Brashars v. Com.

• Decision Date: 24 August 2000
• Docket Number: 1999-SC-0853-MR.,No. 1999-SC-0852-MR,1999-SC-0852-MR
• Citation: 25 S.W.3d 58
• Parties: James P. BRASHARS, Appellant, v. COMMONWEALTH of Kentucky, Appellee. Gary Lynn Johnston, Appellant, v. Commonwealth of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

25 S.W.3d 58

James P. BRASHARS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Gary Lynn Johnston, Appellant, v. Commonwealth of Kentucky, Appellee.

Nos. 1999-SC-0852-MR, 1999-SC-0853-MR.

Supreme Court of Kentucky.

August 24, 2000.

Frank W. Heft, Jr., Office of the Jefferson District Public Defender, Daniel T. Goyette, Jefferson District Public Defender, of Counsel, Louisville, for Appellant, James P. Brashars.

J. David Niehaus, Deputy Appellate Defender, Office of the Jefferson District Public Defender, Daniel T. Goyette, Jefferson District Public Defender, of Counsel, Louisville, for Appellant, Gary L. Johnston.

A.B. Chandler, III, Attorney General, Brian T. Judy, Assistant Attorney General, Criminal Appellate Division, Frankfort, for Appellee.

MEMORANDUM OPINION OF THE COURT

The trial court entered judgment upon appellants' conditional guilty pleas to the felony offenses of First Degree Sodomy of a child under twelve (12) years of age and First Degree Sexual Abuse and to the misdemeanor offense of Distribution of Obscene Matter to a Minor. The trial court sentenced each defendant to the minimum sentence of twenty (20) years for First Degree Sodomy, the maximum sentence of five (5) years for First Degree Sexual Abuse, and twelve (12) months for Distribution of Obscene Matter to a Minor and ordered that the sentences on the three convictions run concurrently for a total sentence of twenty (20) years. Brashars and Johnston appeal to this Court as a matter of right. After a review of the record, we affirm the trial court's judgment with respect to both appellants.

BACKGROUND

The Jefferson County Grand Jury returned indictments for the three crimes with which the appellants stand convicted against Brashars, Johnston, and a third man, David J. Southard,¹ The Commonwealth alleged that the men had subjected an eight (8) year old child, J.J., to sexual contact, including deviate sexual conduct, and had shown the child homosexual pornographic movies.

Pursuant to RCr 7.24(1), the Commonwealth disclosed to the appellants during pre-trial discovery that it intended to introduce at trial incriminating statements made by the appellants to Detective William Stanley during Detective Stanley's investigation. Brashars and Johnston filed motions to suppress these statements on the grounds that they had not given the statements voluntarily.

The trial court conducted an evidentiary hearing at which Detective Stanley testified that he had worked as a police officer for nineteen (19) years and spent the last ten (10) years assigned to the Crimes Against Children Unit (CACU). Detective Stanley explained that he investigated allegations that the three men had sexual contact with a male child, and testified that he interviewed the men both at the trailer park where they resided and at the CACU office downtown. Detective Stanley testified that he had given the appropriate Miranda warnings to the men prior to his questioning and that each of the men had signed a form stating that he understood his rights and did not wish to have an attorney present during questioning. Detective Stanley questioned each of the men individually at the CACU office and each of the men admitted to the accusations.

Detective Stanley admitted that he did not record any of the interviews on video or audio tape and indicated he had not done so because the men exhibited reluctance to speak with him initially and he was concerned that the men would not have allowed him to continue questioning them if he tried to record their statements. Although the CACU does not have a policy regarding the electronic recording of interrogations, Detective Stanley explained that he had used tape recorders in the past and knew that the Captain's office contained a video camera and that audio equipment was available to him.

Brashars and Johnston then abandoned the original grounds for their suppression motions and argued that the trial court should suppress the confessions because Detective Stanley elected not to record the confessions on video or audiotape and that due process requires law enforcement officers, where feasible, to tape interrogations. After asking the parties to brief the issue, the trial court overruled the appellants' motions to suppress their incriminating statements and set the matter for trial.

Subsequently, the appellants reached a plea agreement with the Commonwealth and petitioned the court, pursuant to RCr 8.09, to allow them to enter a conditional guilty plea and preserve for appellate review the trial court's ruling with respect to their motions to suppress their confessions. The trial court accepted the conditional guilty pleas and sentenced Brashars and Johnston in accordance with the Commonwealth's recommendations.

ELECTRONIC RECORDING OF QUESTIONING

Brashars and Johnston acknowledge that the issue of whether due process and the Commonwealth's responsibility to preserve evidence require law enforcement officials to electronically record custodial interrogations is an issue of first impression in the Commonwealth. The appellants argue that this Court should hold that trial courts should suppress alleged confessions in cases where the Commonwealth seeks to admit incriminating statements stemming from unrecorded custodial interrogations² because defendants otherwise must engage in a "swearing contest" with law enforcement officers in order to litigate issues relating to the voluntariness or substance of confessions. According to Brashars and Johnston, trial courts invariably resolve these "swearing contests" in favor of the law enforcement officers, and a recording requirement is necessary to adequately protect defendants and to ensure fair process. Brashars and Johnston cite to case law from a minority of jurisdictions which have either interpreted their state constitutional due process guarantees to require law enforcement officers to electronically record oral statements of the accused during custodial interrogations³ or which have adopted such a requirement pursuant to their supervisory powers.⁴ They ask this Court to adopt a similar rule for prosecutions in the Commonwealth of Kentucky.

Brashars and Johnston concede that the due process protections of the Fifth and Fourteenth Amendments to the United States Constitution do not mandate a recording requirement, and, although the United States Supreme Court has not yet directly addressed this issue, we agree with other jurisdictions⁵ which have addressed this question that it is unlikely such claims could satisfy the standard of constitutional materiality adopted by the Court in California v. Trombetta.⁶

Consequently, the appellants seek a basis for a recording requirement in the Kentucky Constitution, and ask this Court to interpret the due process protections of our state constitution as exceeding those in the United States Constitution. In Commonwealth v. Cooper,⁷ this Court found the right against self-incrimination guaranteed by the Kentucky Constitution did not exceed the protections of the United States Constitution and cautioned that only in a handful of instances did Kentucky Constitutional protections exceed those in the United States Constitution:

From time to time in recent years this Court has interpreted the Constitution of Kentucky in a manner which differs from the interpretation of parallel constitutional rights by the Supreme Court of the United States. However, when we have differed from the Supreme Court, it has been because of Kentucky constitutional text, the Debates of the Constitutional Convention, history, tradition, and relevant precedent. We have admonished against "novel theories to revise well-established legal practice and principle" and stated the prevailing rule as follows:

While we have decided several recent cases protecting individual rights on state constitutional law grounds, our stated purpose is to do so only where the dictates of our Kentucky Constitution, tradition, and other relevant precedents call for such action.⁸

While we may use, in our analysis, the jurisprudence from our sister states which have addressed this issue in the context of their own constitutional provisions,⁹ our decision eventually must turn on an interpretation of the due process protections afforded criminal defendants in Kentucky Constitution Section Eleven:

In all criminal prosecutions the accused has the right to be heard by himself and counsel; to demand the nature and cause of the accusation against him; to meet the witnesses face to face, and to have compulsory process for obtaining witnesses in his favor. He cannot be compelled to give evidence against himself, nor can he be deprived of his life, liberty or property, unless by the judgment of his peers or the law of the land; and in prosecutions by indictment or information, he shall have a speedy public trial by an impartial jury of the vicinage; but the General Assembly may provide by a general law for a change of venue in such prosecutions for both the defendant and the Commonwealth; the change to be made to the most convenient county in which a fair trial can be obtained.¹⁰

After reviewing the text, history, and previous precedent interpreting Section Eleven's due process protections, we hold that the Constitution of Kentucky does not mandate the electronic recording requirement advocated by the appellants.

This Court has never held that the procedural due process protections of Section Eleven extend beyond the protections of the Fifth and Fourteenth Amendments to the United States Constitution, and the appellate courts of this state have interpreted other clauses of Section Eleven as co-extensive with federal protections.¹¹ Additionally, in Commonwealth v. Raines,¹² we implicitly found Section Eleven's protections co-extensive with federal protections when we jointly addressed, under standards adopted from federal case law, federal and state due process challenges to a statute authorizing pretrial...