Bond v. Commonwealth

Decision Date19 February 2015
Docket Number2013–SC–000833–MR
Citation453 S.W.3d 729
PartiesGary Steven Bond, Appellant v. Commonwealth of Kentucky, Appellee
CourtUnited States State Supreme Court — District of Kentucky

COUNSEL FOR APPELLANT: Daniel T. Goyette, Louisville, Cicely Jaracz Lambert, Frankfort, Office of the Louisville Metro Public Defender

COUNSEL FOR APPELLEE: Jack Conway, Attorney General of Kentucky, James Coleman Shackelford, Assistant Attorney General

Opinion

OPINION OF THE COURT BY JUSTICE KELLER

A jury found Gary Steven Bond (Bond) guilty of murder and sodomy in the first degree. The court, consistent with the jury's recommendation, sentenced Bond to life without the possibility of parole for 25 years on the murder conviction.1 The court, consistent with an agreement between Bond and the Commonwealth, sentenced Bond to 20 years' imprisonment on the sodomy charge, to run concurrently with the sentence for murder. Bond appeals his convictions arguing: (1) the court should have suppressed a statement he gave to police; (2) absent suppression, the court should have permitted Bond to play his entire statement for the jury; and (3) the court should have granted a directed verdict on the sodomy charge because there was no corroborating proof to support his confession to that crime. For the following reasons, we affirm.

I. BACKGROUND.

In May of 2010, Mark Shelby (Shelby) was temporarily living with Bond and sleeping on Bond's couch. At approximately 5:30 p.m. on May 11, Shelby arrived at Bond's apartment and found Bond and his girlfriend, Julie Hendricks (Hendricks), getting dressed in the bedroom. The three ate dinner and drank some beer and Jagermeister.2 At approximately 8:00 p.m. Hendricks passed out on the living room floor. Because Hendricks weighed in excess of 250 pounds, Bond and Shelby could not lift her. Therefore, they dragged her into the bedroom and left her on the floor. Bond covered Hendricks, who was clothed, with a blanket and he and Shelby returned to the living room. At approximately 10:00 p.m., Bond went into the bedroom, and Shelby went to sleep on the couch.

At approximately 1:45 a.m. Bond woke Shelby and said that he thought Hendricks had died. Shelby went into the bedroom and saw that Hendricks, who was nude, was turning blue and appeared to be dead. Shelby encouraged Bond to call 911, which Bond did approximately a half hour later. Emergency personnel confirmed that Hendricks had died and, because the death appeared suspicious, the deputy coroner called the police. Detective Brenda Wescott (Detective Wescott) arrived at Bond's apartment at approximately 4:30 a.m. and interviewed Bond and Shelby. However, because she did not initially believe Hendricks's death was a homicide, Wescott did not take any physical evidence from Bond's apartment.

The autopsy report indicated that Hendricks had died as the result of strangulation and that she had had anal sex sometime prior to her death. Based on these findings, police officers returned to Bond's apartment and asked him if he would go to the station to be interviewed. Bond agreed. After reading Bond his rights and obtaining a waiver, Detective John Lesher (Detective Lesher) questioned Bond at length. During that interview, Bond admitted that he had had anal sex with Hendricks while she was unconscious on the bedroom floor and that he had pulled on Hendricks's tee shirt while doing so. However, he stated that he did not think Hendricks died at that time. Later, Bond denied that he had anal sex with Hendricks while she was unconscious, stating that the couple had consensual anal sex earlier in the day and were interrupted by Shelby. Bond also claimed that Lesher concocted the story about him having anal sex with Hendricks while she was unconscious.

The officers arrested Bond and charged him with murder and first-degree sodomy. Prior to trial, Bond moved to suppress his statement, a motion the court denied. At trial, the Commonwealth played portions of Bond's statement and Bond moved for leave to play the entire statement, a motion the court denied. We set forth additional facts about Bond's statement, which is at the center of this appeal, as necessary below.

II. STANDARD OF REVIEW.

The issues raised by Bond have differing standards of review. Therefore, we set forth the appropriate standard as we address each of the issues Bond raises.

III. ANALYSIS.
A. Motion to Suppress.

The standard of review on a suppression motion is twofold. First, we defer to the trial court's factual findings if they are supported by substantial evidence and only review such findings for clear error. RCr 9.78 ; Commonwealth v. Neal, 84 S.W.3d 920, 923 (Ky.App.2002). Second, when the findings of fact are supported by substantial evidence, we review the court's application of the law to those facts de novo. Roberson v. Commonwealth, 185 S.W.3d 634, 637 (Ky.2006). When undertaking that review we take care “to give due weight to inferences drawn from those facts by resident judges and local law enforcement officers.” Ornelas v. United States, 517 U.S. 690 at 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996).

On July 17, 2013, Bond filed a motion to suppress the May 13, 2010, statement he gave to Detectives Lesher, Cohn, and Wescott.3 Bond did not challenge the fact that he had been advised he had the right to remain silent and to counsel and that he waived those rights before agreeing to speak with the detectives. However, he argued that the detectives intentionally minimized the significance of the warning about the implications of waiving his rights so as to negate the knowingness of his waiver. He also argued that police conduct during the interviews was unduly oppressive and coercive, thus negating the voluntariness of his waiver. The Commonwealth argued that Bond was not in custody and that he had knowingly and voluntarily waived his rights.

Following an evidentiary hearing, the trial court denied Bond's motion finding that the interrogation was custodial; that Bond had been advised of his rights; and that he had waived them. In doing so, the court noted that Bond never asked the detectives to stop the interrogation, and he never asked to speak with an attorney. The court also found that the tactics used by the detective were “fairly standard.”4 Bond did not file any motions seeking additional findings of fact from the court.

Bond continues to argue on appeal that the detectives' actions vitiated the knowingness and voluntariness of his waiver and were unduly coercive. He also argues that the trial court did not make sufficient findings of fact. The Commonwealth argues to the contrary. We address each issue separately below.

1. Knowingness of Waiver.

Bond argues that the detectives negated the waiver of his rights by misleading him as to the significance of the waiver and the nature of the interview. In support of his argument, he points to several statements made by the detectives during the interview. At the beginning of the interview, Detective Lesher told Bond that he had a digital audio recorder for his use because he “forget[s] a lot.” Detective Lesher then asked Bond if it was okay to record the interview, and Bond said it was. However, Detective Lesher did not tell Bond that the interview was being recorded by a video camera as well as the audio recorder.

After obtaining Bond's consent to record the interview, Detective Lesher asked Bond if he ever watched any true crime stories on television. Bond stated that he did, and Detective Lesher then said, “Okay. Uh, I'm gonna read you your rights, we do this all the time. It's no big deal. Okay?” Detective Lesher then read Bond his rights; Bond agreed that he understood his rights; and he signed a written waiver form. Later in the interview, Detective Lesher described his wife as “a freak” when it comes to sex, and began describing his sex life. Bond, referring to the digital recorder, said, “Turn that off.” Lesher said, “Oh, I don't care about that. It's just for me.” Bond then said, “Oh, Okay.” And Detective Lesher reiterated, [T]hat's just for me to remember.”

Bond argues that this behavior by Detective Lesher is the same type of behavior this Court condemned in Leger v. Commonwealth, 400 S.W.3d 745 (Ky.2013.) In Leger, after being read his rights, Leger agreed to speak with a police officer about several crimes he allegedly committed. Id. at 747. When questioned about specific incidents, Leger asked the officer, “What I am telling you now is between us, right. It ain't goin' [unintelligible]?” To which the officer replied, “Right.” Id. Leger then confessed to several of the alleged offenses. Id. Leger sought to suppress his statement arguing that the officer's assurance the statement would be “between us had vitiated the previously given Miranda warnings. Leger also argued that the officer's interrogation style was “so deceptive that it unfairly induced [Leger] to forget that the [officer] was an ‘adversary,’ and ‘revealed an atmosphere’ that prompted [Leger] to speak against his better interest.” Id. at 748.

As to the officer's interrogation style, we discerned “absolutely nothing improper about” his “courteous and friendly demeanor or the impression of cordiality created by his manner of speaking with [Leger].” Id. Furthermore, we recognized that [a]rtful deception is an invaluable and legitimate tool in the police officer's bag of clever investigative devices, but deception about the rights protected by Miranda and the legal effects of giving up those rights is not one of those tools.” Id. at 750.

As in Leger, we discern nothing improper about Detective Lesher's interrogation style. Although Detective Lesher's statements about his wife may have been deceptive and may have lulled Bond into a sense of security, they were not beyond the bounds of acceptable “clever investigative devices.”

Furthermore, Detective Lesher's comments that the digital recorder was “just for me” because he “forgets a lot” do not rise to the level of the statements by the officer in Leger and the cases we cited...

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