Bailey v. Com.

Decision Date15 June 2006
Docket NumberNo. 2003-SC-0935-DG.,2003-SC-0935-DG.
Citation194 S.W.3d 296
PartiesJoshua W. BAILEY, Appellant v. COMMONWEALTH of Kentucky, Appellee.
CourtUnited States State Supreme Court — District of Kentucky
Opinion of the Court by Justice JOHNSTONE.

Appellant, Joshua W. Bailey, was indicted by the Allen County grand jury on charges of first-degree sexual abuse against a minor less than twelve years of age. A lengthy suppression hearing was held at which the trial court suppressed the introduction of Appellant's statements to police investigators. The Court of Appeals reversed the ruling. This Court granted discretionary review.

A detailed explanation of the facts and a description of Bailey himself are necessary to the determination of this matter. Bailey, who was nineteen at the time of the alleged incident, is classified as moderately mentally retarded. He has an IQ of 50, which places him in the bottom .07% of the population. According to testimony presented at the suppression hearing, Bailey's mental ability is equivalent to that of a six-year-old child. He is illiterate and left school in the ninth grade.

The charges in this case arise from allegations made by a six-year-old child, L.J., claiming that Bailey "hurt her" when he was caring for the child. Bailey's uncle was dating L.J.'s mother, who asked Bailey to babysit her three daughters while the two went out on a date. L.J.'s mother first learned of the claims when her three-year-old daughter told her that Bailey had "made a hole" in L.J. L.J.'s older sister, then ten years old, confirmed that Bailey had taken the girl into a bedroom and shut the door, and that she heard her sister screaming in the closed bedroom the entire time. Upon learning of the allegations, the children's mother contacted social services.

Some four months later, Detective Woods of the Allen County Sheriff's office contacted Bailey concerning the allegations. Bailey denied any wrongdoing at that time, and declined the detective's request to submit to a polygraph exam. Detective Woods then told Bailey that, if he didn't take the exam, he would be forced to rely on the girl's statement and Bailey would "probably" be arrested. Bailey did agree to the exam at that time, though when the detective called back to schedule it, Bailey changed his mind. Later, Detective Woods visited Bailey at home again, and Bailey again expressed his reluctance to take the exam. Before departing, Detective Woods reminded him that he would likely be arrested if he didn't take the exam; Bailey called Detective Woods about an hour after his departure and agreed to the exam.

On March 1, 2001, Bailey was driven to the Allen County Sheriffs Department where he was met by Sheriff Foster. Sheriff Foster then drove Bailey to Madisonville, some two hours away, for the examination. John Bruner, a civilian employee of the Kentucky State Police, administered the polygraph exam.

During the pre-polygraph interview, Bruner first advised Bailey of his rights pursuant to an "agreement to take polygraph examination," which includes a recitation of the Miranda rights. Bailey had substantial difficulty understanding these rights; he replied that he understood the right to remain silent as meaning "you are going to jail," and the right to a public defender as meaning "you are in trouble." When advised of his right to an attorney, Bailey inquired what "an atturnity" is. After about fifteen minutes of discussing his rights, Bruner instructed Bailey to sign his name on the form.

During a series of control questions at the outset of the exam, Mr. Bruner elicited general background information from Bailey. Bailey revealed that he quit school in the ninth grade, was unemployed, was in special education classes in school, and that he had absolutely no prior experience with law enforcement.

Bruner then questioned Bailey about the case, mainly through a series of "yes" and "no" questions. Bailey answered questions indicating that he did babysit the three sisters while his uncle went out with the girls' mother. He denied taking the alleged victim into a bedroom and shutting the door, and denied touching the girl sexually. When asked why the child would make such allegations, Bailey opined that the girl was mad at him for making her go to bed early.

After about an hour, Bruner took a short break. Before re-starting the examination, Bruner asked Bailey if he remembered his rights. Bailey was at first confused, but then replied in the affirmative. Mr. Bruner then reviewed the questions that would be on the exam. Again, Bailey denied touching the girl sexually. He further denied putting his penis inside her or between her legs.

Bailey was hooked up to the polygraph machine. Mr. Brunerthen ran a control test to see how the machine would register a lie from Bailey, which consisted of Bailey writing a number in the center of the page then denying that he had written the number. Bailey had significant difficulty following these directions. The examination itself was started nonetheless.

At this point, nearly two hours into the examination process, Mr. Bruner left the room. When he returned, he showed Bailey the polygraph charts and told him that he was not "being totally honest" during the exam. Bruner's tone changed markedly at this point: while he had previously accepted Bailey's denials with mild skepticism, his attitude now reflected the position that the results of the polygraph exam indicated conclusively that Bailey was lying. Bruner began pressing Bailey with questions that began with statements such as, "I know you're lying" and "this machine has told me you are lying." Bailey nodded his head in agreement to each of these statements.

Bruner then spent some time explaining to Bailey why it is important to tell the truth, reminding him that all people make mistakes in their lives. Bruner also told Bailey that something had happened with the child, and that it was important for Bailey to be honest. He reminded Bailey that the machine said he was lying. He began offering possible scenarios by which Bailey might have touched L.J. inappropriately, while continuously reminding Bailey that he "knew" that something bad had happened. Finally, Bruner suggested that perhaps Bailey had "rubbed" his penis on the girl or touched her with his hands. Bailey responded that perhaps he had touched the girl when he went to change her clothes, but that he didn't mean to do that.

Unsatisfied, Bruner continued questioning Bailey although the polygraph machine was no longer hooked up. Bailey continued to deny having touched the girl and denied having put his penis on her. During these denials, Bruner repeatedly accused Bailey of lying to which Bailey sometimes responded that he was "real nervous." By this point in the examination, Bailey had expressly denied various suggestions of wrongdoing no less than thirty times. Bruner rejected each of Bailey's denials by countering with the results of the polygraph examination.

Finally, Bruner suggested two scenarios: "I don't know if you put your penis all the way into her, or if you just rubbed it over her vagina. But your penis came in contact with her somehow — you tell which how." Bailey replied, "Maybe I rubbed it on her ... but only because I didn't know what I was doing." Bruner then asked, "So you rubbed it on top of her panties" and Bailey responded, "Yeah." Bailey denied having penetrated the child. This confession lasted approximately two or three minutes. The majority of the incriminating statements were elicited in the form of "yes" or "no" questions.

Following this confession, Bailey was driven back to the Allen County Sheriffs office where he was met by Detective Woods. Bruner had told Bailey that he "needed" to talk to Detective Woods; when Woods asked Bailey if he wanted to talk about the exam, Bailey responded "yes, I need to." After spending about a minute or two reviewing the Miranda rights, Bailey agreed to give a taped statement reciting what he had told Bruner. Bailey offered a very brief confession, again largely by answering "yes" or "no" to questions posed by Detective Woods. He was thereafter arrested.

Defense counsel moved to suppress the confession. Following a four-hour suppression hearing, the trial court granted the motion. The Commonwealth appealed, and the Court of Appeals reversed. This Court granted discretionary review. The Commonwealth bears the burden of establishing the voluntariness of a confession by a preponderance of the evidence. Tabor v. Commonwealth, 613 S.W.2d 133, 134 (Ky.1981). If supported by substantial evidence, the trial court's conclusion regarding the voluntariness of the confession is conclusive. Henson v. Commonwealth, 20 S.W.3d 466, 469 (Ky.1999).

The Due Process Clause of the Fourteenth Amendment prohibits the admission of involuntary confessions: "[if the defendant's] will has been overborne and his capacity for self-determination critically impaired, the use of [the] confession offends due process." Schneckloth v. Bustamonte, 412 U.S. 218, 225-26, 93 S.Ct. 2041, 2047, 36 L.Ed.2d 854 (1973). "The voluntariness of a confession is assessed based on the totality of the circumstances surrounding the making of the confession." Mills v. Commonwealth, 996 S.W.2d 473, 481 (Ky.1999). However, the threshold question to a voluntariness analysis is the presence or absence of coercive police activity: "coercive police activity is a necessary predicate to the finding that a confession is not `voluntary' within the meaning of the Due Process Clause of the Fourteenth Amendment." Colorado v. Connelly, 479 U.S. 157, 167, 107 S.Ct. 515, 522, 93 L.Ed.2d 473, 484 (1986). Section 11 of the Kentucky Constitution also...

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