, 351 Mont. 144, 214 P.3d 708, 722 (2009) (defendant's statement, "I ain't saying nothing," was sufficient to assert the right to remain silent); and State v. Crump, 834 S.W.2d 265, 269 (Tenn.1992) (defendant's statement, "I don't have anything to say," was sufficient)).
We disagree with the trial court that Jennings's statement 48 minutes into the interview was not an invocation of her right to remain silent. We believe that she clearly informed the police that she did not wish to speak with them any longer when she told them, "Since I'm going to jail, that's all I've got to say," at the 48-minute mark in the interview. This statement by Jennings was an unequivocal invocation of the right to remain silent.
Jennings's prior alleged invocation of the right to remain silent at 28 minutes into the interview is more problematic. Arguably, when Jennings stated that she wanted to talk to the police when she was sober, she then could determine when she became sober. By continuing to talk with the police, and the police corroborating that she was not intoxicated, we must conclude that she was sober.
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When Jennings invoked her right to remain silent, the police had to scrupulously honor that right:
The Court in Mosley held that the "admissibility of statements obtained after the person in custody has decided to remain silent depends under Miranda on whether his 'right to cut off questioning' was 'scrupulously honored.' "Id. at 104, 96 S.Ct. 321 (quoting Miranda, 384 U.S. at 474, 479, 86 S.Ct. 1602). In making this inquiry, the Court looked at several circumstances surrounding the series of interrogations: (1) whether the suspect was informed of his Miranda rights before the initial interrogation; (2) whether the officer "immediately ceased the interrogation and did not try either to resume the questioning or in any way persuade [the suspect] to reconsider his position" once the suspect invoked his right to silence; (3) the differences in the circumstances between the original and subsequent interrogation, such as whether it was about the same or different offense, the length of time between the two interrogations, whether it was conducted in aBuster at 164 (Ky. 2012).
different location, and whether it was conducted by a different officer; and (4) whether the suspect was re-informed of the Miranda rights before the second interrogation. Id. at 104-05, 96 S.Ct. 321.
The trial court never addressed whether the police scrupulously honored Jennings's right to remain silent as the court concluded that Jennings did not invoke said right until over an hour into the interview. We believe remand is appropriate for the trial court to address this matter in light of our conclusion that Jennings invoked her right to remain silent 48 minutes into the interview when she stated, "Since I'm going to jail, that's all I've got to say." Accordingly, we reverse and remand on this basis.
As her next basis for appeal, Jennings also asserts that she invoked her right to counsel earlier in the interview in contrast as to when the trial court found she invoked this right. In Davis v. United States, 512 U.S. 452, 114 S.Ct. 2350, 129 L.Ed.2d (1994), the United States Supreme Court, in discussing the Fifth Amendment right to counsel, explained that Miranda v. Arizona entitles a suspect "to the assistance of counsel during custodial interrogation even though the Constitution does not provide such assistance." Davis, 512 U.S. at 462, 114 S.Ct. at 2356. Edwards v. Arizona 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 368 (1981), requires the police to immediately cease questioning the suspect once he or she invokes the right to counsel. Davis, 512 U.S. at 462, 2356. The Court went on to note that it was "unwilling to create a third layer of prophylaxis to prevent police questioning when the suspect might want a lawyer. Unless the suspect actually requests an attorney, questioning may continue." Id. at 462, 2357.
We agree with the trial court that Jennings's statements regarding her invoking her right to an attorney were not clear and unequivocal until Jennings's stated, "I'm done answering your questions. I need a lawyer, you're confusing me," over an hour into the interview. Accordingly, we affirm on this issue.
Last, we address Jennings's argument concerning the search of her phone. We begin by noting that "searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment subject only to a few specifically established and well-delineated exceptions." Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967). A search pursuant to consent is one such exception. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043-2044, 36 L.Ed.2d 854 (1973).
"The standard for determining whether consent has been given 'is one of objective reasonableness.'" Hallum v. Commonwealth, 219 S.W.3d 216, 221 (Ky. App. 2007) (citing Commonwealth v. Fox, 48 S.W.3d 24, 28 (Ky. 2001)). "To determine whether consent to search is constitutional in a particular case, we review 'all the surrounding circumstances.'" Id. (citing Cook v. Commonwealth, 826 S.W.2d 329, 331 (Ky. 1992)). The objective reasonableness standard is also applied when measuring the scope of a consensual search. This is done by discerning what a reasonable person would have understood by the exchange between the party giving consent and the party receiving it. Commonwealth v. Fox at 27.
However, when a search is authorized by consent, the officer is not given carte blanche right to search:
Even when a search is authorized by consent, the scope of the search is limited by the terms of its authorization. Shamaeizadeh v. Cunigan, 338 F.3d 535 (6th Cir.2003), cert. denied, 541 U.S. 1041, 124 S.Ct. 2159, 158 L.Ed.2d 729 (2004). "The standard for measuring the scope of a suspect's consent under the Fourth Amendment is that of 'objective' reasonableness—what would the typical reasonable person have understood by the exchange between the officer and the suspect?" Florida v. Jimeno, 500 U.S. 248, 251, 111 S.Ct. 1801, 1804, 114 L.Ed.2d 297, 302 (1991) (quoting Illinois v. Rodriguez, 497 U.S. 177, 183-189, 110 S.Ct. 2793, 2798-2802, 111 L.Ed.2d 148 (1990)).Farmer v. Commonwealth, 169 S.W.3d 50, 52 (Ky. App. 2005).
Sub judice, the court concluded that there were many places to find the phone number on the phone and there was no evidence to suggest the detective was looking in a place where a number could not be found. While we may have concluded otherwise, the trial court was in the best position to judge the credibility of the detective who discussed looking through Jennings's phone; accordingly, we decline to reverse on this ground. See Sowell v. Commonwealth, 168 S.W.3d 429, 431 (Ky. App. 2005), and Stewart v. Commonwealth, 44 S.W.3d 376, 380 (Ky. App. 2000).
Jennings next argues that her claim of intoxication impacted the validity of her consent. In addressing this argument:
We note that Kentucky precedent, at least implicitly, recognizes that at least in some cases, the fact that a defendant is under the influence of alcohol or drugs does not necessarily mean that he or she is too intoxicated to be able validly to consent to a search. See Cook, 826 S.W.2d at 331 (affirming Court of Appeals' reversal of trial court's suppressing defendant's blood alcohol test results in vehicular homicide case due to appellate courts' conclusion that defendant voluntarily consented and noting that "[t]here is nothing in the record that shows the defendant's mental or physical condition was such that he was unable to give his permission to allow the police to obtain a blood sample."); Farmer, 6 S.W.3d at 146 (although apparently not presented with argument that defendant's being under influence of alcohol rendered him incapable of consenting to blood test, nevertheless upholding trial court's denial of defendant's motion to suppress blood alcohol test results in vehicular homicide case based upon voluntary consent).While we acknowledge that Schneckloth requires consideration of whether a suspect was in a "subjectively vulnerable state" and that intoxication may put one in a subjectively vulnerable state, we cannot say that the totality of the circumstances here (including the officer's testimony that Sharon knew what she was doing despite her intoxication) mandates a conclusion that her consent was involuntary. As we read Schneckloth, evidence which suggests that one may be in a subjectively "vulnerable state," by itself, does not necessarily require a determination that one's consent was involuntary but, rather, is simply one of several factors to be considered. Further, we believe that more recent case law from both our Kentucky courts and the United States Supreme Court suggests that we must primarily focus on whether law enforcement officers' conduct was objectively coercive, rather than judging voluntariness solely based on a suspect's subjective perceptions. See, e.g., Cook; Connelly, 479 U.S. at 170-71, 107 S.Ct. 515 (holding that in determining whether confession should be excluded as involuntarily given, some coercive governmental action must be shown for a confession to be properly excluded as involuntary and indicating that aPayton v. Commonwealth, 327 S.W.3d 468, 475 n. 17 (Ky. 2010).
defendant's subjective perception is not, by itself, dispositive).
We must conclude from the evidence presented to the court below that the totality of the circumstances mandates a conclusion that the consent Jennings gave was voluntary. Accordingly, we decline to reverse on this ground.
Last, Jennings argues that the trial court erred in permitting the Commonwealth to call Dr. Borzada, a trauma surgeon who treated Washington, as a fact witness, with which the Commonwealth disagrees. We believe this matter to be resolved by the Kentucky Supreme Court's recent decision in McDaniel v. Commonwealth, ---S.W.3d---, 2013 WL 6834977 (Ky. Dec. 19, 2013). Therein, the Court addressed the same arguments presented herein on McDaniel's direct appeal and concluded that the error was harmless and, thus, not reversible:
C. The Trial Court Did Not Commit Reversible Error When It Allowed a Fact Witness to Present an Expert OpinionMcDaniel v. Commonwealth, ---S.W.3d---, 2013 WL 6834977, *6-9.
Appellant next asserts that the trial court improperly treated Dr. Anthony Borzada as a "fact witness" yet allowed him to testify to matters as an "expert witness." Specifically, Appellant alleges that it was reversible error to designate Dr. Borzada as a "fact witness" but still allow him to testify about his qualifications, why he chose to perform surgery on Washington, and the amount of pain Washington endured as a result of the surgical procedure.
1. Testimony as to Qualifications
Appellant's first issue with the testimony of Dr. Borzada is that the doctor was allowed to briefly testify to his education and training experience. Appellant claims that, if Dr. Borzada was testifying as a lay
witness, he should not have been allowed to testify as to his qualifications.
Appellant does not cite any cases holding that a lay witness may not answer questions about his background. Obviously, background information is relevant to jurors in that it aids in assessing the credibility of fact witnesses and in determining the weight to give their testimony—questions within the unique province of the jury. See Hatfield v. Commonwealth, 250 S.W.3d 590, 596 (Ky.2008) (citation omitted) ("It is the job of the jury to evaluate the credibility of witnesses and lend to that evaluation the relative weight they deem fit."). Whether Dr. Borzada was testifying as a lay witness or as an expert, there was nothing inappropriate with the Commonwealth establishing his credibility by inquiring into his background. We find no error in Dr. Borzada briefly explaining to the jury where he earned his degrees and performed his residency. This background information aids the jury by putting Dr. Borzada's role in the treatment of Washington's injuries into context.
2. Expert Opinion Testimony
Appellant also claims that it was error for Dr. Borzada to offer his opinions on two different topics during the trial, which Appellant claims constituted "expert opinions." First, the Commonwealth asked Dr. Borzada what would have happened if he had not provided Washington with surgical care. Appellant objected and the Commonwealth rephrased the question, this time asking Dr. Borzada if he would unnecessarily perform surgery. Second, Dr. Borzada provided testimony on the amount of pain endured by Washington. This included testimony on the pain of the procedures performed, the length of time before the pain would subside, and what type of medications would be prescribed. Appellant is correct that both of these questions went to the prognosis of Washington and called for the "expert opinion" of Dr. Borzada. Appellant asserts that allowing Dr. Borzada's testimony on these matters violated KRE [Kentucky Rules of Evidence] 701(c), KRE 702, and RCr 7.24(1)(c).
1. KRE 701 and KRE 702
KRE 701(c) prohibits a lay witness from testifying on matters "based on scientific, technical, or other
specialized knowledge within the scope of Rule 702." The Evidence Rules Review Commission Notes regarding KRE 701 indicate that subsection (c) is specifically intended to combat the possibility of counsel avoiding the reliability standards set out in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) "by the simple process of offering 'scientific, technical, or other specialized knowledge' evidence through a witness that an attorney sought to identify as a 'lay witness.' "
In the present case, although the Commonwealth specifically identified Dr. Borzada as a "fact witness" and fought to preserve his status as such, it did not attempt to avoid the reliability standards of Daubert. As previously mentioned, Dr. Borzada testified to his education and training, including his certification by the American Board of Surgery. In order to satisfy Daubert, as codified in KRE 702, a witness must be qualified by "knowledge, skill, experience, training, or education." Nonetheless, Appellant asserts that because the trial court did not formally certify Dr. Borzada as an expert, he was not qualified to speak to expert matters.
"The decision to qualify a witness as an expert rests in the sound discretion of the trial court." Kemper v. Gordon, 272 S.W.3d 146, 154 (Ky.2008) (citation omitted). Furthermore, "[A] trial court has wide latitude in deciding how to test an expert's reliability and in deciding whether or when special briefing or other proceedings, i.e., at a Daubert hearing, is needed to investigate reliability." Dixon v. Commonwealth, 149 S.W.3d 426, 430 (Ky.2004) (citing Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999)). "Formal Daubert hearings are not always required." Id.
We find that Dr. Borzada's testimony regarding his background provided a sufficient basis for the trial court to find that he had the necessary expertise to testify on the necessity of surgery and the amount of pain suffered by Washington. Therefore, we find no violation of KRE 702's requirement that an expert witness must be qualified. Furthermore, we find no violation of KRE 701 because the evil that this rule seeks to avoid, the introduction of unreliable expert opinions through a lay
witness, was prevented by Dr. Borzada's qualification pursuant to KRE 702.
2. RCr 7.24(1)(c)
Having determined that Dr. Borzada's testimony did not violate KRE 701(c) or 702, we now turn to Appellant's allegation that the trial court erred in allowing the Commonwealth to skirt the requirements of RCr 7.24(1)(c), which requires the Commonwealth to provide certain discovery materials relating to expert witnesses to the defense upon written request, by designating Dr. Borzada as a "fact witness" yet allowing him to provide expert medical opinions. After a thorough review of the trial court's treatment of Dr. Borzada, we find that Appellant's argument has merit.
Prior to trial, the trial judge postulated that Dr. Borzada could testify as a "fact witness" so long as he only testified to his actions in treating Washington. This allowed the Commonwealth to avoid providing the Appellant with a written summary "describ[ing] the witness's opinions, the bases and reasons for those opinions, and the witness's qualifications" as required by RCr 7.24(1)(c). At trial, the Commonwealth stated that its reason for not turning over medical records to the defense was that Dr. Borzada was only being called as a "fact witness." Despite its determination that Dr. Borzada was to testify only as a "fact witness," the trial court subsequently allowed him to offer expert medical opinions, as explained above.
The standard of review for a trial court's evidentiary rulings is abuse of discretion. Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575, 577 (Ky.2000). The test for abuse of discretion is "whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky.1999).
In the present case, the trial court allowed the Commonwealth to have their cake and eat it too by permitting the Commonwealth to skirt providing discovery under RCr 7.24(1)(c) by designating Dr. Borzada a "fact witness" and subsequently letting him render expert opinions on the stand. "A cat and mouse game whereby the Commonwealth is permitted to withhold important information requested by the accused
cannot be countenanced." James v. Commonwealth, 482 S.W.2d 92, 92 (Ky.1972). We hold that the approach of the trial court in this instance was markedly unfair, and it constituted an abuse of discretion. English, 993 S.W.2d at 945. This Court is not in approval of this procedure. We now must address whether the error was harmless. RCr 9.24.
RCr 9.24 provides that harmless error is "any error or defect in the proceeding that does not affect the substantial rights of the parties." A reviewing court should ask "whether the error itself had substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand." Winstead v. Commonwealth, 283 S.W.3d 678, 689 (Ky.2009) (quoting Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)).
Turning to the two expert opinions improperly given by Dr. Borzada, prior to the first, the trial judge properly sustained the defense's objection to the Commonwealth's question of what would have happened to Washington without surgery. The Commonwealth's rephrasing of the question, this time asking whether Dr. Borzada performs surgery unnecessarily, was far less likely to create prejudice because the inference that Washington needed surgery would have been apparent to the jury when Dr. Borzada testified that he did in fact perform several procedures on Appellant. Furthermore, the expert opinion of Dr. Borzada's prognosis was not particularly harsh—he testified that a person with Washington's injuries would take a "couple of weeks" before the pain would settle down and would require medication until that time.
Even when acting as a "fact witness," Dr. Borzada could still testify to Washington's condition upon arrival at the hospital because it was a matter within Dr. Borzada's personal knowledge. KRE 602. Dr. Borzada's admissible testimony revealed that Washington suffered from three gunshot wounds, the most serious of which went through his chest and abdomen. Dr. Borzada also testified to having to insert a tube in Washington's chest to prevent the collapse of his lung. Washington himself testified to being shot multiple times, not being able to eat for days, losing feeling in his legs, and the scars that
remain from the bullets. The admissible portion of Dr. Borzada's testimony, as well as Washington's own testimony, provided ample evidence of the seriousness of Washington's injuries. Therefore, Dr. Borzada's improper expert opinions could not have substantially influenced the case. Winstead, 283 S.W.3d at 689. Thus, we find that the errant admission of Dr. Borzada's expert opinions was harmless error.
In light of McDaniel, we decline to opine on the issue because it has been decided on direct appeal to our Supreme Court. Accordingly, further review is precluded.
In light of the aforementioned, we reverse and remand this matter for further proceedings.
COMBS, JUDGE, CONCURS.
THOMPSON, JUDGE, CONCURS IN RESULT ONLY. BRIEFS FOR APPELLANT: Kathleen K. Schmidt
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Courtney J. Hightower
Assistant Attorney General
Frankfort, Kentucky