KY: Simmons error requires objection to preserve claim; no plain error because Fifth Amendment not self-executing

A Simmons error of use of defendant’s suppression hearing testimony showing standing and control over the place searched was not subject to plain error analysis. An objection is required. Commonwealth v. Taylor, 2015 Ky. LEXIS 2012 (Dec. 17, 2015):

There is no question that the use at trial of a criminal defendant’s suppression-hearing testimony as evidence of guilt can violate his or her constitutional rights. The only question here is whether it does so in all cases.

In 1968, the U.S. Supreme Court addressed the dilemma faced by defendants who had to either choose to make admissions at a suppression hearing to establish their standing to challenge seized evidence, or to maintain their silence and thereby preserve their right not to incriminate themselves at trial. Simmons v. United States, 390 U.S. 377, 392-93, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968). The Court described the dilemma succinctly as follows: “[A] defendant who wishes to establish standing must do so at the risk that the words which he utters may later be used to incriminate him.” Id. at 393. In essence, a defendant was required to choose between making a Fourth Amendment claim and exercising the Fifth Amendment privilege against self-incrimination, which created “an undeniable tension.” Id. at 394. The Court found “it intolerable that one constitutional right should have to be surrendered in order to assert another.” Id. As a result, the Court held that “when a defendant testifies in support of a motion to suppress evidence on Fourth Amendment grounds, his testimony may not thereafter be admitted against him at trial on the issue of guilt unless he makes no objection.” Id.

This Court’s predecessor, the old Court of Appeals, applied this rule, describing it in slightly different fashion: “when a defendant testifies in support of a motion to suppress, his testimony may not thereafter be admitted against him at the trial on the issue of guilt unless he fails to object.” Shull v. Commonwealth, 475 S.W.2d 469, 472 (Ky. 1971).

. . .

The Fifth Amendment privilege is not self-executing. …

When a defendant testifies at a suppression hearing, he does so voluntarily, at least “[a]s an abstract matter.” Simmons, 390 U.S. at 393. “A defendant is ‘compelled’ to testify in support of a motion to suppress only in the sense that if he refrains from testifying he will have to forego a benefit, and testimony is not always involuntary as a matter of law simply because it is given to obtain a benefit.” Id. at 393-94. The Supreme Court crafted the Simmons rule only to resolve the tension created by that voluntary choice which would otherwise require a trade-off of one constitutional right for another. But that does not mean that a defendant has asserted his Fifth Amendment rights at that point. And there is no real question that he has been compelled to testify at the suppression hearing in the sense contemplated by the Fifth Amendment.

It simply makes sense to require the defendant to assert his Fifth Amendment right at some point. This is why the rule in Simmons (and Shull) is qualified by language requiring an objection. That requirement is part of the substantive constitutional rule. Failure to object to the use of the suppression-hearing testimony means that the defendant has not invoked his Fifth Amendment privilege. More importantly, it means that the use of that testimony, absent the objection, is not even error because there is no Fifth Amendment violation absent invocation of the privilege.